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Family Law > MARRIAGE > Flashcards

MARRIAGE Flashcards

1
Q

Jurisdiction

A
  • If SPECIFICALLY delegated: FEDERAL

- if NOT: STATE juris. or the PEOPLES

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2
Q

Jurisdiction- DIFF STATES?

A

Diversity Juris –> FEDERAL

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3
Q

DOMESTIC RELATIONS EXCEPTION

A

NO power of the federal courts to issues dealing with : DIVORCE, ALIMONY, OR CHILD CUSTODY DECREES

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4
Q

CIVIL UNION

A
  • generally homosexuals (cant get married)

- like marriage with no title

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5
Q

REGISTERED P’SHIP

A

SOME RIGHTS < civil union < marriage

only recognized in some localities

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6
Q

RECIP. BENEFICIARIES

A

EX. grandma and grandson

-no sexuality or marriage, just dependent on something

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7
Q

UMDA 208 - INVALIDATION

A
  1. lacked CAPACITY to consent (@ time solemniz.)
    (mental, alcohol/drugs, fraud induced, etc.)
  2. lacked PHYSICAL CAPACITY (@ time) to consummate by SEXUAL INTERC. and other party UNAWARE
  3. MINOR (16 or 17) without CONSENT of parents/guardian or judicial approval OR
  4. marriage PROHIBITED
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8
Q

CONSENT TO MARRY

A
  1. CAPACITY to contract
  2. INTENT to contract
  • presumption in favor of marriage
  • BURDER on CHALLENGER (show lack of by CLEAR AND CONVINCING)
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9
Q

CAPACITY

A

need to understand:

  • nature
  • effect
  • duty and obligations (finan./emo. support, etc)
  • sexuality (kids as consequence)
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10
Q

INTENT

A 
if consent by: 
-FORCE (goes to marriage essentials)
-DURESS or
-FRAUD
...party with CLEAN HANDS may be able to annul
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11
Q

SHAM MARRIAGE

A

fake marriage, typically to obtain visa to enter US

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12
Q

MARRIAGE FRAUD ACT 1986

A
  • prevent marriage fraud
  • alien receives COND. ADJ. of STATUS
    1. marriage sincere? 2. 2 YR WAITING–> if bona fide, cond. removed n get perm. resident status

IF DEPORTATION ISSUES @ TIME OF MARR.:

  1. leave for 2 YRS be4 retain adj. status
  2. 2 YR req. whether SHAM or BONA FIDE
  3. inquiry done AFTER 2 YR
    * not UNCONST. bc RATIONALLY REL. LEGIT. INT.
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13
Q

SINCERITY OF MARRIAGE FACTORS

A
  • length of time know each other
  • freq. of meetings prior to marriage
  • present live together or have
  • married ONLY after one subj. to investigation, removal, deportation issue
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14
Q

WAITING PERIOD (btwn marriage license and solemnization)

A
  • 75% of states

- MOST say 3 DAYS (range 1-10)

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15
Q

UMDA 203- PROOF B4 CLERK, LICENSE

A

MARRIAGE APPLICATION:
1. completed and signed by BOTH
2. at least ONE appear before clerk
LICENSING:
1. proof each is 18 @ TIME or 16 with CONSENT or JUD. APPROV. AND
2. satisfactory proof marriage NOT PROHIBITED AND
3. cert. of med. exam. results req. by state law

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16
Q

UMDA 206- SOLEMNIZATION

A
  1. JUDGE of court court record
  2. PUB. OFF. whose power includes solemn.
  3. in accordance with RELIGION
  4. 1 complete cert. form and forward to clerk
  • if party unable to be present, may auth. 3RD PARTY to act as PROXY
  • upon receipt of marr. cert., clerk registers marriage
  • not invalid if person solemnizer not legally qualified, if either party believed him to be
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17
Q

COMMON LAW MARRIAGE

A

NOT RECOGNIZED BY MANY

  1. contractual CAPACITY
  2. INTENT by both
  3. NOTICE and “HOLDING OUT”
    * clear and convincing
18
Q

UMDA 209- PUTATIVE SPOUSE

A
  1. COHABITATION
  2. not LEGALLY MARRIED
  3. GOOD FAITH believe married
19
Q

CONST. LIMIT. ON STATE MARR. REGULATION

A

if statute significantly interferes with the exercise of a fundamental constitutional right, MUST PASS STRICT SCRUTINY (compelling and necessary)

*no race, nationality or religion

20
Q

VOID MARRIAGE

A
  • non existent and never existed
  • annulments and dec. judg. useful to protect against BIGAMY
  • can be attacked even after death of ONE

