Family

Question 1

Premarital Agreement

Content

Answer 1

Valid contract that addresses the rights of the parties upon divorce or death.
Under the, Uniform Premarital Agreement Act(UPAA), the agreement can cover:
* Disposition of Property @ death/divorce
* Making of a will, trust
* Other arrangement to carry provisions
* Choice of law
* Anything not in violation of Public Policy

Can make spousal support or child custody and support agreements buy may be unenforceable and never bind the court.

Question 2

Requirements for Valid Premarital Contract:

Answer 2

• In writing and Signed
• Entered into voluntarily
• Full and fair disclosure of assets or proof of independent knowledge of assets → ONLY if agreement is** unconscionable** (UPAA)
• Independent Counsel- not required
• If marriage is void, agrment is enforceable only to avoid inequitable result
• If no choice of law provision its governed by teh state of execution or most significant realtionship to the parties.

Question 3

Ceremonial Marriage

Answer 3

• Generally a marriage must be solemnized by a ceremony with an authorized officiant.
• License and waiting period (most states)
• Parties may not be too closely related or have **prior undissolved marriage
  At time of the ceremony, the parties must have had the mental ability to consent ** and understand their actions and voluntairily agree

Question 4

Common Law Marriage

Answer 4

A valid common law marriage requires three things:
1. Consent to Marry
2. Cohabitation
3. Holding themselves out publicly as spouses

Question 5

Putative Marriage or Estoppel

Answer 5

An equitable remedy that some states use to protect an innocent party who acted in **good faith **when entering into an invalid marriage.

In some states the putative spouse can accquire all of teh rights of a legal spouse.

Question 6

Annulment

Answer 6

A backward looking doctrine that declares a marriage invalid because an impediment that exsisted at the time of the marriage makes it legally void or voidable.

Question 7

Void Marriage

Answer 7

• Grounds→ Bigamy,consanguinity. Nonage(some states)
  Effects
• Cannot be ratified, complete nullity without a court order
• Any interested party may seek
• Subject to collateral attack in probate
• Subject toattack after deathof one of the parties
• Defenses→ Impediment does not exists

Question 8

Voidable Marriage

Answer 8

• Grounds→ Nonage, Incurable physical impotence, lack of capacity
  Effects
• Valid until declaration of annulment can be ratified, and only spouses
• Only spouses may seek annulment
• Not subject to collateral attack or after death of one of the parties

Question 9

Voidable Marriage Defenses

Answer 9

• Impediment does not exist
• Ratification (continuing after impediment removed)
• Laches
• Estoppe;
• Unclean Hands (Not valid in most states)

Question 10

Divorce Jurisdiction

Answer 10

• Only one party needs to be domiciled in a jurisdicion.
• Most states set a minimum residency period before an action may be filed.
• Multiple states can have jurisdiction over a divorceand multiple cases can proceed until one court renderes a judgement.
• To determine financial issues court must have personal jurisdiction over the defendant.

Question 11

In rem Action

Answer 11

The divorce itself is viewed as an in rem action; thus certain types of **constructive service **may be permitted.

Question 12

No Fault Divorce

Answer 12

Most states allow spouses to get a divorce without regard to marital fault. Generally this requires a showing of one of the following:
* Spouses agree marriage is** irretreviably broken** (Bilateral)
* Living apart for specified and continous period of time (Uni or Bilateral)
* Spouses are now Incompatiable
Defenses : Denial of one of the grounds or that a reconciliation restarted the living separate clock

Relevant time period can vary between 90 days to 18 months

Question 13

Fault Divorce

Answer 13

• Adultery→Circumstantial evidence of the opportunity and inclination
• Willful Desertion(abandonment)→ unjustified departure w/ no intent to return
• Pattern or practice of extreme physical or mental cruelty
• Drug addiction or Habitual Drunkeness commencing after the marriage
• Insanity

Question 14

Defenses of Fault Based

Answer 14

Defenses are rearely used, but still exist:
* Denial of Grounds
* Collusion- agrmt between spouses to simulate grounds for divorce
* ** Connivance** - consent to misconduct (usually used for adultery)
* Condonation - forgiveness w/ full knowledge of wrongs
* ** Recrimination** - both parties guilty of misconduct (Nearly extinct)

Question 15

Approaches to Property Division

Answer 15

• Community Property: during the marriage one half by each spouse
• Equitable division of all property: all prop by either spouse divided
• Equitable division of marital property: Each spouse takes their seperate property and the court only divides the property acquired during the marriage. - MOST COMMON

Question 16

Property Division Process

Answer 16

1. Classification: Determine what is marital property and what is separate property
2. Division: Make an equitable division of teh marital estate no matter how the property is titled
   Equitable **not Equal **and decrees are not modifiable.

