Family Law Flashcards
What rule applies for gifts made in contemplation of marriage?
If the marriage does not take place, gifts conditioned on the marriage (EX: an engagement ring) must be returned.
What is the UPAA and how does it work?
Under the Uniform Premarital Agreement Act (“UPAA”), which has been adopted by a majority of states, 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; the choice of law governing construction of the agreement; and any other matter not in violation of public policy or criminal statute. Generally, parties can make agreements regarding alimony (also known as spousal support), but a court may find the provision unenforceable if it leaves the disadvantaged spouse a public charge.
What is an antenuptial agreement?
Premarital contracts (also called antenuptial agreements) are valid contracts that address the rights of the parties upon divorce or death. The marriage is sufficient consideration to support a premarital contract.
What are the requirements for a valid prenuptial agreement?
(1) The contract must be in writing and signed (by the party against whom enforcement is sought); (2) The agreement must be entered into voluntarily (meaning without fraud, duress, or overreaching–EX: were they represented by independent counsel?); (3) There must be a full and fair disclosure of the parties’ financial worth (assets) or proof that the party against whom the agreement is being enforced had independent knowledge of the financial worth (NOTE: Under the UPAA, courts only examine this element if the agreement is unconscionable).
- Entry into marriage is sufficient consideration.
- Some courts consider whether the economic provisions are fair and reasonable. Unconscionability is determined at the time the agreement is formed (EX: were both parties economically independent at the time?).
What choice of law applies for premarital agreements?
Premarital agreements often contain valid choice of law provisions. If the agreement at issue does not contain a choice of law provision, then its enforceability is governed by the law of the state where it was executed or the state with the most significant relationship to the parties.
What result for a premarital agreement if a marriage is determined to be void?
If a marriage is found to be void, a premarital agreement is enforceable only to the extent necessary to avoid an inequitable result.
What are the basic marriage requirements?
(1) License: Most states require that persons intending to marry obtain a license. To do so, some states require that each party obtain a certificate from a physician stating that the party is free from particular communicable diseases. Most states also require a waiting period between getting the license and having the ceremony. The period varies by state.
(2) Solemnization: Generally, a marriage must be solemnized by a ceremony with an authorized officiant. States vary on who can perform marriage ceremonies.
(3) No Legal Impediment (related; bigamy; consent).
What result when there is a failure in license requirements for marriage?
The failure to meet procedural requirements of a license will not invalidate the marriage.
What is Common Law Marriage? What are its requirements?
A common law marriage is a marriage without the normal procedural requirements being met. A valid common law marriage requires three things: (1) Consent to marry (includes having capacity and a lack of legal impediments); (2) Cohabitation; (3) The couple holding themselves out publicly as spouses.
What is marriage by estoppel?
Marriage by estoppel (or a putative marriage) is an equitable remedy that some states use to protect an innocent party who acted in good faith when entering into an invalid marriage.
- In some states, the putative spouse can acquire all of the rights of a legal spouse.
Upon divorce, what significance does title being in only one of the parties’ names have?
During marriage, each spouse owns and controls the property in their own name, but title is not dispositive in the event of divorce.
What obligation(s) of support apply in a marriage?
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. Also, principles of agency may require that one spouse be held liable to a third party for the other spouse’s authorized purchases.
What spousal abuse orders are available?
Every state has laws protecting the victims of domestic abuse, both within and outside of a marriage. All 50 states allow a battered spouse to seek some form of protective order against a violent spouse. Initially, protective orders can be granted ex parte (that is, without notice to the other spouse) and can last from one month to several years depending on the jurisdiction.
What claims are available against third parties who interfere with a marriage? What are the requirements for such a claim?
If a third party diverts the affection of one spouse so that the other is deprived of a marital relationship, the deprived spouse may have a cause of action for Alienation of Affection against the third person.
- These actions have been abolished in many states.
Where they exist, these actions require evidence of (1) 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.
- Adultery is not required (EX: in-laws have been sued for alienation).
