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MEE > Family > Flashcards

Family Flashcards

1
Q

Breach of Promise to Marry

A

rare in most states

tort damages:

  1. actual damages
  2. loss of reputation
  3. mental anguish
  4. punitive damages*
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2
Q

Gifts in Contemplation of Marriage

A

gifts conditioned on marriage (i.e., rings) must be returned if marriage doesn’t occur

factors:

  1. type of property
  2. conditions attached
  3. intent of donor
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3
Q

Prenuptial Agreements

A

can agree to disposition of property and alimony upon divorce

courts cannot be bound by provisions regarding children

requirements:

  1. written and signed
  2. entered into voluntarily
  3. full disclosure of assets or proof of independent knowledge
  • UPAA - determine agreement was unconscionable first
  • some courts consider fairness and whether independent counsel
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4
Q

Marriage

A

requirements:

  1. license
  2. officiated ceremony
  3. no legal impediments to marriage
    * too closely related or bigamy
  4. capacity to consent
    * alcohol, drugs, handicap, age
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5
Q

Common Law Marriage

A

requirements:

  1. consent and capacity
  2. cohabitation
  3. holding yourselves out as spouses

note: most states do not permit common law marriage

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6
Q

Marriage by Estoppel

A

equitable remedy for innocent spouse who acted in good faith when entering an invalid marriage

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7
Q

Rights to Property

A

each spouse owns and controls his or her own property

for equitable division on divorce, title is not dispositive

if take title in their joint names, tenancy by entireties is presumed

  • one spouse cannot convey or encumber w/o consent of the other
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8
Q

Support During Marriage

A

spouses owe support to one another during marriage

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9
Q

Spousal Abuse Orders

A

laws in every state to protect domestic abuse victims

protective order can be granted ex parte; can last 1 month to several years

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10
Q

Alienation of Affection

A

requirements:

  1. genuine love and affection between validly married spouses
  2. l&e was alienated and destroyed
  3. causation
  • adultery is not required
  • proof of damage is required
  • this tort is abandoned in most states
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11
Q

Criminal Conversation

A

requirements:

  1. marriage
  2. adultery
  3. damages
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12
Q

Annulment

A

declaration that marriage is invalid

available for defective marriages that are legally void or voidable

effect:

  1. marriage is set aside as if it never existed
  2. children are legitimate
  3. child support can be awarded
  4. spousal support can be awarded in some states
  5. property is treated as if never married
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13
Q

Void Marriage

A

void if fail to meet the essential requirements of marriage

  • i.e., too closely related or bigamy
  • can be attacked by a party or a third-person

some states permit marriage to be valid after removal of impediment by continued habitation

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14
Q

Voidable Marriage

A

occurs if event or condition affected adequacy of consent

  • treated as valid until annulled
  • can be attacked only by a party
  • can be ratified by continued cohabitation after removal of infirmity
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15
Q

Jurisdiction over Divorce

A

one spouse must be domiciled in state seeking to enter the divorce decree

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16
Q

No-Fault Divorce

A

allows for dissolution without regard to marital fault

generally:

  1. irreconcilable differences
  2. living separate and apart
  3. incompatibility
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17
Q

Fault-Based Divorce

A

generally:

  1. adultery (opportunity, inclination, and corroboration)
  2. desertion (unjustifiable departure with no intent to return)
  3. cruelty
  4. alcoholism or drug addiction
  5. insanity (may require institutionalization)
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18
Q

Defenses to Divorce

A

no-fault = generally, no defense but may be able to restart the clock

fault-based:

  1. collusion - parties faked grounds
  2. connivance - consented to misconduct
  3. condonation - forgave with full knowledge
  4. recrimination - unclean hands
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19
Q

Legal Separation

A

permitted for same grounds as divorce

effect:

  1. parties remain married
  2. parties can decide property division and support rights

if court permanently divides marital property, anything acquired after separation date is separate property (Dirty John)

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20
Q

Approaches to Property Division

A
  1. community property
  2. equitable division of all property
  3. equitable division of marital property (most common)
  • decree is generally not modifiable
  • not a taxable event
  • two-step process:
      1. classification - marital vs. separate
      1. division - equitable division of asset
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21
Q

Separate Property

A
  1. real and personal property owned before marriage
  2. property acquired by gift/bequest/devise/descent at any time
  3. property acquired in exchange for other separate property
  4. income from appreciation of separate property
  5. judgments personal to the individual
  6. property acquired after a legal separation
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22
Q

