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43 Cards in this Set

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Who can marry in PA?
A man and a woman via a contract under 23 Pa. C.S. Section 1102.
How are individuals married in PA?
You must obtain a marriage license according to 23 Pa. C.S. Section 1304.
Who may not obtain a marriage license in Pa?
1.) Minors under 16 unless the court decides that is in the Applicant's best interests.

2.) Minors under 18 unless a parent or guardian consents.

3.) People who are "weak minded, insane, of unsound mind, or under a guardianship as being of unsound mind, unless the court decides otherwise, based on a best interests analysis.

4.) Persons under the influence of alcohol or drugs.

5.) Close relatives: a man may not marry his mother, the sister of his father, the sister of his mother, his sister, his daughter, the daughter of his son or daughter, his first cousin. Similar rules apply to women.
Once a marriage license is issued in Pa, what must occur?
The marriage must be solemnized - either before a judge, mayor, or the minister/priest/rabbi of a religion, or by the religious organization itself as to its members. Those who do not wish this type of solemnization can request the commonwealth to be able to do their own marriage. 23 Pa. C.S. Section 1502 et seq.
Are Common Law marriages valid in PA?
Common Law marriages are not valid in PA if entered into after January 1, 2005. 23 Pa. C.S. Section 1502
What are the requirements for a valid common law marriage in PA?
1.) Must be before 1/1/05.

2.) Must be able to obtain a Marriage License.

3.) An express agreement by the parties;

4.) by words IN PRESENTI, ie. they state a present (not future) intent;

5.) uttered with a view and for the purpose of establishing the relationship of husband and wife.

Absent direct proof, a common law marriage may be established through indirect proof including the parties' cohabitation and their holding themselves out as married.
Are marriages entered into outside of PA valid in PA?
The general rule is that a marriage that is valid in the state where it is celebrated is valid everywhere, except where restricted by:

1.) Pennsylvania Protection of Marriage Act.

2.) Federal Defense of Marriage Act.

3.) Pennsylvania Criminal Incest Statute.
How does the PA Protection of Marriage Act restrict the recognition of outside marriages?
The Act states: "It is hereby declared to be the string and long standing public policy of this commonwealth that marriage shall be between one man and one woman. A marriage between persons of the same sex which was entered into in another state or foreign jurisdiction, even if valid where entered into, shall be void in this commonwealth" 23 PA.C.S. S1704.
How does the Federal Defense of Marriage Act affect PA?
The Federal Defense of Marriage act states: "No State, territory, possession of the US, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding by any other state, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as marriage under the laws of such other state, territory, possession or tribe, or a right or claim arising from such relationship."

AKA Not your state law. no problem, no worries.
How does the PA criminal incest law affect marriages outside of PA?
The statute states: "A person is guilty of incest, a felony of the second degree, if the person knowingly marries or cohabits or has sexual intercourse with an ancestor or descendant, a brother or sister of the whole or half blood or an uncle, aunt, nephew or niece of the whole blood. The relationships referred to in this section include blood relationships without regard to legitimacy, and relationship of parent and child by adoption."

AKA Just because you can marry your cousin in some states does not make it ok for you to ocme to PA.
What is a marital agreement?
A marital agreement is an agreement that is binding and enforceable under traditional principles of contract law.
What are three (3) types of marital agreements?
1.) Antenuptial or Prenuptial

2.) Seperation
-entered into during the marriage, but prior to divorce

3.) Property Settlement
-entered into prior to divorce
When are marital agreements not enforceable under Simeone?
For a marital agreement to be void the attacking party had to prove by clear and convincing evidence either:

i) that full and fair disclosure of the other's worth was not made; or

ii) that the one of the usual "contract defenses" exists, eg duress, misrepresentation or fraud, coercion.
How specific must a disclosure to be "fair and full?"
The disclosure of assets need not be exact, but it must be "precise enough so as not to obscure the general financial resources of the parties." It requires only adequate disclosure of the parties financial positions. However there is no need to disclose the statutory rights that are being surrendered.
What is required by statute for a premarital agreement to be invalid?
(a) GENERAL RULE -- The burden of proof to set aside a premarital agreement shall be upon the party alleging the agreement to be unenforceable. A premarital agreement shall not be enforceable if the party seeking to set aside the agreement proves, by clear and convincing evidence, that:

1)the party did not execute the agreement voluntarily; or

2) the party, before execution of the agreement:

i)was not provided a fair and reasonable disclosure of the property or financial obligations of the other party;

ii)did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided; and

iii) did not have an adequate knowledge of the property or financial obligations of the other party.
Under PA law what is a Family?
Under PA law a family is defined as one or more person's related by blood, adoption, or marriage living and cooking together as a single household unit, exclusive of household servants. A number of persons not exceeding two living and cooking together as a single housekeeping unit though not related by blood, adoption, or marriage shall be deemed to constitute a family.
Describe the holding in Appeal of Miller.
"The property owner began taking boarders into their home. There were aged and impaired persons referred to her by various hospitals. The area where Irene Miller lived was zoned single family, and damily was defined as "any number of persons living and cooking together as a single housekeeping unit." The facts in that case allowed Mrs. Miller to establish that her boarders, who paid minimal rent and who were there in a stable basis, acted as a single family housekeeping unit.
Explain the holding in Albert v. Zoning Hearing Board of North Abington Township.
The house there was being used as a halfway house for recovering addicts. The ordinance did not define what it meant by a family unit so it turned to the case law and said that it meant a single housekeeping unit. Miller had said that the group of persons did not need to be related by blood or marriage to constitute a family. There was some question about the profit motive at the halfway house - which would have argued against it being a family type unit, but that went nowhere. The Pa Supreme Court went for the weakest link - the transient status of the addicts - and said it was not functioning as a single family housekeeping unit.
What is the significance of Lawrence v. Texas?
Lawrence v. Texas held that, "the liberty interests protected by the Constitution allow adult persons to make sexual choices in the privacy of their homes without governmental intrusion."
What was the Supreme Court's holding Planned Parenthood v. Casey concerning abortion?
The court held that no undue burden may be placed on the right to an abortion before viability. An undue burden exists if a statute's purpose or effect is to place a substantial obstacle in the path of a woman seeking the abortion before viability. After viability, the state may restrict access to abortions, but must always provide exceptions for the life and health of the mother.
Does Pennsylvania allow wrongful life lawsuits?
NO - 42 Pa.C.S. S8305
Are surrogate parenting agreements enforceable in PA?
Yes - J.F. v. D.B., 897 A. 2d 1262 (Pa. Super. 2006).
What is an annulment?
An annulment terminates a marriage and is applicable to marriages that are either void or voidable. 23 Pa. C.S. S3305
When is a marriage void?
A marriage is void if:

1) One party is still married to someone else (Bigamy).

2) H and W are within prohibited degrees of consanguinty, as specified in the license statute (Incest).

3)One party lacked mental capacity to marry (Incapacity).

4)One party was under 18, and they attempted a common-law marriage (Under-Age).
When is a marriage voidable?
A marriage is voidable if:

1) One party was under 16, and there was no court permission obtained.

2) One party was under 18, and there was no parental consent obtained; but the annulment must be obtained within 60 days and if the 17 yr old turns 18 during the 60 days he/she can ratify the marriage, usually by continuing cohabitation.

3) One party was drunk or under the influence of drugs; but the annulment must be requested within 60 days.

4) One party was, and remains incurably impotent (unless the other party knew about it before the marriage).

5) Fraud, duress, coercion or force was used to obtain marital consent.
What is the distinction between a void marriage and a voidable marriage?
A void marriage included unions so abhorrent as to be against public policy from their inception. Into this class belonged bigamous marriages and those in which one party was insane. Void marriages could be dissolved over objection of the parties by interested persons. In contrast, voidable marriages contained some defect that could be removed by ratification, and were dissolvable only by the injured spouse.
Does the party who requests an annulment have the right to an equitable distribution of the assets?
Yes - They are entitled to an equitable distribution of property, alimony, custody, support, counsel fees and costs, and any other related matter.
What is the effect of Divorce on a Marriage?
Divorce legally dissolves a marriage.
Is PA a FAULT or NO-FAULT state?
We are a combination state - a spouse can use either grounds, but once a party elects no fault grounds, PA limits the ability to pursue a fault based divorce, once the no-fault grounds have already been establishes.
What are FAULT based grounds for divorce in PA?
1) Desertion

2) Adultery (adulturous disposition of parties + opportunity)

3) Cruel and Barbarous treatment (could be one sever act)

4) Bigamy

5) Incarceration for 2 or more years

6) Indignities (a course of conduct: vulgarity, reproach, contumely, neglect, incivility, disdain, abusive language, ridicule)

