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Breach of Promise to Marry: Effect
- Used to be a tort, but not anymore → there is NO LEGAL REMEDY
Antenuptial Agreement: Definition and subject matter
- A K between 2 people who plan to marry (e.g., engaged) - Normally deals with what will happen economically if the marriage fails - Nothing in the law limits the subject matter of the agreement
Prenuptial Agreement: Defending the enforceability of the agreement: requirements
- The party trying to defend the enforceability of the agreement must show ONE of following to satisfy his burden: o Made a FULL DISCLOSURE of his financial assets (e.g., through a schedule of assets) o Other party had knowledge of H’s financial assets o Terms of agreement not unfairly disproportionate OR o There was no overreaching because other party had counsel and understood the rights that were being waived
Prenuptial Agreement: Attacking the enforceability of the agreement – requirements
- Can use ANY ground that would defeat an ordinary commercial contract - This includes o Fraud o Duress o Mistake o Incompetence o Undue influence o Etc.
Prenuptial Agreement: Dealing with Children/Child Support
- If agreement deals with child custody or support (or anything else with children), it is ALWAYS subject to modification by the court
Requirements to get married
- To get married, you need a ceremony and a license
Marriage License: Why necessary
- So MD can ascertain if you have capacity to marry (old enough, sane, consanguinity) and other special capacities that are normally grounds for annulment
Treatment of Same-sex Couples: Capacity to marry; recognition
- Same-sex couples can’t get married in Maryland, though MD has a limited form of domestic partnership - Attorney General opinion says that MD recognizes same-sex marriages legally performed in other states
Marriage Licenses: Fees
- You must pay for a marriage license - You can get a discount if you take a pre-marital preparation course - There is a 48-hour waiting period to get the license and the license expires in 6 months - Failure to obtain a license, however, doesn’t affect the VALIDITY of the marriage – it’s just a misdemeanor
Marriage Ceremony: Requirements
- Need an (a) officiant (could be clergy, civil officer empowered to give an oath, etc.), (b) at least 1 witness, (c) and an exchange of promises - For the exchange of promises, the parties must solemnly undertake this new obligation, but there are no magic or required words → can say whatever you want
Common Law Marriage: Def; status
- Where certain circumstances, despite the absence of a ceremony, etc., arose in a legal marriage - Not recognized in MD - However, if a couple comes from a jurisdiction that recognizes common law marriage, MD will treat them as married
Marital Dissolution: Types
- Annulment; or - Divorce
Annulment vs. Divorce: Generally
- An annulment is predicated on a ground that PRECEDES or PREDATES the wedding (a problem before you walked down the aisle) → almost always a defect in capacity to marry by one or both of the parties - A divorce is predicated on a ground that arises AFTER the date of the wedding o Historically the ground for divorce was marital misconduct, but now have other reasons
Grounds for Annulment: Effect of Existence
- Grounds for annulment (impediments) make marriage either VOID or VOIDABLE
Annulment of void vs. voidable marriage: Termination
- A void relationship is a legal nullity → it doesn’t exist and you’re not married (and don’t need to go to court for an annulment) - Voidable relationships ARE marriages and can’t walk away until you go to court and get an annulment o Even if void, you still want to get an annulment for: (1) CLARITY OF THE RECORD and (2) help in adjudicating collateral matters (always advise to get an annulment)
Annulment of Void vs. Voidable Marriage: Waivability
- If marriage is void, the impediment CAN’T be waived because of state public policy - If voidable, CAN be waived, and usually just implicates fairness or equity
Annulment of Void vs. Voidable Marriage: Collateral Attack
- A void marriage can be collaterally attacked by a 3d party o That party must have an interest though (like for intestate succession) - A voidable marriage can ONLY be attacked by H or W
Grounds for Dissolution: Lack of Mental Capacity
