contractual aspects of marriage and divorce chapter 12
TRANSCRIPT
CONTRACTU
AL ASPE
CTS
OF MARRIA
GE AND
DIVORCE
CH
AP
TE
R 1
2
Marriage: legal union of a man and a woman as husband and wife
Thoughts on this definition?
Impact of law on marriage:
Minimum age to marry with and without parental consent
Responsibility of children born out of wedlock
Couples living together outside of marriage
MARRIAGE AND THE LAW OF CONTRACTS
Age and Premarital Relations:
PA Marriage Laws
All states, but Nebraska (19), require individuals to be 18 to marry without consent
Depending on the state, you may need parental/guardian and/or court permission to marry if you fall below age 18
Circumstances, i.e. pregnancy, can also have an impact on the age at which two people may marry
Age and Premarital Relations:
Marital Restriction:
Same sex
Relatives: aunts/nephews, uncles/nieces, brother/sister
Direct descendants: father/grandfather to daughter/granddaughter
Parents my enforce specific dating rules, but they must use “reasonable force” or else it may be deemed child abuse
MARRIAGE AND THE LAW OF CONTRACTS
Premarital Pregnancy and Child Birth:
If pregnancy happens outside of wedlock, both parents are financially responsible for the child
Age does not matter in this instance
No law exists to force unmarried parents to marry
Cohabitation:
Cohabitate: a man and a woman who live together outside of marriage
This is illegal in 3 states: Mississippi, Florida, Michigan
The Lawrence vs. Texas (2003) ruling has made it difficult to enforce the idea of illegal cohabitation
MARRIAGE AND THE LAW OF CONTRACTS
The Marital Contract:
A binding contract develops at the engagement
In some states, a lawsuit can happen if an engagement breaks up (breach of contract)
Damages would be paid due to:
Actual damages
Humiliation
Hurt feelings
The Marital Contract:
Some states only allow the suit if the woman is pregnant by her ex-fiance
Some states allow the suit if a third party interfered with the engagement (excluding parents who try to prevent their children from marrying)
If marital gifts have been accepted, recipients may keep the gifts
Women may be required to give the ring back if she breaks off the engagement; not the case if the man breaks off the engagement
MARRIAGE AND THE LAW OF CONTRACTS
The Marital Contract:
Couples may marry by:
Using traditional state laws
Common law
Civil union
MARRIAGE AND THE LAW OF CONTRACTS
State Requirements:
Each state develops own laws
Must apply for and pay a fee for a marriage license
Some states may require a blood test
Waiting periods occur between time applied and when license is issued
Once issued, any licensed person may conduct the ceremony
Licensed persons include:
Clergy: rabbis, ministers, priests
Judicial: judges, court clerks
Mayors
Ship captains
MARRIAGE AND THE LAW OF CONTRACTS
Common Law:
Common law marriages: occur when a single woman and a single man live together, share common property, and hold selves as husband and wife for a prolonged period of time
Length of time depends on state; usually 10 years or longer (PA was 7)
Most states have eliminated these types of marriages if they happen after a specific date (PA included)
MARRIAGE AND THE LAW OF CONTRACTS
Civil Unions:
Civil union: similar to marriage that allows same-sex partners to have many rights and benefits similar to marriage
Defense of Marriage Act (DOMA) was enacted in 1996 in order to bar federal and state recognition of same-sex marriage
DOMA was defiant against the full faith and credit clause that allowed common law marriages to be recognized in states where the state of formation deemed it illegal
Caused many states to amend their constitutions to give a specific definition that only included one man and one woman
Civil Unions:
Multiple states have done the opposite and have allowed same-sex partners obtain a marriage license
Other states have developed domestic partnerships as an alternate to marriage
Domestic partnerships: provide nearly all state-level spousal rights to unmarried couples who qualify
Current issue: 9th Circuit Court of Appeals held that is unconstitutional to deny federal spousal benefits to the homosexual partner of a federal public defender (sex discrimination)
See case
MARRIAGE AND THE LAW OF CONTRACTS
Marital Consortium:
Marriage is seen as a contract for life
Purposes of marriage:
Procreation
Raising children
Sexual needs
Economic needs
Companionship needs
Marital consortium: the above are mutual duties of the husband and wife
Marital Consortium:
If either spouse suffers injury that prevents fulfillment of these duties, they can sue for “loss of consortium”
Most important duties:
Support, nurture, welfare, education of children
File joint tax return
Faithfulness
Mutual responsibility
MARRIAGE AND THE LAW OF CONTRACTS
Rights and Duties of Parents:
Parent:
Natural father and mother of individual born of their valid marriage
Illegitimate child’s natural mother
Child’s assumed blood father or mother who has acknowledged relationship and meaningful support of child
Individual(s) who utilize adoption
Rights and Duties of Parents:
Adoption: allows individuals to legally assume the rights and duties of father and/or mother
You can be stripped of your parental rights by the judicial system
The court can then appoint a new parent although there is no blood connection, adoption process, or previous association with the child
MARRIAGE AND THE LAW OF CONTRACTS
Parental Rights:
Parents have the right to choose their child’s education as long as the choice follows state guidelines
Parent may choose to send their child to a different school, but may not try to alter the curriculum of the current school
Parent may also control how a child uses their talents, creativity, and the resulting income
Parental Rights:
This is so the parents can do what is best for the child without government control
In the case of Troxel vs. Granville (2000), it was stated that besides in the issues of abuse or neglect, parents have total control as to how they can/will raise their children
MARRIAGE AND THE LAW OF CONTRACTS
Parental Duties:
Duties are owed to both children and society due to their status of parent
Top moral duty: love
Other duties:
Nurture
Guide
Maintain
Discipline
Support financially until adulthood or emancipated
Parental Duties:
Vicarious liability in tort cases for acts of children
Examples include:
Acts of vandalism
Involvement in hate crimes
Destruction of public buildings
Negligent supervision: when parents do not take steps to correct their child’s unintentional, yet harmful, behavior, liability for their actions go to the parent
Anyone who has custody of the child can be held accountable for this
MARRIAGE AND THE LAW OF CONTRACTS
Parental Duties:
Cannot contribute to the delinquency of a minor
Incidents include:
Committing a crime in the presence of a minor
Encouraging illegal behavior of a minor
Serving of alcohol
Engaging in sexual activity
Involving them with pornographic material
This is typically a felony with sentencing ranging 5 to 10 years
MARRIAGE AND THE LAW OF CONTRACTS
Property Rights and Duties:
Property can be in the name of the husband, wife, or both
Either spouse can buy and sell property that is in their own name
This was not always the case; women were not always allowed to own property
In order to protect individual property, a prenuptial agreement can be developed before marriage
Property Rights and Duties:
Prenuptial agreement: document dictates what will happen to property and money in the event of the marriage ending (death, divorce, cause of divorce, etc.)
