BEFORE MARRIAGE
Breach of Promise to Marry
- Claim exists but is rare
- Contract claim provides for tort damages
Gift in Contemplation of Marriage
- Is it a gift in contemplation?
- If yes, gift subject to condition, and must be returned
Prenuptial Agreements
- UPAA:
o Can agree to keep property separate
o Can waive spousal support (as long as not destitute)
o Courts not bound by provisions regarding children
- Validity:
o In writing and signed
o Entered into voluntarily
o UPAA threshold question: was agreement unconscionable?
No: look into full disclosure of assets
Contracts between cohabitants
- Valid and enforceable unless sex is only consideration
MARRIAGE
Limitations on Who May Marry:
- Age
- Bigamy
- Mental Capacity
- Incest
Requirements:
- License
- Ceremony with authorized officiant
- Capacity
- No legal impediment
Common Law Marriage – valid in state where married = valid in all states
- (1) Consent – present mutual agreement
- (2) Cohabitation
- (3) hold out as publicly as spouses
Putative Marriage
- Equitable remedy for invalid marriage
Responsibilities among spouses
- Property rights
- Obligation to support (doctrine of necessaries)
- Spousal abuse orders (can be granted ex parte)
- Tortious interference against third party (heartbalm)
ENDING MARRIAGE
Annulment: treats marriage as though it never existed
- Void: failed to meet essential requirements for marriage
o Never valid
o May be attacked by third party
- Voidable: impediment existed at the time of marriage
o Valid until declared null – may be ratified
o No collateral attacks
Divorce and Separation
- Jurisdiction:
o one spouse must be domiciled for ex parte divorce
o finances require PJ
o divorces given ffull faith and credit
- Grounds are state specific:
o No fault:
proof of irreconcilable differences,
living separately for specified time,
incompatibility
o Fault:
adultery (opportunity and inclination),
desertion (unjustified abandonment),
cruelty habitual drunkenness,
insanity
- Defenses:
o No fault:
reconciliation
o Fault:
Collusion: simulated grounds
Connivance: willing consent
Condonation: forgiveness
Recrimination: unclean hands
Legal separation: parties are still married but can decide property issues
o Religion and health insurance
- Separation agreements:
o Entered into after marriage
o Enforceable if supported by consideration
o Can waive alimony and equitable division of property
o Can agree on custody and child support (but court not bound)
- Modification: allowed if change in circumstances
o Can be modified when incorporated into divorce decree
o Not incorporated = only contractual remedies
PROPERTY DIVISION AND ALIMONNY
Main approaches:
- Community property: all property owned ½ by each spouse
o Equal divide
- Equitable division of all property
- Equitable division of marital property: each spouse takes their own property and
marital property is divided
o Equitable divide
Property orders are final
Steps:
(1)Classify as marital or separate property
(2)Equitably divide the estate
Separate property:
- before marriage,
- gift or inheritance
- property acquired in exchange if identifiable and income and appreciation of
separate property
- property acquired after legal separation
Marital Property:
- everything acquired during marriage
- earnings, retirement, employment benefits, pensions etc.
o contributions made during the marriage = marital
Property issues:
- commingling separate and married = married
- transmutation =
- property acquired before but paid or after = split
- professional license/degree = not marital property but can add to alimony
split equal and then evaluate to make equitable
- age, duration, standard of living during marriage, contributions during marriage,
health, debts, assets, custody, etc. (NOT MARITAL FAULT)
Spousal Support
- sum of money paid to a spouse
- types of alimony:
o permanent periodic support: X per month forever until remarriage or death
modifiable
o Lump sum support: lump sum of periodic support (clean break)
Not modifiable
o Rehabilitative: rehabilitate to increase earning capacity
Modifiable
o Reimbursement: money to reimburse for putting spouse through school
- Factors to consider similar to property division factors (plus marital fault)
- Modification allowed if substantial and continuous change in circumstances
- Termination: remarriage, death, or cohabitation with another in manner that
reduces financial obligations
CHILDREN
Child
Support
-Child support guidelines dictate amount of support
-Duration: age of majority, death, emancipation, or TPR
-Jurisdiction: UCCJEA
o Original: first petition filed, home state
o Enforcement:
Direct: go to employer to withhold wages
Registration: register child support award in the state
- Modification:
o Original court has continuing exclusive jurisdiction to modify unless no party
resides in the state or parties agree
o Substantial and continuing change of circumstance
- Enforcement:
o Civil or criminal proceedings, forfeiture of licenses, etc.
o Cannot withhold visitation
Custody and Visitation
- Jurisdiction UCCJEA
o Original jurisdiction: home state (lived with parent for 6 months)
No home state: significant connection
o Modification: substantial and continuing change of circumstances
Original jurisdiction has modifying jurisdiction unless nobody lives
there
Court can decline
Temporary emergency jurisdiction if child in state to keep safe
- Legal and physical custody
o Legal: decision making
o Physical: custody of child
- BEST INTEREST OF CHILD
o Parent wishes, child wishes, primary caregiver, etc.
