Questions Flashcards
X and Y wanted to get married as soon as they reached age 18. Both went to obtain a physician certificate after solemnisation. Is this a valid marriage?
Statutory licensed marriage
1) Capacity
- 18 years of age
- Voluntary (NO coercion/threat/duress)
- Competent (NO drugs/alcohol)
2) Obtained licence
- Physician certificate => Prove both spouses are free from communable disease (some states provide certificate immediately, some states require 72 hours)
3) Solemnisation
X and Y were 24 at the time when they went to get solemnised. X believed they got married so she started using Y’s last name even before their daughter was born. After Y graduated from college and started working in a car manufacturer, he listed X as his spouse so that he could qualify for benefits through his employer. They also filed joint income tax returns. Eventually, both moved in together and lived in a house for six months. Is this a valid marriage?
NOT statutory law marriage
- NO licence (physician certificate)
Common law marriage (unlikely as abolished in most states)
1) Capacity (over 18 years of age, voluntary, competent)
2) ‘Present’ agreement to get married
3) Cohabitation (six months)
4) Public holding out as spouses (employer benefits, tax returns)
Y purchased a house on behalf of her boyfriend X and they lived in the house as an unmarried couple with their daughter, Z. X used his earnings to purchase luxury goods while Y worked and looked after Z. X decided that before marrying Y, they should draw up a pre-marital agreement with their attorneys’ assistance. Y was hesitant in doing so because she thought their marriage would remain successful. However, X argued that unless Y signs the agreement, he will not marry her. Eventually, Y signed the agreement. The agreement included that X will have full custody of their daughter, X would wholly take Y’s house, and Y will remain wholly responsible for supporting their daughter. It also included a brief overview of their financial earnings. Can the pre-marital agreement be enforced in whole or in part?
In part (UPAA - Uniform Premarital agreement act)
- Independent counsel (not necessary but less likely agreement will be overturned)
- NO consent from Y (X exerted undue influence on Y)
- Signed + written
- NOT fair and reasonable provisions (Y gets no ownership of house despite purchasing it; Y gets no custody of Z despite supporting her; X is not responsible for supporting Z despite making earnings) (child custody NOT enforceable => Court can determine based on Z’s best interests rather than based on agreement)
- NO full and fair disclosure of earnings (brief overview)
=> Agreement is not void (enforceable only to extent of avoiding inequitable result, such as X’s child custody)
X and Y were happily married. X entered into a deal with an investor. X made a mistake and caused losses towards the investor. X is insolvent. Can Investor sue Y?
Yes (agency law)
- Y is liable for X’s authorised deal
- Y is liable for Investor’s necessaries (food, clothing)
X was riding his bicycle with his wife, Y. X did not look at the red light and crashed into a driver. X and Y suffered injuries. Can Y sue X?
Yes
- NO interspousal immunity (abolished in most states)
X and Y were married for a couple of years with their two children. X got a new job and was becoming closer as friends with his colleague, Z. X kept missing out on family dinners and outings because he kept spending time with Z. Y is frustrated. Can Y sue Z?
Unlikely
- TP (Z) alienated Y
- Y can sue Z only in few states
- Most states abolished TP alienation
X and Y were married for a couple of years with their two children. X got a new job and started having an affair with his boss, Z. X then moved in with Z. Y is frustrated. Can Y sue Z?
No
- TP (Z) had sexual relations with X
- X + Z lived together => Y can NOT sue Z
P was driving his car with his wife. His wife kept showing P some pictures from their honeymoon, which distracted P. Suddenly P crashed into D’s car. P wants to sue D for his wife’s loss of consortium and services. What defence can D assert?
Derivative contributory negligence
- P is suing on behalf of P’s wife
- P was negligent => P’s negligence will bar P’s recovery
NO imputed contributory negligence
- P’s negligence can NOT be imputed to P’s wife (spouses)
X and Y were happy as an unmarried couple. X purchased a cinema in both their names as well as a car to drive to his sole trading business in selling shoes. Both decided they should get married and X’s father wanted to buy a large house for X. Eventually, they got married without entering a pre-marital agreement. X decided to write his will that provided that he will give his diamond rings to Y. Y helped X’s company and improved its market value from $1m to £2m. In the meantime, X offered a loan towards Y for her training to obtain a qualification as a fitness instructor. Y then got a job at a gym and received pension funds. Y was also in sole charge of the cinema. One day, X was driving from work and was hit by another driver. X sued Driver for $10,000. X was out of work and both had financial complications. Y then requested a divorce. How should X and Y’s assets be distributed by the court? Is this later modifiable?
