Marriage -- legal union of 2 individuals
Requirements |
Procedural |
License, solemnization |
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State of mind |
Factors of Consent (capacity, intent) |
Limitations |
age, consanguinity, capacity, and bigamy/polygamy |
Exceptions: removal of impediment or presumption of validity |
Common Law Marriage requirements |
Consent |
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Cohabitation |
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Holding out publicly as spouses living together |
Premarital Agreements |
writing |
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voluntariness |
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Fair & Full Disclosure of financial worth |
Amendment |
May be revoked/amended by written agreement signed by both parties |
Support Obligation |
each spouse has obligations to support the other and one spouse may be held liable for another spouse's purchases |
Necessaries Doctrine |
one spouse may be held liable to CRs for Necessaries purchased by the other spouse |
Termination of Marriage
Annulment |
Divorce |
judicial declaration that the marriage was invalid due to some impediment at the time of marriage and, therefore, never occurred |
divorce decree terminates the marriage relationship |
Grounds (voidable): non-age, incurable physical impotence or incapacity to consent (mental incapacity, fraud or duress) |
Grounds: irretrievably broken/Irreconcilable differences, living separate and apart for a given time, or incompatibility |
Grounds (Void): Bigamy/Polygamy, consanguinity |
Defenses: may exist in some states, but courts will not force a marriage to continue |
JX: state where either party is domiciled |
JX: residency req't/Full Faith & Credit Cl. |
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Division of Property |
when property is divided upon marriage dissolution (2 approaches) |
(1) Equitable Division of Marital Property |
(2) Community Property |
each spouse takes their sep property and the court divides property acquired during marriage on equitable basis |
all property acquired during marriage split 50/50; all property owned prior to marriage/acquired by gift or inherit. is sep property |
Property Division Process |
3 steps |
(1) Categorize Property |
Separate v. Marital |
(2) Determine Equitable distribution of property |
Factors: duration of marriage; std of living during marriage; Income, education/vocational skills, employability of each party; assets, debts & liabilities; Needs of parties; Health of parties, etc. |
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Support
Spousal |
Child |
can be awarded if a spouse's separate property is insufficient for maintence (Discretion, Purpose, Terms) |
BOTH parents have an absolute duty to support child |
Factors: financial resources of each party, std of living during marriage, ability of spouse paying support to meet own needs, time necessary for party seeking support to obtain employment or contribution to marriage |
Guidelines are state based & each state has formula to determine amount |
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last until child reaches age of maj. or emancipated |
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custodial parents cannot deny visitations rights based on a parent's failure to make child support payments |
Modification: substantial material and unanticipated change (not self-induced) |
Mod: substantial change that affects the needs of child OR ability of parent to pay |
Custody
Types of Custody |
Legal |
right to make major decisions affecting child's life |
Physical |
possession and control of child |
Joint |
child splits time between each parent's house, and/or Parents share decision making, but child lives with one parent |
Custody Factors |
Courts consider Child's best interests; Parent's wishes, child's wishes, C's adjustment to home/school/community; ability/willingness of each parent to provide for c's needs; and interaction/relationships with parents, siblings and others |
Visitation |
when one parent is granted sole physical custody, the other parent is entitled to visitation |
Exception |
V rights might be denied if court determines it endangers child's wellbeing |
Nonparents |
May be given VRs if: NP has substantial relationship with child; NP visitation is in C's best interests; and Fit parent does not object |
Modification |
requires parent to show a substantial, material change in circumstances (Best interest of child std) |
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Adoption
adoption terminates the legal relationship between biological parents and their child, and establishes a new legal relationship between parent & child |
Process |
consent of both bio parents generally req'd (sometimes consent of adoptee is req'd if over 12/14) |
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cannot withdraw consent AFTER adoption, but can withdraw if court determines it is in the adoptee's best interests |
Alternatives |
law has not provided uniformity on rights of parties involved |
Donors |
one who produces sperm/egg used for reproduction generally does not have parental rights in a conceived child (Unless agreed to in writing by donor & parent(s)) |
Surrogacy |
where a woman agrees to bear a child conceived through assisted reproduction for the intended parents |
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Agreement- surrogate, S's husband (if married), and intended parents enter into a written agreement in which surrogate relinquishes her rights/duties as a parent |
Unmarried CoHabitants
ks between unmarried cohabitants |
ks between unmarried cohabitants to share property or engage in other forms of economic sharing are VALID, unless sexual services are the sole consideration |
implied k |
courts may allow unmarried cohabitants to seek a remedy based on an implied-in-fact k theory |
division of property |
when unm. coH breakup, cts may grant an equitable distribution of property based on Rehabilitative alimony or one of the following (resulting trust, constructive trust, quantum meriut) |
Nonmarital Children -- born to unmarried woman
Discrimination |
almost all discrimination based on nonmarital child status is unconstitutional |
Establishing Paternity |
suit may be brought to establish a NMC's biological parent |
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Admissible Evid--blood/genetics test, prior statements by deceased family regarding pat, Med. Testimony or Admissions/acknowledgments by alleged parent |
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