Family Law Flashcards
Antenuptial Agreements
Premarital contracts will be enforced if (1) the contract is in writing and signed; (2) agreement is entered into voluntarily without fraud or duress; and (3) there is a full and fair disclosure of the parties’ assets.
Spousal support can be waived if the spouse not receiving alimony will not be a public charge upon non-payment.
Child custody and support provisions are not binding on courts. Any provisions that adversely affect a child’s right to support is unenforceable.
Valid Marriage
A valid marriage requires (1) consent from both parties; (2) a marriage license; AND (3) that the marriage is solemnized in a ceremony by an authorized officiant.
Legal Impediments to Marriage
In order to get married, parties must (1) not be too closely related; (2) not have a prior undissolved marriage to a living spouse (“bigamy”) and (3) not be too young to consent (usually below 16 required judicial consent).
Common Law Marriage
A common law marriage generally requires that the spouses (1) live together (“cohabitate”); (2) have a present agreement that the two parties are married; AND (3) hold themselves out as being married.
ExamTip: A valid common law marriage creates rights and obligations identical to ceremonial marriage. This means that a common law marriage will be recognized even in states that have abolished the common law marriage.
Obligation to Support Spouse
Each spouse in a marriage has the obligation to support the other. The “doctrine of necessaries” can be used to make one spouse liable to third parties for the other spouse’s purchases for necessaries such as food, clothing, and healthcare.
Fault Grounds for Divorce
(1) Adultery: Filing Spouse must show circumstantial evidence of opportunity and inclination.
(2) Willful Desertion (“Abandonment”): An unjustified departure from the marital home for a specified period with no intent to return.
(3) Extreme physical or mental cruelty
(4) Drug addiction or habitual drunkenness
(5) Insanity
No-Fault Divorce
No-fault divorce requires a showing that
(1) Both spouses agree that the marriage is IRRETRIEVABLY BROKEN (“irreconcilable differences”)
(2) Spouses have been living apart for a specified and continuous period of time.
(3) Both spouses agree they are now incompatible and can no longer be married.
Equitable Division of Marital Property
Equitable division is a two-step process. First, courts determine what is marital property and what is separate property. Second, courts will make an equitable division of the marital estate no matter how the property is titled.
Separate Property
Separate property includes:
(1) Property owned before marriage
(2) Property acquired by gift or inheritance
(3) Property acquired in exchange for separate property
(4) Income and appreciation of separate property
(5) Pain and suffering awards
(6) Personal damages
(7) Property acquired after an order of legal separation that includes a final disposition of property
(8) Professional license (e.g., law license) is not distributable property. However, reimbursement may be available if S1 put S2 through school.
Marital Property
Marital property includes:
(1) Property acquired during the marriage
(2) Earnings
(3) Employment benefits, pensions, and stock options earned during the marriage (even if they will not vest until after divorce)
(4) Lost wages
(5) Reimbursement
ExamTip: Separate property can become marital property via (1) commingling if separate property is inextricably intertwined with marital property; or (2) transmutation if there is evidence of an intention for the property to be marital.
Equitable Divisions Factors
Trial courts have great discretion in deciding how to equitably divide marital property. Factors that courts consider include:
(1) Age, education, background, and earning capabilities of both parties
(2) Duration of the marriage
(3) Standard of living during the marriage
(4) Present incomes of both parties, vocational skills, and employability
(5) Source of the money used to purchase the property
(6) Health of the parties
(7) Assets, debts, and liabilities of the parties
(8) Child custody provisions
(9) Whether an alimony will be provided
(10) Each parties’ future income potential
(11) Contribution as a homemaker to the family unit
(12) Economic fault (aka “dissipation assets”).
Alimony Type 1: Permanent Periodic Spousal Support
Permanent Periodic Spousal Support is paid regularly to support a spouse who has neither the resources nor the ability to be self-sustaining.
Terminates at death. remarriage, co-habitation with someone in a marriage-like relationship. Can be modified upon proof of substantial change in circumstances.
Alimony Type 2: Lump Sum
A lump sum payment is a fixed amount payable either all at once or via a series of payments.
Terminates upon full payment. Treated as a contract right and cannot be modified.
Alimony Type 3: Rehabilitative Spousal Support
Rehabilitative spousal support consists of periodic payments for a limited time to enable a spouse to gain skills to become self-supporting.
For a specified time period. Can be modified upon proof of substantial change of circumstances.
Alimony Type 4: Reimbursement Spousal Support
Reimbursement spousal support is occasionally awarded to a spouse who supported the other spouse while the latter obtained a professional license or degree.
Terminates upon full payment. Treated as a contract right and cannot be modified.