Community property division approach (less likely)
- Equally divide ALL of X + Y’s property
Equitable division of ALL property approach (less likely)
Equitable division of marital property approach (most likely - Uniform Probate Code)
- X’s company (original value - $1m) => X
- Y’s contributions towards X’s company (improved value - $1m) => Y
- X’s loan for Y’s qualification => Equitable division
- Y’s pension funds => Equitable division
- X’s cinema => NO longer traceable (Y kept using cinema) + evidential intent as marital property (both spouses’ names) => Equitable division
- X’s personal injury damages ($10,000) during marriage => Equitable division
Equal distribution of separate property approach (most likely - Uniform Probate Code)
- X’s car (acquired before marriage) => X
- X’s house (gift) => X
- X’s diamond rings (bequest) => Y
Equitable division factors
- X + Y’s age/background/standard of living
- Financial capacity/earnings/sources
- Health
- Assets/Debts
- Child/Spousal support
- Contributions
NO modification of property division decree allowed
- Property division is ascertained at time of divorce (unlike support decree)
X wanted to divorce his wife, Y. As their divorce was being processed, X told his new girlfriend, Z, that he was still finalising his divorce. Nonetheless, X and Z got married. Eventually, X divorced Y. X and Z have yet moved in together. X went to his employer and requested for spousal benefits. However, his employer claims X’s marriage is not valid and wants to file a claim at court annulling their marriage. Is this possible?
Yes
- Impediment at time of marriage to Z: Bigamy (Doctrine of putative spouse - X was still married to Y when he married Z, Z was aware of X’s marriage to Y) => Void marriage
- NO Uniform Marriage and Divorce Act (UMDA) defence applicable (Impediment removed BUT X + Z NOT cohabiting together)
- ANY party (X’s employer) can apply to annul void marriage
- X + Z’s marriage is annulled (NO court order required)
X and Y got drunk one night in Las Vegas and thought it would be funny to get married. Y was not happy with the idea, but X kept pushing her into it. Eventually, both got married. X went to his employer and requested for spousal benefits. However, his employer claims X’s marriage is not valid and wants to file a claim at court annulling their marriage. Is this possible? If not, is X’s marriage valid?
No
- X + Y lacked capacity (alcohol + duress) => Voidable marriage
- Spouse (NOT X’s employer) can apply to annul voidable marriage
- NO defences vs voidable marriage (UMDA, laches, estoppel, ratification, spouse’s death)
- X + Y’s marriage remains valid until declared annulled by court
X and Y were married for five years and lived in State A with their daughter. X would start gambling from time to time and not come home. Y got frustrated and realised the marriage was not working at all, but X doesn’t think so. Y went to move in with her mother in State B for three months and obtained a legal separation order. A day later, Y filed for a divorce in State B because the courts were more lenient towards granting divorce orders. Y agreed with X that Y should get custody of their daughter, as well as their house and X should pay support to Y and their daughter. Y was then granted a divorce order. Is Y entitled to her requested assets?
Legal separation order => Divorce
- NOT terminate marriage until Y requested divorce
Grounds for divorce available
- Fault grounds (X’s gambling addiction)
- NOT no-fault grounds (Y believes marriage irretrievably broke down BUT NO specific period of separation - only 1 month)
Jurisdiction for divorce available
- SMJ over Y (plaintiff) (Y lived in State B for 90 days)
- NO PJ over X (defendant) (X has NO contact with State B) => NO full faith + credit satisfaction => Provisions of divorce agreement NOT enforceable + child custody provision NEVER enforceable (court to determine in daughter’s best interests)
- Y can enforce divorce decree in ANY state
X and Y were married for five years. Their marriage was declining as Y began having affairs with Z. Y later filed for a divorce. Y was then granted a divorce order, which the court stated as interlocutory for six months. In the meantime, Y wants to marry Z. Is this allowed?
No
- Interlocutory divorce order until 6 months
- NO re-marriage allowed
X and Y were married for five years. Their marriage was declining as Y began having affairs with Z. Y is not sure whether to get a final divorce order. Is there an alternative instead of going to court?
Mediation
1) Hire independent mediator (third party, neutral)
2) Hire independent counsel
3) X + Y decide whether to divorce (NOT Mediator)
X and Y were married for five years. Their marriage was declining as Y began having affairs with Z. Y still wanted to enjoy marriage benefits from his employment, but he did not want to live with X anymore. X is now applying for a divorce with the court. What can Y do?
