Family Law - Getting Married

Question 1

What is required for a valid marriage

Answer 1

• license
• solemnization

Question 2

What is a marriage

Answer 2

A valid marriage is a civil contract that cannot be modified or terminated without state intervention

Question 3

What are the types of marriage typically recognized

Answer 3

• ceremonial (statutory) marriage
• common-law marriage

Question 4

What are the requirements for a marriage license

Answer 4

1. age restrictions - almost all states 18
2. Waiting period - May be waived in emergencies

• between application date and issuance date; or
• between issuance date and the date of the ceremony

3. Premarital medical testing - some states, varying levels of detail. Testing can be mandated, but state cannot condition issuance of the license on test results
4. Expiration date - most states

Question 5

When will a marriage license not be issued

Answer 5

1. one party is married to someone else
2. the parties are too closely related as defined by statute
3. the parties entered into the marriage as a sham; or
4. the parties are incapable of understanding the nature of the act

most jurisdictions - sought when one or both under the influence of alcohol, or party lacked consent due to duress or fraud

Question 6

Solemnization

Answer 6

many states require at least 2 witnesses to the ceremony. Some allow for party stand-ins w/ written auth. In most jurisdictions, a judge, political official, or member of the clergy must solemnize. License must be completed and filed with the appropriate government office

Question 7

What are the elements of common-law marriage

Answer 7

Parties:

• Agree they are married;
• cohabit as married; and
• hold themselves out in public as married

most states have abolished common law marriage. On exam assume the jurisdiction has abolished unless the question states otherwise

Question 8

Heartbalm action

Answer 8

a civil suit for money damages based on the damage to the jilted party’s reputation when an engagement is broken

on the exam, assume the jurisdiction has abolished these actions unless stated otherwise

Question 9

Heartbalm actions include:

Answer 9

• breach of a promise to marry
• seduction
• alienation of affection
• criminal conversation
• jactitation of marriage (falsely holding oneself out as married)

Question 10

What is the court’s view on disputes of intact families?

Answer 10

eg how money is spent, how a child is raised.

court viewes these issues as private matters that should be resolved within the home. Until parties separate, courts will not get involved

Question 11

How can a valid marriage end?

Answer 11

1. annulment
2. divorce
3. death

Question 12

What is the effect of an annulment

Answer 12

The marriage is void and declared as invalid

compare to a divorce, where the marriage is only terminated)

Question 13

When is a marriage void - treated as it never happened? (adjudication not required)

Answer 13

1. prior existing marriage
2. incest
3. mental incapacity

• entered into during a lucid moment is valid, as long as the person understood the nature of the contract at the moment the contract was executed

Question 14

Prior existing marriage re void marriage

Answer 14

If one party has a good faith belief that the marriage is valid, some states allow the marriage to become valid when impediment is removed

Presumption of validity - there is a presumption that the latest marriage is valid. This presumption is rebuttable by cogent evidence of the existence of a prior valid marriage at the time that the parties entered into the latest marriage

Question 15

What is a voidable marriage?

Answer 15

A marriage that is valid until one spouse seeks to legally void the marriage. Judicial decree must be issued to dissolve.

Question 16

What are the grounds for a voidable marriage

Answer 16

• age
• impotence
• intoxication
• fraud or duress

Question 17

Age re voidable marriage

Answer 17

a party under the age of consent to marry, who did not seek the consent of his parents or the court, may apply to have the marriage annulled. But if the partner is of legal age to marry, then the partner may not attack the validity of her marriage to an underage person.

Example A, who is 16, marries B, who is 21, in a state that requires parental consent or court approval when under 18. Neither consent or approval is obtained. Until A turns 18, only A, her parents, or her legal guardian may seek an annulment. B cannot seek annulment. If A seeks annulment after she turns 18, the court will likely deny

Question 18

Lack of intent marriage

Answer 18

when parties participated in marriage ceremony as an act of jest and do not have intention to be bound, most courts annul due to public policy. Also includes cases where the parties, in advance, agree to only some, but not all, of the conventional aspects of marriage.

Often seen in cases of immigration issues, this type of marriage is commonly referred to as a “limited purpose” marriage

Question 19

Equitable distribution of property in an annulment

Answer 19

Party seeking annulment still has a right to request an equitable distribution of property and in some cases support. This includes child support, custody, attorney’s fees. Many have statutorily provided the courts with the ability to award spousal support

Question 20

Children of annulled marriage

Answer 20

are still considered marital children

Question 21

Defenses to void marriage

Answer 21

When a marriage is void, the only way to defend against the annulment is to deny the existence of the impediment that voided the marriage. Removing the impediment only makes the marriage voidable, but will not necessarily prevent the annulment

Question 22

Putative Marriage Doctrime

Answer 22

A party who participated in a ceremonial marriage and believes in good faith that the marriage is valid may use a state’s divorce provisions, even if the marriage is later found void because of an impediment.

Because not technically a marriage, divorce is not needed to terminate. This is normally invoked to provide equitable relief, including maintenance and property distribution