Domestic Relations

Question 1

Marriage - Defined

Answer 1

The civil status or relationship

Created by the legal union of two persons as a married couple

until death or legal termination

Question 2

Legal Formalities

Answer 2

1) Marriage License
2) Consent of one male & one female who may lawfully marry, presently to take each other as husband ans wife, in presence of each other
3) solemnization by a statue-authorized official

Question 3

Marriage License Req

Answer 3

Application: 1) probate judge/clerk where county to take place

2) 16-18 w/sworn affidavit signed by parent or other relative for consent - no one younger than 16

Waiting: 24 hours between application & issuance

Question 4

Solemnization

Answer 4

Performance by official authorized by statute OR in accordinate with religious denomination

No proxy marriages

Question 5

Common Law Marriage

Answer 5

1) agreement to be presently married by capable persons
2) cohabitation of the parties w/consumation
3) must hold themselves out as husband and wife

Burden of proof on party asserting existence of common law marriage.

Question 6

Limitation and impediments to marriage

Answer 6

1) Age: must be 18, 16-18 w/consent, not younger than 16
2) No same sex partners
3) Consanguinity - how close are they related in kinship. Not nearer than first cousins. By blood or by marriage. May need to be specific on bar
4) Mental or Physical Incapacity - mentally: must be able to understand the marriage K. Physical: impotence - must be permanent and irreversable
5) Prior marrage still in force - where more than 1 marriage w/no judicial termnation. terminated if either party absent for 5 years. Presumption that latest marriage is valid (BOP on party proving)

Question 7

Validity of Out of State Marriages

Answer 7

Marriage is valid according to the state it is contracted in & recognized in every other jurisdiction, unless that marriage violates the public policy of the foreign state

(polygamous, incestuous, same-sex marriage)

Question 8

Void Marriage

Answer 8

Void marriages those in which state has strong interest in enforcing the prohibition that the parties’ desires are considered irrelevant: 1) bigamy 2) polyamy 3) consanguinity 4) same-sex marriage 5) marriage of previously adjudicated mentally incompetant.

Void marriage has no legal effect. no court degree requierd but can be granted. Marriage can be collaterally attacked by 1) party to the marriage 2) the state 3) an ninterested party even after death

Question 9

Voidable Marriages

Answer 9

Intended for the protection of the disadventaged party but is waivable by that party.

1) non-age 2) impotence 3) temporary lack of capacity due to booze/drugs 4) mental incompetence

Voidable marriage is valid until aggrieved party obtains an annulment. But if it is confirmed or ratified by aggrieved party, or if one parties in marriage dies, validity can’t be questioned/attacked.

Question 10

Prenups & Antinups

Answer 10

Def: Contract made by parties prior to marriage in contemplation of marriage & it attempts to alter or extinguish one’s property rights or support rights set by statutory law.

Reqs: 1) writing 2) voluntary & in good faith 3) fair and equitable

They limit 1) property rights 2) limits/waiver of alimony 3) any other matter which not in violation of pub. policy or crim. stat.

Question 11

Spousal ownership of Real Property

Answer 11

Most states: Tenants by the entirety. But in SC: JT w/right of survivorship.

Any transfer between spouses must specifically mention JT w/right of surviorship. Not automatic.

JT w/right turns into Tenants in Common upon divorce.

Question 12

Duty of Spouses

Answer 12

Each spouse has a duty to support the other during marriage. Courts look at which one is more capable and places obligation on that person regardless of gender.

