Family Law Flashcards
ANTENUPTIAL (PREMARITAL) AGREEMENTS
Premarital contracts (also called antenuptial agreements) are valid contracts that address the rights of the parties upon divorce or death. The marriage is sufficient consideration to support a premarital contract.
these agreements can cover the disposition of property in the event of death or divorce; the making of a will, trust, or other arrangement to carry out the provisions of the agreement; the choice of law governing construction of the agreement; and any other matter not in violation of public policy or criminal statute. Generally, parties can make agreements regarding alimony (also known as spousal support), but a court may find the provision unenforceable if it leaves the disadvantaged spouse a public charge
Prenup Requirements for Validity
For a premarital contract to be enforceable, most courts require the following:
- The contract must be in writing and signed
- The agreement must be entered into voluntarily, meaning without fraud, duress, or overreaching
- There must be a full and fair disclosure of the parties’ assets or proof that the party against whom the agreement is being enforced had independent knowledge of the assets
- Under the UPAA, courts only examine this element if the agreement is unconscionable
- Some courts consider whether the economic provisions are fair and reasonable.
Requirements for Marriage
License: Most states require that persons intending to marry obtain a license. To do so, some states require that each party obtain a certificate from a physician stating that the party is free from particular communicable diseases. Most states also require a waiting period between getting the license and having the ceremony. The period varies by state (often, 48 or 72 hours). Note: The failure to meet procedural requirements of a license will not invalidate the marriage.
Ceremony With Authorized Officiant: Generally, a marriage must be solemnized by a ceremony with an authorized officiant. States vary on who can perform marriage ceremonies.
No Legal Impediments to Marriage: Generally, to get married, the parties must:
- Not be too closely related; For example, cannot marry ascendants, descendents, siblings (including half-sibilings), aunt/uncle, niece/nephew
- States vary on whether first cousins can marry
- Not have a prior undissolved marriage to a living spouse (bigamy).
Capacity to Consent: At the time of the ceremony, the parties must have the mental ability to consent. The parties must understand their actions and voluntarily agree to them. Thus, someone under the influence of alcohol or drugs may lack the mental capacity to enter into a valid marriage. Because the parties must intend to enter into marriage, a marriage may also be subject to attack if one party is induced to marry because of fraud, duress, coercion, or force. Age is also a consideration. Both parties must be of the age of majority, usually 18. A 16- or 17-year-old usually needs parental consent to marry, and younger parties require judicial consent.
COMMON LAW MARRIAGE
A valid common law marriage requires three things:
- Consent to marry, which includes having capacity and a lack of legal impediments
- Cohabitation
- The couple holding themselves out publicly as spouses
Common law marriage has been abolished in most states. However, if a valid common law marriage is formed in one state, it will generally be regarded as valid even in those states that do not recognize common law marriage.
MARRIAGE BY ESTOPPEL OR PUTATIVE MARRIAGE
This is 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 acquire all of the rights of a legal spouse.
Property between spouses
During marriage, each spouse owns and controls the property in their own name, but title is not dispositive in the event of divorce
OBLIGATION TO SUPPORT
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
SPOUSAL ABUSE ORDERS
Every state has laws protecting the victims of domestic abuse, both within and outside of a marriage. Initially, protective orders can be granted ex parte (that is, without notice to the other spouse) and can last from one month to several years depending on the jurisdiction
Alienation of Affection
If a third party diverts the affection of one spouse so that the other is deprived of a marital relationship, the deprived spouse may have a cause of action for alienation of affection against the third person. These actions have been abolished in many states.
Where they exist, these actions require evidence of genuine love and affection between validly married spouses, evidence that the love and affection was alienated or destroyed, and proof that the defendant’s actions caused the loss of love and affection. Adultery is not required (for example, in-laws have been sued for alienation). Proof of damages is required. Damages are highly subjective, and punitive damages are available in some jurisdictions.
Criminal Conversation
When one spouse has sexual relations with a third person, the other spouse may have a cause of action against the third person for criminal conversation. For these claims, only the existence of a valid marriage and the act of adultery need to be proven; the spouses may have even been living apart at the time of the act. Criminal conversation actions have been abolished in most states
ANNULMENT
An annulment is a backward-looking doctrine that declares a marriage invalid because an impediment that existed at the time of the marriage makes it legally void or voidable. Once an annulment decree has been entered, the parties are treated as though they were never married.
