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MEE Rule Blocks > FAMILY LAW > Flashcards

FAMILY LAW Flashcards

1
Q

What does “Equitable” mean in the division of property at divorce?

A

Applies to the division of marital property at divorce, requiring a “just and fair” division, not necessarily an “equal” 50/50 division.

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2
Q

What does “Irretrievably broken” refer to in the context of divorce law?

A

Relates to grounds for no-fault divorce, synonymous with irreconcilable differences.

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3
Q

What does “Best interest of the child” mean in family law?

A

The standard used in determining child custody, support, and other issues related to the child.

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4
Q

What are the basic requirements for a marriage to be recognized legally?

A

Marriage is a civil contract between two parties, both must have the:

  1. capacity to give
  2. consent, and there must be
  3. exchange of mutual promises and obligations.
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5
Q

Can same-sex couples legally marry, and how can such marriages be terminated?

A

Yes, same-sex couples can legally marry. Marriages can only be modified or terminated with court intervention.

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6
Q

What are some common prerequisites for obtaining a marriage license?

A

Prerequisites include a:

  1. minimum age requirement,
  2. possibly a waiting period, and
  3. sometimes premarital medical testing

licenses have a validity period and expire after a certain number of days.

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7
Q

Under what conditions will a marriage license NOT be issued?

A

If a party is:

  1. already married,
  2. too closely related,
  3. entering a sham marriage, or
  4. incapable of understanding the marriage due to substances or coercion.
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8
Q

What are the 4 requirements to establish a common-law marriage? (The 4 C’s)

A

Requires
1. legal and mental capacity,
2. mutual consent,
3. cohabitation, and
4. conduct demonstrating a public presentation as married. (Holding out as a married couple.)

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9
Q

How are common-law marriages recognized across state lines?

A

Recognized under the Full Faith and Credit Clause unless the state has a strong public policy against such recognition.

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10
Q

What are heartbalm actions, and are they still recognized?

A

Heartbalm actions were civil claims for damages arising from broken engagements or marital infidelity, including breach of promise to marry and alienation of affection. They are largely abolished due to concerns about personal privacy and the belief that such matters do not belong in the legal system.

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11
Q

What legal rights and obligations arise from the marriage relationship?

A

The marriage relationship establishes numerous legal rights and obligations, including financial support, inheritance rights, and decision-making in health emergencies. It also provides a right to privacy in marital and family matters under the constitution.

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12
Q

What makes “irretrievably broken” different from other grounds for annulment like a prior existing marriage, incest, or mental incapacity?

A

“irretrievably broken” is not a ground for annulment but rather a ground for no-fault divorce. Annulment grounds typically involve legal deficiencies that invalidate the marriage from the start (e.g., prior marriage still valid, incest, mental incapacity), whereas “irretrievably broken” implies the dissolution of a legally valid marriage due to irreconcilable differences.

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13
Q

How does the ability to challenge a voidable marriage differ from a void marriage, and what is required to confirm or nullify a voidable marriage?

A

A voidable marriage requires a court judgment to be nullified and can be challenged by any interested party, reflecting conditions like fraud or age that don’t necessarily invalidate the marriage without legal intervention. In contrast, a void marriage is inherently invalid (e.g., bigamy, incest) and does not require a court judgment to be recognized as invalid.

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14
Q

Are children from an annulled marriage considered illegitimate?

A

Children born from a marriage that is later annulled are still considered legitimate. Annulment deals with the validity of the marriage itself and does not affect the legitimacy of children born during the marriage. Legitimacy is preserved to protect the rights and status of the children.

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15
Q

What is the majority rule regarding no-fault divorce?

A

All states in the U.S. recognize no-fault divorce, allowing spouses to dissolve their marriage without proving wrongdoing by the other party. The option for no-fault divorce reflects modern legal standards aimed at simplifying and reducing the conflict in divorce proceedings.

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16
Q

Why isn’t “irretrievably broken” a ground for fault-based divorce?