Question 13

Liability of Spouses

Answer 13

SC law imposes 2ndary liability upon a financially superior spouse if other spouses incurs debt for necessaries. (food,clothes, med care)

1) debtor spouse has an express or apparenty authority to pledge the other’s credit for househould expenses
2) where non-needy spouse neglects, fails, or refuses to furnish the needy spouse w/necessaries that are then supplied to the spouse by 3rd person w/expectation of payment
3) one spouse incurred medical expenses beyond ability pay

no interspousal immunity. no vicarious liability execpt auto accidents w/family car (family purpose doc)

Question 14

Spousal CSC & domestic violence

Answer 14

legal spouse is defense to a charge of CSC unless

1) spouses were living apart at the time
2) the per’s conduct was CSC in 1st or 2nd AND
3) victim reported within 30 days

the code allows for orders of protection for victims of doemstic violence or CSC

Question 15

Father’s Legitimacy

Answer 15

A father is rebuttably presumed to be father when he is 1)married to mother OR 2) child born during marriage or within gestation period after marriage ended

Estoppel: can confirm presumption if learns NOT biological father but still continues to support & hold child out as his own, or does not deny parentage in judicial proceedings

Question 16

Action to Establish Paternity

Answer 16

Paternity actions can be brought by:

1) the child 2) child’s biological mom 3) any person where child has been placed in their care 4) authorized agency and other person or agency pursuant to statute or 5) any man claiming to be the child’s father

Whenever an action threatens to make a child illegimate, the presumed legal father & the putative natural father must be made parties to the action.

No SOL.

Evidence through blood or generic testing, or other evidence.

Question 17

Custody and Control of Child

Answer 17

Besst interests of the child.

No presumption in favor of the mother as the more appropriate custodian. If both living, competent & not unfit, they are entitled to custoy & to direct education & medical care.

For nonparent to seek custody from living parent: must be unfit. Grandparents only get visitation if deceased, divorced, or living separaetly.

Question 18

Support Rights and Obligations

Answer 18

1) a parent has an absolute legal duty to support his or her minor children. Both mom and dad are equally responsible.
2) Duty ceases when child becomes 18 UNLESS: a) child in school when turn 18, then ends @ graduation or end of school year he turns 19.
3) Parents can agree to support beyond age of majority and court will recognize. Also court can order support for disabled child beyond 18.
4) SC silent w/regards to college. But Sc can order divorced parents to pay for a college education as authority to make child support awards.

Question 19

Termination of Parental Rights

Answer 19

Parental rights can be terminated

1) by a child by emancipation 2) by a parent by relinquishment 3) by a state by involuntary termination

Question 20

Adoption - who and eligibility

Answer 20

Anyon can BE adopted, child or adult. Reqs to adopt:

1) age of majority and SC resident
2) Can be single, or married. If married, need both spouses to join in adoption petition
3) Stepparent can adopt minor child who is child of their spouse - does not terminate the natural child’s rights.
4) Some states same-sex couples. SC has been silent.

Question 21

Consent to Adopt

Answer 21

1) Consent of natural parents required unless righs waived or deemd unfit
2) Consent of biological father may be required if dad established an ongonig parent-child relationship
3) No waiting period where consent is revocable
4) If adoptee over 14, Consent give by legal parents, guardian, biological mother, putative father, AND the adoptee???
5) Consent must be a) in writing b) signed 3) be acknowledged under oath 4) contain certain information; and 5) state the person’s understanding that the consent is irrevocable, except as otherwise provided

Foster parents have no standing to challenge - must be legally recognized connection.

Question 22

Standard for Adoption & Effect

Answer 22

Determined based on child’s best interest. By a preponderance of the evidence.

Effect of Decree of Adoption - biological family is now a stranger. Legal family is treated like if they were the natural parents.

Question 23

Annulment

Answer 23

Marriage may be annuled whether the marriage is void or voidable. Grounds must have existed at the time of the marriage.

Legal effects: no spousal support or property divsion, but can equitably distribute principles to divde the parties’ accumulated property. Can authorize child support.

If child born from bigamous marriage entered into good faith, both are considered legitimate parents.

Question 24

Divorce CHECKLIST

Answer 24

Procedural:

SMJ, Domicile, Residency Requirment, PJ, Divorce Waiting period, Venue

Substantive

Fault: Adultery, Desertion, Physical Cruelty, Habitual Drunk/Drug; No-fault: living separate and apart

Question 25

Divorce - SMJ

Answer 25

Family Courts have jurisdiction. A suit for divorce is an action in rem. Status of the marriage is the res over which the court has jurisdiction.

