Family Law Flashcards
What are the instances in which a marriage license will not be issued?
- One of the parties is married to someone else
- The parties are too closely related
- The marriage is a sham
- The parties are incapable of understanding the nature of the act
Note: Most jurisdictions refuse to issue a license when one or both parties is under the influence of drugs or alcohol when the license is sought
What evidences the intent to enter into a common-law marriage?
Words in the present tense are preferred, but a court may accept cohabitation or reputation as evidence. Cohabitation alone is insufficient and words of intent to marry in the future do not reflect a present intent to be married.
How does a party modify a property division award?
A property division award is not modifiable because it is based on the parties' assets at the time of divorce. Changes in the parties' circumstances after divorce are not be considered once the award has been entered.
How can a valid marriage be terminated?
Annulment, divorce, or death
Consent is a defense to which two grounds for divorce?
Consent is a defense to desertion or adultery.
What are the grounds for a voidable marriage?
1) Age
2) Impotence
3) Intoxication
4) Fraud, misrepresentation, duress, coercion, or force
5) Lack of intent
What are the defenses to a claim that the marriage is voidable?
Equitable defenses of:
1) Unclean hands
2) Laches
3) Estoppel
What are the requirements for common-law marriages?
- Agree they are married
- Cohabit as married
- Hold themselves out in public as married
What is marital property and what are the six common exceptions to marital property?
In most states, all property acquired during the marriage is marital property.
Exceptions:
1) Property acquired before the marriage
2) Property excluded by a valid agreement between the parties
3) Property acquired by gift or inheritance
4) Property a party has sold, granted, or conveyed in good faith and for value prior to final separation
5) Property to the extent it has been mortgaged or otherwise encumbered in good faith and for value prior to separation
6) An award or settlement payment received for any cause of action or claim that accrued prior to marriage
What type of alimony is meant to enhance and improve the earning capacity of the economically dependent spouse?
Rehabilitative alimony, which is awarded for a limited period of time
What are the fault grounds for divorce?
1) Adultery
2) Cruelty
3) Desertion
4) Habitual drunkenness
5) Bigamy
6) Imprisonment
7) Indignity
8) Institutionalization
Which method of property division considers the marriage a partnership and typically requires an equal division of marital property?
Community property
How does marital fault play into a property division award?
In most states, the fact that a divorce is granted on a fault ground is not a factor. However, dissipation of marital property may be considered
Which defense to divorce accounts for a spouse forgiving the marital misconduct?
Condonation is when a spouse forgives marital misconduct. There must be knowledge of the misconduct, and the party must resume relations with the guilty party.
What are the requirements for a marriage license?
- Meet the minimum age restrictions
- Fulfill the waiting period
- Complete premarital medical testing (only in some states)
- Marry before the expiration date
What are the grounds for a void marriage?
Bigamy, incest, and mental incapacity
What action does not sever marital ties but allows the court to determine spousal support and property division?
A limited divorce does not sever the marital ties but permits the parties to live apart. The court will determine support and property division in limited divorce actions.
Note: Limited divorce is known in some states as “divorce from bed and board.”
What is the only defense to a claim that the marriage is void?
The only way to defend against annulment of a void marriage is to deny the existence of the impediment that voided the marriage.
Note: Removing the impediment merely makes the marriage voidable; it will not necessarily prevent annulment.
What is an interlocutory decree?
This represents the period of time between when a divorce is initially granted and when it is finalized. During this time, neither spouse may remarry.
What issues may a mediator assist with in terminating a marriage?
A neutral, court-approved mediator assists both parties with spousal- and child-support issues, as well as custody and visitation rights.
What are the factors courts typically consider when awarding spousal maintenance?
1) Financial resources
2) Standard of living
3) Time for spouse to find employment or training
4) Length of the marriage
5) Contributions to the marriage
6) Age and health of the parties
7) Marital misconduct
How is marital misconduct considered in determining spousal support?
Marital misconduct may be considered in many states when determining spousal support. The weight depends on the jurisdiction, with some jurisdictions considering it merely a factor and others giving it preclusive effect.