PA Family Law

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PA Family Law
2011-06-29 19:16:40
PA Family Law

PA Family Law
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  1. Gifts in contemplation of marriage
    A conditional gift is made in consideration (or contemplation) of marriage when it is given by the donor indicating that the gift if subject to a conditoin subsequent

    • Three Reqs.
    • 1. Intent to transfer gift (was there a string attached)
    • 2. Delivery
    • 3. acceptance
  2. Marital agreements
    • *Prenups are presumed valid in Pa (BOP on challenging party by CAC)
    • *2 reqs:
    • 1. voluntary
    • 2. adequate financial disclosure to more vulnerable party
    • *substantive FAIRNESS not analyzed if these 2 factors are satisfied

    *Must be entered into freely by competent persons
    (knowledge of all rights not needed)

    • *More likely to be inforced if disadvantaged party seeks counsel (but not a determining factor)
    • Goal of prenup: to trump default marriage/ property rules

    : mutual promise to marry and waiver of rights

    fraud, misrep and duress

  3. Marital agreements: Disclosure reqs
    *Full & Fair disclosure: of financial circumstances of both parties in order to make a valid agreement:

    1. all financial circs that materially bear on matter

    2. rebuttable presumption of fairness if a clause in the K stating that there's been disclosure & parties waive any further inquiries

    • * To assert lack of disclosure, challenging party must demonstrate:
    • 1. not provided full and fair disclosure

    2. disclosure wasn't waived

    3. didn't have adequate knowledge of other's finances
  4. Legal impediments to marriage
    • * Fundamental right, but states can reasonably regulate:
    • 1. Nonage: under 18, no marriage w/out parental consent (under 16, courts must consent)

    2. Consanguinity: marriage license not issued to blood relatives (parties related by marriage can marry)

    3. Incapacity: need ability to form true consent (must understand std nature of marriage k- easy std)

    3. Same sex: Not allowed in Pa, marriage defined as man and woman

    4. Prior marriage still in force: marriage is void if a person has a living spouse

    • *If there's an impediment to a marriage @ the time the marriage cermony, and impediment is removed, marriage can be validated later as long as:
    • 1. impediment is removed & marriage continued w/ good belief

    2. parties continue to live w/ each other as h/w
  5. Legal reqs for marriage: Cerimonial marriage
    1. Marriage license

    • 2. Solemnization (ceremony- vows to demonstrate intent to be married)
    • -performed by justice of peace/ religious figure
    • 3. Pa also recognizes "Self-Soleminizing" if obtained in advanced written authorization from crt and 2nd spouse (needs 2 other W's to affirm ceremony)

    • 4. Proxy marriage: usually w/ military (an agent is requested to take place of person who cannot be physically present)
  6. Legal reqs for marriage: Common-law marriage
    *Started in Jan 1, 2005: after this date, no more creation (but existing CL reconized)

    *Pa will recognize CLMs created validly elsewhere

    • *Reqs:
    • 1. express intent (hard std- explicit expression to be presently married)

    2. cohabitation (living together in a sexual relationship)

    • 3. holding out (publically rep to be h/w)
    • -look for: jt tax rtrns, bank accounts, title to docs

    4. legal capacity (age, currently married, close blood)

    *default is not married (BOP on person claiming CL)
  7. Rights of cohabitating unmarried partners
    • 1. formal legal title on prop will control if separated (can be overcome)
    • *Person challenging formal title can claim:
    • 1. express ks that couple was co-owner (can be oral)

    2. implied-in-fact (look @ behavior of parties, must be agmt)

    3. unjust-enrichment

    • *So argue:
    • 1. unjust for unnamed title holder to be left w/ nothing

    2. conversation

    3. joint contribution
  8. Validity of Foreign (out of state) marriages
    Any marriage that satisfies the reqs of the state unles violated strong public policy
  9. Annulment
    *declaration that marriage never happend

    1 Void (from inception): marriages prohibited on grounds of bigamy, consanguinity, lack of consent and homo are void (public policy)

    • 2. Voidable: presumptively valid unless/until challenged (annulment obtained), grounds:
    • a. nonage
    • b. intoxication
    • c. incurable impotence (unless known before marriage)
    • d. fraud, duress, coercion (fraud must go to essense of marriage i.e ability to have sex or children)
  10. Spousal property rights during marriage: Title Generally
    Spouse w/ title is legal owner of prop

    *spouses may have JT
  11. Mutual support obligation
    In Pa, any married person is obligated to support their spouse to the degree that they can do so

    • *Necessaries Doctine: scope of duty covers only necessessaries (creditors must go after purchaser 1st, then if spouse doesn't pay, then go after non-debtor spouse), includes:
    • 1. medical
    • 2. housing
    • 3. food
    • 4. other living expenses
    • *based on std living and ability to pay
  12. Protection from domestic abuse
    *covers family members and sexual partners

    • *Type of acts that trigger Abuse Act in Pa:
    • 1. intentional causing bodily injury or sexual offense
    • 2. causing another reasonable fear of imminent SBH (single act)
    • 3. false imprisonment

    4. physical/sexual abuse of a child

    5. course of conduct that makes a R fear of bodily injury (serise of act)

    • *Relief available: [last up to 3yrs]-(can be extended if more acts)
    • 1. order to stop violence
    • 2. stay away order
    • 3. temp custody rights
    • 4. temp economical right
  13. Marital presumption of legitimacy/paternity