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39 Cards in this Set

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  • Back
Sexual relationship between unmarried people
NC has a fornication and adultery statute making the sexual relationship illicit - however Lawrence v. Texas seems to impose limits on the criminalization of sexual conduct between consenting adults
Contracts between unmarried persons who live together
NC courts will enforce express or implied oral or written contracts as long as such contracts are not explicitly based upon sexual services
Other remedies for unmarried individuals
If no action in implied contract then recovery based upon unjust enrichment.
Rights granted by state to cohabitants
Almost none - exception is for domestic violence
Contents of Premarital Agreement
NC has adopted the Uniform Premarital Agreement Act - the parties may contract with respect to any matter EXCEPT child support and custody
Formalities Required of a Premarital Agreement
Need a writing, signed by both the parties and formal acknowledgement where it relates to real property.
Enforcability of Premarital Agreement
Can avoid if:
1. not voluntarily executed OR
2.agreement was unconscionable at the time it was executed and complaining party was not provided fair and reasonable disclosure, had no knowledge thereof (i.e. access to the information) and had not waived in writing the right to disclosure

Converse of the disclosure rule: The law will enforce even an unconscionable agreement if there was disclosure

1. 2 lawyers not required
2. Wedding eve not duress only evidence
3. Limitation on spousal support agreements - despite an agreement to the contrary, the court will order support if the agreemetn would cause the dependent spouse to be eligible for public assistance (but must still meet requirements for alimony)
Revocation or amendment of a premarital agreement
May only be done in writing
Breach of Promise to Marry
Contract action, with tort like damages brought against the party who without justification refuses to carry through with his promise to marry
Engagement Ring
Conditioned on marriage - belongs to donor in the event of no marriage
2 requirements for valid marriage
1. License
2. Ceremony
3 requirements for a valid ceremony
1. consent of a male and female who may lawfully marry
2. in the presence of each other (no proxy marriage)
3. In the presence of an ordained or authroized minister; a magistrate; or without an officiant if the ceremony is a mode of solemnization recognized by any religion or tribe

Note: "licensed" ministers - i.e. mail order may not perform ceremonies in NC
Substantive Requirement - Age to Marry
1. 18 or older
2. 16 or 17 w/ parental or guardian consent (but parents can have the marriage annulled if consent was procured by fraud or misrepresentation)
3. 14 or 15 and with judicial consent if child involved
Substantive Requirement - Kinship
No closer than 1st cousins (lineal descendant and ancestor, uncle and niece, aunt and nephew, double first cousins, half brothers and sisters)

Criminal to marry grandparent or grandchild, parent or child, stepchild, or legally adopted child; or brother or sister of half or whole blood
Conflicts of Law and the valid marriage
Marriage valid in the state contracted is valid everywhere - i.e. though NC prohibits marriage between double first cousins, if H and W are double first cousins and are married in state which does not prohibit their marriage then NC will recognize the marriage
Public Policy Limits on Conflicts of Law and Full Faith and Credit
DOMA and similar NC statute reflect the view that a state is not required to recognize a marriage if it violates the strongly held public policy of the state

Note: Previously used to not recognize foreign polygamous marriages; now used to presumably not have to recognize same-sex marriages (not yet tested for constitutionality)
Common Law Marriage in NC
Does not exist - but NC will recognize a common law marriage entered into in a state which allows common law marriage
Tort - No Interspousal immunity
H and W may sue each other for all tort actions, including wrongful death and is true even if the cause of action arose in a state that has not abrogated the interspousal tort immunity
Torts of the Spouse
Neither spouse is liable for the torts of the other
Loss of Corsortium
Claim available to spouse of injured party
Elements of Criminal Conversation
Plaintiff must show that there was a:
1. Marriage
2. sexual intercourse - can be either pre- or post-seperation - test for circumstantial proof of adultery is inclination and opportunity

Courts have limited this tort by holding that the Statute of Limitations runs from the sex not from spouse's discovery of the sex
Elements of Alienation of Affections
1. Marriage w/ love and affection
2. that is destroyed by
3. the wrongful and malicious acts of defendant- the wrongful acts must occure pre-separation
Formalities of Postnuptial contracts
Must be in writing and must be signed and acknowledged to be effective to transfer real property.

