Domestic relations Flashcards
For a prenuptial agreement to be valid, these three conditions must be met:
- It’s in writing and signed
- It was valid AT TIME IT WAS MADE
- It is fair and reasonable AT TIME OF DIVORCE (presumptively is reasonable)
A prenup will be considered valid at the time it was made if it
- -was freely entered (no duress, coercion)
- -contained fair and reasonable provision for economically weaker spouse (this is really more of a “shocks the conscience” level test, not that strict)
- -partners fully disclosed, or already knew, each other’s net worth
- -there was a waiver of court-determined economic remedies
A prenup will be considered fair and reasonable at time of divorce as long as
it doesn’t leave the challenging spouse unable to support herself (i.e. doesn’t leave her destitute). Not a strict test.
Are contracts made during marriage that provide for support of a spouse after marriage ends enforceable?
Yes, but they are “carefully scrutinized,” whatever that means
Are contracts made between cohabitating partners, not in contemplation of marriage, enforceable?
Yes, but consideration can’t be sex.
The two requirements to get married in MA are
- You get a marriage license at least 72 hours before ceremony, and
- You have a ceremonial marriage with officiant where you exchange promises
Common law marriage is
NOT recognized in MA, but common law marriages valid in other states will be honored if the couple moves to MA
Annulment can happen if the marriage is
void or voidable
A marriage is void on the grounds of
bigamy or incest (but you can marry your first cousin in MA)
If a marriage is void, annulment is
not needed to terminate it, because it never legally existed in the first place. But, should recommend a client annul to make sure there’s clear paper trail and to deal with any collateral issues, like dividing property.
A marriage is voidable on the grounds of
youth, lack of mental capacity, duress, fraud about a fact that goes to an “essential aspect of the marriage.”
**NB: lecturer says don’t need to have this memorized; will jump off page
If a marriage is voidable, the grounds for voiding it are
waivable, meaning that if you continue to cohabit after the problem is revealed, you probably can’t annul
Fraud about a fact that goes to an “essential element of the marriage” might include lies/secrets about ____________ but not about _______________.
–your religion, procreative stuff (can’t have kids, baby you’re carrying isn’t really your spouse’s, have serious genetic disorder, etc.), sexual history (in major way, e.g. former prostitution)
–money, property, and social status
Fault-based grounds of divorce include
adultery, cruelty, unjustified desertion, physical impotence, severe and long-term drug/alcohol dependency, nonsupport, or imprisonment for 5 or more years
**NB: lecturer says don’t need to have this memorized; will jump off page
Condonation is
a defense to fault-based grounds of divorce (usually adultery) – idea is that the innocent partner knew about the problem, forgave, and they’ve been having sex again.
Basically, it’s waiver.
Connivance is
a defense to fault-based grounds of divorce – like entrapment – e.g. spouse sets other spouse up for adultery. Doesn’t come up much.
Insanity can be
a defense to some fault-based grounds of divorce (e.g. cruelty).
Ground for no-fault divorce is
irretrievable breakdown of marriage.
The steps for an uncontested no-fault divorce are:
- make separation agreement, file it with court
- have hearing
- court will enter “judgment nisi” within 30 days of hearing if it approves the agreement (if not, may dismiss action)
- judgment nisi becomes final 90 days later.
Total wait time for uncontested no-fault divorce is
up to 4 months between hearing and final divorce
Total wait time for contested no-fault divorce is
at least 9 months after complaint is filed
The steps for a contested no-fault divorce are
- party must file complaint
- hearing can’t happen for 6 months after complaint is filed
- judgment nisi becomes final 90 days after hearing
What are the residence requirements to get divorced in MA court?
one of the parties must be domiciled in MA, and
- -have been domiciled in MA for at least a year before filing, OR
- -grounds for divorce happened in MA.
Can a MA court grant divorce even if one party has zero contacts with the state?
YES. This isn’t a due process problem because divorce is considered essentially an “in rem” proceeding (marriage = “rem”)
If Harry lives in IL and Wanda lives in MA, and Harry unilaterally moves for divorce in IL, will MA courts honor that divorce via full faith and credit?
YES, because even though it’s a unilateral divorce, party who obtained it was domiciled in the forum that granted it
If Harry lives in IL and Wanda lives in MA, and Harry unilaterally gets a divorce in Las Vegas, will MA courts honor that divorce via full faith and credit?
NO, because it was a unilateral divorce obtained by a person in a place where he was not domiciled.
If both parties to the divorce agreed to it and got it in another state/country, will MA honor the divorce via full faith and credit?
YES if state; usually yes if country.
A unilateral foreign divorce is
NEVER RECOGNIZED.
