Domestic Relations Flashcards
What is the ground of Cruelty?
Requires acts that tend to cause bodily harm and render the spouses’ living together to be unsafe.
- proved by preponderance of the evidence
- requires 1 year period of physical separation
What is Preponderance of the Evidence?
Proof that something is more likely to be true than not true
What is the Ground of Desertion?
Requires that one spouse physically desert another spouse for the period of a year
What is the ground of Constructive Desertion?
Requires proof that the other spouse’s conduct was so egregious as to force one to move out of the marital home
*doesn’t require physical abuse
*requires one-year period of separation
What is the ground of Adultery?
May be found where one spouse cheats on another, so long as the spouse does not resume cohabitation after learning of the adultery, or recriminate by committing adultery of their own.
- no waiting period required
- act of adultery proven by clear & convincing evidence
What is clear and convincing evidence?
Party must prove that the fact is highly probable to be true
What is required for No-Fault divorce?
- No children
- There is a separation agreement,
- Parties have lived separately for 6 months
What is considered when deciding spousal support? (6 things)
- Existing Assets- The existing assets of each spouse
- Employment- of each spouse
- The standard of living- the marriage afforded each spouse
- The duration- of the marriage
- Any existing health or extreme financial challenges
- Each spouses fault for the breakup
Adultery affect on spousal support
Adultery bars an award of spousal support to the offending spouse, unless denial of support would amount to manifest injustice
What is considered for the division of property? (9 things)
- Contributions of each party in acquisition of property
- Duration of marriage
- Age, mental & physical condition of parties
- How and when specific items were acquired
- Debts & liabilities of each spouse
- Tax consequences to each party
- Liquid or non-liquid character of the property
- Whether each spouse used property to commit a violation of the boundary of marriage
- Other factors that the court deems necessary
How will the court handle Arrearages?
Arrearages will be assessed for court-ordered awards, or for contractual obligations, or as parties have agreed and reduced to writing, when the payor has not paid accordingly
Assessed for:
1. court- ordered awards
2. Contractual obligations
3. As parties have agreed and reduced to writing
(If payor hasn’t paid accordingly)
Can you change spousal support?
Yes, a change in spousal support may be ordered when a material change in circumstances may be shown
How can you enforce a court order?
Contempt of court is appropriate to enforce a direct court order.
It allows for fines and incarceration as the court deems appropriate.
How can a marriage be annulled?
Annulment is when a marriage is alleged to be void for:
- Not being licensed
- Bigamy;
- Spouses closely related;
- Lack of capacity to consent;
- Lack of consent;
- Not knowing the other was a felon;
- Not knowing the other had a kid in the last 10 months;
- Now knowing the other was a prostitute
*most can be defeated if the party actually did know, or if they found out and still slept together
What factors does a court rely on to decide child custody? (5 things)
- Age and needs of child;
- Existing relationship between each parent and child;
- Role each parent has played in upbringing;
- Propensity of each parent to actively support child’s relationship with other parent;
- Willingness of each parent to maintain a close and continuous relationship with child
