Family Law Flashcards
What are the rules for a pre-marital agreement?
A valid pre-marital agreement (1) must be in writing and signed, (2) entered into voluntarily, and (3) include a full and fair disclosure of the parties’ assets or proof that the party against whom the agreement is being enforced had independent knowledge of the assets (last element only examined if the agreement is unconscionable). Some courts consider whether the economic provisions are fair and reasonable.
These agreements can cover the disposition of property in the event of death or divorce; the making of a will, trust, or other arrangement to carry out the provisions of the agreement; and the choice of law governing construction of the agreement. However, these agreements cannot address child custody or support because doing so would violate public policy.
What are the requirements of a ceremonial marriage?
(1) A license, (2) a ceremony with an authorized officiant, (3) no legal impediment to marriage (e.g., parties cannot be too closely related and one party cannot have a prior undissolved marriage), and (4) capacity to consent (i.e., 18-years of age or older, cannot be under the influence of drugs or alcohol, cannot be induced by fraud, duress, or coercion).
What are the requirements of a common law marriage?
(1) Consent to marry (includes having capacity and a lack of legal impediments), (2) cohabitation, and (3) a couple holding themselves out publicly as spouses.
What is the obligation to support?
During marriage, each spouse has an obligation to support the other. The doctrine of necessaries can be used to make one spouse liable to third parties for the other spouse’s purchases for necessary expenses, such as food, clothing, and health care.
What are spousal abuse orders?
Spousal abuse orders allow a battered spouse to obtain a protective order against a violent spouse. The protective order may be granted ex parte.
What are the causes of action for tortious interference with marriage?
Alienation of Affection: Requires (1) evidence of genuine love and affection between validly married spouses, (2) evidence that the love and affection was alienated or destroyed, and (3) proof that the defendant’s actions caused the loss of love and affection. Proof of damages is also required.
Criminal Conversation: Requires (1) the existence of a valid marriage, and (2) an act of adultery need to be proven. The spouses may have even been living apart at the time of the act.
Negligent Interference with Consortium or Services: Either spouse may maintain an action for loss of the other’s consortium due to injuries from a defendant’s negligence.
What are the rules for voiding a marriage?
A void marriage is invalid because it fails to meet the essential requirements for a legal marriage. Collateral attacks are allowed.
If a spouse failed to successfully terminate a prior marriage, the spouse may argue (1) there is a strong presumption that the latest marriage is valid, and (2) if the prior marriage is later terminated by divorce, annulment, or death, continued cohabitation validates the second marriage under the UMDA and similar statutes. However, other states do not allow validation, holding that the marriage remains void and the parties need to marry after the impediment is gone to have a valid marriage.
The grounds for voiding a marriage include (1) bigamy or polgamy (the party has a living spouse) and (2) consanguinity (the parties are too closely related)
Defenses: The impediment does not exist.
What are the rules for a voidable marriage?
A voidable marriage is valid until declared null. However, because of an impediment that existed at the time of the marriage, one of the spouses may bring an action to have the marriage annulled. Collateral attacks are not permitted.
Marriages that are voidable can be remedied (or ratified) by continued habitation after the removal of the impediment, and ratification means the marriage cannot be annulled.
The grounds for a voidable marriage include (1) nonage (i.e., underaged spouse), (2) incurable physical impotence (i.e., then inability to have normal sexual relations), (3) lack of capacity, (4) duress, and (5) fraud.
Defenses: The impediment does not exist, ratification, latches, estoppel, and unclean hands.
When does a court have jursidiction over a divorce?
A court has jurisdiction over a divorce if at least one of the spouses is domiciled in the forum state.
What are the grounds for no-fault divorce?
(1) Both souses agree that the marriage is irretrievably broken (bilateral), (2) the spouses have been living apart for a specified and continuous period of time (bilateral or unilateral), and (3) both spouses agree they are now incompatible and can no longer be married (bilateral).
What are the grounds for fault divorce?
Adultery: The filing spouse presents circumstantial evidence of opportunity and inclination. Corroboration is often required.
Willful Desertion: Requires an unjustified departure from the marital home for a specified period with no intent to return.
Extreme physical or mental cruelty
Voluntary drug addiction or habitual drunkenness commencing after the marriage.
Insanity
What are the defenses to fault and no-fault divorce?
No-Fault: Denying one of the no-fault grounds exists.
Fault: Collusion (an agreement between the spouses to simulate grounds for divorce or to forgo raising a valid defense), connivance (willing consent to the other spouse’s misconduct), condonation (the forgiveness of marital offenses with full knowledge of the wrongs), and recrimination (the party seeking the divorce is guilty of misconduct for which a divorce may be granted).
What are the rules for property division upon a divorce?
Community Property: All property acquired during the marriage is deemed owned one-half by each spouse, and all property brought into the marriage or acquired by gift or bequest is separate property.
Equitable Division of All Property: The court divides all property owned by either spouse, whether acquired before or after the marriage.
Equitable Division of Marital Property: Courts follow a two-step process: (1) classify what is martial property and what is separate property and (2) make an equitable division of the marital estate no matter how the property is titled.
Marital Property Approach - Separate Property: Separate property includes (1) property owned before marriage, (2) property acquired by gift or inheritance, (3) property acquired in exchange for separate property, (4) income and appreciation of separate property, (5) pain and suffering awards, (6) personal damages, and (7) property acquired after an order of legal separation that includes a final disposition of property.
Marital Property Approach - Marital Property: Marital property includes (1) property acquired during the marriage, (2) earnings, (3) employment benefits, pensions, and stock options (even if not vested until after divorce), (4) lost wages, (5) reimbursement for medical bills incurred and paid with marital property, and (6) recovery for damages to marital property.
When are some of the special issues that arise in classifying property?
Property the Changes Character: Separate property becomes marital property by commingling or transmutation. Commingling occurs when separate property is inextricably intertwined with marital property or with the separate property of the other spouse to the extent that it can no longer be traced. Transmutation occurs when the separate property is treated in a way that evidence an intent for the property to be marital property.
Improvement of Separate Property: If martial funds are used to improve separate property, the property remains separate property, but the nonowning spouse receives a reimbursement for the value added to the separate property.
Property Acquired Before Marriage But Paid for After: The majority view is that such property should be apportioned between separate and marital estate in proportion to the contribution for separate and marital funds.
Professional License or Degree: A professional license or degree is not distributable property, but some courts use alimony to compensate supporting spouses for their contribution during the education or training period.
What are the rules for the equitable division of marital property?
Courts consider many factors in determining the equitable division of martial property. The most important are (1) the duration of the marriage, (2) each party’s contribution to the marriage, and (3) whether the distribution is in addition to, or in lieu of alimony.