Prenuptial (or premarital) agreements can include a wide-range of areas, but the courts will only enforce monetary areas
MARRIAGE AND THE LAW OF CONTRACTS
END OF
SECTION 1
2.1
Nullifying the Marriage Contract:
Ways to end a marriage:
Death
Divorce
Annulment
Various legal issues
Annulment: legal procedure for declaring a voidable marriage be null and void
Voidable marriage: results from a problem that existed from the beginning of the spousal union; stays valid until annulment
Void marriage: creates no rights or duties for either spouse and is considered an invalid marriage from the beginning
Nullifying the Marriage Contract:
Examples of fraudulent marriages:
Lying about wealth
Condition of pregnancy
Freedom from disease
Willingness to have a child
Past marriage
Age
Declaration of nullity: declaration to say that marriage never happened; often used for religious purposes or when laws are violated in the union
Examples of when this is needed:
Want to remarry in the church
Plural marriages
Incestuous relationship
Mental incompetence of individuals involved
DIVORCE AND THE LAW OF CONTRACTS
Nullifying the Marriage Contract:
Bigamist: a person who knowingly marries a second spouse while still being married to the first
Bigamy: being married to two people at the same time (criminal act)
Polygamist: a person who knowingly marries multiple wives without ending the first marriages
Polygamy: being married to more than two people at one time (crime)
These are often to referred to as plural marriages
Traditional: one husband with multiple wives (Sister Wives)
DIVORCE AND THE LAW OF CONTRACTS
Terminating the Marriage Contract:
Divorce: legally ending a marriage
Also known as dissolution
Most popular reason to end a marriage is through No-Fault
No-Fault has made getting a divorce much easier
Recognizes the right of one or both spouses to terminate the marriage by mutual agreement
Can be initiated by either spouse
Granted after it is shown that no resolution can be made
Terminating the Marriage Contract:
No list of grievances is needed in No-Fault
Grievances include:
Desertion
Adultery
Cruelty
Drug use
Imprisonment
The term for No-Fault is often irreconcilable differences
Takes approximately 6 months from filing to finalization
Some states require mandatory counseling before granting a divorce
DIVORCE AND THE LAW OF CONTRACTS
Divorce Procedure:
Separation: spouses maintain separate living quarters (could be the same house), but their marital rights and obligations remain intact
In order to alter the rights and obligations, the lawyers of each party must negotiate a separation agreement
Separation agreement: document that covers areas such as child custody, child support, alimony, property division
Agreement can be the basis for the final divorce decree
DIVORCE AND THE LAW OF CONTRACTS
Divorce Procedure:
Counseling: may be required to do this before courts accept divorce
Resolution of issues:
Division of Property:
Usually based on English Common Law
What you bring into marriage goes with you
Whatever is earned, inherited, given during marriage also goes with spouse
Equitable distribution: where judge distributes items fairly between each spouse dependent on:
Income
Length of marriage
Contributions of each spouse
If one spouse was a stay-at-home parent, the value of their position within the marriage is considered
DIVORCE AND THE LAW OF CONTRACTS
Divorce Procedure:
Child Custody and Support:
Child custody: concerns the division of the physical care and responsibilities of the child
Most important: child welfare
May grant joint custody: where both parents have equal responsibility in raising the child
Divorce Procedure:
Considerations when determining custody of a child:
Parents’ wishes
Child’s wishes
Child’s relationship with family members who may affect the child’s best interest
Child’s adjustment to home, school, and community
Physical and mental health of everyone involved
DIVORCE AND THE LAW OF CONTRACTS
Divorce Procedures:
Non-custodial parent pays child support: monetary payment by a parent to provide a dependent child with appropriate economic maintenance
Cover following expenses:
Housing
Food
Clothing
General Expenses
Parents need to also maintain constant, positive communication about the child
DIVORCE AND THE LAW OF CONTRACTS
Divorce Procedure:
Alimony: support paid by one of the marital partners to the other during separation and after divorce, as ordered by the court
Can be lump sum or regular payments; not a punishment
Factors when determining alimony:
Income of both spouses
Financial resources
Earnings outlook
Debts
Number of dependents
Number of current/former spouses
Divorce Procedure:
Issuance of Decree of Dissolution of Marriage:
Officially declares that the marriage is over
Legally binds the terms of the resolution needed to be considered during the course of the divorce
DIVORCE AND THE LAW OF CONTRACTS
END SECTI
ON 12.2