RIGHTS AND RESPONSIBILITIES BETWEEN SPOUSES

Question 1

PROPERTY

Answer 1

• During marriage, each spouse owns & controls property in their own name, but title is not dispositive in event of divorce.

Question 2

Tenancy by the Entirety

Answer 2

• 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, & one spouse cannot convey/encumber property w/o consent of other spouse.
• Upon dissolution of marriage, tenants by the entirety become tenants in common.

Question 3

Marital Property

Answer 3

• Most property acquired during marriage is marital property, no matter how titled.
• Upon dissolution of marriage, ct has broad discretion regarding equitable distribution of this property.

Question 4

OBLIGATION TO SUPPORT

Answer 4

• During marriage, each spouse has an obligation to support the other.
• The doctrine of necessaries can be used to make one spouse liable to 3rd parties for other spouse’s purchases for necessary expenses, such as food, clothing, & health care.
• Also, principles of agency may require one spouse be held liable to 3rd party for other spouse’s authorized purchases

Question 5

Note

Answer 5

• W/ regard to suits between spouses in general, many states have abolished interspousal immunity, retaining exceptions only for highly private activity (ex. marital privileges & consensual acts) & simple domestic negligence

Question 6

SPOUSAL ABUSE ORDERS

Answer 6

• Every state has laws protecting vics of domestic abuse, both w/in & outside of a marriage.
• All 50 states allow a battered spouse to seek some form of protective order against a violent spouse.
• Initially, protective orders can be granted ex parte (w/o notice to the other spouse) & can last from one month to several years depending on the jurisdiction.

Question 7

TORTIOUS INTERFERENCE WITH MARRIAGE: Alienation of Affection

Answer 7

• If 3rd party diverts affection of one spouse so the other is deprived of a marital relationship, the deprived spouse may have COA for alienation of affection against 3rd person.
• These actions have been abolished in many states.
• Where they exist, these actions require evidence of genuine love & affection between validly married spouses, evidence that the love & affection was alienated/destroyed, & proof that D’s actions caused loss of love & affection.
• Adultery is not required (ex. in-laws have been sued for alienation).
• Proof of damages is required.
• Damages are highly subjective, & punitive damages are available in some jurisdictions.

Question 8

Criminal Conversation

Answer 8

• When one spouse has sexual relations w/ 3rd person, other spouse may have a COA against 3rd person for criminal conversation.
• For these claims, only the existence of a valid marriage & act of adultery need to be proven; the spouses may have even been living apart at time of act.
• Criminal conversation actions have been abolished in most states.

Question 9

Negligent Interference with Consortium or
Services
.

Answer 9

• In most states, either spouse may maintain an action for loss of the other’s consortium due to injuries from D’s negligence

Question 10

FAMILY PRIVACY

Answer 10

• Generally, internal affairs of a family cannot be regulated by cts.
• Under vast majority of circumstances, families have right to privacy in their homes & freedom from gov interference in their domestic affairs.
• Parents have authority to make decisions about most matters concerning upbringing of their child, but certain state interests (ex. prevention of abuse & neglect, compulsory education) take precedence over parental autonomy.

Question 11

Constitutional Privacy

Answer 11

• B/c privacy is a fundamental right, any regulation of it (other than in the abortion area) is invalid unless it is necessary to protect a compelling gov interest.
• The following rights fall w/in the constitutionally protected right to privacy:
  (1) The right to marry
  (2) The right to procreate
  (3) The right to use or sell contraceptives
  (4) The right to abortion (within limits)
  (5) The right of related persons to live together
  (6) The right of parents to educate their children outside the public schools
  (7) The right of parents to decide issues concerning the care, custody, & control of their children