Chapter 12 Contractual Aspects of Marriage and Divorce 12-1 Marriage and the Law of Contracts 12-2 Divorce and the Law of Contracts Law for Business and Personal Use Chapter 12 © South-Western, a part of Cengage Learning Slide 1 12-1 Marriage and the Law of Contracts GOALS Discuss how the law affects premarital relationships Explain how a marriage contract is formed and legalized Name the rights and duties of husbands and wives Law for Business and Personal Use Chapter 12 © South-Western, a part of Cengage Learning Slide 2 Premarital Relationships and the Law Marriage is a legal union of a man and a woman as husband and wife. Age and premarital relationships – Typically, the minimum age for marriage without parental permission is 18. No laws restrict the choice of marital partners with one exception – close relatives may not marry. Law for Business and Personal Use Chapter 12 © South-Western, a part of Cengage Learning Slide 3 Premarital Relationships and the Law Age and premarital relationships (cont.) If parents tell their minor child not to date or not to see a specific person, they can enforce that order only with the “reasonable force” that they may use to see that their other directions are carried out. Parents have no legal means to achieve their ends short of having their child labeled “incorrigible” in a juvenile delinquency proceeding. Parental use of excessive force may result in charges of child abuse. Law for Business and Personal Use Chapter 12 © South-Western, a part of Cengage Learning Slide 4 Premarital Relationships and the Law Premarital pregnancy and child birth – Criminal laws against consensual premarital sexual intercourse between adults generally have been eliminated. However, if pregnancy results, the male (even if he is a minor) will be required to pay his share of the female’s medical bills and to contribute to the child’s support until the child reaches adulthood. Law for Business and Personal Use Chapter 12 © South-Western, a part of Cengage Learning Slide 5 Premarital Relationships and the Law Cohabitation – A man and woman who live together outside of marriage are said to cohabitate. Such living arrangements were considered illegal in most states until the late 1970s. Cohabitation is still illegal in some states, although such laws are seldom eforced. Law for Business and Personal Use Chapter 12 © South-Western, a part of Cengage Learning Slide 6 Name the aspects of premarital relationships that are affected by the law. Law for Business and Personal Use Chapter 12 © South-Western, a part of Cengage Learning Slide 7 The Marital Contract If one party in a heterosexual relationship proposes marriage and the other accepts, a binding contract results. If both later mutually agree to end their engagement, the contract is annulled, that is, the law considers their agreement void and never to have existed. Law for Business and Personal Use Chapter 12 © South-Western, a part of Cengage Learning Slide 8 The Marital Contract Breach-of-promise lawsuits – If only one party wants out of the contract and refuses to perform, a breach-of-promise suit may be brought by the other party. Jilted party used to be awarded high figures to compensate for actual damages, humiliation, and hurt feelings that accompanied the breakup. Some states allow such suits only if the woman is pregnant and the ex-fiancé is the father. Other states have placed a cap on the award. Law for Business and Personal Use Chapter 12 © South-Western, a part of Cengage Learning Slide 9 The Marital Contract Breach-of-promise lawsuits (cont.) If third parties interfere with the engagement, a few states allow damage suits against the intruders. Such suits cannot be brought against the parents. If a gift is given in expectation of marriage (such as a ring), courts generally order it to be returned. Other gifts can be kept by the recipient. Law for Business and Personal Use Chapter 12 © South-Western, a part of Cengage Learning Slide 10 The Marital Contract Legalizing the marital contract State statutory requirements – Each state has its own requirements for marriage. Appear before town clerk Apply for and pay a fee for a marriage license Parental consent not required at age of majority Some states require a blood test to check for communicable diseases. Often a mandatory waiting period of three days Any authorized religious or civil official can perform ceremony Law for Business and Personal Use Chapter 12 © South-Western, a part of Cengage Learning Slide 11 The Marital Contract Legalizing the marital contract Common-law marriages – Pioneers were unable to follow legal methods for marrying. Consequently, the law recognized common-law marriages that occurred when a single woman and a single man lived together, shared common property, and held themselves out as husband and wife for a period of time, usually 10 years. Today, about ¼ of states allow common-law marriages; all states must recognize such unions. Law for Business and Personal Use Chapter 12 © South-Western, a part of Cengage Learning Slide 12 The Marital Contract Legalizing the marital contract Civil unions – An alternative form of interpersonal legal union has developed that is similar to marriage. A civil union typically offers many of the rights, duties, and benefits as marriage. Some states use the term same-sex marriage. However, this is a misnomer because it is open to opposite-sex couples in many states. Under the federal Defense of Marriage Act of 1996, states without civil unions do not have to recognize them. Law for Business and Personal Use Chapter 12 © South-Western, a part of Cengage Learning Slide 13 States That Recognize Common-Law Marriages Alabama Colorado Georgia (if formed before 1/1/97) Idaho (if formed