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 Responsibility of children born out of wedlock Couples living together outside of marriage

Marriage and the law of contracts Age and Premarital Relations: GA 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 Most states have eliminated these types of marriages if they happen after a specific date (GA 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

End of section 12.1

Divorce and the law of contracts 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

End section 12.2