Family Law Flashcards
Irretrievably broken
will not reconcile
Equitable division of assets/marital property
Does not mean equal
Marriage is a…
Civil contract between two parties (no longer just man and woman)
- Both parties must be legally capable of consent
- Exchange of consideration: mutual promises and imposition of rights and obligations
How can a marriage be modified or terminated?
Need state intervention
Marriage valid if:
- License
2. Solemnization
Age restrictions for ceremonial licensing
- All jx impose min age req
- Almost all require parental consent if one party under 18?
- All jx allow marriage if party is under 18 if they get parental consent?
Licensing for ceremonial marriage requires
- age restriction
- waiting period (btw date of marriage and ceremony)
- some states: premarital med testing; can be mandates but results cannot be one of the conditions upon which issuance of license relies
expiration date for licensing for ceremonial marriage
if not timely filed, expires (10-30 days)??
License will not be issued if:
- Already married to someone else
- Marriage of consanguinity: parties too closely related as defined by statute
- Marriage is a sham
- Parties are incapable of understanding the act of marriage. Ex: Most states don’t allow if substances render one of them incapable or if party lacked consent due to duress or fraud (UMDA?).
Same sex couples now…
can marry in all states and fed gov. Must recognize marriage from other state.
Solemnization requirements for ceremonial marriage
o Most states require at least 2 witnesses and an officiant
o License must then be filed with appropriate gov office
o Some states allow for proxy to stand for bride/groom as long as written authorization
CL marriage requirements
1) Both must have [mental and legal] capacity (age of majority, mentally able, not too closely related, same reqs as marriage license?)
2) Present agree and intend to be married. Proof standard varies by state (Clear and convincing; Preponderance of evidence)
3) Cohabitation
4) Hold themselves out to public as married couple
• No ceremony, no license
CL marriage not valid if…
Either party married to someone else already
How many states allow CL marriage?
Most states have abolished; some grandfathered it in.
On exam assume jx has abolished CL marriage unless states otherwise
Conflict of laws
marriage in one state valid in new state as long as no strong public policy objection
For CL, all states recognize them from states that allow them, but need not if it would go against strong state interest. Some will recognize even if parties had only been CL married for very short period of time in the permitting state; some will require X period of time.
Heart balm actions
When marriage failed to take place (engagement broken off), entitled to bring civil suit for money damages, including to their rep. No longer recognized, assume abolished unless Q says otherwise.
Constitutional privacy issues
Courts treat disputes of intact families as private matters, should be resolved in home until/unless parties separate
How can a valid marriage be voided/terminated?
- Annulment: voids a marriage (as if never valid)
- Divorce: legal dissolution of a valid marriage
- Death
Annulment requirements
• Impediment for the annulment has to have existed at the time of the marriage
Void definition and characteristics
never happened
- Does not require judicial dissolvement
- Not legally recognized for any purpose
- Any party can seek one (parent, party, etc.)
Bases for voiding a marriage
- Prior existing marriage
- Incest
- Mental incapacity
To void a marriage bc of a prior existing marriage…
o Burden of proof on person trying to prove first marriage
o Enoch Arden rule: Some states say once impediment removed, marriage becomes valid
To void a marriage bc of incest…
party must prove that marriage/sexual relationship with a prohibited degree of kinship
o All states bar consanguinity
o 50% bar between 1st cousins
o Most bar between relatives of half blood
o Many bar between relationship by adoption
To void a marriage bc of mental incapacity
must be lucid for moment of contract; must be able to understand duties/responsibilities
Ex: temporary insanity
Voidable marriage definition and requirement
valid until spouse seeks annulment
Requires judicial decree
Grounds for voiding a voidable marriage
- Age
- Impotence
- Intox
- Fraud, misrep, duress, coercion, force, etc.
- Lack of intent (jest/hilarity)
To void a marriage for age…
if underage of consent and didn’t seek parental consent can ask for it
o Parent of minor child can also seek it
o Overage party cannot seek it if overage at that time
o Underage party cannot seek it once reaches age of majority and continues to cohabit (ratification)
To void a marriage for impotence…
one party naturally and incurably is impotent
Exception: party knew prior
To void a marriage for intox…
alcohol or drugs
Exception: if parties continue to live together (ratification)
To void a marriage for fraud…
- Fraud that goes to the essence of the marriage
- Must be present at time of marriage
- Must immediately cease living together once fraud discovered
Insufficient grounds to void a marriage for fraud/misrep includes:
low morals, bad habits, bad temper, financial status
Jxs differ on woman claiming to be pregnant who is not
To void marriage for lack of intent (jest/hilarity)
Exception: if marriage consummated
Marriage of limited purpose: when parties agree to only some aspects of marriage. Ex: green card marriage.
