FAMILY LAW Flashcards
What does “Equitable” mean in the division of property at divorce?
Applies to the division of marital property at divorce, requiring a “just and fair” division, not necessarily an “equal” 50/50 division.
What does “Irretrievably broken” refer to in the context of divorce law?
Relates to grounds for no-fault divorce, synonymous with irreconcilable differences.
What does “Best interest of the child” mean in family law?
The standard used in determining child custody, support, and other issues related to the child.
What are the basic requirements for a marriage to be recognized legally?
Marriage is a civil contract between two parties, both must have the:
- capacity to give
- consent, and there must be
- exchange of mutual promises and obligations.
Can same-sex couples legally marry, and how can such marriages be terminated?
Yes, same-sex couples can legally marry. Marriages can only be modified or terminated with court intervention.
What are some common prerequisites for obtaining a marriage license?
Prerequisites include a:
- minimum age requirement,
- possibly a waiting period, and
- sometimes premarital medical testing
licenses have a validity period and expire after a certain number of days.
Under what conditions will a marriage license NOT be issued?
If a party is:
- already married,
- too closely related,
- entering a sham marriage, or
- incapable of understanding the marriage due to substances or coercion.
What are the 4 requirements to establish a common-law marriage? (The 4 C’s)
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.)
How are common-law marriages recognized across state lines?
Recognized under the Full Faith and Credit Clause unless the state has a strong public policy against such recognition.
What are heartbalm actions, and are they still recognized?
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.
What legal rights and obligations arise from the marriage relationship?
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.
What makes “irretrievably broken” different from other grounds for annulment like a prior existing marriage, incest, or mental incapacity?
“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.
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 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.
Are children from an annulled marriage considered illegitimate?
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.
What is the majority rule regarding no-fault divorce?
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.
Why isn’t “irretrievably broken” a ground for fault-based divorce?
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.
Why isn’t a “Desire to reconcile” considered a defense in fault-based divorce?
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.
What is the key difference between community property and equitable distribution systems?
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.
What generally constitutes marital property, and what are the common exclusions?
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.
How are increases in the value of separate property treated in divorce proceedings?
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.
Are gifts between spouses considered marital or separate property?
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.
Who bears the burden of proof when classifying property as separate in a divorce, and why?
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.
What are the exceptions to the classification of marital property?
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.
What factors are considered in the equitable distribution of marital property?
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.
How are retirement benefits and personal injury claims treated in marital property distributions?
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.
What are the general considerations under which a premarital agreement is enforceable?
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.
What bust be proven undre the UPAA for a premarital agreement to be considered unenforceable?
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.
Can a court refuse to enforce a premarital agreeement based on substantive unfairness alone under UPAA?
What are the instances in which a marriage license will not be issued?
- One of the parties is married to someone else
- The parties are too closely related
- The marriage is a sham
- 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
What evidences the intent to enter into a common-law marriage?
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.
How does a party modify a property division award?
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.
How can a valid marriage be terminated?
Annulment, divorce, or death
Consent is a defense to which two grounds for divorce?
Consent is a defense to desertion or adultery.