before 1/1/96) Iowa Kansas Montana New Hampshire (for inheritance purposes only) Ohio (if formed before 10/10/91) Oklahoma (if formed before 11/1/98) Pennsylvania Rhode Island South Carolina Texas (called an “informal relationship”) Utah Washington, D.C. Law for Business and Personal Use Chapter 12 © South-Western, a part of Cengage Learning Slide 14 What two actions result in a binding marital contract? Law for Business and Personal Use Chapter 12 © South-Western, a part of Cengage Learning Slide 15 Marital Rights and Duties Marital consortium – The law recognizes the purposes of marriage (procreation, raising children, and filling sexual, economic, and companionship needs) of husband and wife and calls these purposes marital consortium. If one party cannot fulfill these duties, other party can sue party who caused harm for damages of “loss of consortium.” Law for Business and Personal Use Chapter 12 © South-Western, a part of Cengage Learning Slide 16 Marital Rights and Duties Marital consortium (cont.) The most important duty of both spouses is to provide for the support, nurture, welfare, and education of their children. Other obligations jointly entered into, such as contracts, notes, tax returns, are the mutual responsibility of the marital partners. Law for Business and Personal Use Chapter 12 © South-Western, a part of Cengage Learning Slide 17 Marital Rights and Duties Parenthood rights and duties – Parents are obligated to support their children until adulthood or when a child becomes emancipated. Financial support is a joint obligation but can be divided according to each spouse’s financial position. Married parents have equal custody rights and an equal voice in decisions made while raising the children Law for Business and Personal Use Chapter 12 © South-Western, a part of Cengage Learning Slide 18 Marital Rights and Duties Parenthood rights and duties (cont.) The legal process of adoption creates a parentchild relationship. Adoptive parents have the same rights and duties to the adoptive child as they would to a child born of their union. Adoptions are governed by state law and must be approved by the court. Law for Business and Personal Use Chapter 12 © South-Western, a part of Cengage Learning Slide 19 Marital Rights and Duties Property rights and duties – Property acquired during the marriage may be kept in the name of the husband, wife, or both. Either marital partner can buy and sell property of all types in her or his own name and have sole control of the respective earnings and credit. Law for Business and Personal Use Chapter 12 © South-Western, a part of Cengage Learning Slide 20 Marital Rights and Duties Property rights and duties (cont.) Keeping a spouse from getting rights to property brought into the marriage can be accomplished with a prenuptial agreement. Marital partner-to-be typically gives up any future claim they might have to part or all of the other’s property. Prenuptial agreements are not limited in their scope and may cover practically anything. The actions of one spouse may incur liability for the other. Law for Business and Personal Use Chapter 12 © South-Western, a part of Cengage Learning Slide 21 What is the collection of legal duties owed by the marital partners to one another called? Law for Business and Personal Use Chapter 12 © South-Western, a part of Cengage Learning Slide 22 PREVENT LEGAL DIFFICULTIES Use prenuptial agreements to avoid subsequent conflicts over property ownership and division. In the event of divorce, seek legal counsel and carefully consider and fulfill the obligations, such as child support and alimony, being assumed. If your marriage ends in divorce, make all decisions relative to your children with their best interest in mind. Joint custody with cooperating and involved parents helps the children grow up in a balanced and healthy environment. Law for Business and Personal Use Chapter 12 © South-Western, a part of Cengage Learning Slide 23 12-2 Divorce and the Law of Contracts GOALS Discuss the ways by which a marriage can end Explain the divorce procedure Law for Business and Personal Use Chapter 12 © South-Western, a part of Cengage Learning Slide 24 Nullifying the Marriage Contract A marriage may end several ways, including the death of a spouse, annulment, divorce, or a variety of illegalities. Annulment – a legal procedure for declaring that a voidable marriage is null and void. Voidable marriage – A voidable marriage results from a problem that existed from the beginning of the supposed union. Law for Business and Personal Use Chapter 12 © South-Western, a part of Cengage Learning Slide 25 Nullifying the Marriage Contract Voidable marriage (cont.) – Such a problem might involve a refusal to have children or fraudulent grounds for the marriage contract. Fraudulent grounds include either spouse lying to the other as to wealth, condition of pregnancy, freedom from disease, willingness to have children, past marriage, or age. Such a marriage may be terminated within a reasonable time, but it remains valid until the annulment. Law for Business and Personal Use Chapter 12 © South-Western, a part of Cengage Learning Slide 26 Nullifying the Marriage Contract Void marriage – A void marriage creates no rights or duties for either party and is considered invalid from the beginning. A declaration of nullity must be sought from an appropriate court to confirm that the marriage is without effect. Such marriages typically occur whenever laws are violated by the matrimonial union. Law for Business and Personal Use Chapter 12 © South-Western, a part of Cengage Learning Slide 27 Nullifying the Marriage Contract Void marriage (cont.) If one partner is already married when the second marriage occurs, the