Void Marriage
A void marriage is invalid, an utter nullity, because it failed to meet the essential requirements for a legal marriage. No subsequent act can ratify a void marriage. Parties may walk away from a void marriage with no legal action, but an annulment action is usually brought to determine property distribution and child custody. Any interested party may seek annulment of a void marriage, and the marriage is subject to collateral attack (in actions other than annulment actions) even after the death of one of the parties
Bigamy or polygamy (still married to prior spouse)
Consanguinity Marriages between parties who are too closely related (for example, direct lineal ascendants or descendants, or aunt, uncle, brother, sister, niece, or nephew) are prohibited. Most states consider these marriages void.
VOIDABLE MARRIAGE
A voidable marriage is valid until declared null. However, because of an impediment that existed at the time of the marriage, one of the spouses may bring an action to have the marriage annulled. No collateral attacks are permitted, and sometimes only the party who suffered the impediment can bring the action to annul
Typically, a voidable marriage occurs when some type of event or condition affects the adequacy of a party’s consent. Unlike void marriages, marriages that are voidable can be remedied (or ratified) by continued habitation after the removal of the impediment, and ratification means the marriage cannot be annulled
Divorce: Jurisdiction
To have jurisdiction over a divorce, only one of the parties needs to be domiciled (that is, resident with intent to remain) in the jurisdiction. Most states set a minimum residency period (for example, 90 days) before an action may be filed.
It is possible for multiple states to have jurisdiction over a divorce, and multiple cases could proceed until one court renders a judgment causing the other to lose subject matter jurisdiction
To determine financial issues (like property rights and support), the court must have personal jurisdiction over the defendant.
No-Fault Divorce
Most state divorce statutes provide for divorce without regard to marital fault. This usually requires a showing that:
- Both spouses agree that the marriage is irretrievably broken (also referred to as irreconcilable differences)
- The parties have been living apart for a specified and continuous period of time. This period can range from 90 days to 18 months, and the parties are still married during that time. The period is often shorter if both parties agree to divorce and longer for unilateral no-fault divorce.
- Both parties agree they are now incompatible and can no longer be married.
Defenses: only defense to a no-fault divorce is to deny the existence of one of the above grounds. One spouse may claim that a reconciliation restarted the clock for living separate and apart
Fault Grounds
The usual fault-based grounds for divorce are:
- Adultery: Generally, the filing spouse presents circumstantial evidence of opportunity and inclination. Corroboration is often required.
- Willful desertion (or abandonment): This requires an unjustified departure from the marital home for a specified period with no intent to return
- Extreme physical or mental cruelty
- Voluntary drug addiction or habitual drunkenness commencing after the marriage
- Insanity
Defenses:
Defenses to fault-based divorce are rarely used, but still exist:
- Collusion: Collusion is an agreement between the spouses to simulate grounds for divorce or to forgo raising a valid defense. In some jurisdictions, collusion will prevent the granting of a divorce. b.
- Connivance: Connivance is willing consent to the other spouse’s misconduct. This is usually limited to adultery cases, and it has been abolished in many states.
- Condonation: Condonation is the forgiveness of marital offenses with full knowledge of the wrongs. Resumption of marital relations after the forgiveness is the key element of this defense. d.
- Recrimination: Recrimination is a defense that arises when the party seeking the divorce is also guilty of misconduct for which a divorce may be granted. This defense is rarely used.
LEGAL SEPARATION
An order of legal separation (sometimes called a “divorce from bed and board”) does not terminate the marriage, but the parties can have all of their rights regarding property, spousal support, custody, and child support adjudicated in this proceeding. If the court permanently divides marital property, then any after acquired property is separate property.
A legal separation can usually be enlarged into an absolute divorce if the parties so request.
Approaches to Property Division
- Community property: All property acquired during the marriage is deemed owned one-half by each spouse, and all property brought into the marriage or acquired by gift or bequest is separate property
- Equitable division of all property: The court divides all property owned by either spouse, whether acquired before or after the marriage
- Equitable division of marital property: Each spouse takes their separate property, and the court only divides the property acquired during the marriage
The third approach is the most common and is addressed in this module.
2-Step Process of Property Division
- Classification: Determine what is marital property and what is separate property
- Division: Make an equitable division of the marital estate no matter how the property is titled
Note: Equitable division does not necessarily mean equal.
Property distribution decrees are not modifiable.
Separate Property
- Property owned before the marriage
- Property acquired by gift or inheritance
- Property acquired in exchange for separate property
- Income and appreciation of separate property (but see Improvement of Separate Property, at 6.4.2, infra)
- Pain and suffering awards
- Personal damages (for example, future medical expenses or future lost wages)
- Property acquired after an order of legal separation that includes a final disposition of property
Marital Property
Marital property is all other property acquired during the marriage. Some jurisdictions use the date of separation as the end of the marital estate, and others use the date of filing for divorce. Marital property includes:
- Property acquired during the marriage
- Earnings
- Employment Benefits, Pensions, and Stock Options The majority rule is that employment benefits, stock options, and pension rights (see below) earned during marriage are marital property even if they will not be exercised or vested until after the divorce.
