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UBE > Family Law > Flashcards

Family Law Flashcards

Court is afforded great deal of discretion

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1
Q

Is breach of promise to marry a valid claim?

A

Majority - No.
Minority - Yes (sounds as a breach of contract)

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2
Q

Should the gift in contemplation of marriage be returned?

A

Yes, the courts will analyze the type of gift and the likelihood that it was given conditioned on a subsequent marriage

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3
Q

Is alimony and child support waivable in antenuptial agreements?

A

Alimony - valid, except when it leaves a spouse a public charge (gov. benefits)
Child support - not valid

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4
Q

Requirments for a valid premarital agreement?

A

1) a signed writing
2) entered into voluntarily (not the night before the wedding)
3) knowledge of assets
Under UPAA - 3rd element is considered only if the K is unconscionable

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5
Q

What law applies?

A

Law of state of execution or
Law of state with significant connections to the parties

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6
Q

Requirements for a valid ceremonial marriage?

A

1) license (waiting period)
2) ceremony with authorized officiant
3) no legal impediment (includes aunts and nephews, half-siblings, sometimes cousins)
4) mental capacity to consent
(if <16, judicial consent, 16-18 parental consent, 18+ good)

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7
Q

What is a CL marriage?

A

1) Consent to marry
2) cohabitation
3) hold themselves out as spouses

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8
Q

If couple has a CL marriage, and moves into state that does not recognize CL marriage, do they have to file for a divorce to legally separate?

A

Yes, because the CL of marriage recognized it

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9
Q

What is a marriage by estoppel?

A

an equitable remedy to protect innocent parties

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10
Q

What is a doctrine of necessaries?

A

spouses are obligated to pay for the necessaries of the other spouse

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11
Q

Can a spouse obtain restrictive abuse order without notice to the other party?

A

Yes, they can be ex parte

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12
Q

Elements of Alienation of affection?

A

1) valid marriage
2) love and affection was destroyed
3) caused by defendant’s actions

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13
Q

Elements of Criminal Conversion?

A

1) valid marriage
2) adultary (sex w/ 3rd party)

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14
Q

What renders marriage void?

A

1) bigamy ( 2 mariages)
2) too closely related

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15
Q

What renders marriage voidable?

A

1) consent
2) age
3) duress or fraud

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16
Q

If the prior marriage was terminated only after second marriage was entered into, is the second marriage valid?

A

Maybe. Continued cohabitaion valides the second marriage
Marriage by estoppel may be applied to protect innocent spouse

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17
Q

What is the affect of annulment (voidable/void) of marriage on children, support, custody?

A

Children are considered marital, and the same rules as after the divorce govern.

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18
Q

What is the affect of annulment (voidable/void) of marriage on spousal support and division of property?

A

Majority - no spousal support. Property is divided by legal title or equitably.

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19
Q

After 5 years of marriage, Asha, dissatisfied with Alex, moved to Florida. Alex filed for divorce in NY. Asha filed a motion to dismiss for lack of jurisdiction? Is there jurisdiction?

A

Yes, so long as one spouse is domicile in the forum state.

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20
Q

After 5 years of marriage, Asha, dissatisfied with Alex, moved to Florida. Alex filed for alimony and property division in NY. Asha filed a motion to dismiss for lack of jurisdiction? Is there jurisdiction?

A

The court must have personal jurisdiction over both parties to adjudicate financial matters.

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21
Q

2 grounds for a no-fault divorce?

A

Irreconcilable difference
living apart for a specified and continuous period of time

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22
Q

grounds for a fault divorce?

A

Adultery (opportunity and inclination)
Abandonment
Extreme physical or mental cruelty
Voluntary drug addiction or habitual drunkenness (must start after marriage)
Insanity

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23
Q

Possible defenses for divorce?

A

Collusion (fraud)
Connivance (consent)
Condonation (forgiveness)
Recrimination (both at fault)

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24
Q

What is the defense of connivance?

A

a consent to other spouse’s misconduct. E.g. swinger couples

25
Q

What is the defense of condonation?

A

a forgiveness of marital misconduct

26
Q

What is the defense of recrimination?

A

a party seeking divorce is guilty of same misconduct

27
Q

Can the court decide property division, spousal support or custody rights if the parties legally separated but have not divorced?

A

Yes, if they have an order of legal separation

28
Q

What are the 3 approaches to division of property?

