Family Law Flashcards
Premarital Agreements
Under the UPAA, a premarital agreement is a generally valid devices to resolve disputes between spouses upon divorce or death.
To be enforceable, a pre-marital agreement must be in writing and signed by both parties, and cannot be procedurally or substantively unfair.
Factors of Unfairness for Premarital Agreements
Relevant Factors — (FART)
- (F)air and reasonable disclosure of net worth;
- (A)vailability of independent counsel;
- (R)elative bargaining power of the parties;
- (T)iming between introducing the agreement and the wedding.
The UPAA does not require an attorney, but it is still considered as a factor.
Voluntariness (Pre-Marital Agreements)
Viewed under the “totality of the circumstances”. A premarital agreement is subject to the defenses of fraud, misrepresentation, or duress.
Courts will consider the cumulative facts and circumstances, such as timing, availability of counsel, and language.
Substantive Unfairness (Pre-Marital Agreements)
Requires a finding that the pre-marital agreement’s terms or impacts are “substantively unfair”.
UPA Majority Standard — Looks only at the circumstances surrounding the execution of the agreement, not the circumstances at the time of enforcement.
Invalidity of a Pre-Marital Agreement Under the UPAA
A pre-marital agreement is unenforceable if, at the time that it was executed, there was —
1. Involuntariness (due to either fraud, misrepresentation, or duress); OR
2. Inadequate disclosure and unconscionability.
Subject Matter of a Pre-Marital Agreement
Anything that does not limit or waive child support or adversely affect the rights of the child in any way. Frequency of sexual relations and child-bearing requirements are also not allowed.
Waiver of alimony is closely scrutinized.
Formal Marriage Requirements
- Mutual intent,
- A marriage license, and
- Solemnization by a state authorized official.
Marriages with these requirements are presumptively valid.
If there is a failure to comply with these formalities, must states will forgive the mistake as long as they were eligible to marry and attempted to do so in good faith.
Common Law Marriage Requirements
- Capacity to marry;
- Present intent to be bound and married;
- Cohabitation & consumation; and
- Holding themselves out as a married couple.
The burden of establishing the elements is on the party asserting the common law marriage. Elements must be proved by clear and convincing evidence.
Same-Sex Marriage
Since June 2015, all states must allow same-sex couples to get marries and accord such couples the same rights and obligations otherwise accorded to heterosexual couples.
“Equitable Distribution” Property Division
Most states follow the equitable distribution scheme of property division, which allows the court to consider the nature of the relationship rather than presuming a 50/50 split.
Equitable distribution does not mean equal.
Under modern law, fault is not considered in property distribution.
Marital property = divisible. Separate property = not.
Legal Impediments to Marriage
- Nonage;
- Consanguinity and affinity;
- Lack of consent due to mental incapacity or fraud;
- Physically incapable;
- Prior marriage still in force; or
- Annulment.
Nonage
Majority: Under 14, no marriage at all. 14-18, only with parental consent.
Minority: 14-16, must have court approval. Some states make exceptions if the minor is pregnant.
Consanguinity
A marriage license will not be issued to couples who are blood relatives.
Jurisdictions are split as to first cousins.
Affinity
Minority jurisdiction — marriage licenses are not issued to couples who are related by marriage.
Fraud
Majority: A material misrepresentation or failure to disclose that is intended to induce marriage. Some states require that the fraud go to the essence of the marriage.
Representations regarding finances, character, or social standing are not material.
Property Classification
Title alone does not control the nature of the property, it depends on the timing of the acquisition.
Majority: Separate property is not divisible, marital property IS divisible.
Separate Property: Anything acquired before or after the marriage, or as a gift or inheritance.
Marital Property: Anything acquired during the marriage is presumed to be marital and thus, divisible.
Steps in Judicial Division of Property
- Identify/classify divisible property;
- Value the property;
- Divide the property.
Impact of Annulment
Annulment is a judicial classification that a marriage is invalid.
Legally eradicates the marriage as if it never existed.
Can sometimes obtain divorce-like remedies, such as property division and spousal support.
Putative Spouse Doctrine
When there was a ceremonial marriage and one spouse had a good faith belief in the validity of the marriage. Under the Putative Spouse Doctrine, the putative spouse can be granted divorce-like remedies even though there was technically no valid marriage.
Void vs. Voidable Marriage
A void marriage is as if the marriage never existed at all, due to an impediment that cannot be cured (consanguinity & affinity).
A voidable marriage is one that can be ratified/cured (prior lack of capacity, nonage, or impotence, etc.).
Validity of Out-of-State Marriage
Under the principles of comity, a marriage which satisfied the requirements of the state in which it was contracted will be valid in every other states, unless it violated public policy of the state with the most significant relationship to the parties at the time of marriage.
Usually in the context of first cousin marriages.
Most states will not recognize a marriage by their residents who leave the state to get married specifically to evade their home state’s law.
Mixed Character/Commingled/Transmuted Property
If the separate property can be traced, then the court will treat it as partly separate and partly marital.
If tracing is not possible, the separate property is transmuted into marital property, and thus divisible.
Rights of Unmarried Partners
Unmarried partners have no rights unless specifically contracted otherwise.
Principles of Property Division
Division is based on the understanding that marriage is a partnership. Both partners contribute labor and effort into their shared life, so both should share in the products of that labor.
Property-division awards are generally not subject to modification.
Two main factors considered —
1. Financial status/need of the parties, and
2. Contributions to the marriage (both financially and non-financially).
Increased Value of Separate Property
Depends on the reason for the increase —
If the increase was due to passive appreciation = separate property.
If the increase was due to labor during the marriage = marital property of which both parties have a claim.
Principles of Property Division
Division is based on the understanding that marriage is a partnership. Both partners contribute labor and effort into their shared life, so both should share in the products of that labor.
Divorce property-division awards are generally not subject to modification.
Two main factors considered —
1. Financial status/need of the parties, and
2. Contributions to the parties (both financially and non-financially).
Separate Property Includes:
- Property acquired by gift or inheritance;
- Anything excluded from marital property by valid agreement;
- Property acquired prior to the marriage or post-separation.
The date signifying the end of joint ownership may vary depending on the jurisdiction — possible dates are:
- The date of separation,
- The date the divorce is filed,
- The date of the divorce hearing,
- The date the decree of divorce is entered.
Spousal Property Rights During Marriage
Majority: The spouse with the title to the property is the legal owner. The other spouse cannot prevent the title-holding spouse from conveying the property.
Support Obligation Within Marriage
Policy of non-intervention, a court will generally not enforce support during the marriage. However, for desertion, a court may enforce support obligations to prevent a spouse from becoming a “public charge”.
Creditors may also enforce support under the doctrine of necessaries.
Marital Home
If purchased prior to marriage but marital earnings were used to pay off mortgage and build equity in house —can be both separate property and marital property.
Doctrine of Necessaries
A spouse can be held liable for debts incurred by the other spouse for necessities, usually medical expenses.
Pensions/Retirement Accounts
Whether the accounts are vested or unvested, they are subject to equitable distribution, except for traceable premarital contributions or post-separation increases.
Vested: Spouse has present legal rights to the assets.
Unvested: Spouse doesn’t get rights until a contingency occurs, like working for an employer for a set time.
Stock Options
Presumed marital property.
Stock options earned as employment compensation will depend on when they were acquired and whether the work for which they were given was performed during the marriage.