- Makes marriage VOID - If you’re mentally ill or developmentally disabled, you lack capacity to marry - This is NOT waivable - Can sue for optional annulment, and will be filed by guardian, custodian, etc. - Common testing pattern is where elderly Alzheimer’s sufferer enters into second marriage
Grounds for Dissolution: Bigamy
- Makes marriage VOID - To have capacity to marry, you must be SINGLE - Again, not waivable
Grounds for Dissolution: Consanguinity
- Makes marriage VOID - To have capacity to marry, you can’t be too closely related to other person - The relationships included are ancestors, descendants, or siblings
Grounds for Dissolution: Underage Spouse (“Nonage”)
- Makes marriage VOIDABLE - Must be 18 to get married o However, if over 16 and under 18:  Can marry with consent of 1 parent; or  If pregnant or had baby, can marry with physician’s certificate certifying this fact o If one party is 15, CAN get married with consent AND physician’s certificate o If UNDER 15, you CANNOT get married - Grounds for annulment given to minor party - If you stay in the marriage past 18, the marriage has been ratified and it can’t be annulled
Grounds for Dissolution: Drunk or Stoned at Time of Wedding
- Makes marriage VOIDABLE - Must be VERY drunk or messed up (“all reason and judgment are blotted out”) - If you stay in the marriage after you sober up, the marriage is ratified
Grounds for Dissolution: Duress
- Makes marriage VOIDABLE - Think of shotgun wedding - Where there’s physical coercion, you lack capacity - Waivable, but if you don’t pursue an annulment after the threat of force has ended, you’ve ratified
Grounds for Dissolution: Fraud: definition
- Makes marriage VOIDABLE - Any misrepresentation or concealment of information going to an ESSENTIAL ASPECT OF THE MARRIAGE by one of the spouses prior to the date of marriage
Grounds for Dissolution: Fraud: precedential situations
- Lying about religion or intensity of religious conviction: considered to go to essential aspect of marriage; waivable (like all others) - Fraud relating to procreation or sex: procreation = lied about being able to conceive; carry a disease where it’s dangerous to have kids; woman pregnant and knows father is someone other than fiancé and lies; sex: if you lie about sexual history in a REALLY BIG way (used to be a prostitute); lie about sexual proclivities/agenda - Fraud relating to money, property or social status is NOT GROUNDS for an annulment
Grounds for Dissolution: “Watered-down” Incest
- Makes marriage VOIDABLE - Married to aunt, uncle, niece, nephew, in-law, or step-relationship - Can be waived - Also a misdemeanor
Grounds for Dissolution: Impotence
- The PERMANENT inability to have sexual intercourse - Only arises if couple has opted NOT to engage in sex before marriage - Has nothing to do about procreation → just about sex - Impotence must be INCURABLE (not possible even with drugs) - Also not about a refusal to be affectionate
Annulment: Adjudication of Collateral Issues
- In an annulment proceeding/annulment litigation, parties are entitled to ask for and receive ALL collateral remedies
Divorce: Types and Kinds
- Types: o Absolute o Limited (not really a divorce; it’s a legal separation) - Kinds: o Fault o No-fault
Grounds for Absolute Divorce: Adultery
- This is fault-based - Adultery is still a crime in MD ($10 fine), which means you can plead the 5th o However, a negative inference is allowed from pleading the 5th
Grounds for Absolute Divorce: Desertion
- This is fault-based - An UNJUSTIFIED departure from the marriage for a CONTINUOUS period of 12 MONTHS or more - If party leaving home does so to escape domestic violence, it’s justified and no desertion - 12-month period must be continuous
Grounds for Divorce: Constructive Desertion
- Fault-based; arose before MD had cruelty - Repeated acts of domestic violence (continuous for 12 months) - Refusal to have sex for 12 months - Persistent attention to members of opposite sex without consummation for 12 months - Persistent demands for abnormal sex for 12 months
Grounds for Divorce: Conviction of a Crime
- Fault-based - The sentence MUST be imprisonment for THREE OR MORE years and can only get divorce after one year of imprisonment has occurred
Grounds for Divorce: Cruelty of Treatment
- Fault-based - Any conduct calculated to seriously impair the health or permanently destroy the happiness of the complaining party - There must be no expectation or hope of reconciliation - Includes grounds for constructive desertion but doesn’t require 12 months: o Persistent refusal to have sex, o Persistent domestic violence, o Persistent attention to other sex o Persistent demands for abnormal sex
