Family Law Flashcards
Common-Law Marriage Elements
- Elements
o Capacity: mental and legal capacity to marry
o Present agreement both parties must intend to presently be married
o Cohabitation: the parties must live together
o Holding out a marital relationship to the community: hold themselves out as “spouses”
Note 1: Most states do not recognize common law marriage
(mnemonic=CACH)
capacity to enter into a marital contract, a present agreement to be married,
cohabitation, and holding out a marital relationship.
Recognition of marriage:
a marriage valid under the law of the place in which it was contracted will be valid elsewhere unless it violates a strong public policy of the state that has the most significant
relationship to the spouses and the marriage
Grounds for no-fault divorce
o Every jurisdiction has a unilateral no-fault ground for divorce, requiring neither fault nor consent of the other spouse.
o Generally requires that the marriage be irretrievably broken with no prospect of reconciliation (often using the term “irreconcilable differences”)
o No attempt at reconciliation required
Separation, is it required in all states, does it require both spouses to agree?
o Some states require a minimum period of separation before a divorce will be granted.
o The separation does not have to be agreed to by both spouses.
o A spouse can unilaterally move out and start the separation period
Duties of a Mediator in Marriage mediation for divorce/separation, and possible effect of misconduct of mediator
Duties include that the mediator must:
Be impartial and disclose any conflicts of interest he may have;
Clearly explain and control the mediation process and ensure that the parties have the
information to make an informed decision; and
Not coerce or improperly influence a party to make a decision
Mediator misconduct may be grounds for not enforcing a
separation agreement or a property settlement.
Division of Property at divorce: Community property
MINORITY (dont need to know states)
o Only used in nine states: Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin
o Generally requires an equal division of the marital property
Division of Property at Divorce: Equitable distribution
Equitable distribution
o Majority rule
o Requires an equitable, or fair distribution of all marital property, not necessarily an equal
50/50 division
o Takes into consideration all of the circumstances between the parties
What is separate Property?
SP includes assets acquired during marriage by gift, descent, or devise. SP also includes anything acquired before marriage
What is marital Property?
MP is all property/assets acquired during marriage by any means other than gift, descent, devise.
Can separate property become marital property?
SP can be transformed into MP if marital funds or efforts by owner-spouse enhance its value/or build equity during marriage.
Example 2: A spouse purchases a house before marriage, making the house Separate Property. After marriage, the spouse uses Marital Property funds to pay the mortgage on the house. At divorce, the other spouse is entitled to a
share of the value of the home
Marital property: Future retirement/pension benefits:
If a spouse works during the marriage and creates
or earns profits or benefits that will not be received until after divorce, the profits will
be considered MP.
Professional licenses/degrees as marital property
Most courts do not treat these as MP, but may award
reimbursement for a spouse’s actual contribution to educational and living expenses.
Personal injury claim proceeds as marital Property
There are two approaches to personal injury awards,
and you should discuss both:
• Approach 1: If the cause of action accrues during marriage, even if the spouses are separated, all proceeds are treated as MP
• Approach 2: Damages are divided between MP and SP by type
o Compensatory damages (e.g., pain, suffering, disability) are SP of the injured spouse
o Consortium loss damages are SP of the non-injured spouse
o Lost wages, lost earning capacity and medical expenses are MP
Is a property division award in a divorce modifiable?
o A property division is not modifiable after the fact because it is based on the parties’ assets
at the time of divorce.
o Changes in the parties’ circumstances after divorce do not affect the award
The factors that are considered when deterring support award for alimony/spousal maintenance
The majority of jurisdictions consider various factors when determining the support award.
These factors include:
o Financial resources of both parties
o Standard of living during marriage
o Time it will take for receiving spouse to find employment
o Length of marriage
o Contributions to marriage
o Age and health of both parties
o Marital misconduct (only in some states)
Permanent alimony vs limited duration alimony vs rehabilitative support vs reimbursement alimony
o Permanent alimony is an award for the remainder of the dependent spouse’s life (generally only appropriate after long marriages).
o Limited-duration alimony is typically awarded when the marriage was of short duration (making permanent alimony inappropriate).
o Rehabilitative support (recently tested) is for a limited period of time, such as until the spouse receives education or employment.
o Reimbursement alimony (recently tested) compensates a spouse for financial sacrifices
made during the marriage that resulted in a reduced standard of living to secure an
enhanced standard of living in the future
What is required for there to be a modification of spousal support
o In general, spousal support may be modified.
o The party seeking modification of spousal support has the burden of establishing a significant change in circumstances that warrants the modification.
o A party’s voluntary reduction in income will generally not reduce support payments.
o A court may consider new obligations that arise for the spouse who is paying support.
Does marriage end spousal support?
In most jurisdictions, if the receiving spouse remarries, then spousal support may be terminated.