Marriage
General Requirements |
(i) Minimum age (18+ or with approval);
(ii) Both parties must have capacity to consent (the ability to comprehend and voluntarily agree);
(iii) intent to marry |
Ceremonial Marriage |
(1) License
(capacity, waiting period, expiration) (state may require testing but may not condition the license on the results);
(2) Solemnization
(officiant & 2+ witnesses; must be filed) |
No license issued when: |
Bigamy, Affinity or Consanguinity, Duress or Fraud, Incapacity, Intoxication, “Sham” marriage |
Common Law Marriage (mostly abolished but given full faith and credit) |
Elements: (the 4 C’s)
(1) Capacity,
(2) Consent (present agreement),
(3) Cohabitation,
(4) Conduct (public “holding out” of marital relationship) |
Putative Marriage (for equitable relief only) |
What: an innocent party (the “putative spouse”) participated in a ceremonial marriage & believed in good faith that the marriage was valid prior to discovering an impediment to the marriage
Effect: putative spouse can seek legal remedies like spousal support and property distribution |
Terminating via Annulment
Void |
Bigamy (exception: some states allow the 2nd marriage to become valid once the impediment is removed aka the “Enoch Arden” rule);
Incest (by blood, marriage, or adoption);
Mental Incapacity |
Defenses: |
Lack of impediment (removal still makes the marriage voidable) |
Voidable (valid until a party acts) |
age, incurable impotence, intoxication, fraud, duress, or lack of intent |
Defenses: |
unclean hands, laches, and estoppel |
Grounds for Divorce
Type |
Grounds |
Proof |
No-Fault |
Marriage is irretrievably broken |
(usually) separation for a statutory period & state law factors |
Fault |
Adultery |
opportunity & inclination |
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Desertion |
willful & without cause or consent, intent to be permanent |
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(Constructive Desertion) |
one spouse forces the other spouse out, and there is fear of harm if they return |
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Cruelty |
cohabitation is unsafe or improper (usually requires course of conduct and physical harm) |
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Others:
Bigamy, Habitual Drunkenness (some), Imprisonment, Institutionalization, Indignity (minority) |
… |
Defenses |
Recrimination & Unclean Hands; Connivance, Condonation, Collusion, Provocation, Insanity, Consent, Justification |
Not a defense: |
Challenge on religious grounds |
Divorce
Note: most states have a residency requirement |
Jurisdiction: |
A court with only SMJ jurisdiction but not PJ over both parties can decide status of the marriage but not division of property, support, etc. |
Limited Divorce |
legal separation while remaining married
court may determine support and property division
(wide recognition, rare use) |
Separate Maintenance |
support while not separated |
Interlocutory Period/Finalizing divorce |
many states do not finalize until a certain period has elapsed; cannot remarry during |
Division of Property
Decree cannot be modified once entered |
Methods: |
(Majority) Equitable Distribution
(Minority) Community Property (50/50 presumption) |
Marital Property |
acquired during marriage by any means other than gift, descent, devise |
included |
pensions, damage awards from tort suits from cause of action that accrues during marriage, stock options |
not included |
licenses or educational degrees |
Separate Property |
acquired: before marriage, by valid agreement, by gift or inheritance, by cause/judgment that accrued prior to marriage
property that a party has sold or granted or conveyed for value (including mortgage) prior to separation |
Mixed Property |
SP may be transformed into MP if commingled & no longer traceable OR by manifested intent (e.g., changing title to property) |
Distribution factors |
Duration of the marriage;
Existence of prior marriages;
Economic circumstances & needs (age, health, income, needs, earning potential);
Assets, debts, and liabilities;
Standard of living during the marriage;
Child custody provisions;
Contributions to marriage;
Source of money used to purchase property;
Value of separate property;
Dissipation/damage to martial property |
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Premarital Agreements
Note: must pass Statute of Frauds (writing signed by party asserted against) |
Requirements (common law) |
(i) full disclosure
(ii) fair and reasonable
(iii) voluntary |
UPAA (Uniform Premarital Agreement Act) |
(similar to common law)
Challenge to enforceability:
(a) Involuntariness (duress, fraud, coercion, overreaching behavior));
(b) Unconscionability at time of execution (majority) or enforcement (minority);
(c) Lack of reasonable knowledge or disclosure of the other’s assets and obligations
(party can waive full and fair disclosure) |
Permissible terms |
clause preventing modification of spousal support or property rights |
Unenforceable terms |
child custody or support |
Choice of Law |
state with the “most significant relationship” to the marriage & agreement |
Other Marital Agreements
Separation Agreement |
Typically merged into the divorce decree |
Property Settlement Agreement |
Settle and finalize economic issues prior to divorce decree |
Discretionary exception to enforceability:
(also applies to premarital agreements) |
agreement will would leave one spouse “woefully impoverished” and a dependent on the state |
Parentage, Adoption, and Assisted Reproduction
Parentage, Adoption, and Assisted Reproduction
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