Family Law Flashcards
(41 cards)
What does a valid marriage require?
1) consent from both parties
2) marriage license
3) the marriage is solemnized in a ceremony
4) no legal impediments (too closely related or lack of capacity)
How is a common law marriage formed?
Spouses
1) live together for a specific amount of time
2) legally able to marry
3) have a present agreement that the two parties are married AND
4) hold themselves out as being married
Most states honor other states’ valid common law marriage
Pre-marital Agreements Requirements
voluntary
writing and signed
full and fair disclosure of assets
independent counsel
Under the UPAA, a Premarital Agreement is NOT enforceable if a spouse proves what?
Either:
a) The agreement was made involuntarily (fraud, duress,
coercion); OR
b) It was unconscionable when executed AND before
execution the spouse was not:
i. Provided fair disclosure of property/financials;
ii. Did not waive disclosure in writing; AND
iii. Did not have knowledge of such information.
What factors will be considered to determine if a
Premarital Agreement was made voluntarily?
1) Presence of independent legal counsel;
2) Length of time between the date of agreement and the
wedding;
3) The party’s ability to understand the agreement; AND
4) Other reasons for proceeding with marriage (i.e.
pregnancy).
*A party’s insistence on signing the agreement as a condition to
marriage DOES NOT render it involuntary.
Are provisions in a marital agreement regarding
child support/custody binding?
NO, they are not binding.
*Additionally, any provisions that adversely affects a child’s
right to support is unenforceable.
Under UPAA, are modifications or eliminations of
spousal support in a Premarital Agreement
permitted?
Yes, BUT such provisions will not be enforced if doing so will
make the spouse eligible for public welfare.
*In some states, such provisions are invalid as against public policy.
May an ex-parte divorce action be maintained
without personal jurisdiction over the absentee
spouse?
YES, if the plaintiff-spouse is a domiciliary of the rendering
state. Property division though is not permitted.
*Many states have Durational Residency Requirements –
specifies the amount of time a spouse must live in the state
before he/she can bring a divorce action.
What is a Divisible Divorce?
It allows one party to terminate the marriage in one proceeding,
and reserves other issues (property division, spousal support) for
another proceeding.
*It occurs when a court has personal jurisdiction over the
marriage (the res) to maintain a divorce action, BUT not over
the defendant spouse to maintain an economic or support action.
Under the UCCJEA, when does a court have Home
State Jurisdiction?
Either:
a) Child’s home state; OR
b) Where (i) child lived with a parent for 6+ months
immediately before action was filed, (ii) child is
absent from state, and (iii) parent or acting parent is
still present in the state.
Under the UCCJEA, when does a court have
Significant Connection Jurisdiction?
If:
1) No home state;
2) Child and at least one parent have a significant
connection to the state; AND
3) Substantial evidence in the state exists.
Under the UCCJEA, when does a court have More
Appropriate Forum Jurisdiction?
When:
All other courts decline to exercise jurisdiction
because this particular court is a more appropriate
forum.
Under the UCCJEA, when does a court have No
Other State Jurisdiction?
When:
No other state has jurisdiction
Under the UCCJEA, when does a court have
Temporary Emergency Jurisdiction?
When the:
1) Child is physically present in the state; AND
2) Child is abandoned or it’s an emergency to protect
the child.
What grounds must be established for a court to
grant an Annulment?
One of the following:
a) Lack of capacity (fraud, duress, mental incapacity);
b) Bigamy;
c) Consanguinity (marriage between close family
members); OR
d) Spouse was underage at the time of the marriage.
What are the five grounds for Divorce?
Divorce grounds:
1) Cruel and Inhuman Treatment
2) Adultery
3) Abandonment for a Set Amount of Time
4) Habitual Drug Addiction or Drunkenness
5) A “No Fault” Divorce (Irretrievable Breakdown)
When may a Separation Agreement be set aside?
If it’s unconscionable OR the result of
fraud.
When may a Divorce Settlement Agreement set aside?
Divorce Settlement Agreement: If (a) mediator misconduct;
OR (b) agreement was substantially unfair and the result of
fraud, duress, overreaching, or coercive conduct.
*Settlement agreements may be set aside for mediator
misconduct if: failure to be impartial, disclose conflicts, or fully
inform the participants about the law and their rights.
What does Separate Property include?
It includes:
a) Property/assets acquired prior to marriage;
b) Gifts/bequests to an individual spouse during marriage;
c) Property which spouses agree will be separate; AND
d) Passive appreciation of assets for any of the above.
*Each spouse’s separate property will NOT be subject to equitable
distribution
What does Marital Property include?
It includes:
All property acquired during the marriage, regardless of whose
name is on the title of the property.
Most states also consider active appreciation (appreciation
caused by the effort of one or both of the spouses) as Marital
Property.
*Generally, fault is IRRELEVANT to the division of marital
property.
Are Professional Degrees/Licenses deemed Marital Property subject to equitable distribution?
NO, in most states.
However, reimbursement is generally required for any support
provided by a spouse that contributed to the other spouse’s
education or licensing.
*A minority of states treat a professional degree/license as
marital property.
Do courts consider marital or economic fault for the
division of property?
Marital Fault is generally IRRELEVANT.
BUT, most courts will consider Economic Misconduct (i.e. dissipation of assets).
Dissipation occurs during the breakdown of the marriage when a
spouse uses marital property for the sole benefit of himself for a
purpose unrelated to the marriage.
Under the Uniform Marriage and Divorce Act
(UMDA), the court may order Maintenance when?
If the spouse seeking maintenance:
1) Lacks sufficient property to provide for their reasonable
needs;
AND
2) Is either unable to support themselves through
employment OR is the custodian of a child whose
condition makes it so they cannot seek work.
What factors will a court weigh when determining
the amount of Spousal Support?
1) The party’s financial resources;
2) The time necessary to obtain an appropriate job;
3) The standard of living established during the marriage;
4) The duration of the marriage;
5) The age and physical condition of the seeking spouse;
6) The ability of the spouse paying, to meet their needs,
while still supporting their ex-spouse.
*Support obligations terminate upon death of the obligor spouse.
