Marriage & Divorce

Each state determines who is allowed to marry & how marriage can be dissolved

They must follow the laws & court decisions of their own state and those of other states

Same Sex Marriage

The Federal Government does not recognize marriage between same sex couples. States that do are: Massachusetts (2003) Connecticut (2008) Iowa (April 2009) Vermont (Sept. 2009) New Hampshire (Jan. 2010)

The Law

The law recognizes that a civil contract comes into existence when you become engaged.

Once engaged there is an agreement that contains consideration which is the promise to give up the legal right to remain single.

This contract is executed when the wedding occurs

Rights & Duties

If one party fails to go through with the marriage after the engagement the other party may sue for damages (compensation) caused by the breach of the marriage contract

Rights & Duties

In a regular contract your rights and duties are created by agreement.

In a marriage contract your legal status is changed. The law gives both husband and wife new rights and duties.

This protects both parties.

Rights & Duties

Rights of a married couple include: Support by spouse when necessary Inheritance from deceased spouse Property if marriage ends File a joint tax return

If you live together with someone without being married you do not receive these rights

Rights & Duties

Employers also give certain rights to their employees’ spouses: Health Insurance coverage Retirement benefits

Duties of Spouses The primary duty as a result of the

marriage contract is the duty to be faithful to your spouse. It can not be avoided even by agreement.

All people married or not must refrain from causing bodily harm to those they live with.

Both parents (married or not) have the duty to support their children.

Premarital Agreements

People can enter into a written contract before they marry concerning their personal or real property. This is called a premarital agreement (prenuptual) .

All assets must be fully disclosed to each other. NO secrets!

Prohibited Marriages

Marriages between certain relatives or marriage by one party to multiple people are not permitted by law in most states.

Marriages between relatives are denied 2 ways: Consanguinity (blood) Affinity (marriage)

Prohibited Marriages

Marriages between multiple partners is also against the law in all states. It is considered a crime. There are 2 terms related to this form of marriage: Bigamy – is the act of having 2

spouses at the same time Polygamy – having more than 2

spouses at the same time

Marriage Requirements

Each state has its own requirements regarding marriage. This may include Age Common Law Marriage Ceremonial Marriage Covenant Marriage Marriage License Waiting Period

Marriage Requirements

In all states except Mississippi & Nebraska you can marry at age 18 without your parent’s consent.

With parental consent you can be married at a younger age.

Marriage between teens are more likely to end in divorce.

Types of Marriage – Common Law

Only 11 states (plus D.C.) recognize Common Law marriage (no ceremony just agreement)

Requirements for Common-Law include: Parties must agree in words (present tense)

they are husband & wife Must cohabitate for certain period of time

Divorce is required to end a common law marriage

Types of Marriage – Ceremonial

From earliest of times a ceremony could only be officiated by a cleric or a magistrate. This is still true today.

Requirements for Ceremonial Marriage include: Ceremony needed to solemnize the marriage Must cohabitate for certain period of time

Solemnize means to commemorate or celebrate

Marriage License You must obtain a marriage license to be

joined in a ceremonial marriage.

Marriage License – a certificate issued by a gov’t office giving permission to marry.

The marriage license can expire if you don’t marry during a specific period.

Many states have a waiting period before a license is issued to allow people to come forward that protest a marriage or allow the 2 parties to reconsider.

Proxy Marriage

One in which 1 or both parties can not be present for the wedding and an agent acts on their behalf.

The permission of the agent must be in writing by the person who can not attend. Military Jail Hospitalized Foreign dignitary

2 Ways to End a Marriage

Annulment declaration by court that marriage was not effective (void from beginning) Marriages can generally be annulled due to

duress and fraud (forced or deceived into the marriage).

Divorce – dissolution of marriage by court declaration that a marriage has end 1st step is Legal Separation (when court

ends rights to cohabitation). Also step when child custody is decided.

Grounds for Divorce

No fault divorce laws exist in almost every state and eliminates the need to prove which party is to blame.

Most grounds for divorce are based on: Incompatibility Irretrievable Breakdown Irreconcilable Differences (biggest)

Grounds for Divorce Divorce laws vary state to state. In most states you

need only prove a marriage has broken down to get a divorce.

Breakdowns include: Adultery -

having voluntary sexual relationship with someone other than your spouse. Must prove opportunity to do so and tendency.

Cruelty – must prove personal violence endangers your health

Desertion – unjustified separation of one spouse from another with intent of

not returning Addiction –

Prove habitual intoxication or abuse – Abuse of items not the use

Nonsupport – Prove spouse had ability to provide economic support but failed

to do so Felony Conviction –

Grounds for disgrace

Residency Requirements for Divorce Remember a word from early in the

semester… Jurisdiction – ability to hear a case In order for a court to hear a case it must have

jurisdiction where the person seeking a divorce makes their home.

Domicile –Principle place of abode (living). You can only have one domicile (unless serving in Military)

Residence – the place where you actually live or reside. It may or may not be your domicile and you can have multiple residences.

Divorce Settlement Alimony – an allowance for support and

maintenance made to a divorced person by a former spouse. It is NOT a penalty. There is no fixed amount If a spouse remarries, alimony does not

need to end

Equitable Distribution Laws Allows judges to distribute property evenly

between spouses regardless of title to the property

Property can be distributed based on what the court sees as fair

Child Custody & Support Many laws have been passed to protect

children

There are 2 key ways the court handles custody Sole Custody

Gives all parental rights, duties & powers to one parent Visitation rights are given to other parent

Joint Custody Divides the rights, duties & powers between both parents Children live with each parent at different times

The goal of the court is to decide what is in the best interest of the child.

Child Support is a basic duty of every parent regardless of which parent has custody.