Question 26

Divorce - Domicile & residency requirements

Answer 26

Domicile: Where the place where people live w/intent to remain. In rem jurisdiction is established over marital status by domicile of one of the parties @ time action was filed, regardless if both ever lived in SC at the same time.

Residence: if one party, then at least 1 year before divorce. If both, then only 3 months.

Residence requirement can’t be waived

Question 27

Divorce - Personal Jurisdiction

Answer 27

PJ is required to enforce any decrees in personam. like entry or enforcement of orders imposing support obligation, or dividing property outside the state.

PJ obtained by 1) personal service in the states pursuant to minimum contancts OR

2) Defendant waives or consents to jurisdiction

LONG-ARM:

SC has PJ over a non-resident in SC divorce either by personal service or minimum contacts. Marital relationship in SC has been found to support sufficient minimum contacts in SC.

Question 28

Divorce - Venue

Answer 28

Venue is proper in a county where

1) defendant resides 2) plaintiff resides if Def is non-resident of that county 3) parties last resided together unless P is a non-resident, then venue is county where Def resided.

Question 29

Divorce waiting period

Answer 29

Complaint must be on file 2 months before hearing can be held, and 3 months before decree can be final.

Exceptions: if alleging desertion or separation for one year, then decree can be filed after responsive pleadings or Def defaults.

If at fault speedy divorce - then granted as early as 3 months if based on adultery, cruelty, or drunkeness

Question 30

Adultery

Answer 30

Proven by direct or circumstantial evidence that would show opportunity and inclination. By a clear proponderance of the evidence. Must show opportunity and inclination.

Defintion - elicit intercourse between two persons of at least one person is married. Does not require proof of the act, but proven by sexual intimacy. Homosexual relationship is grounds.

Adultery may affect alimony and equitable apportionment

Question 31

Divorce - Desertion

Answer 31

Without notice and intention of returning - for a period of one year - without reasonable cause

Question 32

Physical Cruelty

Answer 32

A single assualt may be sufficient for this ground if it is life-threatening or raises an apprehension of serious bodily harm in the future.

Not mental cruelty

Question 33

Divorce - No fault grounds

Answer 33

Must live in separate residences, get own mailing address.

The separation must be continuous and uninterrupted.

Question 34

Defenses

Answer 34

Condontation (forgiveness of marital fault)

Collusion (an agreement to commit an act of mairtal fault to obtain a divorce)

Provocation (an act that provokes physical creulty)

Insanity (must be sufficient to excuse marital fault)

recrimination (denial of divorce when both parties have committed marital fault)

Reconcilliation (complete resumption of marital relationship with foregiveness of any PRIOR marital fault) - even if one night incident, clock starts from 0.

Question 35

Divorce Decree - Division of Property Checklist

Answer 35

Step 1: identify and classify the property

Step 2: Determine net value of such property

Step 3: Divide or distribute property in a fair and equitable fashion

For exam:

1) Property Identification 2) define marital property, non-marital property, transmutation 3) apply and conclude for each property

Question 36

Equitable Distribution

Answer 36

AKA Equitable Apportionment - means whatever is fair to the party. Courts will make equitable division of all property acquired during the marriage - not equal 50/50.

Question 37

Non-Marital Property

Answer 37

1) Pre-marital property 2) exchange property 3) appreciation of pre-marital property 4) property acquired by gift, bequest, devise or descent unless gift was from other spouse during marriage 5) pain and suffering awards 6) property excluded by agreement 7) property acquired after pendent lite order in a divorce or separate maintenance action

Question 38

Marital Property

Answer 38

1) Pension benefit & retirement plans that would accrue during marriage, regardless if they are vested 2) net asset value of a professional practice (not license/earning capacity) 3) personal injury settlements to extent they are reimbursement for lost wages & medical bills paid with marital funds 4) real property held in JT. 5) bonus promise to be paid prior to decree of divorce but not paid until after dissolution

Question 39

Transmutation and Commingling

Answer 39

Transmutation - non-marital property can become marital upon circumstances that reflect an intent by one of the spouses. Party claiming must produce evidence that shows that during marriage parties regarded the property as common and not seperate.

