Marriage & Divorce

Question 1

What is a marriage?

Answer 1

A civil contract between two people

Question 2

What does marriage require?

Answer 2

• Both parties have capacity to give consent
• Exchange of consideration in the form of:
  
  • Mutual exchange of promises; and
  • Imposition of rights and obligations that come with the marriage

Question 3

How can a marriage contract be modified or terminated?

Answer 3

Only with state intervention

Question 4

What does ceremonial marriage require?

Answer 4

• License
• Solemnization

Question 5

What are the possible restrictions for a marriage license?

Answer 5

• Age
• Waiting period
• Expiration of license

Question 6

What is the age requirement for a marriage license?

Answer 6

• At least 18 years old
• Parental consent if a party is under 18

Note: This is for most jurisdictions, though all jurisdictions impose a minimum age requirement

Question 7

True or False: Many states require a waiting period between when a marriage license is issued and the marriage ceremony.

Answer 7

True

Question 8

Can the results of premarital medical testing be a condition for issuance of a marriage license?

Answer 8

No

Question 9

Expiration of a license is how many days after issuance?

Answer 9

Varies from 10 to 30 days

Question 10

When will a marriage license NOT be issued?

Answer 10

• If a party is already married to someone else
• If the parties are too closely related
• If the marriage is a sham
• If the parties are incapable of understanding the act of marriage (e.g. fraud or duress)

Question 11

What is required to solemnize a marriage?

Answer 11

• At least 2 witnesses (most states)
• An officiant (most states)
• Marriage license filed with the appropriate government office

Question 12

What is a proxy marriage?

Answer 12

When a party has a stand-in for them at the ceremony because they cannot physically attend

Note: Allowed by some states

Question 13

What are the requirements for a common- law marriage?

Answer 13

• Capacity to marry
• Consent
• Cohabitation
• Conduct (i.e. hold themselves out in public as if married)

Question 14

When won’t a state recognize common-law marriage from other states under the Full Faith and Credit Clause?

Answer 14

If the state has a strong public policy against recognizing the marriage

Question 15

How can a valid marriage be terminated?

Answer 15

• Annulment
• Divorce (dissolution)
• Death

Question 16

What is annulment?

Answer 16

A judicial decree that voids a marriage

Question 17

When is annulment available?

Answer 17

When a marriage is void ab initio or voidable

Question 18

When does annulment apply?

Answer 18

When an impediment to a legal marriage existed at the beginning of the marriage

Question 19

What is a void marriage?

Answer 19

A marriage not legally recognized for any purpose (“as if it never happened”)

Question 20

What happens if a party is already married?

Answer 20

The second marriage will be void

Note: The burden is on the person trying to prove the first marriage

Question 21

What are the three ways a marriage can be void?

Answer 21

• Prior existing marriage
• Incest
• Mental incapacity

Question 22

What is a voidable marriage?

Answer 22

A marriage that is valid until one of the parties seeks annulment

Question 23

When does age make a marriage voidable?

Answer 23

The following can seek an annulment:

• A party is underage and did not seek their parents’ consent
• A parent of a minor

Question 24

What are the five ways a marriage can be voidable?

Answer 24

• Age
• Impotence
• Intoxication
• Fraud, misrepresentation, duress, coercion, force
• Lack of intent

Question 25

After an underage party reaches the age of majority and continues to cohabitate with their spouse, can they seek an annulment?

Answer 25

No

Question 26

When does impotence make a marriage voidable?

Answer 26

When one party is **naturally and incurably impotent** Exception: The other party **knew about** the impotence prior to marriage

Question 27

When does intoxication make a marriage voidable?

Answer 27

When either party was incapacitated due to alcohol or drugs Exception: The parties continue to cohabitate after marriage (ratification)

Question 28

When does fraud make a marriage voidable?

Answer 28

When the fraud: * Goes to the essence of the marriage * Existed at the time of the marriage * Is not about future facts And the parties immediately cease living together once the fraud is discovered

Question 29

When does lack of intent make a marriage voidable?

Answer 29

When the parties acted with no intention to be married

Question 30

If a voidable marriage due to lack of intent has been consummated, can it be annulled?

Answer 30

No

Question 31

What are the effects of annulment?

Answer 31

Either party can seek: * Spousal support * Equitable distribution of marital property * Child support (for a marital child)

Question 32

What is the defense to annulment?

Answer 32

Denying the impediment Note: The other party can still pursue divorce

Question 33

What is a putative marriage?

Answer 33

Equitable remedy to protect a party who believes their marriage is valid Note: Adopted by most jurisdictions

Question 34

What is divorce?

Answer 34

Legal dissolution of marriage

Question 35

What is the residency requirement for divorce?

Answer 35

* At least one party must be a resident of the state * The length of time varies Note: Most states of a residency requirement

Question 36

When is a no-fault divorce granted?

Answer 36

When the marriage is **irretrievably broken**

Question 37

What are the grounds for fault-based divorce?

Answer 37

* **Adultery** (opportunity + inclination) * **Cruelty** or inhumane treatment (not one-off) * **Desertion** * **Habitual drunkenness* that impairs the marriage * **Bigamy** * **Imprisonment** for a specified period of time * **Indignity** (minority of states) * **Institutionalization** with no reasonable prospect of discharge or rehabilitation

Question 38

When do defenses to divorce apply?

Answer 38

* Fault-based divorces * Affirmatively pleaded

Question 39

What are the defenses to divorce?

Answer 39

* Recrimination and unclean hands * Connivance (consent to participate in marital wrong) * Condonation (forgiveness) * Collusion * Provocation * Insanity * Consent (desertion or adultery) * Justification

Question 40

Can religion be a defense to divorce?

Answer 40

No