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What are the 3 ways to define a marriage?
- (1) civil status or relationship
- (2) legal union of 2 persons
- (3) K with promises as consideration
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Where do the complex mixture of rights and duties of a marriage arise from?
- (1) status of the spouses as married persons
- (2) spouses' voluntary K agreements with each other as independent parties
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What responsibilities does the state impose on spouses?
- (1) duty to support
- (2) doctrine of necessaries
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What is the doctrine of necessaries?
each spouse pays debts incurred by the other spouse for purchasing necessaries
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Who is a 3P to the marriage K and therefore controls many of its terms?
the state
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When is the state's involvement in marriage at its greatest?
at its beginning and ending
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Since the right to marry is a fundamental human right, what may a state not do?
unreasonably interfere with or restrict a person's right to marry
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Which constitutional principles protect the freedom to marry?
EPC and DPC
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The right to privacy is implicated in family law and it prevails when?
during the marriage particularly as to matters regarding their intimate relationship and choices about children
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The constitutional implications of marriage also address parent/child relationships, specifically doing what?
protecting the rights of parents to have relationship with their children and make decisions about child rearing provided the parents fulfill their obligations of parenthood
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Will the state interfere with an intact family?
no
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At death, what does the state focus on?
the rights of surviving members of the family to receive part of the descendent's property either thru elective share or intestate succession
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Outside of death, state intervention is required for dissolution in one of what 2 ways?
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What is an annulment?
invalidates a marriage that is void or voidable b/c the parties failed to fulfill all legal requirements of marriage in the first place or b/c there is a legal impediment to the marriage that existed when the marriage was entered into
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What is the legal effect of a void marriage?
- there is no marriage at all therefore no need for a court decree
- no legal effect and confers no legal rights on the parties
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Are the children of a void marriage protected?
yes
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What does a divorce do?
terminates the marital relationship
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Deciding what is fair and equitable is fact specific and the court has broad discretion limited by what?
statutes
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If there are statutes that restrict the court's discretion, what must the court order specify?
the statutory factors it considered and how it reached its conclusion
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How are property conveyances of one spouse to the other during the marriage viewed?
as intended to be given effect while marriage is intact
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How are K regarding everyday occurrences viewed?
permitted but not enforceable b/c they exist during an intact marriage when the court isn't meddling in family affairs
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What are premarital agreements?
K made by the parties to and in contemplation of marriage that doesn't take effect until the marriage occurs
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What Act has NC adopted regarding the formation and enforceability of premarital agreements that deal with divorce?
uniform premarital agreement act (UPAA)
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What is a prenup usually intended to do?
- alter or extinguish the spouses' property and/or support rights
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- reclassify proeprty as either separate, marital, or otherwise so as to influence equitable distribution at divorce
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What is required for a prenup to be enforceable?
- (1) in writing, signed by the parties
- (2) not unconscionable when executed
- (3) with fully informed consent of the spouses' finances
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Who has the BoP regarding the enforceability of a prenup?
the party seeking to invalidate it
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Is an amendment to or revocation of a prenup after the marriage enforceable w/o consideration?
yes as long as it is in writing
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What is the subject matter of a prenup?
usually covers property but can cover any other matter the parties choose as long as it isn't contrary to public policy including personal obligations to one another
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Will provisions of a prenup that are contrary to public policy be enforced?
no
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When do separation agreements come into play?
when the parties decide to live apart
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What does a separation agreement govern?
what happens until the divorce is final
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A separation agreement will be enforceable if what requirements are met?
general K requirements of consent, capacity, writing, signed, and notarized
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What can a separation agreement not do?
- (1) violate public policy
- (2) adversely effect spouse right to post-separation support while the marriage is still intact
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What do settlement agreements resolve?
some or all of the issues that would have been decided by the court in a divorce action
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A settlement agreement is enforceable so long as it does what 2 things?
- (1) meets general K requirements
- (2) in writing, signed, and notarized
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The settlement agreement can't violate public policy, specifically relating to what?
adversely effecting child's right to child support
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Can a settlement agreement waive a party's right to alimony?
yes b/c the spouse obligation of support ends with the end of the marriage unless the court has imposed an obligation
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What will settlement agreements incorporate and reiterate?
the issues spelled out in the separation agreement
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What is the disclosure obligation regarding finances?
a spouse must have an opportunity to get full disclosure concerning the financial obligations and assets of the other spouse
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Does the obligation of disclosure regarding finances continue after the parties are married?
yes b/c a fiduciary relationship exists which carries an obligation of full and fair disclosure of all financial assets and liabilities of the other spouse
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When does the disclosure obligation regarding finances end?
when the fiduciary relationship ends
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Which court has jurisdiction over divorce proceedings?
district court
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What does the US Constitution require as a basis for a state court to exercise divorce jurisdition?
domicile of one of the parties in the state
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In rem jurisdiction is established over the marital status by virtue of what?
domicile of one of the parties w/in the state at the time the action is filed, whether or not the parties lived there as a couple
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What is NC residency requirement for divorce jurisdiction?
one of the parties must have lived in NC for 6 months prior to filing the action
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Can the residency requirement for divorce be waived?
no b/c it is treated as jurisdictional
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What are the special rules regarding military personnel and residency for divorce purposes?
persons who have resided on a military base w/in the state for 6 months are deemed to be residents of the state in which the base is located
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Is personal jurisdiction required for divorce purposes?
it is necessary over the D for the court to enter or enforce its orders against that person
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When may the NC long arm statute be invoked for divorce purposes?
to allow a court to enter an order in personam against a nonresident D spouse
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Is personal service of process required for jurisdictional purposes regarding divorce?
not unless in personam jurisdiction is required
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Where is venue for divorce proper?
in any county where either spouse lives
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Where may an action or proceeding for custody and support of a minor child be maintained?
the county where the child lives
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May venue be waived in a divorce proceeding?
yes b/c it isn't jurisdictional therefore generally waived if not made w/in the time for the D response
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There is no right to a jury trial regarding what 2 things in a divorce proceeding?