Commingling - nonmarital property can become marital when it is inextricably mingled w/marital property or with nonmarital property of the other spouse.

Question 40

Valuation of property

Answer 40

Determined as of the date of the filing of the divorce. Changes of value during pendancy of litigation may also be taken into account.

Question 41

Factors affecting apportionment

Answer 41

HEAR PrOCEEDS CMT
1) Duration of marriage, together with the ages of the parties @ time of marriage & time of divorce

2) marital misconduct or fault if it affects/affected economic circumstances of parties or contributed to the breakup of the marriage
3) value of marital property, its location, each spouses’ contribution to acquisition, preservation, etc
4) income of each spouse, including earning potential & opportunity for future acquistion of cap. assets
5) physical & emotional health of each spouse
6) need of each spouse of additional training to achive that spouse’s income potential
7) the nonmarital property of each spouse
8) existence or non-existence of vested retirement/pens
9) if alimony/sep. mainteance was awarded
10) desireability of awarding family home as part of equitable distribution
11) tax consequences
12) existence and extent of support obligations from prior marriage
13) liens and any other encumbrances on marital property
14) child custody arrangements/obligations
15) anything else trial court enumerates

Question 42

Alimony & Types

Answer 42

Alimony is appropriate in SC when one spouse is economically disadvantaged to the other.

1) Alimony in solido (lump sum)
2) Alimony in futuro (periodic or permanent) - lasts until remarriage or death
3) Reimbursement - trying to pay something back
4) Rehabilitative Alimony - intended to rehabilitate the disadvantaged’s earning capacity
5) any other alimony the court deems just

Question 43

Factors for alimony

Answer 43

SEE PROCEEDS CMT
1) duration of marriage w/ages

2) physical/emotional condition of spouse
3) educational background
4) employment history & potential earning
5) standard of living during marriage
6) current & reasonably anticipated earnings of both spouses. disability= income
7) current & anticipated needs
8) marital & nonmarital properties
9) custody of the children
10) marittal misconduct
11) tax consequences
12) existence and extent of any support obligations of prior marriage
13) other factors court deems resident

Question 44

Child Support- Generally

Answer 44

Usually paid to the primary physical custodian by the other parent. They are payments ordered for the support to meet reasonable needs of the child for the health, education, maintenance, and having due regard to the accustomed standard of livign of the child and hte parties.

Set in accordance w/SC Child Support Guidlenes. Rebuttable presumption.

Question 45

Calculation of Child Support

Answer 45

Court makes an award based on income shares. Based on combined monthly gross income of the parents. Obligation divided between parents in proportion to their monthly incomes.

If combined exceeds 180k, then amount of support is decided on a case by case basis.

Question 46

Deviation from Child Support guidelines (factors)

Answer 46

DUMB SAFE IDEA

1) educational expenses
2) equitable distribution of property
3) consumer debts
4) families w/more than 6 children
5) unreimbursed extraordinary medical or dental expenses
6) mandatory deduction of retirement pensions and union fees
7) support obligatiosn for other dependents living w/noncustodial parent or non-court ordered child support from another relationship
8) child-related unremibursed extraordinary med. expenses
9) monthly fixed payments imposed by a court or operation of law
10) significant available income of the child or children
11) substantial disparity of income where noncustodial is less than custodial
12) alimony awards
13) agreemends reached between the parties

Question 47

Modification of Child Support

Answer 47

best interests of the child

But may be made upon a showing of substanially changed circumtances affecting the child’s needs and/or the obligor’s ability to pay.

