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51 Cards in this Set

  • Front
  • Back
is marriage considered a fundamental right?
yes. it is a fundamental right protected by the U.S. constitution.
who has the burden of proof when attacking the validity of a marriage?
the validity of a marriage is presumed. the burden of proof is on the party attacking the validity.
what are the requirements for a valid marriage?
mental capacity, neither party can be married to another, age requirement, unrelated parties, knowing & voluntary consent, different sexes, procedural requirements, and solemnization
what is the definiton of mental capacity?
ability to understand what one is getting into. mental capacity in marriage is a lower standard than in other areas. you can be incompetent in other areas and still be competent to marry. mental capacity is presumed.
is a bigamous marriage prohibited even if a party has a good faith belief he/she was free to marry?
yes. however, good faith belief is a defense in a criminal prosecution for bigamy. current marriage is presumed valid.
how old must you be to marry w/o parental consent?
18. minors who are 16-17 can marry w/consent of both parents, or of one parent and consent of judge
will failure to obtain consent or judicial consent invalidate a marriage?
no.
what does unrelated parties mean?
persons can't be related closer than 2nd cousins in order to get married.
marriage is both a _____ and a ________.
marriage is both a status and a contract.
what kind of consent is required?
knowing and voluntary.
does KS recognize marriages entered into by parties of the same sex?
no. explicit statutory provision and amendment to KS constitution. same sex marriages entered into in other states are NOT recognized in KS.
Does KS recognize marriages entered into if one of the parties is a transgendered individual?
no. KS supreme court ruled that a transgendered person remains the sex he or she was born.
what is the waiting period for marriage in KS?
3 days.
will a failure to obtain a license invalidate a marriage?
no, b/c KS recognizes common law marriage, failure to obtain a license will not invalidate a marriage.
what are the solemnization requirements?
the marriage must be solemnized by an authorized, licensed person, mutual declarations must be made, and there must be 2 competent witnesses.
are common law marriages valid in KS?
yes.
what are the requirements for entering into a common law marriage?
capacity, present agreement, and holding out to the public.

note: no requisite amount of time.
what is the age requirement to enter into a common law marriage?
18.

note: until 2002, the age of capacity was 12 for girls and 14 for boys.
how does a common law marriage end?
once formed, a common law marriage is treated as any other valid marriage and must be ended in a DIVORCE.
will one state recognize a marriage that has been entered into in another state? what are the exceptions to the general rule?
general rule: other states will recognize a marriage validly contracted in another state. the law of the stae where the marriage contract was entered into will determnie it's validity.

exceptions: (1)if the marriage violates a strong public policy, then the marriage may not be recognized (i.e. evasion of state law violates pub. pol'y) (2)if the state has a specific statutory prohibition against the marriage the state is being asked to recognize, it may decline to recognized it (i.e. KS prohibits recognition of same sex marriage)
is an engagement ring a gift?
an engagement ring is a conditional gift made in contemplation of marriage. fault plays no role.
what is an annulment?
the process that is used to have a marriage declared invalid
what is the difference between voidable and void marriages?
voidable marriages (mistaken belief or fraud) are valid until challenged.

void marriages (bigamous, incestuous) have no legal status.
who can challenge a voidable marriage?
only parties can challenge a voidable marriage.
who can attack a void marriage?
anyone can attack a void marriage, even after the death of one of the parties.
is a marriage contracted within 30 days of a divorce decree valid?
a marriage contracted w/n 30 days of a divorce decree is voidable until the time of final judgment.
how are spousal support obligations enforced?
through both criminal law and the common law doctrine of necessaries.
what are necessaries?
"necessaries" are things needed and suitable to the spouse's rankand condition and style of life.
what was the KS Supreme Court ruling regarding the doctrine of necessaries?
held that the doctrine in its historical form violated epc of the 14th amendment, so now both husbands and wives can be liable for the necessaries of the other.
can a creditor maintain an action against both spouses at the same time?
yes. the person incurring debt is primarily liable; the spouse is secondarily liable.
can a spouse hold separate property during marriage?
yes. during marriage, a spouse can hold separate real and personal property.

note: earnings are separate unless combined
In KS, each person can retain property acquired __________ and after marriage by ______,_______, or ________.
In KS, each person can retain property acquired before marriage and after marriage by gift, descent, or devise.
what is "homestead?"
a homestead to the extent of 160 acres ousside a town or 1 acre in an incorporated town occupied as a residence by th efamily of the owner and improvemnts is exempt from forced sale and cannot be alienated w/o consent of husband and wife.
what are the debts that can attach to homestead?
payment of obligations to buy property and improvements (mechanics liens), taxes, and lien given with consent of husband and wife.
may a married person make contracts as an individual or buy/sell real or personal property as an individual? what is the exception?
yes.

exception: a resident spouse must consent in writing to sale of any real property even if it is held in one spouse's name alone or was acquired prior to marriage.
if the conveying spouse dies, non-consenting spouse can recover 1/2 of all real prop. conveyed. does not apply to judicial sale/other legal typse of sales.
does KS have interspousal immunity?
no. interspousal immunity has been abolished.
does KS have parental immunity?
only for the exercise of parental discretion regarding a child's medical condition and financial well-being. it was abolished in the automobile negligence area.
what is the one fault ground KS recognizes in a divorce action?
failure to perform a material marital duty
does KS recognize common law alienation of affection?
no.
what is the rule regarding marital communications?
there is a privilege for communications made in private between spouses. the privilege can be waived. divorce nullifies the privilege.
what is the rule of testimonial disqualification regarding marital communication?
in a criminal proceeding, a spouse may testify against the other but only as to communications NOT covered by the marital communication privilege. testifying spouse owns the privilege. may not be compelled. this survives divorce.
who make see a PFA?
a person may seek a PFA for him/herself or a child.
may a person in a dating relationship seek a PFA?
yes. a dating relationship may be determined by a number of factors.
what are the factors that may determine a dating relationship.
nauture of relationship, length of time, frequency of interaction, time since termination
what is the KS definition of abuse?
(1)intentionally attempting to cause or causing bodily injury. (2) intentionally placing another in fear of bodily injury by threat. (3) engaging in sexual activity with minor under age 16 or fondling to satisfy desires of an adult.
who has jurisdiction over a PFA?
any district court has jurisdiction.
may a PFA be modified ex parte or in temporary orders in a divorce or paternity case?
no.
what must be done to file a PFA?
petitioner must file a verified petition and service must be personl, not certified. a hearing must be held w/n 20 days of filing the petition.

note: no fee is required.
my an emergency ex parte order be granted? if so, for how long?
yes. up to 72 hours.
what is the standard of proof in a PFA?
preponderance of the evidence.
what may a PFA include?
restrain abuse, grant possession of a residence, temp. custody/residency of kids, order law enforcement to evict a party, award support for up to 12mos. w/right to extend for another 12mos., award costs/atty's fees, require counseling of offender, and provision for possession of personalty.

note: no PFA may affect title to real property.
court cannot award house to non-title holder even if titleholder is abuser