A

While fault-based divorce requires proof of specific misconduct like adultery, abandonment, or bigamy. “Irretrievably broken” indicates a general breakdown of the marriage without assigning blame to either spouse.

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17
Q

Why isn’t a “Desire to reconcile” considered a defense in fault-based divorce?

A

The “Desire to reconcile” is not a legal defense against fault-based divorce claims because fault-based grounds focus on specific wrongful acts (e.g., adultery, cruelty) that justify the divorce regardless of the other spouse’s willingness to reconcile. Other defenses like condonation or recrimination address whether the suing spouse accepted the behavior or also engaged in misconduct.

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18
Q

What is the key difference between community property and equitable distribution systems?

A

Community property systems, used by only nine states, assume an equal distribution of all marital property. Equitable distribution systems, used by most states, require a fair and just division, but not necessarily equal, of marital property. “Equitable” distribution considers each spouse’s circumstances and contributions, and does not mean an automatic 50/50 split.

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19
Q

What generally constitutes marital property, and what are the common exclusions?

A

Marital property includes all property acquired during the marriage except for property acquired before marriage, gifts, and inheritance, or property acquired after separation (as defined by varying state laws). Notably, most states consider the date of separation for classifying property as when the final divorce decree is entered, but this can vary.

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20
Q

How are increases in the value of separate property treated in divorce proceedings?

A

Increases in the value of separate property that result from efforts of either spouse during the marriage are considered marital property. For example, if separate property like an apartment building appreciates due to investments from marital funds, that increase in value is treated as marital property.

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21
Q

Are gifts between spouses considered marital or separate property?

A

Gifts between spouses during the marriage are considered marital property. This includes items purchased or given that might typically be considered personal but were exchanged within the marriage context.

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22
Q

Who bears the burden of proof when classifying property as separate in a divorce, and why?

A

The party claiming that an asset is separate property bears the burden of proving its status. This is crucial because without clear evidence, property presumed marital could be divided between both parties, whereas separate property is not subject to division.

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23
Q

What are the exceptions to the classification of marital property?

A

Exceptions include property acquired before the marriage, property excluded by a valid prenuptial or postnuptial agreement, property acquired by individual gifts or inheritance (except between spouses), and property that was definitively disposed of or encumbered in good faith prior to the final separation.

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24
Q

What factors are considered in the equitable distribution of marital property?

A

Factors include the duration of the marriage, prior marriages, each spouse’s economic circumstances, health, age, proximity to retirement, earning capacities, contributions to education or career advancement of the other spouse, their future needs for acquisition, and custodianship of minor children.

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25
Q

How are retirement benefits and personal injury claims treated in marital property distributions?

A

Retirement or pension benefits are considered marital property to the extent that they accrued during the marriage. Personal injury claims are treated differently depending on the timing and nature of the award: compensation for pain and suffering is typically the injured spouse’s separate property, while lost wages are considered marital property.

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26
Q

What are the general considerations under which a premarital agreement is enforceable?

A

A premarital agreement is generally enforceable if there has been full disclosure, the agreement is fair and reasonable, and it is voluntary. it must also be in writing and signed by the party to be charged.

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27
Q

What bust be proven undre the UPAA for a premarital agreement to be considered unenforceable?

A

Under the UPAA, the party against whom enforcement is sought, must prove either (1) involuntariness of the agreement, or (2) both unconscionability, at the time of execution and lack of adequate disclosure, or knowledge of the parties, assets and obligations.

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28
Q

Can a court refuse to enforce a premarital agreeement based on substantive unfairness alone under UPAA?

A
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29
Q

What are the instances in which a marriage license will not be issued?

A
  1. One of the parties is married to someone else
  2. The parties are too closely related
  3. The marriage is a sham
  4. The parties are incapable of understanding the nature of the act

Most jurisdictions refuse to issue a license when one or both parties is under the influence of drugs or alcohol when the license is sought

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30
Q

What evidences the intent to enter into a common-law marriage?

A

Words in the present tense are preferred, but a court may accept cohabitation or reputation as evidence. Cohabitation alone is insufficient and words of intent to marry in the future do not reflect a present intent to be married.

