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BAR EXAM > Family Law > Flashcards

Family Law Flashcards

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1
Q

What is breach of promise to marry?

A

Abolished in most states, but it functions like a contracts claim with torts damages (actual damages, loss of reputation, mental anguish, injury to health)

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2
Q

What are premarital contracts?

A

Also called antenuptial agreements, valid contracts that address the rights of the parties upon divorce or death. The marriage is sufficient consideration to support the contract.

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3
Q

What can premarital agreements cover?

A

Under UPAA, they can cover disposition of property in event of death or divorce, making of will/trust, choice of law, and anything not in violation of public policy or criminal statute.

Can cover alimony, but the provision will be unenforceable if it leaves the disadvantaged spouse a public charge.

Child custody and support premarital agreements are never binding on the court.

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4
Q

What are the requirements of a valid premarital contract?

A

-Contract in writing and signed
-Agreement must be entered into voluntarily (no fraud, duress, or overreaching)
-Full and fair disclosure of parties’ assets or proof that party against whom agreement is being enforced had independent knowledge of assets (UPAA only requires this if agreement is unconscionable)
-Whether economic provisions are fair and reasonable

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5
Q

Is independent counsel required for a premarital agreement?

A

It is not required, but courts are less likely to find overreaching if both parties are represented by independent counsel.

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6
Q

What are the requirements of a valid marriage?

A
  1. License (failure will not invalidate)
  2. Ceremony with authorized officiant
  3. No legal impediments
  4. Capacity to consent
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7
Q

What are the legal impediments to marriage?

A

-Being too closely related
-Bigamy (a prior undissolved marriage to a living spouse)

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8
Q

What are the requirements for capacity to consent to marriage?

A

-Mental ability to consent (understand actions & voluntarily agree)
-Be of age of majority (or parental/judicial consent)

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9
Q

What are the requirements for a valid common law marriage?

A

-Exchange of consents between two people with capacity
-Cohabitation
-Couple holds themselves out publicly as spouses

(Abolished in most states)

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10
Q

What is marriage by estoppel?

A

Also called putative marriage, it is an equitable remedy that some states use to protect an innocent party who acted in good faith when entering into an invalid marriage.

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11
Q

Doctrine of necessaries

A

Spouses have a support obligation, so this doctrine can be used to make one spouse liable to third parties for the other spouse’s purchases for necessary expenses like food, clothing, and healthcare.

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12
Q

What actions can a battered spouse take to seek protection?

A

A protective order, which can initially be granted ex parte.

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13
Q

What is alienation of affections?

A

A heart balm action where a third party diverts affection of one spouse so that the other is deprived of a marital relationship

Required to prove:
1. Genuine love and affection between validly married spouses
2. Evidence that the love and affection was alienated or destroyed
3. Proof that D’s actions caused the loss of love and affection (adultery not required)

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14
Q

What is criminal conversation?

A

A heartbalm action where one spouse has sexual relations with a third person.

Spouse bringing action must prove:
1. Existence of a valid marriage
2. Act of adultery must be proven

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15
Q

What is annulment?

A

A backward-looking doctrine that declares a marriage invalid because an impediment existed at the time of the marriage that makes it legally void or voidable. Once decreed, parties are treated as if they were never married.

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16
Q

What is a void marriage?

A

One that is invalid because it failed to meet an essential requirement for a legal marriage. Cannot be ratified by a subsequent act.

Parties can walk away from the marriage with no legal action, or any interested party may seek annulment.

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17
Q

What are the grounds for annulment?

A
  1. Bigamy or polygamy (void)
  2. Consanguinity (void)
  3. Nonage (void or voidable, depending on state law)
  4. Incurable physical impotence (voidable)
  5. Mental incompetence (voidable)
  6. Lack of assent (voidable)
  7. Duress (voidable)
  8. Fraud involving the essentials of marriage (voidable)
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18
Q

How does the UMDA treat void marriages?

A

If the impediment causing the marriage to be void is removed, the marriage becomes valid IF the parties continue to cohabit.

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19
Q

How do states treat bigamy?

A

There is a strong presumption that the most recent marriage is valid, and the party must overcome the presumption with strong evidence that the prior marriage subsists.

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20
Q

What is a voidable marriage?

A

One that is valid until declared null. Because of an impediment, ONE OF THE SPOUSES may bring an action to have it annulled (no collateral attacks). Can typically be remedied or ratified.

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21
Q

What is the defense to an action to annul a marriage?

A

Deny the presence of the defect or argue that ratification has occurred.

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22
Q

How are the children of an annulled marriage treated?

A

As marital children, even though the marriage is set aside as if it never existed

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23
Q

When does a court have jurisdiction over a divorce?

A

When one of the parties is domiciled in the jurisdiction (typically must also meet a minimum residency period). To determine property and financial issues, there must be personal jurisdiction.

