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Bar Exam > Family Law > Flashcards

Family Law Flashcards

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1
Q

When will a marriage license NOT be issued

A

If the party is already married
If they are too closely related
If the marriage is a sham
if they are incapable of understanding the act of marriage due to drugs/alcohol

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2
Q

4 requirements of common law marriage

A
  1. Capacity to marry
  2. cohabitation
  3. conduct- act as married to public
  4. consent
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3
Q

What is the majority view for distribution of marriage property

A

equitable distribution of all MP NOT 50/50, Take into consideration circumstances of all parties

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4
Q

How is marital property and separate property divided

A

Marital property is divided equally. Separate property remains property of owning spouse
MP continues to accrue until divorce is final

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5
Q

Examples of separate property

A

Anything acquired by gift, descent or devise during marriage
Anything acquired before marriage

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6
Q

How can Separate Property be transformed into MP

A

if marital funds or efforts are used to increase the equity

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7
Q

what is marital property

A

wages!
And anything NOT acquired by gift, descent, or devise during marraige

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8
Q

If a spouse buys a house BEFORE marriage and during the marriage the spouse uses their wages to pay the mortgage, is the house MP or SP

A

At divorce the other spouse is entitled to MP share of the value of the house

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9
Q

What are the types of alimony/spousal support

A

1)permanent alimony- after LONG marriage
2) limited duration alimony- for short marraige
3) rehabilitative support- until spouse gets job/educ
4) reimbursement alimony - to compensate for $ sacrifices during marriage

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10
Q

What is ex parte divorce

A

where a state can grant divorce to spouse domiciled in that state even if no PJ over the other spouse.
But w/o PJ, can’t address property distribution or child/spousal support

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11
Q

Basic principles of child support

A

Both parents are legally required to support minor kids
Parents can’t bargain away child support payments in settlement agreements

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12
Q

Can visitation rights be denied for non payment of support

A

NO

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13
Q

What obligations accrue once paternity is established

A

Dad has right to custody and visitation.
Dad also has duty to support the kid

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14
Q

What does the uniform interstate Family support act govern

A

when a state has PJ over out of state parent to enforce or establish child support

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15
Q

When will a state have Jx over out of state parent

A

if out of state parent is
1) served in that state or consents to service
2) resided with kid in that state in the past
3) may have conceived child in that state

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16
Q

When is a child support modification allowed

A

when there is a substantial change in the circumstances in the child’s needs or in the parents’ financial situation.

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17
Q

Can child support be modified retroactively

A

No

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18
Q

What state can modify a child support order?

A

ONLY THE ORIGINAL STATE CAN MODIFY THE ORDER

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19
Q

Types of child custody

A

legal- right to make health, education, religion decisions
physical- right to live w parent, provide daily care
Joint- neither parent has superior rt to make decisions

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20
Q

DEFAULT Jurisdiction under UCCJEA to make decisions about child custody?

A

default= home state of the child. the home state can enter or modify custody visitation orders if it is the kid’s state for the last 6 month or if kid left in last 6 months but parent still lives there.

Uniform Child Custody Jurisdiction Enforcement Act

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21
Q

if there is no home state jurisdiction for the child, what is used to determine jurisdiction for child custody determination

A

Significant connection jurisdiction- where at least one parent and kid have significant connection.

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22
Q

What standard is considered for child custody

A

Best interest of the child

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23
Q

What factors are considered for child custody

A

Best interest of kid, who was primary caretaker of kid during marriage, child’s preference

Courts do NOT consider race or religion

24
Q

Do parents have a constitutional right to visitation

A

Yes

25
Q

When may a court deny visitation

A

if it would endanger kid’s physical, mental, emotional health

26
Q

Can an unwed bio dad get visitation?

A

Unwed bio dad has substantive due process right to have contact but ONLY when they demonstrate commitment to parenting like participating in child rearing and providing monetary support

27
Q

what must a custodial parent show for relocation

A

Legal and reasonable purpose for relocation.
Ct will consider best interest of kid, relationship b/ non relocating parent and kid, age/needs of kid, kid’s preference, quality of life for relocating parent and kid

28
Q

To show a prenup is unenforceable, what must you show

A

A premarital agreement is enforceable if there has been full disclosure, the agreement is fair and reasonable, and it is voluntary

party’s insistence on the agreement as a condition to marriage is not considered duress.

