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MEE Subjects > Family Law > Flashcards

Family Law Flashcards

1
Q

Ceremonial (Statutory) Marriage Requirements

A

license & solemnization (ceremony)

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2
Q

Marriage License Requirements

A
  1. capacity to marry/meet minimum age requirement (most states - 18, if under 18 most states allow with parental consent)
  2. waiting period between license application and date of issuance or ceremony (most states require waiting period between license issuance and ceremony)
  3. premarital medical testing - some states mandate but cannot be condition for issuing license
  4. Expiration date - varies from 10-30 days
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3
Q

When marriage license WILL NOT be issued

A
  1. Bigamy
  2. Consanguinity
  3. Sham
  4. Incapacity (incapable of understanding act, one or both under influence, lack of consent due to duress, fraud)
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4
Q

Solemnization Requirements

A
  1. Most states require at least 2 witnesses
  2. Most states require an officiant

*file license with appropriate gov office
*proxy marriage - a stand in at the ceremony (military deployment)

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5
Q

Common-law Marriage Requirements

A

Abolished by most states.
1. parties agree they are married/consent
2. cohabitation
3. conduct - holds themselves out in public as married
4. Legal/Mental capacity - of age, not too closely related, understands

Intent is evidenced by words in the present tense - “we are married”

No states have minim time period of cohabitation

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6
Q

Heartbalm Action

A

Civil suit for money damages based on the damage jilted party’s reputation - ABOLISHED in most states, assume it is on exam

Historically included:
- breach of promise to marry
- alienation of affection
- seduction
- criminal conversation

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7
Q

3 ways marriage can be terminated

A
  1. annulment
  2. divorce
  3. death
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8
Q

Annulment

A

Judicial decree that voids a marriage as it having never been valid

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9
Q

2 Types of Annulment

A
  1. Void Marriage - treated as if it never happened, not legally recognized
  2. Voidable Marriage - valid until judicial decree dissolves marriage
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10
Q

Grounds for VOID marriage

A

Grounds:
- prior existing marriage
- incest
- mental capacity

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11
Q

Grounds for VOIDABLE marriage

A

Grounds:
- age
- impotence
- intoxication
- fraud
- duress
- lack of intent

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12
Q

Equitable Distribution of Property in Annulment

A

party can request equitable distribution of property, spousal and child support, custody, attorney’s fee and other costs related to dissolution of marriage

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13
Q

Defenses against VOID Marriage

A

only defense is to deny existence of the impediment → makes it voidable

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14
Q

Defenses against VOIDABLE Marriage

A

equitable defenses of:
1. unclean hands
2. laches
3. estoppel

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15
Q

Putative Marriage/Spouse Doctrine

A

party who participated in a ceremonial marriage and believes in food faith that marriage is valid may use a state’s divorce provisions even if the marriage is later found to be void (meant to protect innocent spouse)
- adopted by most jurisdictions

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16
Q

Divorce

A

A legal dissolution of marriage;
can be No-Fault or Fault divorce

Most states have residency requirement (at least one party must be resident of the state)

Length of residency varies and may depend on whether:
- couple married in that state OR
- grounds for divorce happened in that state

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17
Q

Grounds for NO-FAULT Divorce

A

Marriage is irretrievably broken and there is no prospect of reconciliation

Irreconcilable differences must exist for a specific period of time prior to the filing of divorce action

1/2 states require parties to be separated for period of time

Most states have abolished traditional defenses to divorce.

One spouse who wants to reconcile cannot prevent dissolution

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18
Q

Grounds for FAULT based Divorce

A

Mainly used to determine support, most jurisdictions retain some fault-based grounds, some have removed it completely.