*Multiple courts can have jurisdiction over a divorce, but once one court renders a judgment, the other one will lose SMJ.

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24
Q

What are the grounds for a no-fault divorce?

A
  1. Marriage is irretrievably broken (irreconcilable differences or incompatibility)
  2. Parties have been living apart for a specified time period (may be a longer time period if unilateral)
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25
Q

What are the typical fault grounds for divorce?

A
  1. Adultery (circumstantial evidence of opportunity and inclination)
  2. Willful desertion or abandonment (unjustified)
  3. Extreme physical or mental cruelty
  4. Voluntary drug addiction or habitual drunkenness commencing after marriage)
  5. Insanity/mental illness
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26
Q

What is collusion?

A

Defense to fault-based divorce, an agreement between spouses to simulate grounds for divorce or to forgo raising a valid defense.

27
Q

What is connivance?

A

Defense to fault-based divorce, willing consent to the other spouse’s misconduct.

28
Q

What is condonation?

A

Defense to fault-based divorce, forgiveness of marital offenses with full knowledge of the wrongs. Must resume marital relations after forgiveness

29
Q

What is recrimination?

A

Defense to fault-based divorce, when the party seeking the divorce is also guilty of misconduct for which a divorce may be granted (unclean hands, rarely used)

30
Q

What is legal separation?

A

Does not terminate the marriage, but the parties can have all of their rights regarding property, spousal support, custody, and child support adjudicated in the proceeding.

31
Q

What are the three approaches to dividing property upon divorce?

A
  1. Community property - all property acquired during the marriage is deemed owned one-half by each spouse, and all property brought into the marriage or acquired by gift/bequest is separate property
  2. Equitable division of all property owned by either spouse, whether acquired before or after marriage (equitable =/= equal)
  3. Equitable division of marital property (most common)
32
Q

What is the two-step process in property division?

A
  1. Classification into marital and separate property
  2. Division of marital estate, no matter how the property is titled
33
Q

Are property distribution decrees modifiable?

A

NO, they are final

34
Q

What is marital property?

A

All property acquired during the marriage by either spouse EXCEPT:
-property acquired through gift, bequest, devise, or descent
-property acquired in exchange for property that a spouse owned before the marriage or acquired through gift, bequest, devise, or descent
-income from or appreciation of property that a spouse owned before the marriage or acquired as separate property during the marriage, UNLESS either spouse contributed to the increase in value

35
Q

What date might the court use as the end of the marital estate?

A

Date of separation or date of filing for divorce

36
Q

When can separate property become marital property?

A
  1. Commingling: separate property inextricably intertwined with marital property or separate property of other spouse, can’t be traced.
  2. Transmutation: separate property treated in a way that evidences an intention for the property to be marital
37
Q

How are pensions treated for property division?

A

The portion earned during the marriage is marital property subject to distribution. Alternatively, a court might give the non-earning spouse other funds from the marital estate to offset the amount of the pension plan

38
Q

How is a professional license/degree treated for property division?

A

A professional license or degree is not distributable property, but alimony may be used to compensate a supporting spouse.

39
Q

What are the factors considered in dividing the marital estate?

A
  1. The age, education, background, and earning capacities of both parties
  2. The duration of the marriage, and whether there were any prior marriages
  3. The standard of living during the marriage
  4. The present incomes of both parties, and their vocational skills and employability
  5. The source of the money used to purchase the property
  6. The health of the parties
  7. The assets, debts, and liabilities of the parties
  8. The needs of the parties
  9. The child custody provisions
  10. Whether the distribution is in addition to, or in lieu of, spousal support
  11. Each party’s opportunity to acquire future income and assets
  12. Each party’s contribution to the acquisition of, or enhancement of the value of, the
    existing marital assets
  13. Each party’s contribution as a homemaker to the family unit
  14. Whether either party has dissipated marital property

*Fault not a consideration in some states, and trial court is given a great deal of discretion

40
Q

What is alimony?

A

Spousal support or maintenance paid to an economically dependent spouse.

41
Q

What are the types of spousal support?

A
  1. Permanent periodic spousal support—paid regularly (e.g., monthly) to support a
    spouse who has neither the resources nor the ability to be self-sustaining
  2. Rehabilitative spousal support—periodic payments for a limited time to enable a
    spouse to gain skills to become self-supporting
  3. Lump sum payment—nonmodifiable, fixed amount payable either all at once or
    broken down into a series of payments
  4. Reimbursement spousal support—nonmodifiable, awarded to a spouse who supported the other spouse while the latter obtained a professional license or degree
42
Q

What factors are considered when awarding spousal support?

A

Broadly, the needs of the claimant and the ability of the other spouse to pay.
1. The duration of the marriage and the standard of living established during the
marriage
2. The age and physical and emotional condition of the parties
3. The financial resources of the parties
4. The contribution of each party to the marriage
5. The time needed for the party seeking support to obtain the training necessary to
find appropriate employment
6. The ability of the payor spouse to meet his needs while paying spousal support
7. Marital fault (only in some states)

43
Q

When is spousal support modifiable?