EX. incest, married to someone else, below min. age

21
Q

VOIDABLE MARRIAGE

A
  • effective until formally voided (annulled)
  • invalidity asserted only if BOTH ALIVE
  • once VOIDABLE became VOID, treated as NON EXISTENT

EX. above min. age but lack consent, fraud/duress, absence of formal requirements (med exam)

22
Q

PARTIALLY VALID

A

half and half

23
Q

CONFLICTS OF LAW- VALIDITY

A
  • law where CELEBRATION takes place
  • if meets req. of state were happened, accepted everywhere EXCEPT
    1. PUB POL. of place with most sign. rel. to both
    2. domiciliary of one state goes to another to avoid own states req.
      • can accept if evidence shows DID NOT INTEND TO EVADE or NO PUB. POL. violation
24
Q

BIGAMY

A

marriage to one while married to another

  • civil and crim. liabilities
  • crime but rarely enforced with crim. punish.
25
Q

BIGAMY DEFENSES

A

“ENOCH ARDEN’ STATUTE

  1. 1st disappeared for several years before 2nd
  2. some states allow absent to be declared dead
  3. at least 50K mormon engage in polygamous
26
Q

GOODRICH V. DEPT. PUB. HEALTH

A

MOST COURTS REJECT MAJ. DECISION

  • Const. right to marry same sex in MASS
  • same sex marriages subj. to RATIONAL SCRUTINY
27
Q

1996 DOMA

A

-defined marriage as btwn man and woman
-no state/territory must recogn. same sex marr.
2006- at least 41 states

28
Q

DOMA (NOW)

A
  1. no fed. $
  2. no req. to recog. if married legally elsewhere
  3. male to female marriage
  • right now DOMA CONSTITUTIONAL
  • MAJ–> gender determined at birth
29
Q

TRANSEXUALS and UNRELATED BY BLOOD

A

-TRANS–> no pub. pol. prevents

  • INCEST A CRIME
  • 24 states NO FIRST COUSIN
  • ADOPTIVE SIBLINGS–>
    1. no viol. of pub. pol.
    2. no detriment to kids
30
Q

UMDA 205- MINOR CONSENT, JUD. APPROV.

A

after reason. efforts to notify parents/guardians, may issue license and cert.:

-IF 16 or 17 with NO PARENT to consent OR has but WONT CONSENT, IF capable of ASSUMING RESP. AND serves BEST INT.

31
Q

EXCEPTION TO FORMAL REQUIREMENTS

A

COMMON LAW MARRIAGE

  • FULL FAITH AND CREDIT
  • same rules unless goes against PUB POL
  • FL DOES NOT ACCEPT
    • stat. prov. that allow IF existed b4 disallowed
  • if one DIES or TERM. ILL, brought within 1 YR

BURDEN ON PARTY CLAIMING IT EXISTS

32
Q

LEGAL STATUS OF MARRIAGE

A
  • legal support obligations
  • prop. rts, compen. damages, and evid. privileges
  • affects TAXES one owes AND PUB. BEN. received
33
Q

CL PROPERTY STATES

A

“MARRIED WOMENS PROP. ACTS”

-title determines asset ownership and management rights

34
Q

COMM. PROP STATES

A
  • 9 STATES

- individual earnings DURING become JOINT

35
Q

MC GUIRE RULE

A

cannot mainitain a suit in equity to secure SUPPORT or ALIMONY when the parties are not separated or living apart

36
Q

“NECESSARIES DOCTRINE”

A

PROVIDER OF THE SERVICES MUST SHOW:

  1. services/ goods were provided to spouse
  2. necessary for health and well-being
  3. person who against brought, was married to recipient AT TIME AND
  4. payments for necessaries has not been made
37
Q

SPOUSAL CONSORTIUM CLAIMS

A
  • CL–> hubands file action if wife INTENT. injured

- CURRENT–> BOTH, whether INTENT. or NEG

38
Q

MARRIED WOMEN’S PROPERTY ACT

A
  • once DISSOLUTION, gov. doesnt interfere
  • BOTH adequately protected
  • if need HOSP.- NEED FOR GOV. INTERF.
  • Temp. Rest. Ord
    1. reas. belief
    2. to prevent violence
39
Q

MARITAL SEX OFFENSE IMMUNITY

A
  • under common law, permitted to RAPE WIFE

- TODAY may raise claim

40
Q

PRENUP

A
  • marriage is consideration
  • DISCLOSURE, closer fiduciary relationship, greater discl. req.
  • SIGNATURE, of person whom it is enforced
  • VOLUNTARILY
41
Q

VALIDITY OF PRENUP AGREEMENTS

A

FAIRNESS

  • procedural
  • substantive

Family Law (5 decks)

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