Question 17

Separate Property

Answer 17

• Owned before marriage
• acquired bt gift or inheritance
• acquired in exchange for separate property
• income and appreciation of separate property
• pain and suffering awards
• personal damages
• acquired after an order of legal separation that includes a final disposition of property

Question 18

Marital Property

Answer 18

All other property acquired during the marriage, including:
* Property acquired during the marriage
* Earnings
* Employment benefits, pensions, and stock options (majority rule is if earned during marriage, marital property)
* Lost Wages
* Reimbursement
* Recovery for damages to marital property
Marital property is subject to equitable distribution by the court.

Question 19

Property that Changes Character

Answer 19

• Commingling - Separate property is inextricably intertwined with marital property and cannot be traced
• Transmutation - Separate property is treated in a way that evidences an intention to be marital

Question 20

Special Issues w/ Property Division

Answer 20

• Improvement of separate property by marital fundsis usually separate funds but grant other spouse reimbursement for value added.
• An increase in value due to market factors would remain separate property.
• Majority view- prop acquired before marriage but paid for after should be apportioned between separate and maritalestates
• Portion of a pension earned during a marriage is marital property subject to distribution.
• Professional licenses or degrees are not distributable property.
• Not considered a taxable event
  *

Question 21

Equitable Division

Not all but Some

Answer 21

Trial court is given greaat discrestiona and the division is not equal. Factors considered in dividing property:
* Duration of Marriage
* Present Incomes
* Health
* Alimony
* Contribution to the acquisition
* Economic Fault

Question 22

Alimony

Answer 22

$ paid to an economically dependent spouse. It may be awarded while the parties are still married, during the divorce proceeding or as a part of the divorce decree. Trial court is vested with great discrestion in awarding alimony.

Question 23

Types of Alimony

Answer 23

There are four types and courts can award more than one.
1. Permanent Periodic Spousal Support
2. Lump Sum
3. Rehabilitative Spousal Support
4. Reimbursement Spousal Support

Trend to award less money because most families have two income earners

Question 24

Alimony Factors …

Answer 24

• Standard of living
• Duration of marriage
• age, physical&emotional condition
• financial resources
• Contribution to marriage
• time needed for party seeking support to obtaini the training
• ability of the payor spouse to meet their needs
• Marital Fault
• Needs for the claimant and the ability of the other spouse to pay

Question 25

Permanent Spousal Support

Answer 25

* Paid regularly for the **lifetime of the recipient** * Modifiable upon substantial change in circumstances * Terminates upon the death of either spouse or the remarriage of the recipient spouse

Question 26

Rehabilitative Spousal Support

Answer 26

* Paid regularly for a **limited period** of time * Modifiable upon substantial chane in circumstances * Terminates upon the death of either spouse or th eremarriage of the recipient spouse *

Question 27

Lump Sum

Answer 27

* Payable **all at once** or in a** series of payments** * Non modifiable * survives teh death of either spouse

Question 28

Reimbursement Spousal Support

Answer 28

* Payable all **at once** or in a **series of payments** * Nonmodifiable * Survives the death of either spouse

Question 29

Modification and Termination of Spousal Support

Answer 29

ONLY- Periodic spousal support may be modified if there is a substantial change in circumstances. Periodic spousal supports terminates upon the **remarriage** or **death **of either spouse, and most jurisdictions would terminate if recipient begins **cohabitating** with someone in a marriage like relationship.

Question 30

Child Support Guidelines

Answer 30

* The amount of teh award of support to the custodial parent is usually arrived at by refrence to child support guidelines. * Courts can deviate from te guidelines , including to include health insurance for the children and to cover extraordinary medical expenses.

Question 31

Child support and Visitation

Answer 31

The child support obligation is independent of the noncustodial parent's visitation rights. Visitation cannot be withheld because of failure to pay child support.