A

Only periodic spousal support (permanent or rehabilitative awards). There must be a substantial change in circumstances in the needs of the recipient or the ability of the payor (but not if it is self-induced).

44
Q

When does spousal support terminate?

A

Upon remarriage of recipient or death of either spouse.

45
Q

What is a separation agreement?

A

An agreement entered into after marriage under which the parties agree to live apart and resolve economic issues and custody rights. Must be voluntary with full & fair disclosure and consideration.

*Court not bound by parties’ contract concerning children (only enforceable if in best interests of child)

46
Q

When is a separation agreement modifiable?

A

If it is merged into the decree, then it assumes status of court judgment and is modifiable only by the court. Otherwise, it is enforceable as a contract.

47
Q

How is child support usually determined?

A

With reference to child support guidelines, which consider the number of children and the parents’ incomes. Courts can still deviate from the guidelines.

48
Q

When does duty to pay child support cease?

A

-Child reaches age of majority
-Death of child
-Emancipation of child
-Termination of parental rights

49
Q

Under UIFSA, where is there original jurisdiction over child support?

A

Where the first petition under UIFSA is filed. Another state can exercise jurisdiction if the second petition is filed before the time to answer the first has been filed, the petitioner objected to jurisdiction in the first action, and the second state is the child’s home state.

50
Q

Under UIFSA, where is there jurisdiction to enforce a child support order?

A

The court that originally issued the order can enforce.
-Direct enforcement: obligee can mail order to obligor’s out-of-state employer, triggering withholding unless there is a timely objection
-Registration: register with another state, then subject to same enforcement procedures as in issuing state

51
Q

Under UIFSA, where is there jurisdiction to modify child support orders?

A

The court that issues has continuing and exclusive jurisdiction to modify. Another state may only enforce unless no party resides int he issuing state or parties consent to jurisdiction elsewhere.

52
Q

How are child support awards enforced?

A
  1. Holding nonpaying party in civil or criminal contempt
  2. Interception of tax refund
  3. Forfeiture of licenses
  4. Seizure of real estate
  5. Attachment of wages
  6. Order to pay attorney’s fees
53
Q

When is a child support award modifiable?

A

When there is a substantial and continuing change of circumstances affecting the needs of the child or the ability of the parent to pay.

54
Q

When there are jurisdictional disputes, where does a court have jurisdiction to enter or modify a custody/visitation order?

A
  1. The child’s home state (where the child lived with a parent for at least six months immediately before commencement of proceeding) OR
  2. A state that was the child’s home state within the past six months and the child is absent, but a parent or guardian continues to live there.
55
Q

If no state has or accepts home state jurisdiction under UCCJEA, what other states may have jurisdiction?

A

A state where (1) child and at least one parent has a significant connection with the state AND (2) substantial evidence concerning the child is available.

56
Q

The court that issues a child custody order has continuing jurisdiction, but when can another state exercise jurisdiction?

A

Only when:
1. No child or parent continues to reside in the issuing state OR
2. The child no longer has a significant connection with the issuing state and substantial evidence is no longer available there (determined by the issuing state)

57
Q

When can a court decline jurisdiction under UCCJEA?

A

If it is an inconvenient forum under the circumstances or if the party seeking to invoke jurisdiction did so by engaging in unjustifiable conduct.

58
Q

When may a court exercise temporary emergency jurisdiction under UCCJEA?

A

If the child has been abandoned or it is necessary in an emergency to protect the child because the child, sibling, or parent is subjected to or threatened with abuse.

59
Q

How is child custody determined?

A

The standard is the best interests of the child.

Factors include wishes of the parents; child’s preference; child’s relationship with parents, siblings, and others; child’s adjustment to home, school, and community; parties’ mental and physical health; child’s primary caregiver

60
Q

How is visitation typically determined?

A

-Absolute denial of visitation is rare because courts want to promote relationship between child and both parents
-Custody will only be given to nonparent if the nonparent can show that there will be harm to child or that parent is unfit.
-Visitation cannot be withheld for failure to pay child support
-Court’s presume that fit parent’s decision regarding third-party visitation is in the child’s best interests

61
Q

How is parentage determined?

A

Statutes provide that child is the lawful child of his mother, and the child will be a lawful child of an unwed father only if:
-parents married after child’s birth
-father holds child out as his biological child
-father consents to be named on birth certificate
-father formally acknowledges paternity
-court order establishes paternity

62
Q

Who may bring a paternity suit?

A

Child, mother, or the state if the child is receiving support from the state

63
Q

How may parental rights be terminated?

A

Voluntary relinquishment by parents or grounds for termination proved by clear and convincing evidence.

64
Q

What are the steps of an adoption?

A
  1. Termination of biological parents’ rights
  2. Creation of new legal parent-child relationship

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