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31
Q

How does a party modify a property division award?

A

A property division award is not modifiable because it is based on the parties’ assets at the time of divorce. Changes in the parties’ circumstances after divorce are not be considered once the award has been entered.

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32
Q

How can a valid marriage be terminated?

A

Annulment, divorce, or death

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33
Q

Consent is a defense to which two grounds for divorce?

A

Consent is a defense to desertion or adultery.

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34
Q

What are the grounds for a voidable marriage?

A

1) Age
2) Impotence
3) Intoxication
4) Fraud, misrepresentation, duress, coercion, or force
5) Lack of intent

35
Q

What are the defenses to a claim that the marriage is voidable?

A

Equitable defenses of:
1) Unclean hands
2) Laches
3) Estoppel

36
Q

What are the requirements for common-law marriages?

A
  1. Agree they are married
  2. Cohabit as married
  3. Hold themselves out in public as married
37
Q

What is marital property and what are the six common exceptions to marital property?

A

In most states, all property acquired during the marriage is marital property.

Exceptions:
1) Property acquired before the marriage
2) Property excluded by a valid agreement between the parties
3) Property acquired by gift or inheritance
4) Property a party has sold, granted, or conveyed in good faith and for value prior to final separation
5) Property to the extent it has been mortgaged or otherwise encumbered in good faith and for value prior to separation
6) An award or settlement payment received for any cause of action or claim that accrued prior to marriage

38
Q

What type of alimony is meant to enhance and improve the earning capacity of the economically dependent spouse?

A

Rehabilitative alimony, which is awarded for a limited period of time

39
Q

What are the fault grounds for divorce?

A

1) Adultery
2) Cruelty
3) Desertion
4) Habitual drunkenness
5) Bigamy
6) Imprisonment
7) Indignity
8) Institutionalization

40
Q

Which method of property division considers the marriage a partnership and typically requires an equal division of marital property?

A

Community property

41
Q

How does marital fault play into a property division award?

A

In most states, the fact that a divorce is granted on a fault ground is not a factor. However, dissipation of marital property may be considered.

42
Q
A
43
Q

Which defense to divorce accounts for a spouse forgiving the marital misconduct?

A

Condonation is when a spouse forgives marital misconduct. There must be knowledge of the misconduct, and the party must resume relations with the guilty party.

44
Q

What are the requirements for a marriage license?

A
  1. Meet the minimum age restrictions
  2. Fulfill the waiting period
  3. Complete premarital medical testing (only in some states)
  4. Marry before the expiration date
45
Q

What are the grounds for a void marriage?

A

Bigamy, incest, and mental incapacity

46
Q

What action does not sever marital ties but allows the court to determine spousal support and property division?

A

A limited divorce does not sever the marital ties but permits the parties to live apart. The court will determine support and property division in limited divorce actions.

Note: Limited divorce is known in some states as “divorce from bed and board.”

47
Q

What is the only defense to a claim that the marriage is void?

A

The only way to defend against annulment of a void marriage is to deny the existence of the impediment that voided the marriage.

Note: Removing the impediment merely makes the marriage voidable; it will not necessarily prevent annulment.

48
Q

What is an interlocutory decree?

A

This represents the period of time between when a divorce is initially granted and when it is finalized. During this time, neither spouse may remarry.

49
Q

What issues may a mediator assist with in terminating a marriage?

A

A neutral, court-approved mediator assists both parties with spousal- and child-support issues, as well as custody and visitation rights.

50
Q

What are the factors courts typically consider when awarding spousal maintenance?

A

1) Financial resources
2) Standard of living
3) Time for spouse to find employment or training
4) Length of the marriage
5) Contributions to the marriage
6) Age and health of the parties
7) Marital misconduct

51
Q

How is marital misconduct considered in determining spousal support?

A

Marital misconduct may be considered in many states when determining spousal support. The weight depends on the jurisdiction, with some jurisdictions considering it merely a factor and others giving it preclusive effect.

52
Q

What are the typical types of spousal support?

