Family Law Flashcards
(30 cards)
What is marriage
union of two individuals with accompanying obligations and liabilities
Breach of promise to marry
Quasi-tort, quasi-contract action
abolished in most states.
Recovery may be allowed for actual damages as well as loss of reputation, mental anguish, injury to health, punitive damages
Gifts in contemplation of marriage
engagement gifts must be returned
Limitation on who may marry
must:
be of minimum age (18 unless parent or judicial approval)
not too closely related
have capacity to consent
not have a prior undissolved marriage to a living spouse
Procedural requirements
License: most states need a license before solemnization. Require cert from physician that person is free from communicable diseases, possible 72 hr waiting period
Solemnization: ceremony performed by judicial officer or member of clergy
State of mind requirements
understand actions and voluntarily agree to them (under influence may lack it)
Induced to marry for fraud, duress, coercion, force: also lack
Common law marriage
Exchange of consents between two people with capacity
cohabitation
a holding out publicly of living together as spouses
Abolished in most states, but if valid under of laws of one state, usually will be recognized as valid
Premarital contracts
valid contracts for distribution of property upon divorce or death - marriage is sufficient consideration
Content of contract: UPAA - parties may contract as to
rights and obligations as to property of either or both of them
right to buy, sell, lease, assign, dispose of, or control property
disposition of property upon separation, dissolution, death or other event
modification or elimination of spousal support
making of a will, trust, or other arrangement to carry out provisions of agreement
choice of law governing agreement construction
any other matter not in violation of pub pol or criminal statute
Enforcement of premarital contracts by court
entered into voluntarily
in writing and signed by party to be charged
both parties must make full and fair disclosure of financial worth
economic provisions fair and reasonable
Extra notes on enforcement of premarital contracts
Independent counsel: both parties represented by independent counsel - far less likely that a court will find overreaching
Spousal support: may refuse to enforce provisions that would eliminate or severely limit spousal support upon divorce, especially if left a pauper
Void marriage: marriage void, agmt enforceable only as to extent necessary to avoid inequitable result
Choice of law: no choice of law provision, enforceability governed by law of the state in which executed or most significant relationship
Rights and responsibilities of spouses
Property: each property controls own property
Tenancy by entirety - prohibits encumbrance or conveyancing by one spouse
Marital property: property acquired during marriage. Dissolution - court has broad discretion
Support: obligation to support each other during marriage; one spouse may be held liable to third party for the other spouse’s authorized purchases. Even without agreement, liable for necessaries
Suits between spouses: most states eliminate interspousal immunity, only for highly private activity or simple domestic negligence
Spousal abuse and protective orders: spousal abuse criminalized, increases police involvement
Family privacy
Internal affairs of family cannot be regulated by courts
Constitutional privacy
Right to marry, procreate, use or sell contraceptives, within limits right to abortion, right of related persons to live together, educate children outside public schools, decide issues concerning care, custody, and control of children
Spousal evidentiary privilege: family law
married person cannot be compelled to testify against spouse in any criminal proceeding
only able to be invoked during valid marriage
marital privilege: either spouse, whether or not a party, privileged to refuse to disclose and compel other party from disclosing confidential communication made between them when married
Tortious interference with the marital relationship
Alienation of affections: love and affection between spouses who are validly married, love and affection alienated and destroyed, defendant’s acts caused the loss. Need proof of damages
Criminal conversation: marriage of spouses, adultery between defendant and spouse during marriage, damages
Negligent interference with consortium or services: loss of consortium due to injuries from defendant’s negligence
Marital agreements
agreement between spouses who intend to remain married (usually alters or confirms marital rights or obligations or at separation, dissolution, or death)
usually covers property rights
Termination of marriage
Annulment and Divorce
Annulment
declaration that a marriage is invalid because there was an impediment at the time of the marriage - treats parties as never married
Void v. Voidable marriage
Void: complete nullity - fail to meet essential elements; cannot ratify, parties may walk away from marriage without court order (some states allow for remedy by continued habitation after removal of impediment - previous married partner dies)
can be attacked by any interested party, subject to collateral attack by third party
Voidable: deemed valid until annulled - failure of consent to marriage contract, because of impediment at time of marriage, one spouse may bring action to have marriage invalidated (only interested parties can attack)
can be ratified with continued cohabitation after impediment removed
Void marriage grounds
bigamy / polygamy (arguments for new marriage - presumption latest marriage valid, continued cohabitation validates second marriage)
Consanguinity (too closely related)
Nonage (some states)
Voidable marriage grounds
Nonage (most states) remain in relationship by continuing marriage past statutory age
Incurable physical impotence (inability to have kids is not impotence; if ability to have kids misrepresented, that is fraud)
Lack of capacity incompetence due to drugs and alcohol lack of mutual assent to marriage duress fraud going to essentials of marriage (ability or willingness to engage in sexual relations or bear children)
Defenses to void and voidable marriages
Void: deny existence of defect (removal of impediment validates marriage under UMDA)
Voidable: ratification most common (may have laches or estoppel)
Status of children of annulled marriage
they are marital children; treat support and custody issues as if divorced
Spousal support and annulment actions
not awarded in spousal support actions; termination when remarried and subsequent annulment of a second marriage does not reinstate a prior support action
