family law Flashcards
Common Law Marriage, Elements
1) Capacity: mental and legal capacity to marry
2) Present Agreement: future agreements not allowed
3) Cohabitation: parties must live together
4) Holding Out as a Marital Couple to the community
Marriage, Conflict of Law
Marriage valid in one state will be valid in another
-UNLESS it violates a STRONG public policy
Putative Marriage Doctrine
- Party enters into marriage believing it to be valid, later discovers it was invalid
- Even though marriage is invalid, Spouse can still seek remedies, like spousal support and property distribution
No-Fault Divorce
- Typical Standard is Irrevocable Differences
- No required attempt at reconciliation
Fault-Based Divorce
- Grounds for include: Adultery, Desertion, Cruelty (physical, not verbal, abuse)
- Some states require period of separation (like 1 year) prior to divorce
Community Property
- Only 20% of states follow
- Requires an EQUAL division of marital property
Equitable Distribution
- Majority Rule
- Equitable or Fair, NOT Equal
- Takes into consideration the circumstances of the parties
Marital Property
- Divided between spouses, Equitably (majority) or Equally (minority)
- Includes all assets/property acquired DURIGN marriage
- Excludes Gifts, Descent, Devise
Spousal Property
- Goes to original Spouse upon divorce
- Includes
1) Assets acquired DURING marriage by Gift, Descent, or Devise
and 2) Anything acquired BEFORE marriage
MP, Future Retirement/Pension Benefits
- If a spouse works DURING marriage and creates/earns profits/benefits that will be paid AFTER marriage, considered MP
MP, Professional Licenses/Degrees
- The degree itself is spousal, even if acquired during marriage
- Spouse CAN seek REIMBURSEMENT for contribution to edu and living expenses
MP, Personal Injury claim proceeds
- IF cause of action arose DURING marriage, THEN:
(2 approaches)
1) All proceeds are MP, or
2) Damages are divided by type:
-Compensatory are SP of injured spouse
-Consortium are SP of non-injured spouse
-Lost wages, med expenses, etc. are MP
Modification of Property Division Award
- NOT modifiable, because based on the parties assets at time of divorce (obvious when you think about it)
- Change in circumstances has NO effect
Spousal Support, Generally
- Obligation of one party to provide the other with financial support
- Factors for consideration:
-Financial resources of parties
-Standard of living during marriage
-Time of receiving spouse to secure employment
-length of marriage
-contributions to marriage
-age/health of parties
-marital misconduct (some states)
Spousal Support, Types of Support
1) Permanent Alimony
-award for rest of life
-usually for longer marriages, when one party stayed home
2) Limited Duration Alimony
-usually for shorter marriages
3) Rehabilitative Support
-limited period of time, such as until [finds employment]
4) Reimbursement Alimony
-for financial sacrifices made during the marriage, reduced standard of living in present in order to get better SOL in future