Domestic Relations Flashcards
Can I get the engagement ring back if the engagement is called off?
Yes, the standard for premarital gifts is that you can get the gift back if it was given in contemplation of marriage because that means it was a conditional gift. The reason the wedding was called off has to be mutual or the action of the donee.
What is a prenup? Valid? How might it be overturned?
ii. Contracts between people who plan to marry, in contemplation of marriage.
iii. Can deal with anything the parties want. No legal restraints.
- Must be in writing and signed (SoF)
- Agreement was freely made
- Test it at two points in time:
a. Valid at the time it was executed.
i. Fair and reasonable provision for the party contesting the agreement at the time it was executed.
1. E.g. Each spouse makes $40k when married, and they agreed that neither would pay alimony. That looks fine. Doesn’t matter that later, one spouse stopped working and the other is now a millionaire hedge fund manager.
ii. There must have been full financial disclosure or independent knowledge.
iii. Waiver of court determination of these issues.
b. Fair and reasonable at time of divorce.
i. Discretionary. Can’t get it wrong.
4. Pay close attention to (at least yellow flags)
a. Sophistication of the parties in business and commerce?
b. Is either party represented by counsel?
c. Does not need to be strict equality of circumstances. A one sided agreement that leaves one party with much fewer assets and a far different lifestyle can be reasonable unless the contesting party is substantially stripped of all marital interests.
i. Gasping for air, or just less comfortable?
What is a cohabitation agreement? Lawful?
Like a prenup but no marriage plans. Valid for consideration and the consideration cannot be sex. Consideration can be homemaking.
How to get the couple married? (rarely tested)
i. Go through ceremonial marriage (2 elements)
- Requires marriage license.
a. K between two spouses and the state.
b. As such, you must have capacity.
i. E.g. 18, sound mind, grounds for annulment.
ii. Same-sex couples have capacity to get married. (won’t be tested).
c. Pay a fee
d. Three day waiting period once you get the license (minority position).
e. License is good for 60 days. - Must have a ceremony.
a. Need an officiant. (not going to test)
i. Clergy
ii. Judge
iii. Person empowered to administer an oath
iv. Justice of the peace appointed for a day.
b. Need an exchange of (some would say solemn) promises.
i. No prescribed form of words. No magic words.
ii. No required setting.
iii. No required attire.
What is divorce?
Problem arises after the date of the marriage. Walking down the aisle, everything is cool. Today, there is no fault divorce so there’s no quest for marital misconduct. However, you’re still pointing to something that happened after the marriage.
What are the procedural requirements for a divorce?
- Sue in probate court.
- MA has SMJ if:
a. One party is domiciled in MA and that person has been a resident in MA for at least a year. Alternative to one-year residency requirement is if the grounds occurred in MA, but still need one spouse domiciled.
b. This is all fine even if the other spouse has never even been to MA.
c. The idea is that this is in rem jurisdiction so if one spouse is in the state, the marriage exists in the state.
d. The trick (popular on the bar) – Cannot get alimony or other economic remedies because there’s no PJ over other spouse who has never been to MA. This is called “divisible divorce” – pursue the decree in state A, but the economic part in state B. - Personal service is preferred if possible, but, if not possible, other forms are ok. (won’t test on service.)
- Conflicts of laws/Full faith and credit. MA will recognize an out of state divorce in any case where both spouses participated. Unilateral divorce, MA will give full faith and credit if one spouse was domiciled in the forum state. MA will entertain a factual inquiry on an out of state divorce if the domicile was a sham. He was living in a hotel and did not have a driver’s license for that state. If that is proven, no full faith and credit.
- If you have a non-US divorce and both spouses participated, MA has discretion to recognize based on the equities (Comities). Was it a legitimate proceeding/integrity/similar grounds to what we have here? Unilateral foreign divorces are not recognized.
