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Bar Exam > Family Law > Flashcards

Family Law Flashcards

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1
Q

Breach of promise to marry

A

Rare and mostly abolished

if recognized
- tort damages
- actual damages, loss of reputation, mental anguish, injury to health
- possibly punitives

gifts conditioned on marriage must be returned

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2
Q

prenup

A

rights upon divorce or death
marriage is the consideration

property division, choice of law and any other matter not against public policy

alimony, but may not be enforceable if leaves other spouse a public charge

child custody and support NEVER BINDING ON COURT

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3
Q

Prenup requirements

A

writing and signed

voluntary

full and fair disclosure of the parties’ assets or proof of independent knowledge of assets
- upaa only examine if agreement unconscionable
- other courts consisder whether ex provision is fair and reasonable

choice of law
- if non written, law of state where executed or state with most significant relationship to parties

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4
Q

Marriage requirements

A

license
- may require waiting period
- failure to meet will not invalidate

ceremony
- authorized officiant

no legal impediments
- not too closely related
- no undissolved marriage to living spouse

capacity to consent
- at time of ceremony

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5
Q

Common law marriage

A

consent to marry
cohabitation
holding out to public

if valid in one state, recognized in others even if that state does not ahve common law marriage

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6
Q

Marriage by estoppel or punitive marriage

A

Protect innocent party acting in good faith when entering invalid marriage

acquire all rights of legal spouse

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7
Q

Doctrine of necessaries

A

used to make one spouse liable to third parties for the other spouse’s purchases for necessary expenses - food, clothing, healthcare

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8
Q

Spousal abuse orders

A

Allow a battered spouse to seek a protective order

can be granted ex parte

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9
Q

Tortious interference with marraige

A

Alienation of affection
- D’s actions must have caused the loss of love and affection

Criminal conversation
- one spouse has sex with a third part

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10
Q

Annulment

A

Marriage invalid during to an impediment at time of marriage
Void or voidable

set aside like never existed

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11
Q

Void marriage - annulment

A

anyone can bring action

-if impediment removed - some say now valid if continue to cohabit

Void marriage
- bigamy
- consanguinity - too closely related

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12
Q

Voidable marriage

A

Only spouses can bring claim

issue affecting consent - can be ratified by continued habitation

Voidable
- nonage
- incurable impotence
- lack of capacity
- duress
- fraud of essential element of marriage

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13
Q

Annulment defenses

A

deny existence of defect

removal of impediment

ratification

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14
Q

Annulled children

A

Considered marital children

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15
Q

Annulment spousal support and property

A

Generally not awarded

property- place in pre marriage position

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16
Q

Divorce jurisidction

A

one party needs to be domiciled

some states have minimum residency requirement

multiple cases can proceed until one court renders judgment

pj over other spouse not needed because in rem

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17
Q

No fault divorce

A

Irretrievable broken/irreconcilable differences - both spouses agree

living apart for specified and continuous period of time - bilateral or unilateral

incompatible - bilateral

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18
Q

Fault grounds for divorce

A

Adultery - circumstantial evidence of opportunity and inclination and corroboration

willful desertion or abandonment - unjustified departure from marital home for specified period with no intent to return

extreme cruelty - mental or physical

voluntary drug addiction or habitual drunkenness commencing after marriage

insanity

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19
Q

No fault defense

A

Deny existence of ground

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20
Q

Fault defenses

A

Collusion
- agreement to simulate grounds for divorce and forgo defenses

connivance
- willing consent to other’s misconduct

condonation
- forgiveness of martial offenses with full knowledge of offense

recrimination
- both guilty of misconduct

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21
Q

Legal separation

A

does not terminate marriage but can have rights regarding property, spousal support, and child custody and support determined

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22
Q

Property division approaches - not modifiable or taxable

A

Community property
- all property acquired in marriage 1/2 each

equitable division of all property

equitable division of marital property

23
Q

Separate property

A

owned before marriage

acquired by gift or inheritance

acquired in exchange for separate property

income and appreciation of separate property

pain and suffering awards

personal damages

acquired after an order of legal
separation that includes a final disposition of property

24
Q

Marital property

A

Acquired during marriage (some use date or separation, others use data of filing for divorce)

earnings

employment benefits, pensions, stock options

lost wages

reimbursements

recovery for damages to marital property

25
Q

Separate property becomes marital

A

Commingle and now inextricably intertwined and cannot be traced

transmutation - treated in a way that evidences intention to make martial property

