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Contractual Aspects of Marriage and Divorce

Contractual Aspects of Marriage and Divorce. Chapter 12. Marriage and the law of contracts. 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

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Contractual Aspects of Marriage and Divorce

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  1. Contractual Aspects of Marriage and Divorce Chapter 12

  2. Marriage and the law of contracts • 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

  3. Marriage and the law of contracts • 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 • 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

  4. Marriage and the law of contracts • 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 • 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

  5. Marriage and the law of contracts • 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 • 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

  6. Marriage and the law of contracts • The Marital Contract: • Couples may marry by: • Using traditional state laws • Common law • Civil union

  7. 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

  8. 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)

  9. Marriage and the law of contracts • 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 • 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

  10. Marriage and the law of contracts • 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 • 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

  11. Marriage and the law of contracts • 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 • 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

  12. Marriage and the law of contracts • 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 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

  13. Marriage and the law of contracts • 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: • 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

  14. 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

  15. Marriage and the law of contracts • 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 • 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

  16. End of section 12.1

  17. Divorce and the law of contracts • 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 purposesor 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 • 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

  18. 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)

  19. Divorce and the law of contracts • 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 • 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

  20. 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

  21. 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

  22. Divorce and the law of contracts • 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 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

  23. 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

  24. Divorce and the law of contracts • 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 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

  25. End section 12.2

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