What are the fault based grounds for divorce?
if you see one, say the other party can get out of the marriage, but suggest that a no fault ground is still an option. Just because you have a fault ground does not mean you must use it
a. Adultery (will be stipulated)
b. Cruel and abusive treatment (physical and mental cruelty)
i. Including, but not limited to domestic violence. A single instance is enough.
ii. For Mental Cruelty
1. Must be serious enough to impose risk of resulting physical symptoms.
2. Must be ongoing/a pattern
c. Desertion – unjustified and unconsented departure from the home for at least a continuous year.
i. Victim of DV is not a deserter if she leaves.
ii. Constructive desertion counts. Locking the party out is a constructive desertion. Moving into the guestroom and refusing all interaction is also desertion.
d. Physical Impotence (won’t be tested)
i. Though this usually predates the marriage and looks like grounds for annulment, MA classifies it as a divorce grounds because, presumably, you will not be intimate until the wedding.
ii. Not about making babies, it’s about sex.
iii. Must be incurable, not due to shyness, and if it can be cured by Viagra, then it’s not incurable.
iv. Don’t need to prove aloofness. It’s about the plumbing.
e. Drug or alcohol dependence (probably won’t be on the exam)
i. Must be voluntary, gross, and confirmed.
ii. Your choice to use recreationaly, not that you got hooked on pain killers after surgery.
iii. Severe – not two beers per night.
iv. Confirmed – You’ve tried to beat it, and you cannot.
f. Non-Support – Failure to provide economic support to your spouse. Married people owe each other reciprocal duties of support.
g. Imprisonment for 5+ years.
What are defenses to fault based grounds?
Truth/Falsity or affirmative defenses (below)
i. Condonation – It was condoned. Analogous to waiver. The best example is adultery where victim spouse had knowledge of the affair, expressed forgiveness, and the spouses resumed a sexual relationship. There must also be some evidence that the offending spouse will refrain from the activity in the future. You will not have condonation in DV.
ii. Conivance – Luring the offending spouse into the behavior. Adultery is the best example again. Spouse wants out and wants grounds. Spouse hires a prostitute and a private detective to film it, and she sends the prostitute to the house to seduce husband.
iii. Insanity – Operates the same way as in criminal law. Due to the mental disease or defect, you cannot appreciate the wrongfulness of your conduct or cannot conform conduct to the law.
iv. MA DOES NOT RECOGNIZE RECRIMINATION – The “he did it too” defense.
What are no fault grounds and how do you proceed on those grounds?
Still must prove the grounds, it is just not anyone’s fault. Without proof, it’s divorce on demand.
a. Irretrievable Breakdown of the Marriage – We don’t love each other anymore, and there is no hope of reconciliation. Must be proven in different ways depending on agreement.
i. Uncontested/Mutual No Fault Divorce
1. Parties prepare a separation agreement, negotiating collateral issues such as our property and potential for alimony.
2. Court will schedule a hearing. If agreement is in order and the court finds a breakdown (which it will), the court will enter a judgement nici within 30 days of the hearing.
3. Judgement nici will be on the books for ninety days, and after 90 days it turns into a divorce.
4. Results in a maximum 4 month, minimum 3 month waiting period from the hearing.
ii. Contested No Fault Divorce
1. Disagree of irretrievable broken or cannot agree on a separation agreement.
2. Party who wants out files a complaint and allege irretrievable broken.
3. Hearing will be held no earlier than 6 months from filing.
4. If Court determines that the marriage is irretrievably broken, the judgement nici is entered and you must wait 90 days for it to become final.
5. Total duration is at least 9 months from the filing of the complaint.
6. “nici” means unless. These people are divorced unless they reconcile. One last chance. You are still married during the judgment nici.
What is an annulment?
Predicated on a ground that predates the marriage. Backwards looking at a capacity issue that one or both did not know about at the time. The problem already existed, you just didn’t know about it. (NOT LIKELY ON EXAM)
Can be void or voidable.
When will a marriage be void, and therefore subject to annulment?
i. Void – THE COUPLE IS NOT MARRIED AND CANNOT WAIVE THE PROBLEM. Either or both can simply walk away.
