Family Law Flashcards
Can someone make a claim for breach of the promise to marry?
Yes!
Rare today in most states
when used, provides for tort damages including actual damages as well as loss to reputation and mental anguish.
punitive damages may also be available.
what are gifts in contemplation of marriage?
gifts made conditioned on the subsequent marriage, like engagement rings, are null if the marriage fails to take place.
consider the type of property given, the conditions attached and the intent of the donor.
what are antenuptial (pre-marital) agreements?
many states have adopted the Uniform premarital agreements act (UPAA).
premarital agreements address rights of the parties in the event of death or divorce
what can parties agree to in antenuptial (pre-marital) agreements?
to the disposition of property at divorce and to alimony.
antenuptial (pre-marital) agreements
generally is a waiver of alimony upheld?
Yes unless doing so will cause disadvantaged spouse to become a public charge.
antenuptial (pre-marital) agreements
can courts be bound by the provisions in an antenuptial (premarital) agreements?
courts will not be bound by provisions in the agreement regarding children- custody and support that is NOT in the best interest of child.
antenuptial (pre-marital) agreements
what are the requirements for validity?
must be in writing and signed
entered into voluntarily without fraud, duress or overreaching
full disclosure of assets OR proof that party had independent knowledge
antenuptial (pre-marital) agreements
under the UPPA, the court must determine what in order to find the agreement void?
that it was unconscionable when executed and then there whether there was a fair disclosure of assets or independent knowledge (also considered a waiver)
antenuptial (pre-marital) agreements
what will some courts consider in questioning the validity?
the general fairness and whether the parties were represented by independent counsel.
antenuptial (pre-marital) agreements
what law would be applicable to the agreement?
the parties can agree on the state law to apply and if not, the law of the state with the most significant relationship to the parties and the transaction OR the law where the agreement was executed will apply.
marriage
what are the requirements?
license
ceremony with authenticated officiant
no legal impediments to marriage
capacity to consent
marriage
what is a marriage license?
some stated require a medical certificate showing no disease
most states provide a 72 hour waiting period after the applicable before the ceremony can take place.
failure to meet procedural requirements will not invalidate the marriage
marriage
what does it mean “no legal impediments to marriage”?
too closely related
- cannot marry ascendants, descendants, siblings, aunt/uncle, niece/nephew, whether by whole or half blood
- many states prohibit marriages between those related by marriage, step-relations, or adoption
married to someone else (bigamy)
marriage
what does it mean to have capacity to consent to marry?
capacity: must have the mental ability to consent at the time of the ceremony
- consider someone under the influence of alcohol or drugs or mentally handicapped
age: must be of the age of majority, generally 18; parental (16-17) or judicial consent (under 16) required for underage person to marry
marriage
common law marriage requirements
generally there are 3 requirements for a valid common law marriage:
consent to marriage (not just to cohabit)
-remember must have the capacity to consent and no legal impediments to wed
cohabitation
holding yourself out publicly as husband and wife
marriage: common law marriage
in the states that do not permit common law marriage, will they recognize a common law marriage entered into in another state?
YES! they will regard the marriage as valid if entered into under the laws of a state that permits common law marriage.
what is marriage by estoppel or putative marriage?
equitable remedy that may be given by some courts to the innocent party who acted in good faith when entering into an invalid marriage.
in some states the putative spouse can acquire all of the rights of a legal spouse.
property:
what happens to property in the event of a divorce?
each spouse owns and controls his or her own property but in the event of divorce, title will not be dispositive in the equitable division of property.
property:
if spouses take title to property in their joint names what happens?
tenancy by the entireties is presumed and therefore one spouse cannot convey or encumber the property without the consent of the other.
support:
during marriage do spouses owe each other support?
Yes! doctrine of necessaries
support:
what is the doctrine of necessaries
can be used to make one spouse liable to 3rd parties for the other spouse’s purchases for necessary expenses, such as food, clothing and health care.
spousal abuse orders
what are they and how long do they last?
laws in every state protect victims of domestic abuse both in and outside of marriage
the victim is entitled to a protective order against the other spouse which can be granted ex parte and can last for one month to several years depending on the jurisdiction.
what are they 2 types of tortious interference with marriage?
alienation of affection
criminal conversation
tortious interference with marriage
what is alienation of affection?
genuine love and affection between spouses who are validly married
love and affection was alienated and destroyed
defendant’s act caused the lost of love and affection
proof of damage is required and is highly subjective
tortious interference with marriage
criminal conversation
marriage of spouses
adultery between the defendant and the spouse during the marriage
proof of damage is required and is highly subjective
what is an annulment?
a declaration that a marriage is invalid
when is an annulment available?
defective marriages that are legally void or voidable
what is a void marraige?
fail to meet essential requirements, so invalid (utter nullity)
can be attacked by one of the parties or collaterally by a 3rd party
may or may not remedied by continued habitation after removal or impediment
EX: bigamy & too closely related
uniform marriage and divorce act view on the validity of the marriage after removal?
UMDA and some states permit the to be valid after removal of the impediment
ex: after the death of the prior spouse, void marriage can be validated
what. is a voidable marriage?
event or condition affecting adequacy of consent to marriage contract
treated as valid until annulled
can be attached only by or on behalf of a party to the marriage and in some cases only by the party who is sought to be protected.
marriage can be ratified by continued cohabitation after removal of infirmity
ex: non-age, incurable physical impotence, lack of capacity, duress, fraud, pregnant by another man
MUST affect an essential element
what is the effect of an annulment?
the marriage is set aside as if it never existed
child remain legitimate
child support can be awarded
spousal support may be awarded but not in all states
property generally treated as if never married; put spouses in “pre-marital” state
divorce and separation
what determines jurisdiction?
one of the spouses must be domiciled in the state seeking to enter the divorce
GENERALLY: if the spouse is a resident of the state for a min period of time (90 days to 6 months) then there is a presumption he is domiciled there and the court will have jurisdiction.