Note: By statute a postnuptial contract may waive equitable distribution but not alimony
Doctrine of Necessaries
Action against a party by any person who furnishes "necessaries" to that party's spouse, i.e. food, shelter, clothes, medical care

If parties are seperated, the third party still has a cause of action unless it has actual knowledge of the separation.
Liability for Domestic Violence
1. current or former spouses
2. current or former household members (does not have to be opposite sex so includes same sex couples who cohabitate)
3. parents and children; grandparents and grandchildren; or persons acting as parents to a minor child
4. persons with a child in common
5. persons of the opposite sex who are in a dating relationship or who have been in a dating relationship
Statutory Relief for Domestic Violence
1. emergency, ex parte relief - no appeal as it is impermissible interlocutory appeal
2. mandatory arrest for violation of protective order
3. judge must act within 48 hours
Testimonial Privilege
A spouse may testify against a spouse even over the objection of the spouse but cannot be compelled to testify except in specified circumstances:
1. bigamy or criminal co-habitation
2. assault of spouse
3. trespass on lands of spouse when living seperate and apart
4. abandonment or failure to support other spouse or child
5. crime against other spouse or child
Confidential Communications
May be invoked by either spouse to prevent testimony about confidential communications

Note: if 3rd party was present during the communication then not confidential

Exceptions: child support actions, neglect and paternity
Two types of marriages that may be annulled in NC
1. void
2. voidable
Voidable Marriage
Marriage entered into when one or both parties were under some kind of impediment that could render the marriage invalid. A voidable marriage is valid until attacked by one of the parties during their joint lifetime.
Characteristics of the voidable marriage
1. Can't be attacked by a third party (except that parent can annul the marriage of a child under 18 if license was procured by fraud.)
2. after cohabitation and the birth of a child - attack by one of the parties must be during their joint lifetimes
3. The voidable marriage may be ratified - i.e. the party with the impediment ratifies the marriage by remaining in it after the impediment has been removed (W is underage when marriage is contracted but then remains in the marriage after reaching the age of 18)

"Clean Hands" doctrine - the guilty party - i.e. party that is not under the impediment will often be estoppel to deny the validity of the marriage
Grounds for Voidable marriage
1. parties are nearer of kin that first cousin
2. either party is under 16 - but only the underage party has standing to sue for the annulment
3. marriage was contracted under a representation and belief that the female is pregnant, the parties seperate within 45 days of marriage and remain seperated for one year and no child is born to the parties within 10 months of the date of separation
4. either party is physically impotent (at the time of the marriage)
5. either party is incapable of contracting for want of will or understanding (at the time of the marriage)
Void Marriage
Only bigamous marriages are void in NC
Characteristics of the Void marriage
1. subject to collateral attack by any 3rd party at any time (even after the death of one of the parties)
2. cannot be ratified by conduct of the parties and
3. generally immune from equitable defenses
Presumption of the Validity of the 2nd marriage
When 2 marriages are shown to exist, it is presumed that the 2nd marriage is valid and the party asserting the invalidity has the burden of showing either that:
1. the first marriage did not end by death of the spouse (usually easy) or;
2. the first marriage did not end with divorce (difficult to prove a negative)
Rights of "spouse" after annulment
1. Entitled to post-seperation support and attorneys' fees (assuming other conditions of eligibility are met)
2. No permanent alimony and no equitable distribution
Children of an annuled marriage
= Marital children
2 grounds for divorce in NC
1. Insanity
2. Separation for one year
Requirements for insanity
1. lived separate and apart for three years as a result of incurable insanity of the defendant spouse
2. insanity requires proof that the spouse has been institutionalized for the 3 year period, was adjudicated insane during that period or has otherwise been incurably insane for the period
3. requires expert testimony from 2 doctors
4. plaintiff spouse may be required to provide care and maintenance for the lifetime of the insane spouse