Starting and Ending a Marriage Flashcards
What are the 4 requirements for a marriage license?
- Capacity to marry (age/parental consent)
- Waiting period
- Medical testing (can mandate, can’t condition license on results)
- Expiration date
When will a marriage license NOT be issued?
- Already married to someone else
- Parties are too closely related
- Marriage is a sham
- Incapable of understanding the nature of the act
- One or both under the influence of drugs or alcohol
- One lacks consent due to duress or fraud
What are the requirements of a common-law marriage
The parties agree that they are married,
cohabitate as married, and
hold themselves out to the public as married
What is the putative marriage/spouse doctrine?
A party who participated in a ceremonial marriage and believes in good faith that the marriage.
They may be able to use a state’s divorce provisions even if the marriage is later found to be void.
What is the result of a VOID marriage?
Treated as it never happened; does NOT need be judicially dissolved; not legally recognized for any purpose
What are 3 situtations that
can result in a VOID marriage?
- Prior existing marriage
- Incest
- Mental incapacity
What is the result of a new marriage if there is a prior exisiting marriage at the time?
The later marriage is VOID;
Some states allow the marraige to become valid if one party had a good-faith belief that the marriage was valid and the impediment is removed.
What are 6 causes that result in a VOIDABLE divorce?
- Age
- Impotence
- Intoxication
- Fraud
- Duress
- Lack of Intent
How is property distributed in annulment?
A party may request an equitable distribution of property, spousal support, child support, custody, and other costs related to the dissolution of the marriage.
Defense to VOID marriage?
Only defense is to deny the impediment that makes the marriage void; removing the impediment will make the marriage voidable
Defense to VOIDABLE marriage?
Equitable defenses of unclean hands, laches, and estoppel are recognized
What is a “no-fault” divorce?
Marriage is irretrievably broken and there is no prospect of reconcilliation.
What are 7 grounds for a “fault” divorce?
- Adultery
- Cruelty
- Desertion
- Habitual Drunkeness
- Bigamy
- Imprisonment
- Instituionalization for insanty
Any defenses to fault based divorce must be affirmatively pleaded!
When can a court issue an ex parte divorce?
What are the restrictions?
Court must have both SMJ and PJ over at least ONE party
Can grant divorce, but it does NOT have JD to address property division, spousal support or child support
What is considered “marital property”
In most states - all property acquired during marriage.
Burden of proof is on the person asserting property is non-marital
“Hotchpot” approach? In some states, MP is ALL property owned by either spouse.