Marital Property

A
  1. all property acquired by either spouse during the marriage up to the final divorce decree or legal separation date
  2. vested and unvested employment benefits
  3. judgment awards for the household (lost wages, past hospital bills, etc.)
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23
Q

Commingling

A

separate property can become marital property if it’s inextricably intertwined

  • court will try to trace
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24
Q

Transmutation

A

separate property can become marital property based on intent of the parties

  • ex: using separate property for down payment on marital home
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25
Q

Improvement

A

separate property improved by use of marital funds or the efforts of either spouse

  • marital estate or non-owning spouse may receive reimbursement
  • no reimbursement if increase in value due to market factors
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26
Q

Property Acquired Pre-Marriage but Paid for Post-Marriage

A

majority = apportion property between separate and marital in proportion to how separate/marital funds were used

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27
Q

Pensions

A

marital property

courts will add up the value of the pensions, then split

some spouses accept different assets in replacement of pension value

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28
Q

Professional Licenses and Degrees

A

not marital property

minority = consider the value of degree when awarding alimony or property

29
Q

Equitable Division Factors

A
  1. age/education/background/earning capabilities of the parties
  2. duration of marriage
  3. standard of living during marriage
  4. present income and employability of parties
  5. source of money used
  6. health of parties
  7. assets/debts/liabilities of parties
  8. needs
  9. custody of children
  10. alimony
  11. opportunity to acquire future income/assets
  12. contribution to existing assets
  13. contribution as homemaker
  14. economic fault
30
Q

Alimony

A

paid to economically dependent spouse

courts have great discretion – tend to award less than in the past

four types:

  1. permanent periodic support
  2. lump sum support
  3. rehabilitative support
  4. reimbursement support
31
Q

Permanent Periodic Support

A

permanent and indefinite

increased, decreased, terminated on substantial change in circumstances

32
Q

Lump Sum Support

A

specified sum for specified period

payable in installments or in a lump sum

nonmodifiable

33
Q

Rehabilitative Support

A

designed to restore dependent spouse’s earning capacity

for a specified time period

increased, decreased, terminated on substantial change in circumstances

34
Q

Reimbursement Support

A

usually, as repayment for contribution from the dependent spouse for the other spouse’s increased education, etc.

for specified time

can be paid in installments or lump sum

nonmodifiable

35
Q

Factors to Consider in Awarding Alimony

A

primary considerations = needs of claimant spouse and the ability of the other spouse to pay

other factors:

  1. standard of living
  2. duration
  3. age, physical and emotional conditions
  4. financial resources
  5. contribution
  6. time needed to obtain education or training
  7. ability of the payor to pay and meet his needs
  8. some jurisdictions = marital fault
36
Q

Modification of Spousal Support

A

modifications based on substantial and continuing change of circumstance

  • voluntary reduction is not sufficient
37
Q

Termination of Spousal Support

A

periodic terminate on remarriage or death

  • some jx = cohabitation

lump sum and reimbursement survive death - treated like a contract

38
Q

Tax Consequences of Spousal Support

A

Pre-2019: support payments were deductible to payor and income to recipient

Post-2019: neither income to recipient nor deductible for payor

39
Q

Separation Agreements

A

entered after marriage and enforceable if supported by consideration

  • must have full and fair disclosure
  • must be entered into voluntarily
  • court not bound by agreements over children

mergers:

if divorce decree includes terms of the agreement = merges and is modifiable by the court

if not submitted to the court = nonmodifiable

40
Q

Contracts between Co-habitants

A

valid unless sex is the only consideration

express contracts = generally enforced

implied contracts = may be used to award property

41
Q

Child Support

A

parents equally owe a duty to support their children

considerations = child’s needs and the parent’s ability to pay

  • most use the income shares approach

biggest concern = best interest of the child

not taxable to recipient; not deductible by payor

42
Q

Income Shares Approach

A

determines base line by considering:

  1. number of children
  2. income of the parents
43
Q

Duration of Child Support

A
  1. age of majority OR
  2. death of child OR
  3. emancipation of child OR
  4. termination of parental rights

sometimes longer if child is disabled

won’t extend for college, but may extend if 18 and still in high school

44
Q

Jurisdiction over Child Support

A

types:

  1. original jurisdiction
  2. jurisdiction to enforce
  3. jurisdiction to modify
45
Q

Original Jurisdiction over Child Support

A

proper where 1st petition is filed

another state can only exercise if:

  • 2nd petition filed before time to answer the 1st has expired
  • petitioner objected to jurisdiction in 1st acion AND
  • 2nd state is child’s home state
46
Q

Jurisdiction to Enforce Child Support

A

issuing court has continuing jurisdiction

another state can enforce by:

  • direct enforcement OR
  • registration
47
Q

Jurisdiction to Modify Child Support

A

court entering the order has continuing exclusive jurisdiction unless no parties reside in the issuing state or the parties consent to another jx

  • modification not allowed without continuing exclusive jx
48
Q

Modification of Child Support

A

modifiable based on substantial and continuing change of circumstance

voluntary reduction is not sufficient

49
Q

Enforcement of Child Support

A

can be enforced through:

  • traditional civil/criminal contempt
  • seizure of property
  • garnishment of wages
  • intercepting tax refunds
  • revoking licenses
50
Q

Jurisdiction over Initial Award of Child Custody

A

home state test = primary test

  • state where child has lived with parent for at least 6 months OR
  • state that was child’s home state within the last 6 months and a parent continues to live in the state

if no home state, court can assume jx if:

  • significant connection to state and substantial evidence of child’s well-being in the state

deferred jurisdiction if neither of the above

if no state exercise jx, any state can by default

51
Q

Jurisdiction over Modification of Existing Custody Decrees

A

issuing state = continuing exclusive jx unless:

  • no kid or parent resides in state OR
  • child no longer has significant connection to state
52
Q

Declining Jurisdiction over Child Custody

A

court cannot exercise jx if:

  • proper proceeding pending elsewhere OR
  • unjustifiable conduct by party

court may decline if it is an inconvenient forum

53
Q

Temporary Emergency Jurisdiction over Child Custody

A

requirements:

  1. physically present AND
  2. child has been abandoned OR
  3. necessary to protect child from abuse
54
Q

Child Custody

A

includes legal and physical custody

main consideration = best interest of the child

other factors:

  1. wishes of parents
  2. preference of child (12+ given great weight; under 8 no weight)
  3. relationship of child with parents/siblings
  4. adjustment to home/school/community
  5. health of parties
  6. primary caregiver
55
Q

Joint Custody

A

promotes involvement of both parents

encouraged in most jx unless parents are openly hositle

56
Q

Sole Custody

A

awarded when strong evidence demonstrates BIOC

reasonable visitation for other parent unless substantial harm would result

57
Q

Custody to Nonparent

A

parent gets custody unless nonparent can show:

  1. harm to child OR
  2. unfitness (abandon, neglect, etc.)
58
Q

Visitation

A

parental = may deny or restrict if injury to child may result

nonparent = applies in extraordinary circumstances and may be unconstitutional

  • if parent is fit, preference is constitutionally protected and given special weight
59
Q

Modification

A

party seeking motion bears the burden

requires substantial change of circumstances

concern = best interest of the child

voluntarily giving up custody lessens a parent’s constitutional rights

60
Q

Relocation

A

statutes address and usually require notice and court hearing

factors:

  1. BIOC
  2. motivated by benefit to family AND
  3. not intended to thwart relationship with other parent
61
Q

Enforcement of Custody Awards

A
  1. civil contempt proceedings
  2. habeas corpus proceedings
  3. suit in equity
  4. out-of-state decrees
  5. child kidnapping
    * full faith and credit to another state’s child custody determination if jx is proper
62
Q

Nonmarital Children

A

intermediate scrutiny in equal protection analysis

parentage actions = brought to establish biological relationship

63
Q

Presumption of Parentage

A

husband is presumed the father if:

  1. born during marriage
  2. born within 300 days of end of marriage
  3. born during void or voidable marriage
64
Q

Unwed Fathers

A

can be considered child of unwed father if the father:

  1. marries mother after child’s birth
  2. holds child out as his own
  3. consents to his name on birth certificate
  4. formally acknowledges paternity
  5. paternity judgment

protected under DPC if demonstrate parental responsibility

65
Q

Paternity Suit

A

generally filed by mother to obtain child support

when paternity is established, can assert custody and visitation rights

SOL tolled during minority - C&C or preponderance standard

66
Q

Termination of Parental Rights

A

voluntary = can always be done voluntarily

involuntary = state cannot interfere unless child’s well-being is endangered

  • serious physical harm
  • abandonment
  • neglect or deprivation
  • failure to provide support
  • mental health of parent
  • unfitness
67
Q

Adoption

A

consequences: severs all rights and obligations of bio parents and creates duties for adoptive parents

requirements:

  1. termination of biological parents’ rights
  • consent of biological parents
  • consent of unmarried father if actively involved in child’s life
  1. creation of new parent rights
  • consent of adoptee (if 12 or 14+)
  • home study
  • payment is prohibited
68
Q

Types of Adoption

A

MEE (8 decks)

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