Family Law I
|Is the breach of a promise to marry actionable?||No-- virtually in any state, even if the person experiences IIED.|
|Can premarital gifts that are given conditioned on a subsequent marriage be recovered?|| Yes, if the marriage doesn't take place. |
ex: engagement ring
|3 Different names for Premarital Agmts|| 1. Premarital Agmt|
|UPMAA||Uniform Premarital Agmt Acts (UPMAA) adopted by about 1/2 of the states|
|Prenup||Contract entered into in the contemplation of marriage-- normally between 2 people who are engaged.|
|What is the prenup traditionally designed to regulate?|| Economic issues (money and property) in the event the marriage fails.|
- There is no statutory limitation as to what it can cover.
|Validity for a Prenup|| 1. Agmt must be in writing|
2. Must be signed by both parties.
|In order to challenge a prenup beyond its validity, a party must show:||Unconscionability or Duress|
|Unconscionable Prenup under UPMAA:||1. Wealthier party didn't disclose his assets &|
2. The challenging party didn't waive disclosure &
3. Challenging party didn't have independent knowledge of those assets
It is also unconscionable if the provisions would leave the challenging party in a condition of unforeseen and extreme hardship.
*Ultimately the decision is within the court's discretion.
|When evaluating the unconscionability and validity of a prenup, look at:|| 1. whether the two pouses had separate counsel at the time of the prenup|
2. the level of business experience of both parties
3. whether the weaker financial spouse understood the rights being given up (i.e. forfeiture of judicially determined alimony and property division)
|Requirements for Marriage:|| 1. Capacity (competent, age)|
Additional requirements depend on whether the marriage is ceremonial or common law.
|Ceremonial Marriage:|| 1. Need a license (some states require waiting period and/or blood tests)|
2. Requires an officiant who conducts the ceremony (religious or govt official)
3. Witness (some states require 2 -- one for each spouse)
4. Exchange of promises
| Ceremonial Marriage:|
Exchange of Promises
| - Agmt to enter into the new status of marriage|
- There are no words that the law requires-- it's fine if you choose to take the traditional marriage vow.
- Must be done solemnly
|Common Law Marriage|| (Only recognized in 10 states, including AL)|
1. Capacity (must have been able to secure a license if you had gotten one)
2. Must exchange promises or commitments but you don't have to do it in front of an officiant or any witnesses (Must be in present tense)
3. Cohabitation: live together & be sexual partners (no min time requirement)
4. Hold out and represent yourself as a married couple to the rest of the world
|If you enter into a valid CL marriage and then relocate, does the new state of residence have to recognize the CL marriage?||Yes, provided it was valid where contracted.|
|Types of Marriage Dissolution:|| 1. Annulment|
3. Legal Separation
|Annulment|| Always looks backwards from the date of the marriage to a ground that predates the marriage:|
- Grounds for annulment revolve almost always a lack of capacity in one or both of the parties
|Grounds for annulment are classified into 2 groups:|| 1. void|
|3 important aspects about Void Marriages:|| 1. If you marriage is void, you are not married. |
- You don't need an annulment but might get an option annulment.
2. A ground that makes the marriage void can't be waived by the parties, unlike a voidable grounds.
3. A void marriage can be collaterally attacked by a non-spouse. (estate proceedings)
|Optional Annulment may be preferable for:|| 1. Clarity of the record|
2. May need a judge to help divide the property/custody
|Grounds to make a marriage void:|| 1. Bigamy (unwaivable)|
2. Consanguinity (incest): Can't marry:
- ancestors (mother or grandmom) & descendants (daughter or grand-daughter)
- whole or half siblings (sister)
- lineal relatives up (aunt) and down one generation (niece)
|Aspects about a voidable marriage:|| 1. If your marriage is voidable, you must get an annulment-- it's valid until you get the piece of paper from the judge.|
2. Grounds that make the marriage voidable can be waived.
3. A voidable marriage can only be attached by 1 of the 2 spouses.
|Grounds for a Voidable Marriage:||1. Non-age (too young): waived by staying married once you become of age; generally 18 without parental consent|
2. Mental Incapacity: (annulment would be prosecuted by guardian)
- insanity or mental illness
- development disability
(Waived after if you stick around after incapacity)
3. Incurable Physical Impotence:
- Inability to have sex -- nothing to do w/ kids
- Had to be a virgin when you married
- Condition must be incurable
(Waived if one spouse says it's ok)
4. Duress (shot gun wedding)
|Fraud making a marriage voidable:||Any misrepresentation or omission of fact by one fiance prior to the marriage that goes to the heart of the marital relationship.|
|3 Most Tested Topics for Fraud making a marriage voidable:|| 1. Lying about religion = big deal and grounds for annulment (includes lying about intensity)|
2. Lying or concealment about procreation or sex = big deal and grounds for annulment
3. Money, career & social status = NOT grounds for annulment
|Lying about procreation or sex:||1. Procreation: |
- Must tell fiance that you can't procreate or can only procreate at some risk to you or the child
- If the baby you're carrying isn't your fiances, then that's likely to be grounds
- If you lie in a really big way about your sexual history, you might get an annulment. (But rounding down isn't sufficient)
- Revelation of prostitute history
- Unusual sexual needs/desires not discovered until after the marriage
|Can you get remedies such as almony and support following an annulment?||Some states permit it.|
|Divorce:|| points to the grounds that occurred after a marriage:|
- Historically involved marital misconduct but there are no-fault divorces now.
