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mee subjects (ube) > Family Law > Flashcards

Family Law Flashcards

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1
Q

A premarital agreement is enforceable if:

A

(a) there has been full disclosure;
(b) the agreement is fair and reasonable; and
(c) it is voluntary.

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2
Q

Must a pre-marital agreement be in writing?

A

Yes, and it must be signed by the party to be charged.

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3
Q

Under the UPAA, what must a party, who is challenging a pre-marital agreement, prove?

A

(a) involuntariness; or
(b) unconscionability at the the time of execution; AND
(c) lack of disclosure of the other’s assets and obligations.

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4
Q

Is a party’s insistence on the pre-marital agreement being signed as a condition to marriage considered duress?

A

No.

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5
Q

What is the objective of equitable distribution?

A

To order a fair distribution of all marital property, taking into consideration the circumstances between the parties.

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6
Q

What constitutes marital property?

A

All property acquired during marriage.

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7
Q

What are some factors that courts consider in making equitable distribution determinations?

A
  • length of marriage;
  • age;
  • health;
  • earning potential and needs of each spouse;
  • value of the separate property;
  • the spouses standard of living;
  • economic circumstances of each spouse at the time of divorce.
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8
Q

Name two ways separation agreements can be invalidated.

A

Fraud, or unconscionability.

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9
Q

Define unconscionability.

A

A contract is unconscionable when it is so unfair to one party that no reasonable person in the position of the parties would have agreed to it.

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10
Q

Can a support award be modified subsequent to a divorce decree?

A

Yes.

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11
Q

What must a party seeking modification of a spousal support award show?

A

A significant and continuing change in the needs of the dependent spouse OR financial abilities of the obligor.

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12
Q

Can a property division award be modified after the entrance of the divorce decree?

A

No. (The property division is based on the parties’ assets at the time of the divorce.)

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13
Q

True or False. Both parents are legally required to support their minor children.

A

True. This extends through the age of 18, unless the child is emancipated.

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14
Q

Under what circumstances may a parent be required to provide child support to a child over the age of 18?

A

Some jurisdictions require support through college, and support can continue indefinitely for a child who is physically or mentally disabled.

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15
Q

When will a marriage license NOT be issued?

A
  1. ) Bigamy;
  2. ) Parties are too closely related;
  3. ) The parties entered into the marriage as a sham; or
  4. ) The parties are incapable of understanding the nature of the act.
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16
Q

Define common law marriage.

A

When the parties:

  1. ) Agree they are married;
  2. ) Cohabit as married; and
  3. ) Hold themselves out in public as married.
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17
Q

If the parties enter into a common-law marriage in State A, then move to State B, which does not recognize common law marriages, must State B recognize the parties’ common-law marriage?

A

No, if it strongly goes against the public policy of State B.

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18
Q

What must be shown by the parties to prove they intended to enter into a common-law marriage?

A

Words of present tense.

Words in the future tense are not valid to show intent. (i.e. words that show the parties agree to get married at a later date.)

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19
Q

What are the three ways a valid marriage can be terminated?

A

(a) annulment;
(b) divorce; or
(c) death

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20
Q

What is the difference between an annulment and divorce?

A

An annulment voids a marriage and declares it as having never been valid.

Divorce terminates a valid marriage.

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21
Q

Does a void marriage need to be judicially disolved?

A

No. It is treated as if it never happened.

22
Q

What makes a marriage void?

A
  1. ) A prior existing marriage;
  2. ) Incest; or
  3. ) Mental incapacity
23
Q

If a marriage is voidable, must there be a judicial decree to dissolve it?

A

Yes.

24
Q

What are the grounds of a voidable marriage?

A
  1. ) Age (under the age of majority);
  2. ) Impotence;
  3. ) Intoxication;
  4. ) Fraud; or
  5. ) Duress.
25
Q

Does a spouse to an annulled marriage have rights to support, equitable distribution, and custody?

A

Yes.

26
Q

Are children of an annulled marriage considered marital children?

A

Yes.

27
Q

What is the Putative Marriage Doctrine?

A

A party who participated in a marriage ceremony and believes in GOOD FAITH that the marriage is valid, may still get divorced (and therefore invoke equitable distribution etc.) from that marriage even if the marriage is later found to be void.

28
Q

Do both parties need to be domiciled in a state to seek a divorce?

A

No, just one.

29
Q

What is the ground for a no-fault divorce?