  1. Adultery (had opportunity and the inclination)
  2. Cruelty (course of conduct, makes cohabitation unsafe/improper; most juris look for physical harm, only some allow emotional abuse/cruelty)
  3. Desertion (one spouse voluntarily leaves marital home, permanent; some juris find desertion when spouse forced out and fear of harm if return)
  4. Habitual drunkeness (frequent intoxication causes impariment in marriage; alcoholism not required)
  5. Bigamy (knowingly entered into prior legal marriage; most juris ground for annulment & divorce)
  6. Imprisonment (specified period of time)
  7. Indignity (negative behavior, renders spouses condition intolerable/life burdensome; majority of states DO NOT recognize)
  8. Institutionalization for insanity (no reasonable prospect of discharge/rehab)
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19
Q

Defenses to FAULT based divorce

A

must be affirmatively pleaded

  1. Recrimination - both spouses commit a marital wrongful act of like conduct
  2. Unclean hands - common, P’s own behavior is in question
  3. Connivance - gave consent to participate in marital wrong
  4. Condonation - forgave, knowledge of wrongful act, resume marital relations (at CL, once forgiven, cannot be grounds)
  5. Collusion - both parties have conspired to fabricate grounds for divorce (rare since there’s no-fault divorce)
  6. Provocation - misconduct due to something other spouse is doing
  7. Insanity - does not know diff between right/wrong, can’t understand
  8. Consent - consented to desertion/adultery
  9. Justification - one spouse leaves because of other’s misconduct
  10. Religion - will fail in ALL jurisdictions
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20
Q

Limited Divorce

A

legal separation where parties live apart, allowing courts to determine support/prop division

widely recognized, rarely used

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21
Q

Separate Maintenance

A

Party asking for support even though parties live together

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22
Q

Finalizing Divorces

A

once granted, many states do not finalize until certain period has elapsed

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23
Q

Mediation

A

Requires neutral court appointed mediator who is unbiased and not connected with either party.

Mediator can assist with child support, custody, visitation, parenting time

Result = settlement agreement submitted to court, if approved, incorporated into final divorce judgment

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24
Q

Community Property

A

only 9 states use, minority
Requires EQUAL division of marital property

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25
Q

Equitable Distribution

A

Most states use
fair distribution of marital property, not necessarily equal

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26
Q

Marital Property

A

most states - ALL property acquired DURING marriage

some states - all property owned by either spouse

burden of proof is on party asserting property is nonmarital

  • gifts between spouses are marital property
  • increases in the value of separate property resulting from either spouse’s effort is marital property
  • improvement due to marital property funds is also marital property

In most states, property acquired by one spouse after separation but before divorce decree is marital property.

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27
Q

Nonmarital Property (Separate Property)

A
  1. Property acquired before marriage
  2. Gift and inheritance
  3. Property acquired after divorce (some states - after separation)
  4. Property excluded by valid agreement
  5. Any award or settlement payment received for CoA/claim that accrued BEFORE marriage, regardless of when payment received
  6. Property that party has sold, granted, conveyed for value in good faith before date of final separation
  7. Property that was mortgaged/encumbered in good faith before final separation
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28
Q

Factors for distribution of marital property

A
  1. length of marriage
  2. prior marriages
  3. age
  4. health
  5. earnings/earning potential
  6. liabilities
  7. needs of both spouses
  8. contributions to education or career advancement of other spouse
  9. needs for future acquisitions
  10. income, medical needs, retirement of both spouses
  11. value of any separate property
  12. Economic circumstance of each spouse at divorce
  13. Custodianship of minor children
  14. standard of living
  15. homemaking, child rearing services
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29
Q

Professional License or Degree - marital property or not?

A

Majority - not distributable, but can affect alimony or distribution of marital assets

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30
Q

Spousal reimbursement

A

court may reimburse a spouse for amounts that spouse contributed to the other spouse’s education (“cost value approach”)

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31
Q

Retirement / Pension Benefits - marital property or not?

A

considered marital property and subject to equitable distribution if acquired during marriage

Courts look at CURRENT value of pension, not future value

TIMING OF PENSION important - it is often both marital/nonmarital because it started prior to marriage and the portion that accrued prior to marriage is nonmarital

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32
Q

Personal Injury Claim Proceeds - marital property or not?

A

If CoA occurred during marriage → marital property (even if proceeds are received after divorce) *some states

Separate and marital allocation approach (depends on nature of award)
- pain and suffering, disability → SEPARATE property of INJURED spouse
- lost wages, income, medical expenses, if award attributable from time of accident ot the end of marriage → marital
- lost wages, income, medical expenses, if award attributable after termination of marriage → separate
- consortium losses → SEPARATE property of NONINJURED spouse

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33
Q

Goodwill of business - marital property or not?

