Family Law Ch. 4

  1. Agreements before marriage?
    • Antenuptial
    • Premarital
    • Prenuptial
  2. After marriage agreements?
  3. Never marry agreements?
    Cohabitation agreements
  4. Traditional view on premarital agreements?
    • Divorce planning provisions were though to encourage or promote divorce
    • Courts took a paternal prespective towards women.
  5. Modern view on premarital agreements?
    • Little evidence that prenups promote divorce
    • Provides predictability
    • Women no longer need to be protected by the courts
    • Seen as promoting domestic happiness & resolving potential litigation.
  6. Purpose of Premarital agreements?
    • Protects children of previous marriages
    • Protects asset (before or individually gained during the marriage)
    • Establishes the rights and expectations of the parties
  7. UPAA?
    • Uniform Premarital Agreement Act
    • Made in the contemplation of marriage and effective upon the marriage
    • Must be in writing
    • Signed by the parties
  8. When is the UPAA not enforceable?
    • Did not execute voluntarily
    • Did not have the capacity to enter into the contract
    • Disclosure did not occur and enforcement would be unconscionable.
    • Non-disclosure was not waived in writing.
  9. Does Indiana have the UPAA?
  10. Unenforceable Provisions?
    • Child Custody
    • Child Support
    • Illegal provisions
    • Against public policy
  11. Cohabitation?
    • Social Change - cohabitating instead of marriage
    • Cohabitation agreement - a contract that specifies rights and responsibilities for people intending to live together
  12. Palimony?
    • a lawsuit for support against a cohabitating partner
    • Not in Indiana
  13. Marvin v. Marvin?
    First case to recognize a contract between cohabitants.
  14. Express Contract?
    an agreement between the parties regarding the specific terms. (parties do not generally negotiate the terms of their roles and expectations)
  15. Implied-in-fact contract?
    The intention of the parties is inferred by their conduct. (How did the parties conduct themselves in the relationship?)
  16. Quasi-Contracts?
    • No actual contract has been entered into
    • One party has been unjustly enriched
    • Imposed by the court
  17. Implied Partnership
    Cohabiting couple works on a business enterprise that is owned by one of the parties. (Like dissolution of a partnership, assets of company broken down)
  18. Implied trust?
    one party, the trustee holds legal title for the benefit of the beneficiary.
  19. Constructive trust?
    Imposed by the courts to avoid unjust enrichment when there is no intent between the parties to create a trust.
  20. Indiana has allowed people to recover based on...
    express contract or equitable contract theory such as unjust enrichment.
  21. Establishment Clause of the 1st amendment (For Same-Sex)
    "If you deny same-sex marriages, you are supporting Christianity" (Church & State are suppose to be separated)
  22. Fundamental Right (For same-sex)
    Loving v. Virginia - fundamental right to marry regardless of race.
  23. Equal Rights Amendment? (For same-sex)
    Not allowing same-sex marriage violations the rights of the constitution.
  24. Compelling interest for no same-sex
    Marriage promotes procreation and instills social values
  25. Full Faith and Credit clause?
    States are able to make their own laws and recognize other state laws.
  26. DOMA?
    • Defense of Marriage Act
    • Created by congress; removed the "full faith and credit" clause from marriage.
    • Same-Sex marriage will never get their rights on a federal level.
  27. Why does Indiana say No?
    Marital Procreation
  28. Federal & State Efforts to ban same-sex
    • Federal: DOMA and Federal Marriage Amendment (Proposed to U.S. Constitution)
    • States: statutes defining marriage to a man and woman. State constitution amendment.
  29. Alternatives to marriage?
    • Civil Unions
    • Partnerships
    • Cohabitation
Card Set
Family Law Ch. 4
Family Law Ch. 4