7) Confinement to a mental institution for at least 18 months

NOTE: Post-Separation conduct cannot provide fault-based grounds.
What are the defenses to fault based grounds?
1) Condonation - knowledge, forgiveness and resumption of marriage

2) Connivance - "corrupt consent" - One party lured the other party into misconduct

3) Collusion - Parties agree to "create" grounds

4) Recrimination - Both parties have behaved badly (e.g. both are cheating)

5) Provocation - one party provoked (caused) other's misconduct

6) Consent

7) Justification - justified in leaving if other spouse committed acts sufficient to satisfy fault based grounds of desertion or adultery

8) Insanity - Defense to a claim for marital misconduct
What are NO-FAULT grounds for divorce?
1) Mutual or bilateral - both parties agree (by affidavits filed with court) that the marriage is irretrievably broken and 90 days have elapsed since filing of action.

2) One party or unilateral - marriage is irretrievably broken and parties have lived apart (though even in the same house, so long as no "cohabitation") for two years prior to filing the action.
What are the defenses to a NO-FAULT claim for divorce?
Trick Question...There are NONE.

However, in defense it could be argued that the required periods of time after filing or living apart have not occurred.
How does PA handle marital property after either an annulment or divorce?
PA is an equitable distribution state.
What does mean when we say that PA is an Equitable Distribution state?
Marital Property is divided by the court in a fair and equitable manner in order to establish "economic justice between the parties."

This does not mean marital property will be divided 50/50.
What does it mean that PA is a BIFURCATION STATE?
It means that the issues of divorce and equitable distribution (and also child custody and support issues) can be decided in separate proceedings.

The parties need not wait for the divorce to be effective while they are fighting over these other matters.
What does Marital Property include?
Marital Property includes "all property acquired by either party during the marriage prior to the date of final separation. This includes businesses and professional practices owned by the parties. 23 Pa.C.S. s3501.
What is excluded from marital property?
1) Property acquired prior to marriage or property acquired in exchange for property acquired prior to marriage.

2) Property excluded by valid agreement of the parties entered into before, during, or after the marriage.

3) Property acquired by gift, except between spouses, bequest, devise or descent or property acquired in exchange for such property

4) Property acquired after final separation until the date of divorce, except for property acquired in exchange for marital assets.

SEE SIDE 3.
5) Property which a party has sold, granted, conveyed or otherwise disposed of in good faith and for value prior to the date of final separation.

6) Veterans' benefits exempt from attachment, levy or seizure pursuant to the act of September 2, 1958, as amended, except for those benefits received by a veteran where the veteran has waived a portion of his military retirement pay in order to receive veterans' compensation.

7) Property to the extent to which the property has been mortgaged or otherwise encumbered in good faith for value prior to the date of final separate.

8) Any payment received as a result of an award or settlement for any cause of action or claim which accrued prior to the marriage or after the date of final separation regardless of when the payment was received.
In consideration of marital property how does PA consider increased or decreases in non-marital property during the marriage?
Increases in value during the marriage of non-marital property is itself marital property. Increases in the value of one spouse's non-marital property can be offset by decreases in the same spouse's non-marital property in determining this increase value.
What are some factors to be considered in property distribution?
1) Length of Marriage
2) Prior Marriages
3) Age, health , income, skills, employment, liabilities, needs of each party
4) Contribution of one party to the education , or increased earning power of the other.
5) Opportunity for future acquisitions of capital assets and income.
6) Sources of income for both parties, including benefits like insurance, medical or retirement
7) Contribution of each party to the marital property (including the contribution of the homemaker)

SEE NEXT SIDE
8) Value of property set aside for each party
9) Standard of living the parties established during the marriage
10) Economic circumstances, including any tax consequences, of each party when the division of property becomes effective
11) The expense of the sale, transfer or liquidation associated with a particular asset
12) Whether the party will be serving as the custodian of any dependent minor children. 23 Pa.C.S. s3502.
What is the effect of divorce on entireties property?
It is automatically converted into a co-tenancy (50-50), unless the court orders otherwise. 23 Pa. C.S. s3507
What is a QDRO and when is it used?
A QDRO is a qualified domestic relations order. It can be used to do equitable distribution of non-vested pension rights. It can be field with the pension plan's administrator, and if an when the plan matures, the administrator can make payments to the non-employee spouse without continued financial entanglement of the former spouses.
What is an ADRO?
An ADRO is an Approved Domestic Relations Order for equitable distribution of vested pension rights.