- One thing is OPTIONAL. If the couple desires to officially void it, they can still get an annulment. Why bother getting the help of a judge?
a. Clear the record.
b. Resolve collateral issues like who owns the house or the bank account or the car or the kids. - If you get the couple whose marriage is void, tell the bar examiners that they can walk away, but recommend that they get an annulment to clear the record and resolve collateral issues.
- Grounds – Do not need to memorize the list because you won’t be asked to regurgitate the list, and the grounds are so obvious that you’ll recognize them.
a. Bigamy
i. Disappeared? At common law, the person had to be missing for seven years. Today, you can go to court and ask for a decree that your spouse is dead.
ii. Window between divorce and divorce effective. We’ll let the second marriage slide if you are still married after the divorce is effective.
b. Incest – Too close in relation, no marriage.
i. Parent or step-parent, aunt, uncle, grandparent or step-grandparent, kids or kids spouses, grandkids or grandkids spouses, siblings, nieces and nephews, in-laws.
ii. Permissible to marry your first cousin (majority rule)
When will a marriage be voidable, and therefore subject to annulment?
Waivable Grounds include:
a. Too young – under 18 when married.
b. Lack of mental capacity – not of sound mind.
i. Disease of the mind (schizo, hallucinate, etc.)
ii. Developmental disability (mental age of a child)
iii. Under the influence of drugs or alcohol
c. Duress – shotgun wedding
d. Fraud – The only ground that examiners could write an original problem – Most likely testing ground for an unlikely area. A misrepresentation or concealment of information by one party from the other prior to the marriage where the information goes to an essential aspect of the marriage (needs to be there).
i. Tell a BIG lie or keep a BIG secret and then it comes out after the wedding.
ii. Whether it’s a big deal is discretionary, but there are certain areas that will definitely work or not work.
- Lying about your religion or the intensity of your beliefs is BIG
- Matters relating to procreation and sex is BiG.
a. Know that you can’t have children but do not share that is BIG.
b. You carry a genetic disorder that makes it highly likely that you will pass on birth defects is BIG.
c. Hetero-relationship and wife lies to husband that her pregnancy is husband’s. It actually belongs to someone else is BIG.
d. Lie about your sexual history in a really big way. Rounding down on your number does not count. A woman not revealing that she worked as a prostitute is BIG. Lying about your sexual agenda (your kinky shit) can be BIG if you have not been having sex prior to marriage. - Misrep, lies, and concealment about money, property, or social status is not grounds for annulment.
How do you waive your voidable grounds for an annulment?
How to waive? – continue to cohabitate (live together and have sex) after the impediment is removed. Once you waive, you can’t seek an annulment. The only impediment that can’t ever be removed is developmental disability.
Plaintiff must sometimes act through a guardian if your lack of capacity prevents you from litigating on your own.
Common Fact Patters is an elderly person with Alzheimer’s or dementia.
a. H and W get married forty years ago. Great life. H dies. W gets dementia. She marries 24-year-old Biff. Family thinks Biff is a gold digger. W’s family challenges.
What is alimony? How does it work? RIPE FOR TESTING SINCE THE ALIMONY STATUTE WAS REDONE IN 2012.
i. Reciprocal duty to support may continue after the date of the marriage if there is a need. It is not entitlement, and it is not punishment.
ii. Marital misconduct is not a bar to receiving alimony, but it will be considered.
iii. Frequency, length, and amount has been declining in recent decades because most wives work now.
iv. 4 Things I need to walk through when writing about alimony
1. Will it be awarded?
2. How much?
3. How long?
4. Is it modifiable, when, how?
What are the different types of alimony?
Under the new statute, there are 4 types of alimony and each has different rules.
- Rehabilitative alimony – awarded when the petitioning spouse needs re-educational training to become self-sufficient. Awarded for a maximum of five years so that spouse can obtain re-education and training.
a. E.g. Harry has been working as a stock boy, Wanda is an accountant. Harry gave up being a chef because Wanda took care of him. Now that they’re getting divorced, Harry wants money to go to culinary school. - Reimbursement – available only when one spouse financed the other spouse through a period of education. Marriage must have been five years or shorter. Beneficiary must pay back what was received.
