Family Flashcards
Premarital Agreement
Content
Valid contract that addresses the rights of the parties upon divorce or death.
Under the, Uniform Premarital Agreement Act(UPAA), the agreement can cover:
* Disposition of Property @ death/divorce
* Making of a will, trust
* Other arrangement to carry provisions
* Choice of law
* Anything not in violation of Public Policy
Can make spousal support or child custody and support agreements buy may be unenforceable and never bind the court.
Requirements for Valid Premarital Contract:
- In writing and Signed
- Entered into voluntarily
- Full and fair disclosure of assets or proof of independent knowledge of assets → ONLY if agreement is** unconscionable** (UPAA)
- Independent Counsel- not required
- If marriage is void, agrment is enforceable only to avoid inequitable result
- If no choice of law provision its governed by teh state of execution or most significant realtionship to the parties.
Ceremonial Marriage
- Generally a marriage must be solemnized by a ceremony with an authorized officiant.
- License and waiting period (most states)
- Parties may not be too closely related or have **prior undissolved marriage
At time of the ceremony, the parties must have had the mental ability to consent ** and understand their actions and voluntairily agree
Common Law Marriage
A valid common law marriage requires three things:
1. Consent to Marry
2. Cohabitation
3. Holding themselves out publicly as spouses
Putative Marriage or Estoppel
An equitable remedy that some states use to protect an innocent party who acted in **good faith **when entering into an invalid marriage.
In some states the putative spouse can accquire all of teh rights of a legal spouse.
Annulment
A backward looking doctrine that declares a marriage invalid because an impediment that exsisted at the time of the marriage makes it legally void or voidable.
Void Marriage
- Grounds→ Bigamy,consanguinity. Nonage(some states)
Effects - Cannot be ratified, complete nullity without a court order
- Any interested party may seek
- Subject to collateral attack in probate
- Subject toattack after deathof one of the parties
- Defenses→ Impediment does not exists
Voidable Marriage
- Grounds→ Nonage, Incurable physical impotence, lack of capacity
Effects - Valid until declaration of annulment can be ratified, and only spouses
- Only spouses may seek annulment
- Not subject to collateral attack or after death of one of the parties
Voidable Marriage Defenses
- Impediment does not exist
- Ratification (continuing after impediment removed)
- Laches
- Estoppe;
- Unclean Hands (Not valid in most states)
Divorce Jurisdiction
- Only one party needs to be domiciled in a jurisdicion.
- Most states set a minimum residency period before an action may be filed.
- Multiple states can have jurisdiction over a divorceand multiple cases can proceed until one court renderes a judgement.
- To determine financial issues court must have personal jurisdiction over the defendant.
In rem Action
The divorce itself is viewed as an in rem action; thus certain types of **constructive service **may be permitted.
No Fault Divorce
Most states allow spouses to get a divorce without regard to marital fault. Generally this requires a showing of one of the following:
* Spouses agree marriage is** irretreviably broken** (Bilateral)
* Living apart for specified and continous period of time (Uni or Bilateral)
* Spouses are now Incompatiable
Defenses : Denial of one of the grounds or that a reconciliation restarted the living separate clock
Relevant time period can vary between 90 days to 18 months
Fault Divorce
- Adultery→Circumstantial evidence of the opportunity and inclination
- Willful Desertion(abandonment)→ unjustified departure w/ no intent to return
- Pattern or practice of extreme physical or mental cruelty
- Drug addiction or Habitual Drunkeness commencing after the marriage
- Insanity
Defenses of Fault Based
Defenses are rearely used, but still exist:
* Denial of Grounds
* Collusion- agrmt between spouses to simulate grounds for divorce
* ** Connivance** - consent to misconduct (usually used for adultery)
* Condonation - forgiveness w/ full knowledge of wrongs
* ** Recrimination** - both parties guilty of misconduct (Nearly extinct)
Approaches to Property Division
- Community Property: during the marriage one half by each spouse
- Equitable division of all property: all prop by either spouse divided
- Equitable division of marital property: Each spouse takes their seperate property and the court only divides the property acquired during the marriage. - MOST COMMON
