family law Flashcards
gifts in contemplation of marriage
if no marriage, must give back
premarital agreement
ok, but can’t dictate terms for child care/support
prenuptial agreement validity
signed writing
voluntary
full and fair disclosure
no unconsciounability
may also include fair and reasonable analysis
if ind counsel, far less likely to rule unenforceable
if no choice of law, then state where executed
need a licnese to get married?
yes, most states BUT wont invalidate marriage
who cant get amrried
not too closely relate
no undissolved marriage
age to consent
18, 16-17 w/parents, under with court approval
common law marriage
conset to marry
cohabitation
holding selves out as married
doctinre of neccessaries
spuse can be liable to thrid party for other spouses necessary expenses
protective orders
ex parte
one to several years
alenation of affection
diversion of affection from a spuse
no adultery req
crimainl conversation
adultery, criminal liability
what voids a marriage
bigamy (two marriages)
polygamy
parties too closely related
voidable marriage
under age of consent incurable impotence lack of capacity duress fraud
effect of annulment
put marrriage asside as if it didnt exist
defend an annulment
if annulment by defect, deny the defect exists
if a voidable defect, ratification of spouse
how is property divded in a annulment
court look to put in premarriage position
jurisdcition for divorce
only one party msut be domiciled, usually min residence of 90 days
for financial issues, must have PJ over D
grounds for divorce
no fault:
- marriage is irrevocably broken
- living apart for a specified continuous perido of time
- -parties are incompatible
adultery
willful desertion
extreme mental/physical cruelty
drug addiction or habitual drunkeness
insanity
defense to divorce
no fault: deny existence of grounds
fault based:
collusion
connivnace: essesntially ratification of other spouse conduct
condonation: forgiveness of other spuse conduct
proerperty division
community property: all property acq during marriage deemd one half owned by each, then all property before returns to original owern
equitable division of all property
equitiable division of marial property: all property in marriage divdied, all property before kept
seperate property
pre marriage
by gift/inherit
personal damages
marital porperty
earnings
employemnt benfits
lost wages
bascially anythign during marriage
what if property is improved during marriage
still sepearte if seperate, but owe the other spuse half of the imrpvoement cost
criteria for property division
age/earning cap of both parties durantion of marriage standard of living present incomes source of money used to purchse proeprty assets laibilities of both parties needs of parties contribution to acqu contribution as homemaker economic fault
alimony
econ support payment to spouse
court has great discretion
types of alimony
permanent peridoic spusal support. not a set amount. can be modififed
lump sum: all at once OR series of payment. set amount. cant be modieifed
rahabilitative support: givven if one spuse supported the other while attaaing a pro degree. can be modified. fixed sum
factors for alimony
standrad of living
duration of marriage
age and condition of spouse
finacial resoucres of parties
marital fault (ONLY for alimony, NOT for property division)
ability of other spouse to meet thier own econ need while pay ing alimony
when is alimony terminated
remarriage/death of spouse
seperation agreement
full and fair dis
voluntary
can waive proeprty and alimony, but court not boudn by child support terms
child support
both parties have equal duty to support kid
can visitiation be withhedl fo failure of child support
no
jurisdcition over child support
where first petition is filed
petitioner can object only if
- child home is state
- objected in first act
can another state enforec child support
yes
- direct action: straight to obligors emplyer
- registration: can register order with another state
modification
original state to file can modify
child custody
home state jurisdiction!!!!:
child home state OR was home state in last six month AND a parent is still present in state
issuing court has exclusvie continuning jurisdiction
state can deny jurisdcition if it is an inconvient forum under the circumstance
best interest of the child standard
wishes of parent childs preference child relationshiip with parent childs adjustment parents condition primary caregiver
what custody is preferred
joint custody
wahts req for relocation
notice and a hearing