Question 48

Uniform child Custody jurisdiction and enforcement act

(UCCJEA)

Answer 48

home state jurisdiction - the child has lived with a parental figure/guardian (someone with legal custody, can be interpreted differently) for at least 6 months OR (2) a child has moved from his or her home state within the last 6 mo. and one parent still lives in that state. (this Trumps)

substantial evidence jurisdiction- (1) a child and parent have a “significant connection” with the state AND (2) there is “substantial evidence” in that state with respect to the appropriate care for the child.

The state that initially assumes jurisdiction has continuing exclusive jurisdiction until both parents and the children move from the state. If one of the parents still lives in the initial state, that state will probably have continuing jurisdiction.

Question 49

Child Custody - parental rights

Answer 49

best interests of the child

One or joint parents. legal and physical custody classes

legal: who has the authority to make major decisions affecting the child’s welfare (education, religion, med)

Physical - actual possess and control of the child

Joint: legal, physical, or both

Question 50

Parenting Plans

Answer 50

Aat all hearings when custody is contested, each parent must submit a parenting plan which reflects parental preferences, allocation of time spent with each parent, and major decsions. Court will issue temporary and permanent orders after considering these plans.

Can submit an updated plan at final hearing

Question 51

Factors in determining best interest of child

Answer 51

PAID TRP C not GRT

P: Prefrence of the Child - Child’s reasonable preference w/regared to age, maturity, etc,
A: Agreement of the Child
I: Immoral Acitivies of Parents
D: Domestic Violence
T: Totality of Circumstances
R: Religion
P: Primary Caretaker
C: Character of parties

not

G: Gender
R: Race
T: Tender Years Doctrine

Question 52

Visitation

Answer 52

Parental - noncustodial parent’s visitation is generally granted reasonable parenting time rights unless the parent would endager child physical health or emotional development. Every other weekend, two to six weeks in summer & alternating holidays

Grandparents: UNCONX state laws guaranteeing grandparent visitation over objection of fit parent

Question 53

Grandparent visitation

Answer 53

can be ordered if parents are deceased, divorced, or living separate and apart AND the court finds that:

1) whether the biological parent fostered the relationship (consent)
2) whether the pysch. parent and child lived in same household
3) whether the psych parent supported the child
4) whether the psych parent had a parental role for a sufficient length of time to establish a bonded relationship

SC Rule: court can award visitation to a pysch parent where court finds 1) parents are unfit OR 2) the fit parent’s decision should not be used b/c denial of visitation would harm the child

Question 54

Relocation of Parents

Answer 54

If parent wisehs to move outside state, or within 100 miles from other parent withn the state, should give reasonable notice prior to planned move date. If parent opposses move, court factors;

1) reasons for opposing move
2) quality of relationship between child & custodial and noncustodial parents
3) impact of move on quality of child’s future contact w/noncustodial parent
4) degree to which custodial parent;’s and child’s life may be enhanced economically, emotionally, and educationally by the move
5) feasibility of preserving the relationship between the noncustodial parent and child through suitable visitation arrangements.

Question 55

Family Purpose Doctrine

Answer 55

Serves to impose liability on any financially solvent family member for traffic accidents involving operation of the family vehicle by any member of the family.

NO PUNITIVE DAMAGES

Question 56

Trust Accounts

Answer 56

Not marital property or belonging to EITHER spouse, because property of the trust account.

Distributuions become transumtated because intent was to provide for both parties for benefit of marriage.

Question 57

Uniform Interstate Family Support Act (UIFSA)

interstate child support

Answer 57

can’t modify child support orders from another state.

Able to apply support order in another state so long as one person (dad, mom, or child) is in the state which has the continuing jurisdiction.

(1) provides exclusive jurisdiction to the state that issued the support order if one of the parties continues to reside in that state and (2) provides personal jurisdiction over the out-of-state parent who resided in that state with the child (at some point).

If all parties leave the state that issued the original support order, person seeking modification must register the support order in a state that has personal jurisdiction over the DEFENDANT. The parent seeking enforcement of the order cannot register the order in her own home state unless H and W live in the same state.