FamLaw Flashcards
(57 cards)
Validity of Premarital Agreements
Only valid if in writing and signed
Challenging Prenups
Invalid if the court finds Procedural Unfairness or Substantive Unfairness
Procedural Unfairness; Factors
Disclosure of net worth
availability of counsel
timing prior to wedding
bargaining power
Procedural Unfairness; Adequate Disclosure
Must be fair and reasonable disclosure unless; voluntary waiver, spouse has knowledge to financial circumstances
Procedural Unfairness; Voluntariness
fraud, misrep, duress
Substantive Unfairness
Unconscionability standard
Subject Matter of Premarital Agreements
Waiver of Alimony
- majority view; permits
Children;
-prenups do not allow mention of custody of children
Sexual Relations;
-can’t limit sex
Legal requirements for marriage
Formal;
Marriage License
Solemnization
Informal;
-Capacity
-intent
-cohabitation
-holding out as married
Formal Marriage
requires both marriage license and solemnization
presumptively valid
Informal (CL) Marriage
over 18
intend to married
live together
telling people you’re married
Burden of proof is on the party asserting
Legal impediments to Marriage;Nonage
Nonage;
-under the age of 14? Prohibited
-Between 14-18? parental consent
Legal Impediments to Marriage; Consanguinity and Affinity
Consanguinity (majority rule); a license will not be issued between blood
Affinity (minority); marriage is extended to these same relationships are relatives by marriage
Legal Impediments to Marriage; Lack of Consent due to Mental Incapacity or Fraud
Mental Incapacity; no consent
Fraud; invalid
Physically incapable; to consummate (required by CL)
Legal Impediments to Marriage; Prior Marriage still in force
if married, subsequent marriage invalid
Legal Impediments to Marriage; Annulment
Grounds;
-void marriage; no legal effect and cannot be recognized
-Voidable marriage; may be void or ratified (by aggrieved party)
Effects;
-Putative Spouse Doctrine (must e a ceremony and at least one spouse must be in good faith)(putative spouse doctrine provides divorce-like remedies)
Validity of Out-of-State Marriage
Principles of Comity
Principles of Comity
A marriage that satisfies the state requirements will be recognized everywhere (UNLESS AGAINST PUBLIC POLICY; CL marriage, First cousin Marriage)
Principles of Comity; Evasion of State Law
If you leave your own state to get married elsewhere most other states don’t recognize that
Rights of Unmarried partners
No legal status unless they meet CL marriage requirements
Express/implied contracts between cohabitating parties are recognized so long as theres consideration
Spousal property during marriage
Title Rules aka separate property –> you own it? you own it
Support Obligations During marriage
Duty of both spouses; not enforceable by a spouse during the marriage because court tries to not get involved
Liability of Debts and Necessaries Contract for by needy spous
Necessity means food/water/health
most states recognize a doctrine of necessaries where a spouse is liable for other spouse during; (1) agency theory (2) forcing the issue (3) medical expenses
Some states impose debt liability too
Establishing Parenthood; Presumption of Marital Legitimacy/Paternity
Mom —> presumed the mom
the evidence of the other spouse must be clear and convincing that hte mother is not the parent
-Doctrine of Estoppel; Applied against mother’s husband; when he is not the father, but continues supporting the child, it will be presumed they’re the dad now
Against the mother; same as father.
Establishing Parenthood; Actions brought by Putative Parent
States might provide one parent more protection so long as they have established parentage where the child presumes the person is a parent over the course of 2 years (generally)
UPA provides presumptions of parentage when (1) couple marries before child is born, or (2) after child is born and parent voluntarily asserts parentage (birth certificate) or (3) first 2 years of Childs life, parent lived with kid.