A

Community property (1/2 for each spouse)
Equitable division of all property
Equitable division of marital property (majority)

29
Q

steps of property division

A

1) classify all property
2) division

30
Q

What is separate property?

A

1) retirement accounts
2) gift, inheritance if during marriage
3) money from pre-marriage
4) property bought with separate property
5) pain and suffering awards

31
Q

What is marital property?

A

1) earnings, lost wages, employment benefits, pensions
2) property acquired during marriage

32
Q

Circumstances when separate property may become marital?

A

1) commingling
2) transmutation (intent to treat property as marital)

33
Q

If spouse uses marital property to improve a personal house, is the status of the house any different now?

A

No, but the other spouse may be reimbursed for the added value to the house

34
Q

Can property division be modified by parties of the appellate court?

A

No, they are final

35
Q

Does marital fault affect property division?

A

No, it does not affect property division or child support, but may affect alimony
Note: economic fault can affect property division

36
Q

Types of alimonies

A

1) permanent periodic support
2) lump sump support
3) rehabilitative support (support to acquire good life)
4) reimbursement support (reimbursement for support during law school)

37
Q

Factors to consider for alimony payments

A

1) standard of living
2) duration of marriage
3) age and condition
4) financial resources
5) marital fault

38
Q

When can alimony payments be modified?

A

only permanent or rehabilitative support can be modified, and only upon substantial and material change in circumstances

39
Q

What are the tax consequences for alimony?

A

After 2019 - not taxable
Prior to 2019 - can deduct, and go to the income.

40
Q

What are the rules for modification of separation agreements

A

If merged into divorce degree - enforceable as court order and modified in court.
If not merged - contract dispute.

41
Q

Can a father be denied visitation rights if he failed to pay support?

A

A spouse cannot deny. Court can

42
Q

4 events when child support is terminated?

A
  1. age of majority
  2. death of child
  3. emancipation (minor married)
  4. termination of parental rights
    but may continue if child is severely injured
43
Q

What court has jurisdiction to decide child support?

A

Any court, where the first petition is filed.
Except, 2nd state has jurisdiction if
1) the parent objected to a jurisdiction
2) filed a second petition before the time to answer has expired; and
3) the second state is the child’s home state (lived for 6 months in there)

44
Q

What court has jurisdiction to modify child support order?

A

Issuing court has continuing and exclusive jurisdiction to modify

45
Q

How to enforce child support order?

A

1) the forum court can enforce
2) can mail the order to the obligor’s employer out-of-state to enforce
3) register the order with different state

46
Q

Are child support payments taxable?

A

No.

47
Q

If Ivan fails to pay child support, can the court take away his law licence?

A

Yes, but will probably withhold part of the salary rather than take away license

48
Q

What is home state jurisdiction

A

state where a child lived with a parent for 6 consecutive months

49
Q

What court has jurisdiction to decide child custody?

A

1) home state jurisdiction
2) where the child lived in the past 6 months and the parent is still living.
3) if none apply, state to which 1 parent and child have substantial connection and child is available in the state

50
Q

What court has jurisdiction to modify child custody?

A

Issuing court has continuing exclusive jurisdiction;
Unlike child support, another state can exercise jurisdiction if
1) no one lives in the state; or
2) no connection with state

51
Q

What is the standard for deciding custody or visitation rights?

A

Best Interest of the Child

52
Q

Can a non-parent win custody rights?

A

To win any custody
1) show — abuse, neglect, abandonment.
2) consider best interest of the child

53
Q

Can a non-parent win visitation rights?

A

1) in extraordinary circumstances
2) if a natural parent is fit, constitution affords great weight to their desires

54
Q

What is the standard for modifying custody?

A

1) Best interest of the Child
2) Show substantial and material change in circumstances (like changing everything else)

55
Q

When can an unwed father establish his rights to a child

A
  1. marrying child’s mother after the birth
  2. holding out child as biological child
  3. consenting to be named on birth certificate
  4. acknowledging paternity (formally)
  5. court order
56
Q

What is required for fathers to have standing to get custody or visitation rights?

A

establishment of paternity

57
Q

When can involuntary termination of parental rights happen?

A

Action must be by the state!
1. infliction of serious harm
2. abandonment
3. neglect
4. mental health of a parent
5. unfitness (drug abuse)

58
Q

Can an unmarried father prevent giving up a child for adoption?

A

Yes, if he provided care and support for the child

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