A

1) Lump sum
2) Permanent
3) Limited duration
4) Rehabilitative
5) Reimbursement
6) Palimony (available in only a few states)

53
Q

What kind of support is available to an unmarried cohabitant in a minority of jurisdictions?

A

Palimony. This is only available when the parties have lived together in a stable, long-term relationship.

54
Q

What is the scope and purpose of permanent alimony?

A

Permanent alimony is an award for the remainder of the dependent spouse’s life, unless certain circumstances occur. The purpose is to compensate the dependent spouse for either the lost earning capacity or benefit conferred to the other spouse during marriage. This is typically awarded only when the marriage was one of long duration.

55
Q

Under what conditions can spousal support be modified?

A

Generally, spousal support is modifiable even when deemed permanent. The party seeking modification generally has the burden of establishing a significant and continuing change in circumstances in the needs of the dependent spouse or financial abilities of the obligor.

56
Q

What is the effect of cohabitation on spousal support?

A

If the receiving spouse cohabits with someone who is not family, then spousal support may be modified if the cohabitation results in a reduced need.

57
Q

When does the obligation to pay child support end?

A

In all jurisdictions, both parents, regardless of marital status, are required to support their minor children until the child reaches the age of majority or is emancipated. Some jurisdictions continue the obligation through college. Additionally, it can be continued indefinitely for a child incapable of self-support due to a disability.

In most jurisdictions, the obligation may also terminate if the child marries, parental rights are terminated, the child commences active duty military service, or the parent or child dies.

58
Q

Under the doctrine of equitable estoppel, a husband may be required to pay support for his wife’s child even when he is not the biological father when which requirements are met?

A
  1. There is a representation by the husband that he would provide for the child;
  2. The wife relied on his representation; and
  3. The wife suffered an economic detriment as a result of the reliance
59
Q

What Act provides a court with personal jurisdiction over an out-of-state parent to establish or enforce child support or to determine parentage?

A

The Uniform Interstate Family Support Act (UIFSA), which has been adopted by every state.

60
Q

What evidence may be used to determine paternity?

A
  1. Blood tests
  2. Prior statements regarding paternity by deceased family members
  3. Medical testimony on the probability or improbability of conception
  4. The defendant’s acknowledgment of paternity
  5. In some states, the resemblance of the child to the defendant
61
Q

What is the amount of child support typically based on?

A

Awards are typically based on income from any source and include wages, interest and dividends, rental income, and other income received, including retirement benefits, capital gains, and Social Security income.

62
Q

Awards are typically based on income from any source and include wages, interest and dividends, rental income, and other income received, including retirement benefits, capital gains, and Social Security income.

A

Separation agreements are made between spouses planning for divorce. They are generally merged into the final judgment for divorce, as long as they are based on full and fair disclosure.

63
Q

What are the requirements for a marital agreement to be enforceable?

A
  1. Full disclosure
  2. Fair and reasonable
  3. Voluntary
  4. In writing
  5. Signed by the party to be charged
64
Q

When may a court deviate from the child support guideline, and how?

A

Deviations are permitted as the circumstances warrant. The court must set forth specific findings explaining and supporting the deviation, including the amount that would have been awarded under the guidelines.

65
Q

When may a child support order be modified?

A

Generally, modifications are permissible when there is a substantial change in circumstances regarding the child’s needs or the parents’ financial situation, and that change is expected to be continuing, rather than temporary. Actual statutory language varies by jurisdiction.

The respective obligations of child support are also adjusted as the possession of a child changes between parents.

66
Q

When may a child become emancipated?

A

To be emancipated, a minor child must be self-supporting and beyond the sphere of influence of his parents or independent of parental control.

67
Q

Who has jurisdiction to modify a child support order?

A

A state court with continuing jurisdiction may modify an existing order. Another state court may not modify an order rendered by a court of continuing jurisdiction in another state unless the parties, including the child, no longer reside in that state or the parties expressly agree to permit another state to exercise jurisdiction.

68
Q

What is the most important requirement for a marital contract?

A

Full disclosure. Absent full disclosure, a court will generally refuse to enforce it.

