Chapter 1 Flashcards
Name 8 states that were community property states
Arizona, California, New Mexico, Texas, Washington, Idaho, Louisiana, Nevada
Original marriage laws based upon …
English common law
Year of first organized women’s rights movement
1848 Seneca falls NY
Second rights movement year
Beginning in 1960’s
Fourteenth amendment on marriage
Marriage is a fundamental right Under due process clause and under equal protection clause you cannot restrict an individuals choice of marriage based on racial classifications
Consanguinity
Blood related
Affinity
Related through/by marriage
States allowing same sex marriage
Connecticut & District of Columbia Massachusetts Maine Maryland New Hampshire New York Iowa Vermont & Washington
First state to legalize gay marriage
Massachusetts
Doma meaning
Defense of marriage act:
States don’t have to allow same gender marriage
States don’t have to recognize same sex marriages from other states
In the us the federal def of marriage is 1 man and 1 woman
Three elements to common law marriage
Mutual agreement to become husband and wife
Cohabitation
Reputation in the community as husband and wife
What miscegenation laws intent was
To presence tea ail
Integrity
Prevent corruption of bloodline
And the obliteration of white pride
Also that marriage has always been left up to the states to regulate
What did Loving v. Virginia argue
The freedom to marry has long been recognized as one of the vital personal
Rights to the orderly pursuit of happiness by free men
Marriage is one of the basic civil rights of man fundamental to our existence and survival
Deprives the lovings of liberty without due process of law in violation of due process clause of 14th ammedment
Rational basis test
In order for a state law to be constitutional there has to be some rational reason got the state to do what it is doing
Strict scrutiny test
In order for a state law to be constitutional there has to be a rational reason AND it has to be the least restrictive thing they can do. No better way
Fundamental right is what scrutiny?
Strict scrutiny. If it’s now a fundamental right it’s non fundamental rational test
Things to do to ensure a prenup is validated
Otherside must have lawyer and you pay for it with no limits and same quality
Has to be signed 30days before weddings and before invitations and deposits
Over disclosure of assets.
At least two drafts and one purposely has mistakes to ensure they read it.
Leave something out a party asked for to ensure they can’t say they didn’t negotiate. One major change they requested.
Save all drafts to show it wasn’t “here we go sign this”
Signing party: videotaped by court reporter to prove they were happy and competent and it was voluntary. Read over each paragraph
Covenant marriage
Must have pre marital and post marital counseling
Waive right to no fault divorce
And show fault
What is in answer to petition
1) admit or deny allegations
2) make own allegations
3) yes or no for prayer & relief
4) ask for what you want
What 7 things must be decided in order to avoid court in a divorce
1) division of assets
2) division of debts
3) spousal maintenance/alimony
4) all issues of legal decision making for children
5) parenting time for children
6) child support
7) decisions about attorney fees and costs
Temporary orders can’t be filed until you file divorce and may include:
Legal decision making, child support/spousal support, use or possession of marital assets
Any debt acquired during marriage is community property except:
Pre marital assets
Pre marital debts
Gift & inheritances
Marital waste
An asset and a debt are?
An asset is something you own
A debt is something you owe
Comingling
Mixing sole and separate property with community property to the point where you can no longer tell the difference
Transmutation
Sole and separate property that changes and becomes community
Community Lein on separate property
Have sole or separate property but you use community $ to pay it or maintain it
How long are temporary orders good for?
From time filed until divorce is final
Stages of grieving
Denial Anger Sadness Bargaining/negotiating Acceptance
Pre-trial prep includes:
List of witnesses Subpoenas Depositions Hiring experts, Prep of joint or separate pre trial Statement
What 9 things are in a dissolution package
Petition a: allegations b: prayer for relief Family court cover sheet Sensitive data sheet Notice regarding health insurance Notice regarding creditors Summons Preliminary injunction UCCJEA affidavit Order to attend PIP
Different options of ADR
Mediation Reach own agreement Arbitration Rent a judge Med/arb: hire someone to help you decide and if you can't they decide
Jurisdictional requirements for divorce?
A 90 day residency prior to filing is required of at least one party
Default or uncontested divorce
As little as 3-4months and $1-3k
As long as you have waited 64 days you can go down and get default on demand
When is divorce final in Az?
After judge signs and clerk files it
Divorce by consent/ negotiated settlement
4-9 months
$5-$50k
Contested/ litigated divorce
9-18months
$50-$150k
Civil union
A formal status that provides same sex couples with the rights, benefits, protections, and responsibilities that are available to married heterosexual couples under state (not federal) law
Domestic partnership
Usually refers to a municipal ordinance that enables in married couples to register as domestic partners. Provides some legal recognition and possible benefits. Also recognized by some private employers
Procedural fairness
Unfairness in the process of negotiating the agreement. Was the process of the contract fair
Substantive fairness
Unfairness in the resulting terms of the contract. Are the terms fair
What must be disclosed in a postnuptial agreement?
A full, fair, and reasonable disclosure of the amount,character value if property, both jointly and separately held, and all of the financial obligations and income of the other spouse.
Three significant provisions of VAWA violence against women act
1: criminalization of interstate domestic violence. It is a federal crime to cross state line to violate a protective order as well as to injure stalk intimidate an intimate partner
2: full faith and credit to abuse prevention orders. states are required to give full faith and credit to protective orders from other states
3: protections for battered immigrant women. VAWA permits a battered immigrant to self petition for lawful permanent residence status which frees her from the reliance on the abusive spouse
What is a civil order of protection
Various protective orders someone can obtain through the court to prevent abuse, threats, stalking or injuries against another person.
3 Divorce grounds for fault
Adultery
Desertion
Cruelty
Defenses to allegations in a fault marriage
consent= connivance Forgiveness= condonation Recrimination= the spouse is also guilty of misconduct
First state to enact no fault divorce
California
What is an annulment
A declaration that no valid marriage ever existed
Subject matter jurisdiction
The courts authority to hear a particular type if dispute
