Marriage: a Personal Relationship Arising out of a Civil Contract

FAMILY LAW

Marriage: a personal relationship arising out of a civil contract.

·  In order to be valid you need:

o  Consent

o  Mental Capacity

§  Need to have the mental capacity to understand that they are entering into a marriage.

o  Meet the age requirement; and

§  Minimum age requirement in that state.

o  Have a covenant of marriage.

§  Have a valid state marriage license.

§  Three requirements added to the legal requirements already used:

·  Couples who enter into those kinds of marriage must agree to speak to a legal counselor if problems arise prior to seeking a divorce.

·  Can only seek divorce for limited reasons

·  Prior to getting their covenant marriage license they have to seek pre-marital counseling.

Common Law Marriage

·  Common Law Marriage: An informal marriage that developed as a result of custom or the couple’s conduct rather than by marriage certificate or ceremony. This form or marriage is in the minority and very few states recognize it.

·  Elements for a common law marriage to exist:

o  Present intent to enter into the marriage;

o  Agreement of the parties to enter into a matrimonial relationship;

o  Need to present themselves as husband and wife to the community.

§  This includes living together, but there is no specific time period or length of time set in place to complete this element.

o  Accompanied or followed by cohabitation.

o  They must have the mental capacity to enter into it.

§  Must have the mental capacity to consent to it.

·  Simply saying you have the capacity to marry is not enough; you have to show that you are not being burdened by an impediment.

·  A common law marriage that is validly contracted into in a state that recognizes common law marriage will be held as a valid marriage in every other state and not considered a violation of the law.

o  Even if the state later abolishes the law pertaining to common law marriage, it cannot be applied retroactively and all common law marriage before abolishment is still legal.

·  Common law divorce is not an option for people who are seeking a divorce.

o  If the common law marriage that was entered into is valid, then it’s considered a valid marriage under the law. Therefore, they would need to file for a legal divorce.

·  Annulment:

o  An annulment means that the marriage never existed in the eyes of the law. This means that there was some kind of defect at the time of the marriage that rendered the marriage void.

§  A defect at the time of the marriage can result in:

·  A void marriage:

o  A marriage that was not valid at the time of the marriage and can never be made valid; or

o  The parties were not aware and misunderstood that they were entering into a marriage at that time. Therefore, they can never make the marriage valid.

§  I.e. incest or bigamy.

·  Parties do not need to seek an annulment because the marriage was not valid at the time.

·  A voidable marriage:

o  Meaning that the marriage is not against the law and was somehow valid at the time of conception, but may be attacked by the parties to be deemed invalid. These cases would need to file for an annulment in court and get a judicial decree granting them invalid.

·  Ratifying a marriage: If the parties do not take steps to remedy the defect that occurred at the time of the marriage, or take steps to make the marriage invalid, the marriage may eventually become valid.

o  I.e. living together and acting as a married couple.

§  Grounds for seeking an annulment:

·  Incapable of consent due to intoxication, drugs, or mental capacity.

·  Inability of one party to consent based on age.

·  Fraud of duress existed when originally entering into the marriage.

·  Impotency.

Putative Spouse Doctrine:

·  Purpose is to protect the financial and property interest of a person who entered into a marriage believing in good faith that it is a valid marriage. However, the other spouse was married to someone else at the time. The person who is unaware his spouse is already married is called the “putative spouse.”

o  In the context of a void marriage.

o  In jurisdictions that recognize the putative spouse doctrine, the putative spouse upon divorce will be entitled to marital property rights along with the legal spouse.

·  If you are a punitive spouse, you can go to court, get the divorce, and the other spouse who was the one who messed up could be on the gook for spousal compensation to both spouses.

Comity of marriage:

·  Principles of comity:

o  One state generally recognizes a marriage of another state unless it’s barred by some statutory prohibition or strong public policy. (Kind of like full faith and credit of marriage).

§  Usually the marriage needs to be related to incest of polygamy to be against public policy.

§  What determines something that is contrary to a states strong public policy?

1.  If it would result in incarceration in the state because of a violation of that states law that is being asked to recognize it as valid.

2.  It says that it violates public policy clearly and expressly states in a statute or the constitution of that state.

·  Full Faith and Credit Clause of the Constitution

o  Marriage is not a public act, record, judicial proceeding or judgment of a state entitle to the full faith and credit under the US Constitution. Therefore, a marriage may be valid in one state, but not recognized in another.

Domestic Violence:

·  Four types of domestic violence:

o  Coercive control:

§  (Most prevalent): Patterns of abusive intimidation coupled with intimate violence displays power and control. Done to render emotional abuse; accomplished through acts of violence, intimidation, coercion, economic abuse, isolation, and the use of children to control.

o  Resistant violence:

§  Reactive or defensive to coercive controlling violence.

§  It is violence against the controlling partner to make the harm stop and is intended to protect the victim.

§  Typically, a one time event and not part of a pattern of control and manipulation.

o  Situational couple violence:

§  Results from the interactions of people who are going through a bad and emotionally stimulating experience that escalates to physical harm towards their spouse.

§  Not likely to continue and not extremely damaging to children.

o  Separation instigated violence:

§  It’s an uncharacteristic act that otherwise would not occur. May come from an extremely stimulating experience, such as cheating. Most likely to be instigated by the person being left. Acts are not likely to be repeated or continued.

·  Cycle of violence

o  Starts off with tension building phase

§  A gradual escalation of tension building between the parties. Usually in this case, these people are somehow romantically linked; having children or in a long-term relationship.

§  The wife becomes more submissive by keeping the house clean, keeping the kids quiet, and not talking. While the husband goes around trying to find things to get angry about.

