Marriage Flashcards
(41 cards)
Irreconcilable Differences
A no fault divorce
Standard for child custody
What is in the best interest of the child
Marriage
Civil Contract that has a mutual exchange of promises between the parties and an understanding of the rights and responsibilities of marriage.
Can only be terminated or modified with a judicial decree
Two Main Types of Marriage
Ceremonial Marriage: Requires license and solemnization
Common Law Marriage: No license/solemnization required. Requires (capacity, consent, cohabitation, and conduct)
- Agree they are married
- Cohabitate
- Hold themselves out to be married publicly
Barriers to Marriage
- When one party is married to someone else
- Parties are too closely related
- Marriage is a sham
- Parties are incapable if understanding the nature of the act (intoxication)
- Age
Heartbalm Actions
Old Tort Laws that Were in Place for Not Marrying:
[When parties were engaged.]
Three Ways to End Marraige
- Annulment (Judicial Decree)
- Divorce
- Death
Annulment
Two Types: Void and Voidable
Void Marriage
[Type of Annulment]
Marriage is treated as if it never happened. Any person can seek this out–not just the parties.
Reasons:
- Prior Existing Marriage
[Some states have statutes stating that good-faith belief that spouse is deceased is a defense.]
[The presumption is that the latest marriage is valid.]
- Incest
[Adoptive relationships are not prohibitive in some jurisdictions.]
- Mental Capacity
Voidable Marriage
Marriage is legal until one party to the marriage seeks annulment. Requires a judicial decree.
- Grounds:
- Age
[Parent can seek this out. If minor reaches age of consent and stays in marriage, then can no longer seek this remedy]
- Impotency [Unless other Party Knew]
- Intoxication
- Fraud, Misrepresentation, Durres, Coercion, Force
- Lack of Intent
Equitable Distribution of Property in Annulment
Both parties have rights including spousal support, child support, equitable division of property.
CHILDREN
Children of an annulled marriage are still considered “marital children”.
Defenses to Annulment
Void Marriages: Only way is to deny the impediment to the marriage never existed. Removing this impediment only makes the marriage voidable.
Voidable marriages are subject to equitable defenses such as unclean hands, laches, and estoppel.
Putative Marriage Doctrine
Also known as the putative spouse doctrine.
Purpose is to protect a party who is unaware of an impediment to marriage that either makes it void or voidable.
Good faith belief that the ceremonial marriage is legit will be a defense to a void marriage.
Divorce Definition
The legal dissolution of marriage.
Most states have a residency requirement.
No-Fault Divorce
A ground for divorce.
No wrongs as grounds for dissolution.
Most require irreconcilable differences.
Grounds for Fault Divorce
- Adultery
- Cruelty [Inhumane Treatment, course of conduct, typically needs to be physical]
- Desertion [Left without consent AND no intent to return]
- Habitual Drunkenness
- Bigamy
- Indignity [Spouse life is rendered intolerable and life burdensome based on spousal actions.] [Not available in majority of states]
- Imprisonment
- Institutionalization
Defenses to Divorce
Defenses must be affirmatively pled when asserted.
- Recrimination and Unclean Hands [Both spouses have committed wrongs]
- Connivance [Consent was given to commit marital wrong-i.e. adultery]
- Condonation [Forgiveness from a spouse of a defense. Forgiveness must be given with actual knowledge.]
- Collusion [Spouses “conspired to fabricate” grounds for divorce.]
- Provocation [If misconduct of one party was caused by other party]
- Insanity
- Consent
- Justification
- Religion [Challenge to divorce on religious grounds will fail in all jurisdictions]
Limited Divorce
No longer used because of no-fault divorces. Arcane.
Mediation
Most divorces are resolved through mediation of parties.
Division of Property
Two Methods
- Equitable Distribution
- Community Property
Community Property
The equal division division of marital property.
Used in Nine States: Arizona, California, Idaho Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin.
Equitable Distribution of Property
The objective is the fair distribution of all marital property–taking into consideration of the circumstances between the parties..
Does not necessarily have to be split equally.
Marital Property
In most jurisdictions it is “all property acquired during the marriage.”
Some jurisdictions allow all property owned by either spouse to count (even if not acquired during the marriage).
Categories of marital property are broadly construed–including retirement benefits and appreciation of nonmarital property.
Exceptions to Marital Property
- Property acquired before marriage
- Property excluded by parties’ valid agreement entered into before, during, or after marriage
- Property acquired by gift or inheritance
- Property sold, granted, conveyed or otherwise disposed of in good faith and for value before date of final separation
- Property that has been mortgaged or encumbered in good faith before final separation
- Awards or settlements received or claim accrued before marriage–regardless of when payment was received