second is a void marriage. A person who knowingly marries a second spouse while still married is a bigamist. Bigamy is a crime. A void marriage may stem from an incestuous relationship or mental incompetence of a party or parties. Law for Business and Personal Use Chapter 12 © South-Western, a part of Cengage Learning Slide 28 Name the ways by which a marriage contract can end. Law for Business and Personal Use Chapter 12 © South-Western, a part of Cengage Learning Slide 29 Terminating the Marriage Contract No-fault divorces – Since 1969, divorce has been made more available by no-fault divorce laws. In a no-fault divorce proceeding, the requesting spouse does not have to list a grievance. Instead, the court recognizes the right of either party to terminate a marriage unilaterally or of both spouses to end the marriage by mutual agreement. Law for Business and Personal Use Chapter 12 © South-Western, a part of Cengage Learning Slide 30 Terminating the Marriage Contract No-fault divorces (cont.) A no-fault marriage dissolution may be initiated by either spouse. Dissolution is granted after testimony that there is no chance of repairing the relationship. Irreconcilable differences are typically stated as the legal reason for dissolution. The couple usually must wait six months before the divorce is final. Some states require marital counseling. Law for Business and Personal Use Chapter 12 © South-Western, a part of Cengage Learning Slide 31 Terminating the Marriage Contract Divorce procedure Separation – Some states require a separation before divorce. In a separation, the spouses maintain separate living quarters, but their marital rights and obligations remain intact. A legal separation agreement is required to alter these rights and obligations. Counseling – Many jurisdictions require that the couple undergo marriage counseling before finalizing their divorce. Law for Business and Personal Use Chapter 12 © South-Western, a part of Cengage Learning Slide 32 Terminating the Marriage Contract Divorce procedure (cont.) Resolution of issues Division of property – In most states, property brought into a marriage by a spouse will remain that spouse’s property should the marriage end. During the marriage, whatever is earned, inherited, or received as a gift also remains the property of the spouse who earned or received it. States that do not follow this common-law rule are called community property states. Most states provide some type of equitable distribution of marital property upon the dissolution of the marriage. Law for Business and Personal Use Chapter 12 © South-Western, a part of Cengage Learning Slide 33 Terminating the Marriage Contract Divorce procedure (cont.) Resolution of issues (cont.) Child custody and support – The issue of child custody is concerned with the division of the physical and other care and control responsibilities for a child. The welfare of the child is the most important consideration in determining who will have custody of the child. Under the provisions of the Uniform Marriage and Divorce Act adopted in most states, the factors a court must consider in awarding custody include: Law for Business and Personal Use Chapter 12 © South-Western, a part of Cengage Learning Slide 34 Terminating the Marriage Contract Divorce procedure (cont.) Resolution of issues (cont.) Child custody and support (cont.) Parents’ wishes Child’s wishes Child’s relationship with parents, siblings, and others who may affect the child’s best interest Child’s adjustment to home, school, and community Physical and mental health of all persons concerned Many divorcing couples are awarded joint custody of their children where the responsibility for raising the children is shared. Law for Business and Personal Use Chapter 12 © South-Western, a part of Cengage Learning Slide 35 Terminating the Marriage Contract Divorce procedure (cont.) Resolution of issues (cont.) Child custody and support (cont.) Court usually orders the noncustodial parent to pay child support to the custodial parent. Child support is the monetary payment by a parent to provide a dependent child with appropriate economic maintenance and includes finances for both needs and wants. Alimony is the support paid by the wage earner of the family to the other spouse. Factors considered by the court are the paying spouses income, financial resources, earnings outlook, current debts, number of children, and number of spouses (former and subsequent). Law for Business and Personal Use Chapter 12 © South-Western, a part of Cengage Learning Slide 36 Terminating the Marriage Contract Divorce procedure (cont.) Issuance of decree of dissolution of marriage – This decree or judgment in the form of a court order officially declares that the marriage is over. It makes final and legally binding the terms of the resolution of the issues that have developed or needed to be considered in the course of the divorce. Law for Business and Personal Use Chapter 12 © South-Western, a part of Cengage Learning Slide 37 Name the steps in the divorce procedure. Law for Business and Personal Use Chapter 12 © South-Western, a part of Cengage Learning Slide 38 PREVENT LEGAL DIFFICULTIES Understand that your actions have consequences and that your premarital relationships may have long-term effects. Realize that hasty, ill-considered decisions in selecting a marital partner may become lifelong mistakes. Make your decisions with the long-term good of both you and your partner in mind. Consider marriage a serious contract between husband and wife that requires each to fulfill their duties with mutual concern and respect for each other. Law for Business and Personal Use Chapter 12 © South-Western, a part of Cengage Learning Slide 39