§  Tension starts to build.

o  Acute battering stage

§  Usually an internal state of the abuser. (how the batterer is trying to keep his power). The initial incident is for the very first time she was punched in the face.

§  This stage is over:

·  When the violence stops.

o  May be one incident, but could be numerous and escalate to the point where the party needs to go to the hospital. Could also be that there are no visible injuries.

o  Loving Repentant Stage (honeymoon stage)

§  The abuser apologizes and says he’s sorry. Shows kindness and remorse to the spouse and gives her gifts, as well as, begs for forgiveness.

§  This stage only works because the victim believes that this is never going to happen again because they both “love” each other and nothing like this could ever possibly happen again.

o  THE CYCLE IS NATURALLY REINFORCING AND WILL CONTINUE TO HAPPEN.

·  Power and control perspective of the DV relationship

o  Domestic violence characteristics

§  Emotional abuse

§  Intimidation

§  Coercion and threats

§  Economic abuse

§  Isolation

§  Use of children

§  Religious/ personal belief in the male

§  Minimizing/denying/blaming behavior

o  Drugs or alcohol

§  Drugs or alcohol will lead to the situation, but it is not the alcohol or drugs fault that caused the situation. It’s the abuser themselves that caused it. They do not help the situation, but having the person stop doing these things will not help the situation either because it will not stop the incidents from occurring.

o  Does batterer intervention work?

§  There is some degree of success depending on the belief system of the batterer and what the system entails them to go through.

o  Why doesn’t she leave and walk away?

§  At some point the women might, but it’s complicated under the circumstances because violence is a highly effective means of controlling a person.

§  It escalates the violence.

§  Victims may often blame themselves and lose hope.

§  They may face economic problems.

o  Point of separation

§  This is the most dangerous time of the relationship because the danger escalates related to the abusers loss of power and control.

·  Remedies:

o  Injunctive for protective order; restraining order or civil protective order.

§  No contract provisions.

·  Temporary custody/ visitation of children, and temporary financial support may be requested and given.

Breakdown of the marriage:

·  Divorce

o  Can achieve a divorce by trial, separation agreement, or both.

o  Fault v. no fault grounds

§  Fault grounds:

·  The idea that parties could only get divorced if there was a reason, or fault, caused by one of the spouses to warrant a divorce. Burden of proof for showing fault was on the spouse who wanted the divorce. If you don’t prove the grounds then you don’t get a divorce.

o  This remedy was only offered to an innocent spouse and not the cheating spouse.

o  Since divorce was discouraged against, strict and specific proof was required to dissolve the marriage.

·  1/3 of the jurisdictions still have this as existing law.

·  At fault spouse may have to pay an economic penalty if fault is proven.

·  Grounds for:

o  Adultery

o  Abandonment

§ 

o  Prison sentence

§  Usually for a certain crime or certain amount of time.

o  Impotency

§  Inability to have sex.

o  Cruel and inhumane treatment

·  Defenses to:

o  Connivance

§  The complaining spouse either participated in the adultery or prostituted the other spouse out.

·  Can’t complain about something you consented to.

o  Condonation

§  The spouse knew about the problem, forgave the spouse, and condoned it to occur. Then went along with their lives as if the problem did not occur.

o  Recrimination

§  When the complaining spouse is not innocent themselves because they are partially responsible for the problem that occurred or participated.

·  No award can be granted if both spouses are not innocent.

o  Collusion

§  Some type of agreement between the spouses to fabricate a story for the divorce.

·  Fraud: Producing fake evidence to court to obtain a divorce.

·  If a court granted a divorce and then found out this was the reason for it, they could vacate the divorce order.

§  No fault grounds:

·  Irretrievable breakdown of the marriage where no fault needs to be shown.

·  Divorce was reformed to switch to no fault divorce. Courts shifted from emphasis on assigning blame to focusing on what the parties wanted and what was important. (Money, property, and children).

o  All the process takes is for one spouse to simply say that the parties do not get along and BAM divorce can be granted.

·  Does not provide for economic penalty given to compensate spouse.

o  Types of divorces:

§  Ex-parte divorce

·  One spouse appears without the other spouse appearing to the proceeding.

§  Bilateral divorce

·  Both spouses appear and participate in the divorce proceedings.

o  Issues related to jurisdiction

§  When does a state have jurisdiction to grant a divorce.

·  Defined by the statutory requirements of the forum state.

o  There is subject matter jurisdiction.

§  Residency or domicile provision is met.

§  Period of time is met.

o  Due Process satisfied.

§  Did they receive notice of the divorce.

§  Need to show that the requirement was met or that there was adequate measures taken to meet it.

o  There is personal jurisdiction over the defendant.

§  Family Long arm statute met.

o  If you cannot get personal jurisdiction over the defendant you may still be able to get a divorce; you can get the bonds of matrimony, which means the state will grant a divisible divorce, but they won’t get any assets.

§  Focus is on:

·  Parties living separate.

·  Marriage is “irretrievably broke.”

·  Irreconcilable differences.

·  Divorce is granted without proof or fault.

o  Divisible divorce doctrine:

§  When you can get a divorce from the bounds of matrimony, but there’s a separate jurisdictional issue to be resolved for there to be division of issues related to finances.

·  Divorce and Property Division

o  Once a judgment is issued dividing property, it is not modifiable.

o  Refers to assets to be divided between the parties. Court recognizes that adults can negotiate and conclude their own financial plans.

o  Questions to ask:

§  Is it community property?

§  Is it marital property?

§  What is the value of the property?

§  How is the property going to be divided between the parties?

§  How or when is the property going to be distributed?

o  Equitable distribution jurisdiction (Common law approach)

§  A set of statutory rules that divides a couples assets upon the divorce. Provides a set of factors.