- Transitional Alimony – A single lump sum or a max of a three-year stream of payments if we are dealing with a short term marriage, less than five year’s duration. This smooths the transition to a new lifestyle as a newly independent financial actor.
- General Term Alimony – periodic payments to an economically dependent spouse. The statute provides a table of maximum duration for a general term alimony award.
a. If the marriage has been five years or shorter, then it may be no longer than half the length of the marriage. 2 year marriage, max 1 year alimony. 1 year marriage, max 6 months alimony.
b. If the marriage has been in effect for more than five years, but less than 10, GT alimony will be 6/10 of the length of the marriage. 7 year marriage, GT alimony max is 4.2 years.
c. If the marriage has been in effect for longer than 10 years, then the max is 7/10 of the length of the marriage.
d. If the marriage has been in effect for longer than 15 years, then the max is 8/10 of the length of the marriage.
e. More than 20 years, no max.
f. Any temporary order or agreement during pending case is not considered.
g. It is important to know that there are maximum periods, but don’t sweat knowing the exact distribution, just say that the general term alimony is limited to a fraction of the length of the marriage unless the marriage has been over 20 years.
How do we determine amount of alimony?
- Good Guidepost is 30-35% of the income difference between the two parties.
a. E.g. Harry makes 100k, Wanda makes 40k.
i. The income difference is 60.
ii. Alimony will be about 20k. - However, at the end of the day, economic need is the key.
a. Age of the parties. Older people have less earning power and age discrimination exists despite it being illegal.
b. Health of the parties. Medical conditions matter (mental or physical).
c. Job Skills. Can they walk out of the marriage and get a job. Are the job skills stale (i.e. the industry has advanced beyond her skills).
d. General employment prospects
i. Children
ii. Sick parent
e. Duration of the marriage – longer marriage suggests greater interdependence.
If you need to modify an alimony agreement, how do you do so?
- Reimbursement and transitional award is not modifiable.
- Must show a material change in circumstances. Anything counts, and it can go to raising or lowering the award.
a. Fired
b. Plant closes
c. Hurt on the job - General Term and Rehabilitative will terminate automatically on the remarriage of the recipient.
- All types will stop on the death of either party.
- General term alimony ends or can be reduced if the recipient begins cohabitation and maintains a common household with another person.
- All forms terminate when the recipient reaches retirement age because they can collect social security.
How do you divide property at divorce (real, tangible, and intangible)?
“One Pot Theory”
i. All property (tangible, intangible, real) held by the spouses is within the purview of the court and is subject to distribution. Value determined at time of divorce trial.
ii. It doesn’t matter when it came into their possession. Social Security Benefits not included.
iii. In dividing it up, the court will review equitable factors. Need gets you more, but what you brought is certainly considered too. Not modifiable once entered.
1. Age
2. Health
3. Education
4. Job Skills
5. Employability
6. Who brought the asset to the pot?
7. Need
8. Length of the marriage
9. Mandatory! Consider present and future needs of dependent children, especially when looking at the marital home. This often results in Mom keeping the house when she has custody of the kids so the kids can stay in their house and not move.
10. Can consider the contributions that each party made in the acquisition, preservation, or appreciation in property (one spouse is lazy, wasteful, etc. and the other is a workaholic that supports the family)
11. Consider contributions as homemaker
12. Discretionary as to which factor and weight, except to the mandatory one that must be considered
13. Any ultimate factor used in the discretion of the court
What is a separation agreement? When is it required? What might it accomplish?
Bilateral agreement avoiding the court breaking up your assets for you (mandatory as part of a mutual no fault divorce)
i. Must be approved by court
ii. Court will determine if it is fair and reasonable and approve if it is.
iii. Court will almost certainly approve if the agreement was reached by legitimate agreement.
iv. Are these modifiable? Has it been “merged” or “incorporated” with the divorce decree.
1. If it has merged, then modification is freely available in the same manner as any other decree (material change in circumstances).
a. Judge has read the agreement and copies the terms of the agreement into the decree, rips up the agreement, and enters the decree.
