CONTRACTUAL ASPECTS OF MARRIAGE AND DIVORCE CHAPTER 12.

CONTRACTU

AL ASPE

CTS

OF MARRIA

GE AND

DIVORCE

CH

AP

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R 1

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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


http://www.usmarriagelaws.com/search/united_states/pennsylvania/

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


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


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



Couples may marry by:

Using traditional state laws

Common law

Civil union


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


http://www.usmarriagelaws.com/

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)


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


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


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


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


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


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


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


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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


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


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)


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 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 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 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 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 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


END SECTI

ON 12.2

CONTRACTUAL ASPECTS OF MARRIAGE AND DIVORCE CHAPTER 12.

Documents

marriage marriage

engagement marriage

marriage license

case marriage

law of contracts

sex marriage doma

pa marriage laws

child abuse marriage