A

Refers to reputation/clientele of professional practice - Considered marital property if it is developed during the marriage, must be part of business and independent of the individual *some states

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34
Q

Accumulated Sick and Vacation Days - marital property or not?

A

split jurisdictions, depends on when/how accrued

35
Q

Stock options - marital property or not?

A

if acquired during marriage → marital property (even if stock options will not be exercised until after the divorce)

36
Q

Expectancy interest in property - marital property or not?

A

Not distributable

37
Q

Social Security Benefits - marital property or not?

A

Not subject to equitable distribution

38
Q

Post separation property - marital property or not?

A

Can be marital property (most states)

39
Q

Tax consequences of equitable distributions

A

transfer of property between divorcing spouses → tax free

40
Q

Modification of Property Division Award

A

NOT permitted because it is based on the parties’ assets at time of divorce

41
Q

Spousal Support (spousal maintenance/alimony)

A

one spouse’s monetary obligation to provide the other spouse with support in the form of income; awarded if recipient cannot provide for his own needs with their own employment/assets

  • can occur any time (after/during marriage)
  • cannot be discharged in bankruptcy
  • can be waived for other consideration
42
Q

Factors in determining spousal support

A
  • Financial resources of both parties and ability of payor to pay (assets, inheritance, gift, child support, earning potential)
  • standard of living during marriage
  • time to find a job/complete education
  • duration of marriage (>7 years = short // 7-15/16 years = moderate // 16-17+ years = long)
  • contributions to marriage (enhanced earning capacity of other spouse? by providing homemaking/childcare)
  • age and health of parties
  • martial misconduct (some juris, most preclude as factor)
  • children/future responsibilities
43
Q

Types of Spousal Support

A
  • lump sump (cannot be modified w/o fraud)
  • permanent (long term marriages 15 yrs +)
  • limited duration (short marriages)
  • rehabilitative ( to enhance/improve earning capacity, limited time)
  • reimbursement (to compensate for sacrifices made that resulted in reduced standard of living to secure enhanced standard of living - RARELY granted)
  • Palimony (only available in few states, long-term stable relationships)
44
Q

Modification of Spousal Support

A

can be modified, even if it was originally permanent

Party seeking modification typically has burden of establishing a SIGNIFICANT AND CONTINUING change in circumstances in the needs of dependent spouse OR financial abilities of obligor that warrant mod

  • wilfull/voluntary reduction in income → no reduction in support payments
  • Death of spouse → terminates support
  • remarriage
    (if payor remarries → modifiable
    (if recipient marries → can be terminated)
  • cohabitation w/ nonfamily → doesn’t automatically terminate but could be modified I recipient’s need decreases)
  • retirement
    (some jurisdictions deny modification, some jurisdictions will modify, depends on reason/nature o retirement - is it voluntary?)
45
Q

Alimony pendente lite

A

alimony paid during pendency of divorce litigation

46
Q

Jurisdiction of Courts

A

Court must have PJ and SMJ
Most states have residency requirement for SMJ (6 weeks to 2 years)

Full faith and credit applies if one spouse is resident for that length of time

47
Q

Powers of matrimonial courts

A

Broad and full equity powers to:
- divide property
- order divorce/annulment
- orders re custody of children
- spousal support/alimony orders
- attorney fees
- enforce separation agreements
- many others (sanctions)

48
Q

Child Support

A

Both parents legally required to support their minor children
- EQUAL responsibility unless circumstances indicate otherwise
- obligation is based on child’s needs, not parents’ ability to pay
- Typically paid until child turns 18, exceptions:
1. in HS full time, can be extended to 19
2. can be extended if child requires support past age of majority
3. can be extended through college degree

49
Q

Who has right to receive child support?

A

the child, parents cannot bargain it away

parents can agree regarding payment scheduling/timing

50
Q

When nonmarital kids can become marital kids

A
  • if parents marry after birth of nonmarital child
  • father puts name on birth certificate
  • father holds himself out to be father
  • by judicial decree
51
Q

Evidence to establish paternity

A
  • blood test
  • prior statements re paternity by deceased family
  • medical testimony on probability of conception
  • D’s own acknowledgement of paternity
  • physical resemblance between child and defendant
52
Q

Paternity action time limit?