- Joint or sole custody
- Custody to nonparent: must show parental unfitness abandonment, neglect, etc.
- Visitation:
o Parent does not have custody
o Visitation given unless harm to child will occur
o Nonparental visitation will apply in extraordinary circumstances (Troxel)
- Modification
o Substantial and material change of circumstances
o We try not to modify very often because change is hard on kids
- Relocation statute: changing child’s primary residence
o Courts consider BI and how far the move is and what the move is due to
Parentage
- Nonmarital children: receive constitution
- Parentage action: establish biological relationship
- Fatherhood presumed: married to parent or 300 days of termination of marriage,
birth certificate, adjudicated
o Rebutted with clear and convincing evidence
o Parentage by estoppel
o Paternity suit SOL doesn’t start until child is majority
- TPR:
o Voluntary
o Involuntary
Inflection of serious physical harm
Abandonment
Neglect or deprivation
Failure to provide support
Parental unfitness
- Adoption:
o Requirements:
Voluntary or involuntary TPR
Creation of adoptive parents’ rights
o Consequences:
Complete severing + on BC
Adoptive child mays till be able to inherit from bio parents
o Agency adoption: licensed agency
o Private adoption
- Assisted Reproduction
o Birthing mother = mother unless iron clad contract
o Gestational carrier agreements
Must be in writing and approved by court
- Posthumous conception
o Full inheritance rights within written parents consent
CONVISER:
Who can get married:
- Need consent and no legal impediments
o Minimum age
o Not incest
o Bigamy
o Capacity to consent
Standard process for getting married:
- License
- Solemnization
Common law marriage
- Present mutual agreement
- Cohabitation
- Hold themselves out as married
Prenup
- In writing signed by party to be charged (SOF)
- Voluntary
- Fair and full disclosure of assets
- Not unconscionable
Annulment: act as though marriage never happened
- Bigamy (void)
- Incest (void)
- Capacity (voidable)
Divorce:
- Jurisdiction proper for divorce if party resides in state
- Must have PPJ for financial matters
- No fault grounds:
o Irreconcilable differences
o Living apart
Unilateral = period often longer than bilaterial
- Fault grounds:
o Adultery
o Willful desertion
o Extreme physical or mental cruelty
o Drug addiction or habitual drunkenness
o Insanity
- Defenses to fault based:
o Collusion = spouses agreed
o Connivance = willing consent
o Condonation = forgiveness
o Recrimination = unclean hands
Property Division
- Approaches
o Community property – 50/50
o Equitable division of marital prop. – equitable
o Equitable division of all prop
- Separate property:
o Owned before marriage
o Acquired through gift or inheritance
o Acquired in exchange for separate property
o Income from or appreciation of separate property
- Marital property
o Everything else
- Special issues;
o Professional licenses or degrees = delt with through alimony
o Commingling
o Transmutation: separate property treated with intention for it to be marital
- Division factors:
o NOT MARTIAL FAULT
o Duration, age, education, standard of living, earning capacity, work during
marriage, etc.
Spousal Support:
- Types:
o Permanent periodic
o Lump sum
o Rehab: gain skills
o Reimbursement: degree
- Factors INCLUDE MARITAL FAULT
- Termination: substantial, unanticipated change in circumstances
o Lump sum not modifiable and does not terminate
Child Support
- Based on child support guidelines but court can deviate when needed
- Jurisdiction:
o Original: proper where first petition filed or child’s home state
o All states can enforce
o Original state has continuing and exclusive jurisdiction to modify unless no
one resides there
- Modifiable if substantial and continuing change of circumstances
Child Custody:
- Jurisdiction:
o Original: child’s home state
Where lived at least 6 months immediately before proceeding
Birth state if child not 6 months old
State that was home state within past six months if parent still lives
there
No home state = substantial connection and evidence
o Modification: issuing court has continuing exclusive jurisdiction unless no
party lives there or no connection to state
- Custody determination:
o Best interest of child
o Legal and physical custody
o Joint or sole
- Visitation
o Non custodial parent gets visitation
o Denial is rare
Parentage:
- Presumption: birthing mother, married to birthing mother, on birth certificate,
adjudicated
- Parentage by estoppel
- Adoption:
o Terminate biological parents rights
o Consent of adoptive parents
o Home studies
