Getting Married Flashcards
(14 cards)
Marriage
Is the legal union of two individuals, with the accompanying obligations and liabilities.
Limitations on Marriage
Generally, to get married, the parties must:
(1) be a minimum age (18);
(2) not be too closely related;
(3) have capacity to consent; AND
(4) not have prior undissolved marriage.
Procedural Requirements for Marriage
(1) Obtain license and
(2) have a ceremony;
(3) performed by a judicial officer or clergy member,
(4) understand their actions and voluntarily agree (must intend to enter marriage)
Mental capacity. Fraud, duress, coercion, or force will subject the marriage to attack.
Controversies arising prior to marriage
- Breach of Promise to Marry: Abolished in most states, but where retained, recovery may be allowed for actual damages (money spent in preparation of marriage), as well as loss of reputation, mental anguish, injury to health, and punitive damages.
- Gifts in contemplation. If the marriage does not take place, engagement gifts must be returned
Rights of Unmarried Cohabitants
Express contracts b/t unmarried cohabitants regarding earnings and property rights will generally be enforced, unless the only consideration is sex. In the absence of a contract, courts often grant equitable distribution of property based on theories of constructive trust, resulting trust, or quantum meruit. No special status by living together.
PREMARITAL CONTRACTS
Usually pertain to the distribution of property upon divorce or death, are valid contracts and marriage is sufficient consideration.
PREMARITAL CONTRACTS CONTENT
Under the UPAA, which has been adopted by most states, parties may contract with respect to the following:
i) Parties rights and obligations in property in either or both of them;
ii) The right to buy, sell, lease, assign, dispose of or control property;
iii) Disposition of property upon separation, dissolution, death, or any other event;
iv) Modification or elimination of spousal support;
v) The making of a will, trust or other arrangement to carry out the provisions of the agreement;
vi) Choice of law governing construction of the agreement; and
vii) Any other matter not in violation of public policy or criminal statute.
CHILD CUSTODY PROVISIONS IN PREMARITAL AGMT IS VOID AGAINST PUBLIC POLICY
PREMARITAL CONTRACTS AND ENFORCEMENT
For Premarital agreements to be enforceable by the court, most require:
(1) Entered into voluntarily;
(2) in writing and signed by the party to be charged;
(3) both parties must make a full and fair disclosure of their financial worth; and
(4) economic provisions must be fair and reasonable. (must be voluntary and not unconscionable) Should have independent counsel review.
-Spousal support. Courts may refuse to enforce provisions that would eliminate or severely limit spousal support upon divorce, especially if a spouse would be left in need of public assistance.
- Void Marriage. If a marriage is found to be void, a premarital agreement is enforceable only to the extent necessary to avoid inequitable result.
- Choice of law. If it lacks this provision, the law of the state (1) where it was executed; or (2) the state with the most significant relationship to the parties.
Common Law marriage
A valid common law marriage requires:
(1) an exchange of consents between two people with capacity;
(2) cohabitation; AND
(3) holding out to the public of living together as spouses
Rights and Responsibilities of Spouses
(1) Right to control property (don’t forget TBE);
(2) Obligation to support spouse, including necessaries;
(3) Suits between spouses (DV);
(4) Spousal abuse and protective orders.
Spousal privilege.
(WITNESS SPOUSE)
A married person cannot be compelled to testify against their spouse in a criminal proceeding. Can only be invoked by spouse during valid marriage.
Marital Communications Privilege
(EITHER SPOUSE)
Either spouse is privileged to refuse to disclose and to prevent the other spouse from disclosing and confidential communications made between them while they were married. The communication must have been made in confidence in reliance upon the intimacy of the martial relationship. Can prevent the other spouse from testifying! Survives divorce.
Tortious Interference with the Marital Relationship.
a) Alienation of Affection. If a third person diverts the love and affection of one spouse so that the other is deprived of a marital relationship, the deprived spouse has a cause of action against the 3P.
b) Criminal Conversation. When one spouse has sexual relations with a 3P, the other spouse has a cause of action against the third person. Only the act need be proved, and the spouses may have been living apart at the time of the act.
c) Negligent Interference with Consortium or Services. Either spouse may maintain an action for loss of other’s consortium due to injuries from a defendant’s negligence.
Marital Agreements (Post-Nups).
An agreement between spouses who intend to remain married. MA usually alters or confirms marital rights or obligations during the marriage, OR at separation, dissolution or death. Most deal with property rights. Most states treat premarital and marital agreements under the same set of principles and requirements.