A

NONE - unconstitutional - equal protection clause

53
Q

Marital Presumption

A

child born to a married woman is the child of that woman’s husband

54
Q

Estoppel

A

husband who is not biological father of his wife’s child may be estopped from denying his obligation to pay child support if:
- representation that he would provide for child
- wife relied
- wife suffered economic detriment as result

55
Q

Uniform Interstate Family Support Act (UIFSA)

A

adopted in ALL states
Court obtains personal jurisdiction over an out of state parent pursuant to long-arm provision in this act

GROUNDS for obtaining PJ:
- personal service
- consent
- past residency with child in the state
- d directed child to reside in the state
- d engaged in conception in that state that resulted in the child’s. birth
- D asserted parentage via putative father registry
- any other basis catch all

Governs modification and enforcement of interstate child support

Once order is registered in one state, enforceable in same manner/extent

Only issuing state can modify

56
Q

Sources of income that can be factored into calculating child support

A

wages
dividends
interest
capital gains
rental income
retirement benefits
social security income

57
Q

Public policy principles guiding child support

A
  1. parents have fundamental obligaqtion to financially support their children
  2. combined income is what is important
  3. minimize litigation
58
Q

Method of calculating child support

A

Income shares model (majority): child should receive same proportion of parental income as if the parties continued to live together
- add both incomes
- determine amount of child support based on total
- allocate responsibility respective to each person’s net income

Percentage of income model (some juris): determines minimum amount of child support by using percentage of supporting parent’s net income, determined by number of children supported

59
Q

Deviations from child support guidelines

A

Court can deviate but it must set forth specific findings explaining and supporting the deviation

Obligor not permitted to monitor how money is spent.

60
Q

Modification of Child Support

A

A substantial change in circumstances regarding the child’s needs or the parents’ financial situations that is expected to be continuing

Substantial change = typically 10% change or more in amount owed

Most jurisdictions – no reduction for voluntary reduction in obligor’s pay except when it was made in good faith and no hardship to child

Burden on party seeking

61
Q

What is the most important consideration in calculating child support?

A

What is the best interest of the child?

62
Q

Child support - medical insurance?

A

Most jurisdictions include in child support award
- premium cost of insurance will be deducted from net income of parent who pays for the insurance

63
Q

Jurisdiction for modification of child support

A

Court may not modify child support ordered rendered by a court with continuing jurisdiction in another state UNLESS parties (including child) no longer reside in that state OR parties expressly agree to permit another state to exercise jurisdiction

64
Q

Additional ways child support can be terminated

A

child marries
child emancipation
termination of parental rights
child dies
parent dies (courts can require life insurance policy)

65
Q

Tax consequences of child support

A

paying parent cannot deduct child support from income, receiving parent cannot include it as income, parent who pays medical expenses CAN deduct those expenses from their income

66
Q

Enforcement of Child Support Awards

A

contempt orders
wage garnishment
withholding tax refunds
civil contempt - violate court order for failure to pay, can order incarceration
criminal contempt - failure to pay is wilfull beyond reasonable doubt
intercept tax refunds
suspend DL
suspend professional licenses
report to credit bureau
seize property or assets
order insurance or bond
attorneys fees
order job search
seize passport if $5000+ in arrears

67
Q

Child Custody Definitions

A

Legal custody - right of parent to make major decisions about child’s life (health, education, religion)

Physical custody - right of parent to have child reside with parent and obligation to provide for routine daily care and control of child

Joint custody - applies to MAJORITY of cases, statutorily favored; both parents must be willing and able to cooperate with respect to wellbeing of child, neither parent superior

68
Q

Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA)

A

purpose is to prevent forum shopping regarding child custody and visitation rights

Determines which state can have jurisdiction, change, decline

under UCCJEA, courts must have SMJ

  • Initial custody determination (home state jurisdiction
  • significant connection jurisdiction
  • default juris
  • exclusive continuing juris
69
Q

UCCJEA Initial custody determination (home state jurisdiction)

A

per UCCJEA, court has SMJ if:
- child’s home state for at least 6 months prior to custody proveeding (since birth if child less than 6 months old) OR
- was child’s home in past 6 months and child is absent from state BUT parent continues to live in state

