Family Law Flashcards
Premarital Contract Requirements
(i) contract must be in writing and signed, (ii) the agreement must be entered into voluntarily [without fraud, duress, or overreaching], (iii) must be 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 [under the UPAA, courts only examine this if the agreement is unconscionable], (iv) some courts consider whether the economic provisions are fair and reasonable
Marriage Requirements
(i) license, (ii) ceremony with authorized officiant, (iii) no legal impediments to marriage, and (iv) capacity to consent
Common Law Marriage
requires: (i) consent to marry [legal capacity + no legal impediments], (ii) cohabitation, and (iii) the couple holding themselves out publicly as spouses
Tenancy by the Entirety [rights/termination]
(i) includes right of survivorship, and one spouse cannot convey or encumber the property without the consent of the other spouse, (ii) upon dissolution of the marriage, tenants by the entirety become tenants in common
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
T/F: Protective orders can initially be granted ex parte
True
Alienation of Affection Requirements
(i) evidence of genuine love and affection between validly married spouses, (ii) evidence that the love and affection was alienated or destroyed, and (iii) proof that the defendant’s actions caused the loss of love and affection
T/F: Adultery is required for an alienation of affection claim
False
T/F: Proof of damages is required for an alienation of affection claim
True
Criminal Conversation Requirements
(i) existence of a valid marriage + (ii) act of adultery
Rights within the constitutionally protected right to privacy
right to marry; right to procreate; right to use or sell contraceptives; right of related persons to live together; right of parents to educate their children outside of public schools; right of parents to decide issues concerning the care, custody, and control of their children
Annulment
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; parties are treated as though they were never married
Void Marriage
it is invalid, an utter nullity, because it failed to meet the essential requirements for a legal marriage
Ratification of Void Marriage
the Uniform Marriage and Divorce Act and some states hold that if the impediment causing the marriage to be void is removed, the marriage becomes valid if the parties continue to cohabit
Examples of Void Marriages
bigamy/polygamy, consanguinity
Voidable Marriage
is valid until declared null, and typically occurs when some type of event affects the adequacy of a party’s consent
Legal Impediments to Marriage
parties being too closely related [can’t marry ascendants/descendants/siblings/half-siblings/aunt/uncle/niece/nephew], neither party can have a prior undissolved marriage to a living spouse
T/F: Voidable Marriages cannot be remedied or ratified by continued habitation after the removal of the impediment
False; they can be ratified and ratification means the marriage cannot be annulled
Examples of Issues that Make a Marriage Voidable
(i) nonage, (ii) incurable physical impotence, (iii) lack of capacity, (iv) duress, and (v) fraud
T/F: Children of annulled marriages are treated as marital children
True
Bases for “No-Fault” Divorce
(i) both spouses agree that the marriage is irretrievably broken [bilateral]; (ii) spouses have been living apart for a specified and continuous period of time [can be bilateral or unilateral]; (iii) both spouses agree they are now incompatible and can no longer be married [bilateral]
Bases for Fault-Based Divorce
(i) adultery; (ii) willful desertion [or abandonment]; (iii) extreme physical or mental cruelty; (iv) voluntary drug addiction or habitual drunkenness commencing after the marriage; (v) insanity
Defenses to Fault-Based Divorce
(i) collusion; (ii) connivance; (iii) condonation; (iv) recrimination
Collusion
an agreement between the spouses to simulate grounds for divorce or to forgo raising a valid defense; will prevent divorce in some states
Connivance
willing consent to other spouse’s misconduct; usually limited to adultery cases and has been abolished in many states
Condonation
the forgiveness of marital offenses with full knowledge of the wrongs; resumption of marital relations after forgiveness is the key element of this defense
Recrimination
defense that arises when the party seeking the divorce is also guilty of misconduct for which a divorce may be granted
Separate Property
property owned before marriage; property acquired by gift or inheritance; property acquired in exchange for separate property; income and appreciation of separate property; pain and suffering awards; personal damages; property acquired after an order of legal separation that includes a final disposition of property
Marital Property
property acquired during the marriage; earnings; employment benefits, pensions, and stock options; lost wages; reimbursement for medical bills incurred and paid with marital property; recovery for damages to marital property
Improvement of Separate Property
when separate property is improved by the use of marital funds or the effort of a spouse, courts generally hold that the property remains separate property, but most jurisdictions grant the marital estate or the nonowning spouse reimbursement for value added to the separate property [increase in value due to market factors would remain separate property]
Types of Alimony
(i) permanent periodic spousal support; (ii) lump sum; (iii) rehabilitative spousal support; (iv) reimbursement spousal support
Permanent Periodic Spousal Support
paid regularly to support a spouse who has neither the resources nor the ability to be self-sustaining
Lump Sum
fixed amount payable either all at once or via a series of payments
Rehabilitative Spousal Support
consists of periodic payments for a limited time to enable a spouse to gain skills to become self-supporting; can be ordered along with permanent periodic or lump sum alimony
Reimbursement Spousal Support
occasionally awarded to a spouse who supported the other spouse while the latter obtained a professional license or degree
Two Primary Considerations in Awarding Alimony
(i) needs of the claimant and (ii) ability of the other spouse to pay
Periodic spousal support may be modified if
there is a substantial change in circumstances regarding the needs of the recipient spouse or the ability of the payor spouse to pay
Tax Consequences of Spousal Support
under current law, spousal support is not a taxable event; for divorce/separation instruments executed before 2019, spousal supports payments are deductible by the payor and are income to the recipient unless the instrument is modified to follow the current rule
Marital Agreement
an agreement between spouses who intend to remain married that usually alters or confirms marital rights/obligations during the marriage or at separation, dissolution, or death
Separation Agreements
an agreement entered into after marriage under which the parties agree to live apart and resolve economic issues and custody rights
To be enforceable, separation agreement must
(i) be voluntary, (ii) there must have been a full and fair disclosure by both parties, and (iii) there must be consideration
T/F: Courts are bound by provisions in the parties’ separation agreement concerning children
False; courts will only enforce the provisions if they are in the child’s best interest
Duty to support a child ceases upon
(i) the child reaching the age of majority, (ii) death of the child, (iii) emancipation of the child, or (iv) termination of parental rights
Original Jurisdiction to enter a child support order is proper where
the first petition under UIFSA is filed
Child Support is modifiable based on
a substantial and continuing change of circumstances affecting the needs of the child or the ability of the parent to pay
A court had jurisdiction to initially enter or modify a child custody or visitation order if the state
(i) is the child’s home state or (ii) was the child’s home state within the past 6 months and the child is absent from the state, but a parent or person acting as a parent continues to live in the state
Legal Custody
the right to make major decisions affecting the child’s life
Physical Custody
actual possession and control of the child
Custody awards will be modified only if there has been
a substantial and material change in circumstances affecting the child’s well-being
Grounds for termination of parental rights must be proved by
clear and convincing evidence