- Proof of damages is required. Damages are highly subjective, and punitive damages are available in some jurisdictions.
What is a criminal conversation claim?
When one spouse has sexual relations with a third person, the other spouse may have a cause of action against the third person for criminal conversation. For these claims, only (1) the existence of a valid marriage and (2) the act of adultery need to be proven; the spouses may have even been living apart at the time of the act.
- Criminal conversation actions have been abolished in most states.
What is Annulment?
An annulment is a backward-looking doctrine that declares a marriage invalid because an impediment that existed at the time of the marriage makes it legally void or voidable. Once an annulment decree has been entered, the parties are treated as though they were never married.
What are the consequence of having a marriage that is void?
A void marriage is invalid, an UTTER NULLITY, because it failed to meet the essential requirements for a legal marriage. No subsequent act can ratify a void marriage. Parties may walk away from a void marriage with NO LEGAL ACTION, but an annulment action is usually brought to determine property distribution and child custody. Any interested party (THIRD PARTY) may seek annulment of a void marriage, and the marriage is subject to collateral attack (in actions other than annulment actions) even after the death of one of the parties.
What result when an impediment causing the marriage to be void is removed?
Depends on the state. If the impediment causing the marriage to be void is removed (for example, a spouse from a prior valid marriage dies), the Uniform Marriage and Divorce Act (“UMDA”) and some state statutes provide that the marriage becomes valid if the parties continue to cohabit. 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.
What result for a marriage when there is bigamy?
If either party has a living spouse, the marriage is void.
What result for a marriage when there is Consanguinity?
Marriages between parties who are too closely related are prohibited. Most states consider these marriages void.
What does it mean for a marriage to be voidable?
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. No collateral attacks are permitted, and sometimes only the party who suffered the impediment can bring the action to annul.
Typically, a voidable marriage occurs when some type of event or condition affects the adequacy of a party’s consent. Unlike void marriages, 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.
What are things that will make a marriage voidable?
- Nonage
- Incurable Physical Impotence
- Capacity
- Duress
- Fraud
What is the effect of an Annulment?
Broadly, an annulment means that the marriage is set aside as if it never existed.
What are the defenses to an annulment?
The only way to defend an action to annul a void marriage is to deny the existence of the defect. If the impediment has been removed and the parties continue the relationship, the marriage becomes valid in states following the UMDA. Ratification is the most common defense in an action to annul a voidable marriage. Other equitable defenses (for example, laches or estoppel) may also be used, but they are usually subsumed in the ratification defense.
How can a court have jurisdiction over a divorce proceeding?
To have jurisdiction over a divorce, only one of the parties needs to be domiciled (resident + intent to remain) in the jurisdiction. Most states set a minimum residency period (EX: 90 days) before an action may be filed.
- It is possible for multiple states to have jurisdiction over a divorce, and multiple cases could proceed until one court renders a judgment causing the other to lose subject matter jurisdiction.
- It’s not a first to file rule.
What is No-Fault Divorce?
Most states allow spouses to get a divorce without regard to marital fault. Generally, this requires showing one of the following: (1) Both spouses agree that the marriage is irretrievably broken (also referred to as irreconcilable differences) and have lived apart for the requisite period of time. This is a form of bilateral no-fault divorce; OR (2) The spouses have been living apart for a specified and continuous period of time. This type of no-fault divorce can be bilateral or unilateral. The relevant time period can range from 90 days to 18 months—the period is often shorter if both parties agree to divorce (that is, the divorce is bilateral) and longer for a unilateral no-fault divorce—and the parties are still married during that time; OR (3) Both spouses agree they are now incompatible and can no longer be married. This is a form of bilateral no-fault divorce (some states).
What is Fault-Based Divorce? What are the usual types/grounds?
Divorce based on bad acts of one of the parties. The usual fault-based grounds for divorce are:
- Adultery: Generally, the filing spouse presents circumstantial evidence of opportunity and inclination. Corroboration is often required.
- Willful desertion (or abandonment): This requires an unjustified departure from the marital home for a specified period with no intent to return (usually have to ask them to return and they refuse).