70
Q

UCCJEA Significant-connection jurisdiction

A

per UCCJEA, court can enter or modify an order if:
- no other state has/accepts home state juris
- child and at least 1 parent have significant connection with the state, AND
- substantial evidence in state about child’s care, protection, training, and personal relationships

71
Q

UCCJEA Default jurisdiction

A

if no state has juris through home state or significant connection, court in state with appropriate connections to child has juris

72
Q

UCCJEA - exclusive-continuing jurisdiction

A

Court that makes initial ruling has exclusive jurisdiction over matter until parties no longer reside in state, child no longer has signifcant connection to state

73
Q

UCCJEA - when can court decline jurisdiction?

A

If court has either initial or exclusive continuing jurisdiction,c an decline to hear if forum is inconvenient

74
Q

UCCJEA - temporary emergency jurisdiction

A

child in danger, requires immediate protection
if no prior custody order, stays in effect until decision by child’s home state

75
Q

UCCJEA - enforcement of another state’s orders

A
  • registration of another state’s order
  • expedited enforcement of child custody determination (hearing held next day & respondent must appear or P gets imm. custody UNLESS order not registered AND either court no juris, order stayed/vacated, OR notice improper; OR order registered but stayed/vacated/modified)
  • warrant for child custody (if child likely to suffer serious physical injury or wrongfully removed from state)
  • law enforcement (violation of crim statute to hold child or requested by court)
76
Q

Parental Kidnapping Prevention Act

A
77
Q

Premarital Agreement

What is required for it to be enforceable?

A

Enforceable if:
1) There has been full disclosure
* of all income, assets, and liabilities of all parties
* as long as there is full disclosure, court can’t refuse to enforce based on substantive unfairness alone (see UPA req to argue unenforceability)

2) agreement is fair and reasonable, AND
* unconscionability?
* procedural fairness: duress, undue influence, force, mediator misconduct?
* substantive fairness: fairness of terms themselves
* * most courts evaluate fairness at time of execution, minority evaluate at time of enforcement
* * modern trend: enforce as long as there has been fair/full disclosure, even if it is not as fair

3) it was voluntarily entered into
* no fraud, duress, misrepresentation
* time pressure?
* previous business experience of party?
* opportunity to consult with counsel?
* * insistence on agreement as condition to marriage is not considered duress

Must be in writing and signed by the party to be charged.

78
Q

Premarital Agreement

How to invalidate a premarital agreement under the UPAA?

UPA = Uniform Premarital Agreement Act

A

To argue an agreement is unenforceable, party seeking invalidation must prove by clear & convincing evidence tat least ONE of the following:
1. involuntariness (fraud, coercion, duress), OR
2. Unconscionability when executed AND lack of disclosure/adquate knowledge of other’s assets and obligations.

Thus, a court cannot refuse to enforce based on substantive unfairness (unconscionability) alone UNLESS it also finds lack of adequate disclosure or knowledge.

79
Q

Division of property

Equitable Distribution

A

followed by most states
objective of the equitable distribution system is to order a fair distribution of all marital property, not necessarily an equal division.

Takes into consideration ALL of the circumstances between the parties.

80
Q

What is Marital Property?

A

Most states consider all property acquired during marriage = marital property

Some states consider all property owned by either spouse

Burden of proof on party asserting property is nonmarital

81
Q

Division of property

What factors do courts use in determining equitable distribution of marital property?

A
  • length of marriage
  • prior marriages
  • age, health, earnings, earning potential, liabilities, and needs of both spouses
  • contributions to education
  • income, medical needs, retirement of both spouses
  • homemaking and child-rearing services
  • value of separate property
  • reduction in valuation in martial property by one spouse
  • standard of living
  • economic circumstances of each spouse at time of divorce
  • custody of any minor children
82
Q

___ can challenge a ____ marriage. A court judgement is ____.

A

**Any interested party **can challenge a void marriage. A court judgment is unncessary.

83
Q

What is the majority standard for determining child custody?

A

The best interest of the child

84
Q

UCCJEA heirarchy for a court to exercise original jurisdiction

A
  1. home state jurisdiction
  2. significant-connection jurisdiction
  3. appropriate connections

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