Rights and Responsibilities Between Spouses

Question 1

Is a Tenancy by the Entirety presumed when spouses take title to real estate jointly?

Answer 1

YES, in many states, if spouses take title to real estate jointly, a tenancy by the entirety is presumptively created.

• A tenancy by the entirety includes a right of survivorship, and one spouse cannot convey or encumber the property without the consent of the other spouse. Upon dissolution of the marriage, tenants by the entirety become tenants in common.

Question 2

What is Marital Property?

Answer 2

Marital Property — Most property acquired during marriage is marital property, no matter how titled. Upon dissolution of the marriage, the court has broad discretion regarding the equitable distribution of this property.

Question 3

What is the Obligation to Support?

Answer 3

During marriage, each spouse has an obligation to support the other. The doctrine of necessaries can be used to make one spouse liable to third parties for the other spouse’s purchases for necessary expenses, such as food, clothing, and health care.

• Also, principles of agency may require that one spouse be held liable to a third party for the other spouse’s authorized purchases.

Question 4

What are the main Torts that were used for interferences with Marriage?

Answer 4

1) Alienation of Affections: If a husband and wife are living together in a valid marriage and a third person wins or diverts the affection of one spouse so that the other spouse is deprived of a marital relationship with that spouse, the deprived spouse has a cause of action against the third person.

• ABOLISHED in Most States

2) Criminal Conversation: Criminal conversation is a tort related to adultery. It is the participation in sexual intercourse by the nonsuing spouse and a third person. The plaintiff spouse has a cause of action against the third person because it is considered an invasion of the plaintiff spouse’s conjugal rights.

• Only the act itself need be proved; the action will lie even if the spouses were living apart at the time of the adultery.
• ABOLISHED in Most States

3) Negligent Interference with Consortium or Services: In most states, either spouse may maintain an action for loss of the other’s consortium (services, society, sexual intercourse, and conjugal affection) due to injuries from a defendant’s negligence

Question 5

What are the Main Elements for Alienation of Affections?

Answer 5

To establish an Alienation of Affections claim, the plaintiff must prove:

1. Love and affection of the spouse for the plaintiff
2. Overt acts, conduct, or enticement on the part of the defendant causing those affections to depart
3. Actual damages
4. A causal connection between the conduct and the loss of affection

2a. Neither ignorance of the marriage nor the consent of the nonplaintiff spouse is a defense.