FINANCIAL ISSUES: the court must have personal jurisidiction over both parties
can more than one state have proper jurisdiction over the divorce?
yes! cases can proceed in both states and once one state renders judgment the other will lose subject matter jurisdiction
what are the grounds for divorce?
no fault
fault
what is no fault divorce?
allows for dissolution of marriage without regard to marital fault
CAN BE ALLOWED ON PROOF OF:
irreconcilable differences
- may require agreement of the spouses to get a divorce
living separate and apart for a specified period of time
- if the spouse agree, it is generally for a shorter period
- if it is unilateral no-fault, the time can be longer
incompatibility
what is fault-based dirvoice?
adultery
desertion for a specified time
cruelty (physical or mental)
habitual drunkenness or abuse of drugs commencing after marriage
insanity
what is needed for adultery in a fault based divorce?
often proven by circumstantial evidence of opportunity and inclination
corroboration of adultery is often required
what is desertion in a fault based divorce?
unjustifiable departure from the marital home for a specified period with no intent to return
what are the defenses to no-fault divorce?
generally unavailable, but one spouse can claim reconciliation to restart the time clock for living separate and apart
what are the defenses to fault divorce?
rarely used but still exist
collusion
connivance
condonation
recrimination
what is the defense collusion to a fault divorce?
the parties agree to simulate the grounds for divorce
what is the defense connivance to a fault divorce?
the plaintiff willingly consented to the other spouses’ misconduct
what is the defense condonation to a fault divorce?
the plaintiff forgave the marital offense with full knowledge of the offense.
generally requires sex after forgiveness
what is the defense recrimination to a fault divorce?
the plaintiff is also guilty of marital fault
doctrine of unclean hands
what is legal separation?
permitted for the same grounds as divorce
referred to as “divorce from bed and board”
what is the effect of legal separation?
parties are still married
parties can seek to have their rights regarding property, spousal support, child custody, and child support decided
what happens to property during a legal separation?
the court may divide marital property when legal separation is granted.
if so, after acquired property is separate property.
if no final property division at that time, property will be divided when (and if) divorce is granted
why do people get a legal separation?
religious reasons, elderly, or keep status for insurance or tax benefits
what are the 3 main approaches to divide property at divorce?
community property
equitable division of all property owned by either spouse
equitable division of marital property.
- each spouse takes his separate property and the property acquired during the marriage is divided equitably. (most popular)
what is community property?
all property acquired during marriage is owned one-half by each spouse and property owned before marriage is separate.
are property distribution decrees modifiable?
NO!!!!
what is the process used in division of property?
classification
division
what is the classification process used in division of property?
determine what is marital property and what is separate property
what is the division process used in division of property?
make an equitable division of the marital estate no matter how the property is titled
REMEMBER: equitable division does not necessarily mean equal
what is separate property?.
all real and personal property owned by a spouse before marriage, including assets held in individual retirement accounts
property acquired by a spouse at any time by gift, bequest devise or descent
property acquired in exchange for property acquired before the marriage
income from and appreciation of separate property
pain and suffering awards, victim of crime compensation awards, future medical expenses, and future lost wages; and
property acquired by a spouse after an order of legal separation where the court has made a final disposition of property.
what is marital property?m
all property acquired by either or both spouses during marriage up to the final divorce decree
- some jdx use date of separation, or the date of filing for divorce
includes value of vested and unvested pension, vested and unvested stock options rights, retirement or other fringe benefit rights relating to employment that accrued during the period of the marriage
includes recovery in personal injury, worker’s compensation, social security disability actions, and other similar actions for wages lost during the marriage, reimbursement for medical bills incurred and paid with marital property, and property damage to marital property
what are some special issues in classifications of property?
commingling
transmutation of separate property
improvement of separate property
property acquired before marriage but paid for after marriage
pensions
professional license or degree
tax consequences
special issues in classifications of property
what is commingling?
separate property can become marital if the property is inextricably intertwined
courts will attempt to trace property
special issues in classifications of property
what is transmutation of separate property?
separate property can become marital property based on the intent of the parties
EX: husband uses $10K of his separate property as a down payment on a home for him and his wife titled in both of their names. there can be a presumption of gift based on joint title and the $10K would be classified as marital property
special issues in classifications of property
improvement of separate property?
when separate property is improved by the use of marital funds
OR
the efforts of either spouse, courts in most jurisdictions will grant the marital estate or non-owning spouse reimbursement for the value added.
BUT
if neither spouse ever visited the property and the property had increased in value because an interstate exit was planned nearby, the increase value would remain separate because the increase was due to market factors, not the contribution of either spouse
EXAMPLE:
husband inherits a piece of property worth $1K during the marriage.
if the husband’s labor improved the property and the improvements caused an increase in the value
OR
if marital funds were used to improve the estate
the increase due to the husband’s effort would be…..
marital
special issues in classifications of property
property acquired before marriage but paid for after marriage?
courts are split!
majority view seems to be that property should be apportioned between separate and marital estates in proportion to the contribution of separate and marital funds to pay for the property
special issues in classifications of property
pensions
considered to be marital property subject to division even if the non-working spouse did not contribute
courts use different formulas to calculate the share of the pension that was earned by the party during the marriage and the amount will be subject to division.