26
Q

Marital fault in property and alimony

A

not considered in property division, but economic fault is

may be considered in alimony

27
Q

Types of alimony

A

permanent periodic
- cannot self sustain
- modifiable upon substantial change of circumstances

lump sum
-usually present value or permanent periodic
- not modifiable - binding on estate

rehabilitative
- periodic for limited time to enable spouse to gain skill to become self supporting
- can be ordered along with permanent or lump sum
- modifiable upon substantial change of circumstances

reimbursement
- for supporting other spouse to obtain profession license or degree
- no modification

28
Q

Alimony considerations

A

needs and ability to pay

look at
- standard of living
- duration of marriage
- age and physical and emotional condition
- financial resources
- contributions

29
Q

Modification - substantial change in circumstances

A

cannot be anticipated

self-induced reduction in income is not sufficient

30
Q

Termination of spousal support

A

Remarriage of recipient terminates periodic

death of either terminates periodic

may terminate if recipient cohabits with someone in marriage-like relationship

lump sum and reimbursement - binding even after death of payor

31
Q

Alimony tax

A

Not a taxable event for instruments executed after 2019

32
Q

Separation agreement

A

voluntary
full and fair disclosure
consideration

can waive alimony or property division
can agree on custody and child support but COURT IS NOT BOUND - best interest of child test

Modification
if merged into divorce decree - modifiable by the court

if not merged - only enforceable and modifiable like a contract

Child support and custody always modifiable

33
Q

Contracts between unmarried cohabitants

A

Contracts regarding earnings and property rights enforceable unless sex is the only consideration

34
Q

Child support and visitation

A

independent

visitation cannot be withheld for failure to pay child support

35
Q

Duration of child support

A

age of majoirty
death
emancipation
until graduate HS if turn 18 before graduating
termination of parental rights

may be indefinite if disabled

may require payment for college but not support into college

36
Q

Child support jurisidiction

A

original jurisdiction
- where first petition under UIFSA is filed

another state can exercise only if
- second petition filed before time to answer first expires
- petitioner objected to jurisdiction in first action
- second state is child’s home state

continuing and exclusive jurisdiction unless no party resides in the issuing state or the parties consent to jurisdiction elsewhere

37
Q

Child support enforcement

A

Court issuing order can enforce

another state
- direct enforcement - mail oder to obligor’s out of state employer to withhold
- registration of support order

38
Q

child support modification

A

modify for substantial and continuing changes in circumstances

39
Q

Methods of enforcement

A

Contempt
interception of tax refund
forfeiture of licenses
seizure of real estate
attachment of wages
order to pay attorney’s fees

40
Q

Initial custody determination

A

Home state jurisdiction
- home state - where lived with parent for 6 consecutive months immediately before commencement of proceeding
- child’s home state within the past 6 months and then child is absent but a parent continues to live there

41
Q

When home state rule doesnt apply

A

no other state has or accepts home state jurisdiction
and child or parent has significant connection with the state
and substantial evidence is available in the state

42
Q

Modification of child support jurisidction

A

Issuing court has continuing exclusive jurisdiction

another state con exercise if
- no child or parent continues to reside there
- or the child not longer has significant connections and substantial evidence no longer available there

43
Q

declining jurisidction

A

inconvenient forum
unjustifiable conduct

44
Q

Legal custody

A

right to make major decision affecting the child

45
Q

Physical custody

A

actual possession and control

46
Q

Joint custody

A

can mean joint legal, joint physical, or both

preferred but will not award if parents are openly hostile or unable to communicate

47
Q

Best interest of the child test

A

Factors
- wishes of parents
- child’s preference if over 12
- child’s relationships
- child’s adjustment
- parent’s mental and physical health
- primary caregiver

48
Q

Custody to non-parent

A

Must be voluntary relinquishment or showing that harm to child or parent is unfit

49
Q

Nonparent visitation

A

if parent is fit, their wishes are given special weight

50
Q

parentage action

A

establish biological relationship or settle issues of paternity or maternity

51
Q

presumption of paternity

A

mother’s husband presumed if child born during marriage or within 300 days of termination even if marriage void or voidable

to rebut - need c&c evidence

52
Q

unwed father

A

lawful child if
- married after birth
- hold child out as own
- consent to be named on birth certificate
- formally acknowledge paternity
- court order establishing paternity

53
Q

Grounds for involuntary termination of parental rights

A

infliction of serious harm
abandonment
neglect and deprivation
failure to support
mental illness so severe
unfitness

54
Q

Genetic surrogacy agreement

A

in writing and approved by court
home study
voluntary
provision of healthcare costs
does not limit rights of surrogate to make healthcare decisions
reasonable consideration

subsequent marriage or divorce of intended parents does not invalidate agreement

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