Grounds for Divorce: Excessively Vicious Conduct
- Fault-based - Not really defined separately from cruelty other than the fact that a single violent episode IS grounds for divorce under this ground (whereas cruelty requires persistence)
Grounds for Divorce: Insanity of Spouse
- Not really fault of spouse, but considered fault-based - If AFTER marriage spouse becomes insane AND is hospitalized for the condition, this is a ground for divorce if you have: o Testimony from 2 psychiatrists that the insanity is incurable AND o Hospitalization must have been for 3 years prior to filing
Grounds for Divorce: Raising Mitigating Factors for Fault-Based Grounds
- Condonation: a form of waiver, requires: o P spouse knew of D’s misconduct; o There was forgiveness (express or implied); AND o Resumption of marital relationship - Recrimination (disfavored): analogous to “unclean hands”; only used in adultery (where D says that P committed adultery too) → requires proof of offsetting adultery
Ground for No-Fault Divorce
- The only ground for no-fault divorce is that marriage is IRRETRIEVABLY BROKEN
Grounds for Divorce: Marriage Irretrievably Broken
- Must be both: o Broken and o Irretrievable
Grounds for Divorce: Marriage Irretrievable Broken: How proven
- You separate (live apart) and refrain from sex - Evidence of this requires certain time periods: o If BILATERAL, period of separation is ONE YEAR o If UNILATERAL, period of separation is TWO FULL YEARS - During the period, you’re still married and you can’t have sex with anyone else (adultery and grounds for fault-based divorce) and can’t have sex with spouse (or time period starts over) → a period of enforced celibacy
Limited Divorce: Generally; reasons for doing it
- This leaves you married - It’s essentially judicial permission to live apart, to not have sex, and to adjudicate collateral remedies - Reasons to do it: o You may want to retain status as spouse to keep coverage of spouse, file joint tax returns, take survivorship, collect Soc. Sec. benefits, etc. o Philosophical or religions scruples where you don’t believe in divorce
Grounds for Limited Divorce
- Fault-based: o Cruelty of treatment o Excessively vicious conduct, and o Desertion (though this can be for any period as long as you establish intent to desert/no intent to return) - Non-fault based: o Mutual agreement: parties agree to separate but need to litigate collateral matters
What MD court are these cases filed in?
- The family division of the circuit courts
Jurisdiction: Subject Matter Jurisdiction
- Where one spouse domiciled in MD and (a) grounds arose in MD OR (b) resident spouse has lived in MD for 1 year (domicile and a “plus factor”)
Jurisdiction: Personal Jurisdiction; when necessary
- Follows general personal jurisdiction rules for MD - Necessary where you want to litigate collateral matters in MD
- The county where D lives or works OR the county where P lives - In annulment, if marriage took place in MD, county where marriage performed - If child custody, county where custodial parent or child lives (usually the same county)
PR Issues in Family Law
- CANNOT take a contingent fee in a matrimonial case - CANNOT represent H & W, even if congenial and cooperative and it’s a no-fault mutual agreement divorce
Distribution of Property after Dissolution of Marriage: Rule; Steps for Determining
- MD is an equitable distribution state - Steps: o 1. Categorize the assets (look for separate property first) o 2. Determine equitable distribution o 3. Make a distribution award
Categorizing the Assets in Division of Property: Categories
- All property is either: o H’s separate property, o W’s separate property, or o Property of the marriage (M’s)
Categorizing the Assets in Division of Property: What is Spouse’s Separate Property
1. Items owned by either spouse PRIOR to date of marriage 2. GIFT or INHERITANCE received AFTER wedding in spouse’s SOLE name (any gift or inheritance given to them jointly, including engagement gifts before wedding, are joint) 3. PASSIVE appreciation on items in first two categories (owned by either spouse before date or marriage, or gift or inheritance received after wedding in spouse’s sole name) → passive means increase from “mere virtue of possession” 4. Money received in tort litigation to compensate for pain and suffering
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