FAMILY LAW Flashcards
Gifts in Consideration of Marriage
When a gift is subject to the condition subsequent of a later marriage (aka, if the gift would not have been made otherwise without contemplation of marriage), the donor can compel the return of the gift if the marriage does not occur.
Usually an engagement ring.
Any other inter vivos gift without the condition of marriage is irrevocable after acceptance and delivery.
Enforceability of Premarital Agreements
A premarital agreement must meet all contractual requirements and be procedurally and substantively fair.
Contractual requirements = a signed writing with two parties who are of sound mind/capacity and attestation by two witnesses.
Procedural fairness (FART) = full and fair disclosure of all income and assets; availability of independent counsel; relative bargaining power of the parties; timing of presentation of the agreement in relation to the ceremony.
Substantive fairness = full disclosure of all material facts and not unconscionable.
A prenuptial agreement may include anything not illegal or immoral, and cannot limit the rights of third parties or future child support or custody. Waiver of alimony is closely scrutinized.
Requirements of a Ceremonial Marriage
License from the county in which the marriage ceremony is taking place if neither party is a resident of GA; if either party a resident, can be from any county in GA.
Ceremony.
Return of the license to the probate court judge and recordation within 30 days of the ceremony.
If not returned and recorded in time, parties must bring affidavits from two witnesses to reissue and rerecord the license.
Annulment
Declares a void or voidable marriage invalid, returns parties to their original status before the marriage.
Can’t get an annulment if you have children (can’t bastardize your children).
Alimony not available, but the court could grant equitable distribution of property.
Void vs. Voidable Marriages
Void = Never had any legal effect and cannot be ratified. Bigamy, incest, or mental incapacity.
Voidable = Valid until the aggrieved party obtains an annulment or can be ratified by the aggrieved party. 17 or under without parental consent , duress, intoxication, or induced by fraud or misrepresentation.
Doctrine of Necessaries
The obligation to support your spouse can be enforceable by creditors in certain circumstances. A spouse can be liable for debts/obligations of the other spouse if —
- Debtor spouse has authority to pledge the other’s credit for household needs.
- Non-needy spouse neglected to provide necessaries that are then supplied by a 3rd party with expectation of payment.
- When a spouse incurs medical expenses beyond their ability to pay.
Common Law Marriage
Not valid in GA after 1/1/97.
Common law marriages before 1997 may be recognized if the parties (1) intended to be married, (2) cohabitated, (3) held themselves out to the world as husband and wife, (4) had legal capacity to enter into a marriage, (5) as proven by clear and convincing evidence.
Domestic Violence
Protective orders are available against a threat or recurrence of family violence. “Family violence” exists if the ∆ is in the household, family, or in a relationship with their victim.
Paternity
Father can voluntarily establish paternity by —
- Marrying the mother after the child is born and recognizing the child as their own;
- Legally adopting the child; or
- Acknowledging paternity within the first year after birth with a written statement signed by both parties.
Rebuttable presumption of paternity where the father was married to the mother at the time of child’s birth, or if a DNA test is at least 97% probability of paternity.
Parental Rights
Parents have a constitutional and fundamental right to custody of their children + child rearing decisions, including education and medical care.
Rights may be lost upon consent, abandonment, neglect, or abuse/”cruel treatment”.
Termination of Parental Rights
Due process requires notice of the opportunity to be heard prior to the deprivation of parental rights.
In GA, there must be clear and convincing evidence of parental misconduct or inability to parent in order to involuntarily terminate parental rights.
If clear and convincing evidence of parental misconduct or inability to parent exists, the court must then determine if termination is in the child’s best interest.
Adoption
Any child under 18 may be adopted if they have no living parents or their parents’ rights have been voluntarily or involuntarily terminated.
If a child is 14 or older, their written consent is required.
If a child is suitable for adoption and the petitioner is capable of assuming responsibility, the adoption will be granted if it is in the child’s best interests.
Divorce Jurisdiction
In GA, the superior court has exclusive jurisdiction over divorce actions.
A GA court will have subject matter jurisdiction over a divorce if at least one party has been domiciled in GA for at least 6 months. (“Domicile” = resides with the intent to remain indefinitely)
Parties may get divorced with just SMJ, but personal jurisdiction over both parties is required for the court to order spousal or child support.
A GA court has PJ over a non-GA resident if there are sufficient minimum contacts — if they are served in GA, consent to PJ, lived there with the child, conceived the child there, had a matrimonial home there, etc.
Enforcement of spousal or child support is governed by UIFSA+FFCCSOA.
Divorce Venue
If the ∆ resides in GA — the county where the ∆ lives.
If the ∆ is a non-resident — the county where the π lives.
If ∆ moved from the GA matrimonial residence within 6 mo. — the county where the π resides or ∆ lived.
No-Fault Divorce
If the marriage is irretrievably broken, the parties no longer cohabitate, or there is no prospect of reconciliation, the court may grant a no-fault divorce only after 30 days from service of the respondent.
Defenses to At-Fault Divorce
Consent,
Collusion,
Recrimination (both parties guilty), or
Condonation and cohabitation (forgiveness).
At-Fault Divorce
Adultery,
Desertion,
Conviction of a crime involving moral turpitude and a sentence of at least 2 years in prison,
Cruelty,
Habitual intoxication/drug addiction.
Equitable Distribution
The allocation of marital assets among the parties based on their respective equitable interests. Not equal — equitable.
Court will first classify the property as marital or separate (separate property is not divisible), perform a valuation of all marital property, and then divide the property based on numerous factors, including:
- Marital fault;
- Parties’ contributions and maintenance of the property;
- Parties’ intentions for the property;
- Needs of the minor child;
- Duration and contribution to the marriage (homemaking).
Marital vs. Separate Property
Any marital property is divisible upon divorce — both parties retain their separate property.
Marital property is anything obtained by either party during the life of the marriage.
Separate property is anything obtained prior to the marriage or by gift or inheritance.
Commingled Property
If the value of separate property is increased due to marital funds or significant spousal labor, it may turn into divisible marital property.
However, if the separate property increases in value due solely to passive market factors, it will remain separate property.
Alimony/Spousal Support
The allowance by one party for the support of another; can be either temporary or permanent. May be awarded to either spouse, taking into account the following considerations —
- Accustomed standard of living.
- Duration of the marriage.
- Misconduct by either party.
- Financial resources of either party.
- Earning capacity.
- Contributions to the marriage, including homemaking.
Modifying Alimony
The modification of alimony or child support is governed by the Uniform Interstate Family Support Act (UIFSA).
If a Georgia court grants a valid alimony support order, that court has exclusive, continuing jurisdiction until the end of time, even if all parties leave the state or consent to another forum.
Lump sum alimony awards, like property settlements, are not modifiable.
Termination of Alimony
Terminates upon the death of either party or remarriage of the party receiving alimony.
Third-Party Child Custody
A parent’s fundamental rights create a rebuttable presumption that custody with the parent is in the child’s best interests.
To rebut that presumption, the third party must establish that the parent is first unfit, and that it would not be in the child’s best interests to stay with them.
Then, the third party must establish that custody awarded to them WOULD be in the child’s best interests.