The current trend is for courts to enforce marital agreements that may not be fair as long as there has been full disclosure.

69
Q

What is the most important standard in determining child custody?

A

The best interests and welfare of the child

70
Q

How are child support and spousal support orders enforced?

A

Support orders are typically enforced through civil contempt, income withholding, or withholding of tax refunds.

71
Q

What custody arrangement is the outcome in a majority of child custody cases and even the statutory presumption in many jurisdictions?

A

oint physical custody is preferred, but it does not necessarily require a 50-50 time-sharing arrangement.

72
Q

What is the standard courts apply when determining whether to modify a child custody order?

A

The majority of jurisdictions apply a change-in-circumstances standard, requiring some substantial and unforeseen change since the issuance of the prior order. Some jurisdictions have also applied time barriers before an application for modification can be filed absent consent or endangerment. The purpose of these considerations is to promote stability in the child’s life.

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73
Q

What Act applies to interstate custody disputes, including visitation rights, as well as parental kidnapping cases?

A

The Parental Kidnapping Prevention Act (PKPA)

74
Q

How are child-custody and visitation orders enforced?

A

A party seeking enforcement can request assistance through the courts. The court can impose a variety of sanctions, including compensatory visitation, attorney’s fees, court costs, fines, and jail time. Tort damages may also be awarded to a parent for the period of time that the child is wrongfully out of the parent’s custody.

75
Q

While property division clauses are enforceable in a premarital agreement, what clauses are generally unenforceable?

A

Clauses relating to child custody and support in a premarital agreement are unenforceable.

76
Q

Regarding premarital agreements, what choice-of-law approach do most states use in deciding which state’s law will govern enforcement?

A

The significant relationship test. Most states apply the law of the state with the most significant relationship to the agreement and the subsequent marriage.

Some states apply the law of the state where the agreement was executed.

77
Q

When does a court’s exclusive-continuing jurisdiction end?

A

A court that makes the initial ruling in a custody case has exclusive continuing jurisdiction over the matter until:

  1. The parties no longer reside in the state, or
  2. The child no longer has a significant connection to the state
78
Q

What is the rule for the special weight given to a fit parent’s decision regarding their children?

A

A fit parent has a fundamental right to the care, custody, and control of his children. State courts must give special weight to a fit parent’s decision to deny nonparent visitation.

79
Q

Why might a court set aside a valid agreement that has been voluntarily executed and meets the test for reasonableness, fairness, and full disclosure?

A

If its result winds up leaving one spouse woefully impoverished to the extent that he or she becomes dependent on the state

80
Q

Under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), what is the test to determine if a court has home-state jurisdiction?

A

A court has subject-matter jurisdiction to preside over custody hearings if the state:

  1. Is **the child’s home state **(the state in which the child has lived for at least 6 consecutive months immediately prior to hearing, or since birth if the child is less than 6 months), OR
  2. Was the child’s home state in the past 6 months, and the child is absent from the state, but one of the parents/guardians continues to live in the state.
81
Q

How may a court provide for equitable distribution of property between unmarried cohabitants when there is no express contract between the parties?

A

A court will generally provide equitable distribution based on a resulting trust, constructive trust, or quantum meruit theory to avoid unjust enrichment.

82
Q

When may an unwed father be prevented from objecting to an adoption?

A

The right to object may be denied if the father does not demonstrate commitment to the responsibilities of parenthood. The right to object cannot be denied if such a commitment has been made.

83
Q

Under the UPAA, what must someone prove in order to invalidate a marital agreement?

A
  1. Involuntariness; or
  2. The agreement was unconscionable when executed, the party did not receive fair and reasonable disclosure, and the party did not have adequate knowledge of the other’s assets and obligations
84
Q

What is the purpose of adoption registries?

A

Some jurisdictions have created adoption registries for the purpose of determining the identity and location of putative fathers and providing notice in the event of an adoption. A putative father’s failure to register within the prescribed period of time constitutes a waiver of his right to notice of the adoption and irrevocably implies his consent to the adoption.

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