A

The marriage is irretrievably broken, and there is no prospect of reconciliation.

30
Q

How do community property states divide marital assets?

A

Equally.

Community property states take the approach that marriage is a partnership.

31
Q

Name some examples of separate property.

A
  1. ) Property acquired before the marriage;
  2. ) Property excluded by valid agreement;
  3. ) Property acquired by gift or inheritance;
  4. ) Settlement for an action that occurred PRIOR to the marriage (even if receipt of settlement funds occur during marriage.)
32
Q

What is the Doctrine of Divisible Divorce?

A

A court may have jurisdiction (if only one party lives in the state) to grant a divorce, but not with respect to other divorce related matters (i.e. equitable distribution, support).

33
Q

Can visitation be denied for nonpayment of child support?

A

No.

34
Q

Name some ways to establish paternity of an unwed father.

A
  1. ) Blood test;
  2. ) Prior statements of paternity by deceased family members;
  3. ) Medical testimony on the probability of conception;
  4. ) Admission of paternity by father;
  5. ) Resemblance of the child (in some states).
35
Q

How can a husband who is NOT the biological father of his wife’s child be estopped from denying his obligation to pay support?

A

When:

  1. ) There is a representation by the husband that he would provide for the child;
  2. ) The wife relied on his representation; and
  3. ) The wife suffered an economic detriment as a result of the reliance.
36
Q

Under what statute may a court obtain personal jurisdiction over an out-of-state parent to establish or enforce child support?

A

Uniform Interstate Family Support Act (UIFSA)

37
Q

Under what circumstances can an award of child support be modified?

A

When there is a substantial change in circumstances regarding the child’s need, or the parent’s financial situation, and that change is expected to be continuing, rather than temporary.

38
Q

If State A entered a child support order, can State B modify that order?

A

No, if State A has continuing jurisdiction, unless the parties (including the child) no longer reside in that state, or the parties expressly agree to permit another state to exercise jurisdiction.

39
Q

Define Legal Custody

A

The right of a parent to make MAJOR decisions regarding the minor child. (i.e. health, education, religion)

40
Q

Define Physical Custody

A

The right to have the child reside with a parent, and the obligation to provide for routine daily care of the child.

41
Q

What is the purpose of the UCCJEA? (Uniform Child Custody Jurisdiction and Enforcement Act)

A

To prevent jurisdictional disputes with courts in other states on matters of child custody and visitation.

42
Q

Define home state jurisdiction under the UCCJEA.

A

A court has SMJ over custody determinations/modifications if the state:

(a) is the child’s home state (the state in which the child has lived for at least six consecutive months prior to the proceedings, or since birth, if child is <6 months old); or
(b) was the child’s home state in the past six months, and the child is absent from the state, but one of the parents continues to reside there.

43
Q

What is significant-connection jurisdiction under the UCCJEA?

A

A court can enter or modify an order if:

(a) no other state has or accepts home-state jurisdiction;
(b) the child and at least one parent have a significant connection with the state; and

( c) there is substantial evidence in the state concerning the child’s care, and personal relationships.

44
Q

What is “exclusive-continuing jurisdiction” under the UCCJEA?

A

Courts that make the initial ruling in a custody case have exclusive jurisdiction over the matter.

45
Q

When does exclusive-continuing jurisdiction end under the UCCJEA?

A

When:

(a) the parties no longer reside in that state; or
(b) the child no longer has a significant connection to that state.

46
Q

What is the standard for determining child custody?

A

Best interests of the child.

47
Q

Under conflict of law, which state’s law will be applied in an annulment action?

A

The state where the ceremony took place.

48
Q

Under conflict of laws, which state’s laws apply to equitable distribution when (a) real property is at issue? And when (b) personal property is at issue?

A

(a) The state where the real property is located (law of the situs);
(b) the state where the party was domiciled at the time of acquisition of the property.

49
Q

Under Conflict of Laws, which states laws are applied to determine the enforceability of the premarital agreement?

A

The state with the most significant relationship. (Second Restatement)

50
Q

Most-Significant Relationship (Conflict of Laws)

A

Rule Statement:

The court must determine which state has the most significant relationship to the determination of the validity of the premarital agreement. In making this determination, the court should strive to promote the relevant policies of the forum and other interested states, advance systemic interests such as certainty, uniformity, predictability, and simplicity, and protect justified expectations of the parties.

Second Restatement. Used in determining validity of premarital agreements.

mee subjects (ube) (4 decks)

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