Family Law Flashcards
What does a valid Marriage require?
1) Consent from both parties;
2) A marriage license; AND
3) That the marriage is solemnized in a ceremony (by a judicial officer or church).
Priority: Low
How is a Common Law Marriage formed?
When the spouses:
1) Live together for a specified amount of time;
2) Are legally able to marry;
3) Have a present agreement that the two parties are married; AND
4) Hold themselves out as being married.
*Most states will honor a valid common law marriage established in another state.
Priority: HIGH
How may a Bigamous Marriage be saved?
Equity Doctrine: A strong presumption that the most recent marriage is valid.
Uniform Marriage and Divorce Act: An invalid marriage may be validated by the removal of an impediment (i.e. termination of an earlier marriage).
Priority: Medium
Under the UPAA, a Premarital Agreement is NOT enforceable if a spouse proves what?
Either:
a) The agreement was made involuntarily (fraud, duress, coercion); OR
b) It was unconscionable when executed AND before execution the spouse was not:
i. Provided fair disclosure of property/financials;
ii. Did not waive disclosure in writing; AND
iii. Did not have knowledge of such information.
Priority: HIGH
What factors will be considered to determine if a Premarital Agreement was made voluntarily?
1) Presence of independent legal counsel;
2) Length of time between the date of agreement and the wedding;
3) The party’s ability to understand the agreement; AND
4) Other reasons for proceeding with marriage (i.e. pregnancy).
*A party’s insistence on signing the agreement as a condition to marriage DOES NOT render it involuntary.
Priority: HIGH
Are provisions in a marital agreement regarding child support/custody binding?
NO, they are not binding.
*Additionally, any provisions that adversely affects a child’s right to support is unenforceable.
Priority: HIGH
Under UPAA, are modifications or eliminations of spousal support in a Premarital Agreement permitted?
Yes, BUT such provisions will not be enforced if doing so will make the spouse eligible for public welfare.
*In some states, such provisions are invalid as against public policy.
Priority: Medium
May an ex-parte divorce action be maintained without personal jurisdiction over the absentee spouse?
YES, if the plaintiff-spouse is a domiciliary of the rendering state.
*Many states have Durational Residency Requirements – specifies the amount of time a spouse must live in the state before he/she can bring a divorce action.
Priority: HIGH
What is a Divisible Divorce?
It allows one party to terminate the marriage in one proceeding, and reserves other issues (property division, spousal support) for another proceeding.
*It occurs when a court has personal jurisdiction over the marriage (the res) to maintain a divorce action, BUT not over the defendant spouse to maintain an economic or custody action.
Priority: HIGH
Under the UCCJEA, when does a court have Home State Jurisdiction?
Either:
a) Child’s home state; OR
b) Where (i) child lived with a parent for 6+ months immediately before action was filed, (ii) child is absent from state, and (iii) parent or acting parent is still present in the state.
Priority: HIGH
Under the UCCJEA, when does a court have Significant Connection Jurisdiction?
If:
1) No home state;
2) Child and at least one parent have a significant connection to the state; AND
3) Substantial evidence in the state exists.
Priority: HIGH
Under the UCCJEA, when does a court have More Appropriate Forum Jurisdiction?
When:
All other courts decline to exercise jurisdiction because this particular court is a more appropriate forum.
Priority: HIGH
Under the UCCJEA, when does a court have Temporary Emergency Jurisdiction?
When the:
1) Child is physically present in the state; AND
2) Child is abandoned or it’s an emergency to protect the child.
Priority: HIGH
Under the UCCJEA, when does a court have No Other State Jurisdiction?
When:
No other state has jurisdiction.
Priority: HIGH
What grounds must be established for a court to grant an Annulment?
One of the following:
a) Lack of capacity (fraud, duress, mental incapacity);
b) Bigamy;
c) Consanguinity (marriage between close family members); OR
d) Spouse was underage at the time of the marriage.
Priority: Low
What are the five grounds for Divorce?
Divorce grounds:
1) Cruel and Inhuman Treatment
2) Adultery
3) Abandonment for a Set Amount of Time
4) Habitual Drug Addiction or Drunkenness
5) A “No Fault” Divorce (Irretrievable Breakdown)
Priority: Medium
When may a Separation Agreement be set aside? Divorce Settlement Agreement?
Separation Agreement: If it’s unconscionable OR the result of fraud.
Divorce Settlement Agreement: If it was substantially unfair AND either (a) the result of fraud by the spouse or (b) mediator misconduct.
*Settlement agreements may be set aside for mediator misconduct (failure to be impartial, disclose conflicts, or fully inform the participants about the law and their rights).
Priority: Medium
Division of Property
What does Separate Property include?
It includes:
a) Property/assets acquired prior to marriage;
b) Gifts/bequests to an individual spouse during marriage;
c) Property which spouses agree will be separate; AND
d) Passive appreciation of assets for any of the above.
*Each spouse’s separate property will NOT be subject to equitable distribution.
Priority: HIGH
Division of Property
What does Marital Property include?
It includes:
All property acquired during the marriage, regardless of whose name is on the title of the property.
Most states also consider active appreciation (appreciation caused by the effort of one or both of the spouses) as Marital Property.
*Generally, fault is IRREVELANT to the division of marital property.
Priority: HIGH
Division of Property
Are Professional Degrees/Licenses deemed Marital Property subject to equitable distribution?
NO, in most states.
However, reimbursement is generally required for any support provided by a spouse that contributed to the other spouse’s education or licensing.
*A minority of states treat a professional degree/license as marital property.
Priority: Medium
Division of Property
Do courts consider marital or economic fault for the division of property?
Marital Fault is generally IRRELEVANT.
BUT, most courts will consider Economic Misconduct (i.e. dissipation of assets).
Dissipation occurs during the breakdown of the marriage when a spouse uses marital property for the sole benefit of himself for a purpose unrelated to the marriage.
Priority: Medium
Spousal Support
Under the Uniform Marriage and Divorce Act (UMDA), the court may order Maintenance when?
If the spouse seeking maintenance:
1) Lacks sufficient property to provide for their reasonable needs;
AND
2) Is either unable to support themselves through employment OR is the custodian of a child whose condition makes it so they cannot seek work.
Priority: HIGH
Spousal Support
What factors will a court weight when determining the amount of Spousal Support?
1) The party’s financial resources;
2) The time necessary to obtain an appropriate job;
3) The standard of living established during the marriage;
4) The duration of the marriage;
5) The age and physical condition of the seeking spouse;
6) The ability of the spouse paying, to meet their needs, while still supporting their ex-spouse.
*Support obligations terminate upon death of the obligor spouse.
Priority: HIGH
Child Support
What kind of State Child Support Guidelines are required by federal law?
Guidelines that:
1) Take into consideration ALL earnings and income of the non-custodial parent;
AND
2) Are based on specific descriptive and numeric criteria to compute the support obligation.
Priority: HIGH