- Extreme physical or mental cruelty.
- Voluntary drug addiction or habitual drunkenness commencing after the marriage.
- Insanity.
What are the defenses to divorce?
No-Fault Divorce: The only defense to a no-fault divorce is to deny the existence of one of the requirements (EX: One spouse may claim that a reconciliation restarted the clock for living separate and apart).
Fault Based: Defenses to fault-based divorce are rarely used, but still exist:
- Collusion: Collusion is an agreement between the spouses to simulate grounds for divorce or to forgo raising a valid defense. In some jurisdictions, collusion will prevent the granting of a divorce.
- Connivance: Connivance is willing consent to the other spouse’s misconduct. This is usually limited to adultery cases, and it has been abolished in many states.
- Condonation: Condonation is the forgiveness of marital offenses with full knowledge of the wrongs. Resumption of marital relations after the forgiveness is the key element of this defense.
- Recrimination (unclean hands): Recrimination is a defense that arises when the party seeking the divorce is also guilty of misconduct for which a divorce may be granted. This defense is rarely used.
What is Legal Separation?
An order of legal separation (sometimes called a “divorce from bed and board”) does not terminate the marriage, but the parties can have all of their rights regarding property, spousal support, custody, and child support adjudicated in this proceeding. If the court permanently divides marital property, then any after acquired property is separate property.
- A legal separation can usually be enlarged into an absolute divorce if the parties so request.
What are the main systems of dividing property upon divorce?
- Community Property
- Equitable division of ALL property
- Equitable division of MARITAL property
What is the Community Property Approach to property division?
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.
What is the Equitable Division of All Property Approach to property division?
The court divides all property owned by either spouse, whether acquired before or after the marriage.
What is the Equitable Division of Marital Property Approach to property division?
Each spouse takes their separate property, and the court only divides the property acquired during the marriage.
- This is the majority approach.
What is the general analysis for property division upon divorce?
Typically, there is a two-step process in property division:
(1) Classification: Determine what is marital property and what is separate property.
(2) Division: Make an equitable division of the marital estate no matter how the property is titled.
When are property distribution decrees modifiable?
Property distribution decrees are not modifiable.
What is separate property? What is included in separate property?
Property owned by only one spouse. 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 (be aware of Improvement of Separate Property rules); (5) Pain and suffering awards; (6) Personal damages (EX: future medical expenses or future lost wages); and (7) Property acquired after an order of legal separation that includes a final disposition of property.
- Generally, in a divorce, each spouse takes their separate property.
When divorce is sought, when does the marital estate actually end/terminate?
It’s state specific. Some terminate the marital (property) estate when divorce is filed for, and others use the date of separation.
What is marital property? What is included in marital property?
Marital property is all other property (besides separate property) acquired during the marriage. Marital property includes: (1) Property acquired during the marriage; (2) Earnings; (3) Employment benefits, pensions, and stock options (The majority rule is that employment benefits, stock options, and pension rights (see below) earned during marriage are marital property even if they will not be exercised or vested until after the
divorce); (4) Lost wages (Many states hold that if a cause of action for lost wages due to personal injury accrues between the date of marriage and final separation, then the proceeds from the settlement or award are marital assets subject to distribution); (5) Reimbursement for medical bills incurred and paid with marital property; and (6) Recovery for damages to marital property.
- Marital property is subject to equitable distribution by the court.
What is Commingling?
The 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. A court will attempt to trace the funds (but this can be a problem).
- Separate property may become marital property through this.
What is Transmutation?
The separate property is treated in a way that evidences an intention for the property to be marital property (EX: placing separate property in the names of both spouses).
- Separate property may become marital property through this.
What result when separate property is improved with the property or effort of a spouse?
When separate property is improved by the use of marital funds or the effort of a (either) spouse, courts generally hold that the property remains separate property, but most jurisdictions grant the marital estate or the non-owning spouse reimbursement for the value added to the separate property.
- An increase in value due to market factors would remain separate property.