29
Q

what limits are there on parental authority

A

if med treatment contradicts parent’s religious belief, ct can intervene to protect kid when med care is necessary.

States can require vaccinations and refuse to admit kids who fail to receive them

30
Q

Grounds for VOIDABLE marriage

A

1-Age- minor or parent can seek annulment
2- impotence
3- intoxication- UNLESS parties cohabitate after marriage
4- fraud- but need to stop living together when find out about fraud
5- lack of intent- but if consumed-> no annulment

31
Q

Can a property division award be modified

A

No

32
Q

3 ways marriage can be terminated

A
  1. divorce
  2. annulment
  3. death
33
Q

Grounds for fault based divorce

A

Adultery
Abuse
Abandonment
Habitual drunkenness
Bigamy
Imprisonment
Institutionalization for mental health with no prospect of discharge or rehab

34
Q

What grounds for fault based divorce is consent a defense

A

Adultery and abandonment

35
Q

If someone claims a marriage is voidable based on a fault based claim what can you argue

A

Unclean hands- i.e both parties were adulterers
Laches, estoppel

36
Q

does the fault ground for the divorce change a marital property award

A

No

37
Q

requirements for a marriage license

A

meet the age requirements
fulfill the waiting period
complete premarital testing
marry before expiration date

38
Q

grounds for a VOID marraige

A

bigamy
incest
mental incapacity

39
Q

Factors a ct may consider when determining spousal maintenance

A

-financial resources
- std of living
-time to find job/training
-length of marriage
-contribution to marraige
age/health of parties
Marital misconduct

40
Q

Factors to determine equitable distribution of marital property

A
  • length of marriage
    # prior marriages
    economic circumstances
    age, health, earning potential, needs
    contribution to education/career of other
    income
    medical needs
    custody of kids
41
Q

when is spousal support modifiable

A

When deemed permanent AND show significant and continuing change in circumstance in needs of dept spouse or financial ability of other spouse

42
Q

effect of cohabitation on spousal support

A

may be modified- b/c decreased need

43
Q

if a husband is not the bio dad, may he be required to pay support for his wife’s child?

A

Under doctrine of equitable estoppel- if there is
1) representation by the dad that he would provide for the kid
2) mom relied on representation
3) mom suffered economic detriment b/c of reliance

44
Q

what can be used to determine paternity

A

blood test, prior statements by deceased family members, medical testimony, d’s acknowledgment, and physical resemblance in some states

45
Q

what is amt of child support typically based on

A

Income, retirement benefits, ss income, capital gains

46
Q

requirements for prenup or marital agreement to be enforceable

A

1) full disclosure of assets
2) fair and reasonable terms
3) voluntary
4) in writing
5) signed by party to be charged

47
Q

what is most imp requirement for marital contract

A

FULL DISCLOSURE

48
Q

what can NOT be in prenup

A

Anything related to child support or child custody

49
Q

what determines choice of law for prenup

A

substantial relationship test- whatever state has substantial relationship to agreement and subsequent marriage

50
Q

are retirement benefits separate or marital property

A

Marital except for portion acquired before marriage

51
Q

are personal injury benefits separate or marital property?

A

2 approaches
1) if injury is during marriage, PI benefits are MP
2) divides PI benefits:
lost wages/med expenses= MP
pain and suffering= SP
loss of consortion= SP to non injured spouse

52
Q

in cases involving property and divorce where there is a conflict of laws- property in one state, divorce in another, what laws do you apply

A

Apply the law of the state where the property is located not where the divorce is- to determine what happens with the property

53
Q

Home state rule

A

Under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), a court has subject matter jurisdiction to preside over custody hearings and either enter or modify custody or visitation orders if the state is: (i) the child’s home state and has been the home state for a period of six months; or (ii) was the child’s home state in the past six months and the child is absent from the state, but one of the parents (or guardians) continues to live in the state.

54
Q

if there is no home state…

A

when there is no home-state jurisdiction, the UCCJEA permits a court to enter or modify an order if (i) the child and at least one parent have a significant connection with the state, and (ii) there is substantial evidence in the state concerning the child’s care, protection, training and personal relationships.

55
Q

what must you have in every family law essay

A

“in the best interests of the child”

56
Q

act that controls child custody

A

UCCJEA- Uniform child custody Jurisdiction and enforcement act.

57
Q

Could a spouse get cash proceeds from another’s law or professional license

A

no, most states do not treat a professional license as a distributable marital asset/ property interest

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