Family Law Flashcards
Common Law Marriage
OUTLAWED IN GA STARTING JAN. 1, 1997. (valid if before or from another state)
A valid common law marriage requires:
- the exchange of consent between two people
- cohabitation, and
- the holding out publicly of living together as spouses
Common Law Marriage: Consent
Consent means that the parties agree to a relationship that is permanent and exclusive, but the agreement must be more than cohabitation
- The expectation that children will result from the relationship indicates consent to a marriage relationship
Divorce Grounds
No Fault Basis:
- irretrievably broken with no possibility of reconciliation
- 30 day waiting period between service and divorce
Fault Basis:
- must be pled and proven (aka a trial)
- 11 fault based grounds (cruel treatment, habitual into. drug addiction (starts after marriage), adultery (opportunity and inclination), desertion, mental incapacity, incurable mental illness, conviction, incest, impotency, fraud, pregnancy (another man)).
Defenses to Divorce
No Fault: reconciliation
Fault:
- Collusion: agreement between spouses to simulate grounds for divorce or to forgo raising a valid defense
- Connivance: willing consent by one spouse to the other spouse’s misconduct
- Condonation: forgiveness of marital offenses with the full knowledge of their commission (look for resuming sex)
- Recrimination: arises when the party seeking the divorce is also guilty of the conduct for which a divorce may be granted.
Equitable Division of Property
- Equitable division of property means that each spouse is entitled to his/her separate property, or that which he owned prior to the marriage, while the court divides property acquired during the marriage on an equitable basis.
- Fault alone is not a bar to equitable distribution (but it is to alimony/spouse support)
- Factors considered: age/edu/background/earning, duration, fault, health, assets/liabilities, contribution
- funds deposited into a joint account are likely marital
Marital Property
All property acquired during the marriage, including:
- earnings
- employment benefits
- pensions, stock options, retirement, trust distributions
- damages that compensate for lost wages or lost earning capacity during the marriage
- recovery for damage to marital property
- comingling: inextricably intertwined separate and marital property/separate property
*Source of Funds Rule
Types of Spousal Support
- Permanent Periodic Spousal Support: permanent periodic support paid regularly for the duration of the spouse’s life. (terminates on death of either spouse, modifiable (substantial change in circumstances)
- Lump Sum: Present value of the permanent periodic support (non-modifiable, survives death)
- Rehabilitative Spousal Support: periodic payments for a limited time to enable a spine to gain skills to become self-supporting (modifiable (substantial change in circumstances), terminates at death)
- Reimbursement Spousal Support: used to reimburse a spouse who made financial contributions to pay for the other spouse to get additional edu. or training that increased the second spouse’s earning power (non-modifiable, survives death)
Factors in Spousal Support Award
- standard of living
- duration of marriage
- age and physical condition
- financial resources
- contributions
- time needed for support
- marital fault (ADULTERY AND DESERTION ARE AN ABSOLUTE BAR)
Modification of Spousal Support
Permanent, periodic, or rehabilitative alimony can be modified upon a substantial and continuing change of circumstance. This change must either effect the ability of a spouse to pay or the needs of the other spouse
Termination of Spousal Support
Periodic spousal support terminates if: recipient remarries, either spouse dies, recipient cohabitates with another.
Lump sum spousal support is not modifiable and survives death of either spouse.
Separation Agreements
- agreement entered into after marriage in which parties agree to live separately and resolve economic issues and custody rights.
- Enforceable if: supported by consideration, full and fair disclosure of all assets, the agreement is voluntary
