Family Law - Marriage

Study Notes

Family Law - Marriage

Controversies in Anticipation of Marriage:
Breach of promise to marry: Damages may be sought in states that still recognize this tort. Independent evidence, like a signed writing, or witness testimony is usually required.
Gifts in contemplation of marriage: Gifts made contingent on the marriage may be revocable.
Limitations on Who May Marry:
Minimum age: Spouses must reach the age of majority or have court authorization.
Consanguinity: Closely related individuals cannot marry. First cousins, or closer, cannot marry.
Bigamy: Marriage to someone while already legally married is illegal and void. A second marriage is considered bigamous.
Requirements for Ceremonial Marriage:
Marriage license: Needed in most states.
Officiant: A properly qualified officiant is necessary.
Ceremony: A formal ceremony, typically conducted by an ordained officiant, is usually required.
Mental Capacity to Marry:
Prospective spouses must understand the legal implications of marriage.
Common Law Marriage (in some states):
Cohabitation: Spouses must live together.
Holding Out: They must represent themselves as husband and wife to others.
Intent: They must intend to be married.
Putative Marriage Doctrine:
Even if a marriage is invalid, a party who acted in good faith believing the marriage was valid may have certain rights, such as property claims.

Family Law - Separation, Divorce, Dissolution and Annulment

Grounds for Divorce (Fault):
Adultery: Sexual relations with someone other than one's spouse while married.
Desertion: Abandonment of the matrimonial home with the intent not to return.
Physical or Emotional Cruelty: Severe physical or emotional harm inflicted on one spouse by the other.
Other faults (e.g., habitual intoxication, drug abuse, or insanity).
Bars and Defenses to Fault Divorce:
Condonation (forgiving the fault).
Collusion (agreement to falsely claim fault).
Connivance (encouraging the fault).
Provocation (protesting the wrong action taken by the other).
Recrimination (both spouses proving fault).
No-Fault Divorce:
Mutual Consent: Both spouses agree on the divorce.
Irretrievable Breakdown of Marriage: One spouse files for divorce on the grounds the marriage is not salvageable.
Separation: This has a mandated time period and is not the end of a marriage.
Other Grounds for Divorce:
Cruelty: Treatment that renders living together insupportable.
Adultery.
Conviction of felony: Imprisonment for a specified period.
Abandonment.
Living apart
Confinement in a mental hospital.
Annulment:
A court order declaring a marriage invalid from the beginning, as if it never existed. Grounds include:
Under Influence of Drugs/Alcohol
Impotency
Fraud
Duress
Mental incapacity
Underage (Lack of legal capacity to marry due to age).
Jurisdiction and Recognition of Divorce Decrees:
Subject-Matter Jurisdiction: The court must have authority to hear the case.
Personal Jurisdiction: Must have jurisdiction over one or more spouses.