Apply for separation agreement
- NOT terminate marriage
- X + Y can live separately
- Resolve economic issues (child custody/support, alimony, property division)
Separation agreement requirements
1) X + Y’s capacity
2) Independent counsel
3) Full + fair disclosure of X + Y’s financial worth
4) X + Y’s consideration (mutual promises to one another)
Merge separation agreement with X’s divorce order
- Enforce separation agreement as court judgment, rather than contract (NO consideration/financial disclosure/counsel rep required)
- BUT Y will NO longer enjoy marriage benefits (divorce terminates marriage)
X and Y were happily married. However, X was aware that Y was still married to his ex-wife. X has now lost his job and wants alimony. X is considering getting an annulment. Can X request alimony?
After annulment
- Bigamy
- NOT before annulment
X and Y were 25 when they first got married and have been married for five years. Both agreed to waive their right to spousal support. X is a well paid banker and Y is a housewife. X’s company has been doing extremely well as the economy continued to improve. However, X continued sleeping with his boss to get a raise. X used the raise to pay for Y’s training to become a nurse. Eventually, Y found out and filed for a divorce. Y now wants support from X, but X argues they waived such right. Can the court determine X’s spousal support?
Court to determine amount of alimony
- Aged 31 (independent, X should pay enough)
- 5 years’ marriage (X committed enough)
- X has good financial resources (well paid banker, bank doing well)
- Y has low financial resources (housewife, training to become nurse)
- X committed adultery with boss (X should be responsible, even though X contributed towards Y’s training)
NO waiver of alimony
- Contrary to public policy
- Y should not be left dependent on state
- Y should be left economically dependent on X => Court has wide discretion to determine alimony amount
X and Y were married for five years. X is a well paid banker and Y is a housewife. However, X continued sleeping with his boss to get a raise. Eventually, Y found out and filed for a divorce. Y now wants support from X. What type of spousal support should the court grant?
Permanent periodic support
- Periodic payments
- Permanent
- Y is housewife (NO self-sustaining resources)
X and Y were married for five years. X is a well paid banker and used his raise to pay for Y’s nursing scholarship. However, X continued sleeping with his boss. Eventually, Y found out and filed for a divorce. X requests a refund for the scholarship. What type of spousal support should the court grant?
Reimbursement spousal support
- Fixed payment => Pay for Y’s nursing licence
X and Y were married for five years. X is a well paid banker and Y is attending school to become a nurse. However, X continued sleeping with his boss. Eventually, Y found out and filed for a divorce. Y now wants support from X. What type of spousal support should the court grant?
Rehabilitative spousal support
- Periodic payment
- Temporary
- Y has finances necessary to become nurse
X and Y were married for five years. X is a well paid banker and Y is a babysitter. Y then filed for a divorce. The court granted alimony to Y from X. However, X was fed up with paying Y in which X moved to a new country and was imposed with more tax. Y also expected that he would marry someone else at the time of his divorce. Thus Y ended up marrying another man who was similar to X. He was also a well paid banker. X does not want to pay alimony anymore. Can X reduce his alimony payments to Y?
NO modification
- Y’s ‘expected’ marriage to another man who was well paid => NOT unanticipated change of circumstances
- X’s ‘self-induced’ reduced income due to taxes => NOT unanticipated change of circumstances
X and Y were married for five years. X is a well paid banker and Y is a babysitter. Y then filed for a divorce. The court granted alimony to Y from X. Y ended up marrying another man who was similar to X. He was also a well paid banker. X heard about Y’s remarriage and X ended up killing himself. Is Y still entitled to alimony payments from X’s estate?
No (termination of alimony)
- Y’s re-marriage to man who has financial resources
- X’s death
X and Y were married for five years. X is a well paid banker and Y is a housewife. However, X continued sleeping with his boss to get a raise. Eventually, Y found out and filed for a divorce. Y now wants support from X for herself and Z. How may Y obtain support from X?
Uniform Intestate Family Support Act (UIFSA)
- Income withholding order (mail X’s bank or support enforcement agency)
- Registration support order (mail X’s state => File order as foreign judgment => Subject to enforcement proceedings)
Sanctions
- Hold X in court contempt
- Withhold X’s assets/property
- Freeze X’s income
- Intercept X’s tax returns