Post-annulment distribution of prop
o Can still ask for spousal support, equitable distribution of property, child support, attorney’s fees, temp spousal support
o Courts try to place parties in same position as before marriage
Children of annulled marriage are considered…
considered martial children
Defenses to annullment
o Deny the impediment (impotence, that other party is child, etc.)
o Only stops annulment, but can still pursue divorce, dissolution
Putative marriage/spouse doctrine?
Protects party that is unaware of the impediment. Unknowing party may use state’s divorce provisions even if marriage found to be void.
What is a divorce and its requirements
legal dissolution of a valid marriage
Residence requirements in most states (for one party)
Separation periods: Many states require prior to official divorce, must have period of separation (married but living apart) to try to reconcile.
Grounds for divorce
o Most states recognize no-fault divorces
o All states recognize fault divorces. (Some have removed it completely, but some still have.)
Grounds for no-fault divorces:
1) Irretrievably broken (irreconcilable differences) – typical
2) Incapacity
- 50% of states require parties to be separated for period of time before they can file for divorce
- 1 spouse wanting to reconcile does not stop the dissolution
- Most states have abolished traditional defenses
- Modernly, no-fault more common
Grounds for fault divorces:
1) Adultery: voluntary sex with someone other than spouse
2) Cruelty or inhumane treatment
3) Desertion (abandonment): leaves without cause or consent
4) Habitual drunkenness: frequent habit of getting drunk that impairs marriage
5) Bigamy: party knowingly entered into prior legal marriage before this one
6) Imprisonment
7) Indignity: negative behavior that renders them intolerable and their life burdensome
8) Institutionalization: for specific time prior to commencement of divorce and no reasonable prospect of discharge/rehab
To get a fault divorce for adultery…
Have to show opportunity and inclination to commit and can do so through circ evidence
To get a fault divorce for cruelty or inhumane treatment
- Has to be course of conduct
- Or makes cohabit unsafe/improper
- Must be serious
- Most allow based on physical, only some based on emotional
To get a fault divorce for desertion (abandonment)…
- Intent has to be to remain apart permanently
- Some jx find it when spouse forces other one out or when fear/harm if return
- If mutual consent, does not count
To get a fault divorce for habitual drunkenness…
- Some states allow this as grounds
- Alcoholism not a requirement
- Possible defense: assumption of risk
To get a fault divorce for imprisonment…
• Maybe, if for a specified period of time
To get a fault divorce for indignity…
- Ex: vulgarity, habitual laziness, sexually deviant behavior, etc.
- Most don’t recognize
Defenses to fault divorce…
Must be affirmatively pled when asserted:
- Recrimination: when both spouses commit a wrongful act. Ex: both committed adultery.
- Unclean hands: when P’s own behavior is in question
- Connivance: when P has given consent to engage in the marital wrong
- Condonation: forgiveness. Must have knowledge. Resume marital relations after. In CL, once forgiven, cannot be used as grounds later.
- Collusion: both parties have conspired to fabricate grounds for divorce
- Provocation: misconduct due to something P was doing
- Insanity
- Consent: to the misconduct
- Justification: e.g., leaves bc other’s misconduct
- Religion: will always fail
Limited divorce??
o Widely recognized, rarely used
o If parties live apart, court can still determine support/property?
Separation maintenance??
when party is asking for decree for support of a party (like wife and kids) that does not authorize them to live apart, still considered to be married and cannot remarry
Interlocutory decree
once dissolution, still not finalized for a period of time
Mediator requirements
Requires neutral [usually] court appointed mediator who is unbiased and not colluding
Mediation process
Agree on separation agreement and submit to court with parental plan for approval
Mediator duties
o Impartial o Disclose COI o Explain the process clearly o Make sure parties have info they need o Control mediation as it occurs o Should not coerce or improperly influence one party to agree to something o Fair and unbiased
Methods for division of assets
Community property: marriage is partnership, so equal distribution of property. Only 9 states use.