- Lost Wages Many states hold that if a cause of action for lost wages due to personal injury accrues between the date of marriage and final separation, then the proceeds from the settlement or award are marital assets subject to distribution.
- Reimbursement for medical bills incurred and paid with marital property
- Recovery for Damages to Marital Property
SPECIAL ISSUES IN CLASSIFICATION OF PROPERTY: Commingling
The separate property is inextricably intertwined with marital property or with the separate property of the other spouse to the extent that it can no longer be traced
SPECIAL ISSUES IN CLASSIFICATION OF PROPERTY: Transmutation
The separate property is treated in a way that evidences an intention for the property to be marital property (for example, placing separate property in the names of both spouses)
Equitable Division
Once the court identifies and values the marital property, the court will make an equitable–not necessarily equal–division. Remember, the trial court is given a great deal of discretion, and the court’s division of the property is not subject to modification once the divorce is final. The factors considered in dividing the property usually include:
- The age, education, background, and earning capabilities of both parties
- The duration of the marriage, and whether there were any prior marriages
- The standard of living during the marriage
- The present incomes of both parties, their vocational skills, and employability
- The source of the money used to purchase the property
- The health of the parties
- The assets, debts, and liabilities of the parties
- The needs of the parties
- The child custody provisions
- Whether the distribution is in addition to, or in lieu of, alimony
- Each party’s opportunity to acquire future income and assets
- Each party’s contribution to the acquisition or enhancement of the existing marital assets
- Each party’s contribution as a homemaker to the family unit
- Economic fault (that is, whether either party has dissipated marital property)
- Note: Marital fault is generally not a consideration (but it can be in some states).
Alimony: General Principles
Alimony (also known as spousal support or maintenance) is paid to an economically dependent spouse. It may be awarded while the parties are still married, during the divorce proceeding, or as part of the divorce decree. Some states consider marital fault in awarding spousal support, but other states do not. The trial court is vested with great discretion in awarding alimony.
Permanent Periodic Spousal Support
Permanent periodic spousal support is paid regularly (for example, monthly) to support a spouse who has neither the resources nor the ability to be self-sustaining. • Example: Periodic alimony of $2,000 per month to one former spouse until death or remarriage. • Duration: Indefinite. • Modification: Can be increased, decreased, or terminated upon proof of substantial change of circumstances.
Lump SUm ALimony
A lump sum payment is a fixed amount payable either all at once or via a series of payments. This is often the present value of permanent periodic support.
- Example: The sum of $36,000 paid at a rate of $1,000 per month for 36 months.
- Duration: For specified time period; can be payable in installments or in a lump sum.
- Modification: None. This is treated like a contract right and is binding on payor’s estate.
Rehabilitative Spousal Support
Rehabilitative spousal support consists of periodic payments for a limited time to enable a spouse to gain skills to become self-supporting. It can be ordered along with permanent periodic or lump sum alimony.
- Example: Rehabilitative alimony to one former spouse of $1,000 per month for 36 months to gain education or skills.
- Duration: For specified time period, unless modified by court.
- Modification: Can be increased, decreased, or terminated upon proof of substantial change of circumstances.
Reimbursement Spousal Support
Reimbursement spousal support is occasionally awarded to a spouse who supported the other spouse while the latter obtained a professional license or degree. It can be ordered along with permanent periodic or lump sum alimony.
- Example: The sum of $20,000 as repayment for the supporting spouse’s contribution to the increased education provided to the other spouse.
- Duration: For specified period of time; can be payable in installments or in a lump sum.
- Modification: None. It is treated as a contract right and can be awarded even if the supporting spouse is not otherwise eligible for spousal support.
- Note: This is a fixed sum award based on the amount of the supporting spouse’s contribution, not the value of the professional license or degree.
FACTORS TO BE CONSIDERED WHEN AWARDING ALIMONY
The court has great discretion in awarding as much spousal support as necessary for the maintenance of the requesting spouse. Factors considered include:
- The standard of living established during the marriage
- The duration of the marriage
- The age and physical and emotional condition of the parties
- The financial resources of the parties
- The contribution of each party to the marriage
- The time needed for the party seeking support to obtain the training necessary to find appropriate employment
- The ability of the payor spouse to meet their needs while paying spousal support
- Marital fault (considered in most states for alimony but generally not considered for property division)
- More broadly, the two primary considerations are the needs of the claimant and the ability of the other spouse to pay.