|No-Fault Divorce:|| Not that same thing as a no-grounds divorce: This doesn't point the finger of blame on either the husband or the wife. |
- Evidence that marriage has been irretrievably broken/irreconcilable differences.
|Irretrievable Breakdown is proven by:|| 1. Evidence tha tthe couple has separated--one of them has moved out of the home (or in some states, staying in another room) AND|
2. Must remain a part for staturoy specified period (shorter if spouses agree; longer if not)
3. During separation, they are still married and therefore can't have sex with each other or anyone else. (Statutorily mandated period of celibacy)
|Fault Based Grounds for Divorce:|| 1. Adultery|
4. Voluntary Drug Addiction or Habitual Drunkenness
|Desertion Grounds:|| Unjustified and permanent departure from the marital home for a specified peroid of time (usually 1 year)|
- Doesn't include domestic violence
|Cruelty Grounds||1. Physical Cruelty: domestic violence (just takes one time)|
2. Mental Cruelty:
- Can involve almost anything and is completely discretionary
- Humiliation or abusive language
- Refusal to engage in sexual intimacy without reason
- Generally look for continuing course of conduct b/c ppl lose their tempers on occasion
|Voluntary Drug Addiction or Habitual Drunkennes:|| - Many states require this continue for a certain period of time|
- Voulntary requirement is there to exclude someone who becomes addicted as result of painkillers used after surgery
- Some cts require it be to "gross" (extreme in degree)
|Insanity:|| - No fault b/c it doesn't implicate misconduct|
- Illness must have been endured for a long time-- some state require that the person be institutionalized
- Some states have the additional requirement of support even after divorce
|Affirmative Defenses to Fault-Based Divorce|| 1. Condonation|
|Condonation|| Equivalent to a waiver and requires:|
1. knowledge of the misconduct by the plaintiff spouse in the litigation
2. forgiveness of the misconduct
3. resumption of marital relations
**Most commonly asserted in adultery proceeding where wife tries to forgive and later finds that she can't.
|Is condonation a defense if the misbehaving spouse is engaged in a continuing course of conduct?||No, but when it comes to domestic violence-- one time is sufficient and can't really be waived|
|Connivance||Similar to entrapment-- involves a scenario where the plaintiff spouse tricked or induced or encouraged the conduct that is listed in the divorce complaint|
|Collusion:||Fraud on the court-- both parties agree to the grounds even though they don't really exist.|
|Recrimination:|| - Analogous to "unclean hands"|
- The defendant spouse can prove that the plaintiff is guilty of equal, of-setting misconduct.
|Legal Separation:|| Used if a spouse would like to live a part from the other spouse and have the economic issues litigated while preserving the status of the marriage|
- May be based on pragmatic or moral/religious scruple
-Usually track the grounds for divorce in addition to failure of economic support
|If a couple is legally separated, are they still married?||Yes-- which means you can't remarry or have sexual relations with new ppl b/c that would be adulterous.|
|2 Requirements for Jurisdiction of Marital Termination:|| 1. Domicile|
2. Additional residency requirement (to prevent forum-shopping)
|Domicile Requirement|| The courts of a given state have jurisdiction to dissolve a marriage provided that one spouse is domiciled in that state. |
- B/c the marriage is considered an object/res.
- A state can have the authoriyt to grant a divorce when one spouse has no connection at all to the forum.
|Residency Requirement:|| 1. Imposed by all states to prevent forum-shopping|
2. Some states require 6 mos.
|Is it permissible for a court to grant economic/property orders over a def spouse that doesn't have PJ with the forum state?||No-- the court must have PJ over the def spouse. |
Known as a DIVISIBLE DIVORCE because the wife can get termination of the marriage accomplished in her new state of marriage b/c she's domiciled there but she'd have to get her economic remedies from a state where the def husband is subjected to PJ.
|How does the Full Faith and Credit clause apply to divorce decrees?||A divorce decree will be honored where ever issued.|
|Divorce in a foreign country:||Completely discretionary whether an American court is going to honor the divorce.|