The four types of alimony in MA are
- rehabilitative
- transitional
- general term
- reimbursement
In all types of alimony, the amount of the award is up to
the judge, based on equitable discretion
Rehabilitative alimony is designed to _________ and can continue for a maximum of _________ years. It’s available to people who have had marriages of _________ duration.
give less economically secure party the chance to do some kind of specific training to develop earning potential (e.g. finish a degree, train to be a plumber)
5 years
any
Transitional alimony is designed to ______________ and can continue for a maximum of ________ years. It’s available to people who have had marriages of _________ duration.
allow one spouse some time to get used to being economically self-sufficient
3 years
5 years or less
General term alimony is designed to ______________ and can continue for a maximum of ________. It’s available to people who have had marriages of _________ duration.
provide ongoing payments to the spouse who became economically dependent during marriage
max duration depends on length of marriage; can last indefinitely if marriage was for more than 20 years.
any (but duration of award will vary based on length of marriage, by formula)
Reimbursement alimony is designed to ______________ and can continue for a maximum of ________ years. It’s available to people who have had marriages of _________ duration.
compensate a spouse for the money she spent increasing the other’s earning potential (i.e. paying the bills during spouse’s medical school career)
unclear if there’s a max
less than 5 years
The awards for this type of alimony are NOT modifiable
Transitional
What events usually terminate alimony awards?
Payor reaching full retirement age (66); either party dying; remarriage (or, if general term alimony, cohabitation) of recipient.
The amount of a general term alimony award is usually somewhere around
1/3 of the income difference between the spouses
Some factors a judge might consider in determining the amount of a general term alimony award include:
education and employability of recipient, child custody arrangements (do they make it harder for you to work?), age and health of spouses, lifestyle during marriage (to smooth transition)
To modify an alimony award (EXCEPT transitional alimony, which can’t be modified), you must show
a material change in circumstances
The “one pot” concept means that
MA courts will consider ALL property owned by the couple as subject to the court’s power to divvy up on divorce. There is no such thing as separate property from before the parties’ marriage.
The only thing that the “one pot” concept doesn’t include is
federal disability payments to veterans
Some factors a judge might consider in divvying up a couple’s property that DIFFER from the factors a judge might consider in determining alimony awards include:
- -Present and future needs of dependent children (MUST be considered)
- -Relative contribution of the parties to the acquisition of the property (MAY be considered – e.g. did someone work lots harder?)
- -Effort that one party put in as a homemaker (MAY be considered)
Can parties make their own agreement about how to divvy up property?
Yes, subject to court’s approval for being fair and reasonable. If court doesn’t approve, go through regular judicial property distribution.
Can payments made under a separation agreement be modified?
If the agreement has been merged into the divorce decree – it ceases to exist, and so the decree can be modified based on court rules.
If the agreement was been incorporated but not merged, must make a showing beyond a material change in circumstances to get the agreement modified.
(Question will say whether it’s been merged or incorporated.)
If a woman is married and has a child, there is a presumption in a paternity case that
the child is the husband’s.
Amount of child support is determined by
the child support guidelines.
Can child support awards be modified over time?
YES
Three ways that MA courts handle deadbeat parents who are located in MA:
- enter a wage reduction order (diverts money directly from paycheck)
- seize assets (liquid first, then illiquid)
- hold in contempt
Two things that the Uniform Interstate Family Support Act does are:
- it allows a child support order from a MA court to be sent to an employer or court in another state (to get money from deadbeat parent who’s elsewhere)
- it says the state that issues the first child support order has “continuing and exclusive jurisdiction” over the support, so that judge in new state cannot alter award.
Standard for child custody is
best interests of the child
Some factors judges might consider when determining the best interests of the child include
age and health of parents; wishes of parties (including wishes of kid over 12); domestic violence; parents’ dating lives; whether a placement would allow kids to stay together or to stay near close family.
Shared custody will typically be granted only if
the parents live close to each other and have an OK relationship.
Visitation by the non-custodial parent is
always allowed, unless the parent poses a danger to the child.
If a de facto parent seeks visitation rights, will court grant it? Why/why not?
Only if the child would face significant harm without visitation.
SCT has said that parents have a due process right to raise kids as they see fit; this means a right to determine who gets to visit the child.
Changes in custody are allowed if
needed for the best interests of the child. **NB: Reference importance of stability for kid in any response.
When a child welfare question is presented and you’re not sure what to do, apply the
best interests of the child standard.
The three major steps in adoption proceedings are:
- get consent of all parties with a veto power – both biological parents (unless their parental rights have been terminated), as well as child’s consent if over 12
- thorough investigation of the prospective adoptive parents.
- court holds hearing using the BIC standard.
Parental rights will be terminated only if
the parent is unfit such that it’s in the best interests of the child to sever the parent/child bond completely. This is a big deal and usually only happens if serious neglect, abandonment, abuse, etc.
NB: SJC says indigent parents have right to appointed counsel in these proceedings.