- (1) equitable distribution of property
- (2) child support and child custody
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Can a jury decide a divorce action?
yes
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What are the 2 types of divorce in NC?
- (1) divorce from bed and board
- (2) absolute divorce
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Where does fault based divorce exists in NC?
- (1) divorce from bed and board
- (2) alimony and post-separation support
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What is the definition of divorce from bed and board?
a decree that entitles the parties to live separate and apart and provides the means by which one spouse may be ordered to leave the marital home or may sue for post-separation support, child custody, and child support
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Is there a time requirement for filing for divorce from bed and board?
no and it can be brought while the couple is still living together
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Divorce from bed and board can be obtained only on proof of one of the following fault grounds:
- (1) abandonment
- (2) cruelty
- (3) indignities
- (4) alcoholism/addiction
- (5) commission of adultery
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The ground of abandoning the family requires proof that one spouse did what?
- (1) brought the cohabitation of the parties to an end
- (2) w/o the consent of the other spouse
- (3) w/o the intent of renewing it
- (4) w/o justification
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What does the w/o justification element for abandoment require?
the abandoned party be innocent and the other party be guilty
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Can constructive abandonment also constitute a ground for bed and board divorce?
yes
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Can constructive abandonment constitute a defense to a divorce action?
yes
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What is maliciously turning the other out of doors?
- instead of leaving the spouse, one spouse kicks the other spouse out of the house
- just a different form of abandonment
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Cruelty is a ground for divorce from bed and board if what?
one spouse by cruel or barbarous treatment endangers the life of the other spouse
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What does the cruelty ground for bed-and-board divorce include?
psychological as well as phsycial cruelty but MUST involve a course of conduct rather than an individual action
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Is cruelty as a ground for bed-and-board divorce subject to the defense of condonation?
no
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Indignities is a ground for divorce from bed and board if what?
one spouse offers such indignities to the person of the other as to render his or her condition intolerable and life burdensome
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Indignities may involve what kinds of conduct?
- (1) nagging
- (2) humiliating the spouse in front of others
- (3) false accusations of adultery
- (4) keeping company with a member of the opposite sex
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When is alcoholism/addiction a ground for divorce from bed and board?
one spouse is an excessive user of drugs or alcohol so as to render living together intolerable and life of the spouse burdensome
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Is the fact that D has committed adultery a ground for divorce from bed and board?
yes
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Is proof that the P has committed adultery a defense to the action for divorce frombed and board?
yes
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What are the defenses to divorce from bed and board?
- (1) recrimination
- (2) collusion
- (3) connivance
- (4) condonation
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What is the recrimination defense?
where both spouses are guilty of fault grounds, the court would denay a divorce to either on the grounds of recrimination
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What is the defense of collusion regarding bed and board divorce?
agreement b/t spouses that one will falsely assert that the other has done something that constitutes ground for divorce from bed and board
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What is the defense of connivance regarding divorce from bed and board?
spouse has actually committed a marital wrong that was facilitated by the other spouse
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What is the defense of condonation in bed and board divorce?
where one spouse knowingly forgives the other's marital wrong by words or conduct so that the marital relationhip is continued such forgiveness may bar an action founded upon the marital wrong
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Condonation can be either what?
conditional or unconditional
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When is condonation conditional?
made contingent on the erring spous not resuming the misconduct
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Does a conditional condonation preclude the injured spouse from raising the initial marital misconduct as ground for divorce?
not where the conditions imposed on forgiveness have been violated
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What does a divorce from bed and board not do?
end the marriage
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What is the effect if the parties reconcile after the court has ordered a divorce from bed and board?
the divorce from bed and board is nulified
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If the P spouse dies while the bed and board divorce is ineffect but before an absolute divorce takes place, what is the effect?
the other spouse won't have the right to inherit from the P estate or to act as an executo of that estate
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In a divorce from bed and board can the court distribute property b/t the parties?
no b/c they are still married
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In a divorce from bed and board can the court award possession of the marital home to one spouse thereby ordering the other to leave?
yes
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Can the court award post-separation support in a bed and board divorce?
yes provided the spouse who files is a dependent spouse in need of support to live
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What will the court consider when determining whether to award post-separation support during a divorce from bed and board?
- (1) dependent spouse's resourcesand needs
- (2) supporting spouse's ability to pay
- (3) parties' accustomed standard of living
- (4) present employment income of each party
- (5) each party's income earning ability
- (6) debt and other financial obligations of each party
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If the divorce from bed and board order doesn't specify when the post-separation support will end, when does it end?
- (1) order for absolute divorce
- (2) cohabitating
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When can a dependent spouse not receive post-separation support?
when they are guilty of marital misconduct
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What is marital misconduct?
- (1) any of the grounds that give rise to divorce from bed and board
- (2) reckless spending of the income by either party that wastes marital assets
- (3) involuntary separation of the spouses due to a criminal act committed prior to the proceeding in which alimony is sought
- (4) willful failure to provide nec subsistence according to one's means and condition so as to render the condition of the other spouse intolerable and life burdensome
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