Equitable distribution: fair distribution (not necessarily equal).
Separate property
Stays with spouse that it belongs to.
Definition: asset acquired during marriage by gift, descent or devise.
Ex: Husband buys house pre-marriage, then gets married, but if uses marital property to pay mortgage (etc.) during marriage, house can take on characteristics of marital property and during divorce other spouse could have interest on that house. Increase in value of house could be marital prop. If he puts title in wife’s name too, then marital prop. He has burden to show it’s not.
In most states, all property acquired during the marriage is…
marital property and subject to equitable distribution.
Whether the appreciation in nonmarital property will be subject to equitable distribution will depend on…
whether the appreciation can be attributable to spousal labor.
If market appreciation increases the value of premarital prop…
still separate, appreciation not marital prop.
In most states, property acquired by one spouse after separation but before divorce is…
marital prop.
Lottery winnings are…
likely marital prop
Marital prop is…
- All property acquired during marriage
- Increases in marital property resulting from either spouse’s efforts
- Improvement due to marital funds. E.g., pensions, house, etc.
- Gifts (between spouses?)
- Most common: wages
- Broadly determined and applied
- Much depends on whether it remains separate during marriage
- Titling doesn’t matter
Who has the burden of proof on marital vs. non-marital prop distinction?
Burden of proof on person claiming something is marital prop
Martial prop exceptions
- Prop acquired before marriage
- Prop excluded pursuant to a valid agreement (e.g., prenup)
- Prop acquired by one spouse by gift or inheritance
- Prop party has sold, granted or conveyed for value before date of final separation
- Prop that was mortgaged or encumbered in good faith before final separation
- Award or settlement payment received for any cause before marriage. Ex: car accident before marriage, even if you get the payment after marriage.
Factors courts use to determine marital vs. non-marital prop:
- Length of marriage
- Prior marriages
- Econ circs of each spouse. Age, health, closeness to retirement, earnings potential, spousal needs…
- Contributions to ed or career of other spouse
- Needs for future acquisitions
- Income, medical needs, retirement
- Increases in marital prop. Homemaking, childrearing, etc.
- Value of the separate prop
- Reduction in value of marital prop by one spouse
- Standard of living
- Econ circ at time of divorce
- Custodianship of any minor children
- Dissipation of assets. Sometimes a spouse will dissipate the assets intentionally.
In all at-fault states, basis for the fault is not factored into prop distribution.
Types of marital prop
- Future profits or benefits: Anything earned during marriage will get split. (Let’s say someone works during marriage but payoff doesn’t come until after, doesn’t matter, still equitably divided.)
- Special licenses or degrees
- Retirement or pension benefits
- Personal injury claims proceeds
- Goodwill
- Accumulated sick and vacation time
- Future interest
- Social security
- Post-separation prop: prop acquired after separation but pre-divorce
- Stock options
Special licenses or degrees
Not generally divisible (acquisition of knowledge).
Spousal reimbursement: But court can reimburse spouse for amounts spouse contributed to other’s education (cost value approach).
Could affect alimony or distribution of marital assets too.
Retirement or pension benefits
- Marital prop
- Subject to equitable distribution
- Military benefits too
- Present value of the pension (not future)
- Portion accrued prior to marriage not marital prop, but portion accrued after is.
Personal injury claims
1) Marital prop approach: If cause of action occurred during marriage, marital prop (even if proceeds come after divorce).
2) Separate and marital allocation: Depends on nature. If lost income, etc., then marital prop. Pain and suffering/disability awards not marital prop.
Consortium claim: one spouse gets hurt, second spouse can file this claim if they lose value of life too due to accident. Separate prop of non-injured spouse.
Goodwill
- Martial prop if developed during marriage
- Intangible, like rep of business
- But has to be independent of individual
Accumulated sick and vacation time
Split jxs: some say marital prop, some not, some say only those accrued during marriage are marital prop
Future interest
e.g., future inheritance not distributable??
Social security
not subject to equitable distribution??
Post-separation prop
Most say marital prop, some say separate, some depends on filing date
Stock options
if acquired during marriage, marital prop even if exercised after
Not taxed as regular income. Tax-free at time of transfer. Taxed when sold using original tax basis.