2. If it is incorporated, then modification must be based on “something more than material change in circumstances”.
a. The judge incorporates the separation agreement by reference and the judge staples the agreement to the decree.
How is paternity established?
i. Born to married woman – rebuttable presumption that her husband is the biological father. Challenger must rebut by clear and convincing evidence.
ii. Born to unmarried women – Non-marital children.
1. Either the child acting through a guardian, or the mother, can file a lawsuit to establish paternity at any time prior to the child’s 18th birthday.
2. Proof is through DNA.
How do you determine child support?
i. All parents owe their kids a duty of support until their 18th birthday.
ii. This can be extended to 21 if the child lives at home and is economically dependent on parents.
iii. Extended to 23 if child is still in school and has not yet completed a bachelor’s degree (whichever comes first).
iv. If the child has a physical or mental disability and cannot be self-supporting then the duty of support will continue indefinitely.
v. Courts usually don’t get involved if they live under the same roof.
vi. Courts will get involved when a parent is non-custodial.
1. Non-marital children
2. Divorce
vii. Obligation to pay child support continues after death and until child reaches the age of majority.
viii. Determining the amount. Statutory guidelines. Linked to income. Rock bottom = $80/month. High income (more than 250k/year) the guidelines stop and it’s the court’s discretion.
ix. Parents can embody their own agreement in a separation agreement.
1. Subject to judicial oversight.
2. Can ask parent to pay more than statutory guidelines.
x. Can modify by showing a substantial/material change in circumstances.
1. See previous factors that affect payor.
2. Also consider the needs of the child.
a. Learning disability
b. Etc.
How can we enforce this against deadbeat parents?
- Wage reduction order, addressed to employer of parent, asking employer to pay you out of deadbeat parent’s paycheck.
- Seize assets. Liquid assets preferred (e.g. a bank account). Personal property such as a car is next.
- Can hold in jail for contempt.
- These work well if the deadbeat parent lives within the court’s jurisdiction or we know where he is.
a. We have a uniform statute “Uniform Interstate Family Support Act” UIFSA. Enacted in all 50 states.
b. Makes state borders go away and enforcement, even out of state orders, are ok.
c. You can mail your reduction order to Arizona or any other state where deadbeat parent resides and it is treated as a local order.
d. Arizona courts must register it and treat it as a local order as well so law enforcement can enforce this order, courts can seize assets, and courts can hold in contempt.
e. What the Arizona court cannot do is override the MA order. “The state that issued the order has continuing exclusive jurisdiction as long as either the parent or the child continues to live there. All other states must defer.” - If the deadbeat parent has disappeared. Hire a P.I.
How do you determine child custody?
i. Physical custody – where does the kid live?
ii. Legal custody – who makes basic decisions?
iii. Either can be exclusive or shared between parents.
iv. Courts have broad creative powers.
v. Standard = Best interests of the child
vi. Factors
1. Wishes of all parties including child if child is older than about 12.
2. Age and health of the parents
3. Fitness of parental ability/maturity
4. Acts of domestic violence (reversible error if no finding in a case) – Must find that there is either no DV or, if there is DV, almost never going to that parents.
5. New companion?
6. All siblings together?
7. Continue relationships with extended family?
8. Material advantages in the community such as schools?
9. Other factors that are relevant. Just look at the facts and apply the facts to the standard (best interests of the child). Look at it like it’s a real kid and do the right thing for the kid.
10. If there is reason to address shared custody, look at:
a. Parents have a cooperative relationship?
b. Look at geographic proximity.
What are the rules for visitation?
If a parent has exclusive custody, the non-custodial parents has visitation rights.
a. Almost never denied.
b. It is not about the parents, it is being nice to the child. It is in the BIC to maintain contact with both parents.
c. Visitation is not contingent on payment of child support. If the custodial parent interferes, that’s contempt of court.
d. If reason to believe visitation is dangerous to the child, the court will order supervised visitation rather than denial. Supervised visits can require presence of third party like a grandparent, etc.
