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Georgia Subjects > Family Law > Flashcards

Family Law Flashcards

1
Q

In Georgia, the action for breach of a promise to marry sounds in…?

A

Contract

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2
Q

What is the measure of damages for breach of a promise to marry?

A

Actual damages and Mental harm

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3
Q

What happens to gifts given in contemplation of marriage (wedding gifts, engagement rings, etc.) if the marriage does not take place?

A

These gifts are returned, because they are conditioned upon the subsequent marriage taking place.

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4
Q

What are the limitations on marriage in Georgia?

A

1) Age–General rule is that one must be 18 or older (Exceptions for 16 with parental consent/Emancipated Minors)
2) Consanguinity or affinity
3) Same-Sex couples
4) Mental capacity
5) Physical capacity
6) A prior unresolved marriage

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5
Q

What are the procedural requirements for a marriage in GA?

A

1) License
2) Solemnization by a judge, minister or authorized person of a religious sect
3) Marriage ceremony
4) Physical presence
5) Consummation
6) Capacity to consent, and Intent

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6
Q

Which common law marriages are valid?

A

Any common marriages established that took place before Jan. 1, 1997

Any out-of-state common law marriages

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7
Q

What are “Marriage Articles”?

A

Pre-marital contracts between two parties that contingent upon marriage

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8
Q

What are the requirements of marriage articles?

A

Form must be oral or in writing

Must have at least two witnesses

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9
Q

What principles apply to marriage articles and other marital contracts? What’s required?

A

General contract principles:

  • Entry into marriage is sufficient consideration
  • Scrutinized for good faith and lack of undue influence
  • Must be recorded to affect 3rd parties
  • Cannot be unconscionable
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10
Q

What are the property rights of spouses during a marriage?

A

Unless provided by deed, spouses are tenants in common

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11
Q

What kind of marriage tort claims have been abolished in GA? What type of marriage tort claim has survived?

A

Georgia does not recognize alienation of affection or criminal conversation causes of action.

However, spouses can bring claims for loss of consortium due to injuries from a third party’s negligence.

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12
Q

What is the state of interspousal immunity in GA?

A

Immunity exists, but GA allows such suits if traditional policy reasons are not present.

There is no interspousal immunity in wrongful death actions, where the immunity would run afoul of the constitutional right of equal protection.

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13
Q

What duties to support do spouses possess?

A

Spouses have a duty to support each other, and each is liable to third parties for necessaries purchased by the other (medicine, food, etc.).

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14
Q

Does GA recognize privilege between spouses?

A

Yes, it recognizes communications between husband and wife as privileged, and it may only be waived by the spouse against whom the testimony is offered.

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15
Q

How does marriage end in Georgia?

A

By annulment or by divorce

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16
Q

For what kind of marriages is annulment available?

A

Annulment is available for defective marriages that are legally void or voidable (depends on whether the impediment can be removed)

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17
Q

When may an annulment not be granted, even if the marriage is void?

A

If children are born or about to be born as a result of the marriage

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18
Q

How can a voidable marriage be ratified?

A

By cohabitation after removal of the infirmity

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19
Q

What is the effect an annulment? What is still allowed after an annulment?

A

Marriage is set aside as if it never existed.

Alimony may still be awarded. Child support and custody is handled as in divorce cases.

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20
Q

What is the method of trial for a divorce in GA?

A

By judge or by jury in GA

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21
Q

Jurisdictional requirement for a divorce in GA?

A

One of the parties must be a bona fide resident of the state

There is a six-month residency requirement before an action is filed.

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22
Q

Does full faith and credit apply to GA divorces in other states?

A

Yes. The divorce decree will be recognized as valid in all other states.

(Provisions relating to property rights, spousal support, child support, etc. are given full faith and credit only if the court had personal jurisdiction over the defendant)

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23
Q

What are fault-based grounds for divorce?

A

-Adultery (can prove through circumstantial evidence)
-Desertion for a period of 1 year or longer
-Cruel treatment
-Voluntary drug addiction or habitual drunkenness
-Mental incapacity at the time of marriage
-Conviction for moral turpitude and a sentence of two years or longer
-Incest
-Impotency at the time of marriage
-Force, duress, or fraud in obtaining marriage
Pregnancy of the wife by another man at the the time of the marriage (and unknown to husband)
-Incurable mental illness

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24
Q

Defenses to fault-based grounds for divorce?

A
  • Collusion
  • Connivance (Willing consent to misconduct)
  • Condonation (Forgiveness with full knowledge of marital offense)
  • Recrimination (Other party seeking divorce also at fault): Neither party can get fault-based divorce
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25
Q

What is the no-fault ground for divorce?

A

Where the marriage is irretrievably broken with no possibility of reconciliation

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26
Q

What other legal separation action exists for obtaining property division and alimony awards?

A

Separate maintenace

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27
Q

How does Georgia divide property upon divorce?

A

Upon divorce, a court will:

  • Decide what is separate property and what is marital property
  • Make an equitable division of marital property (GA is not a community property state)
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28
Q

What is “separate property”?

A

Property owned prior to the marriage, any appreciation it has earned, and any additional separate property acquired through gift, bequest, or descent

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29
Q

What is “marital property”?

A

All other property owned by parties that aren’t separate property

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30
Q

How can property obtained during or before a marriage be “mixed”?

A

Separate property may become marital property if it is inextricably mingled with marital property or with separate property of the other spouse

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31
Q

What factors do we consider in making an equitable division?

A

1) Who the people are
- Age, education, background, earning capacity
- Duration of the marriage/prior marriages
- Opportunity to acquire further income/assets

2) What do they have?
- Each party’s income, including employability
- Standard of living during the marriage
- Assets and liabilities of each party

3) How did they get it?
- Source of funds used to purchase the property
- Contributions to marital property from each spouse
- Contributions of a homemaker

4) Where should it go?
- Health of parties
- Needs of parties (physical and personal)
- Provisions for the custody of children
- In lieu of or in addition to spousal support
- Marital fault or other conduct

32
Q

How are pension rights distributed upon divorce?

A

One spouse’s pension or any retirement benefits earned during the marriage is marital property subject to division. Contribution does not matter.

33
Q

Are professional degrees and licenses marital property in GA?

A

No, but the value of professional goodwill can be divided or considered in property division

34
Q

Are damages for personal injury actions marital or separate property?

A

It depends:

  • Pain, suffering, disfigurement of injured spouse? Separate
  • Loss of consortium of injured spouse? Separate
  • Lost wages and medical expenses during the marriage? Marital
  • Lost wages and medical expenses after the marriage? Separate
35
Q

Is modification of equitable property division allowed?

A

Not generally, but awards can be reopened on the grounds for which you can annul a judgment

36
Q

When may spousal support be awarded?

A

While the parties are still married, during the pendency of a divorce, or as part of the terms of a divorce decree.

37
Q

Spousal support is not based on right, but on…?

A

Based on Right. The purpose is to insure an income stream for persons for whom economic deficiency has occurred because of the marriage

38
Q

What are the four types of spousal support?

A

Permanent periodic alimony: replicates support during marriage, and is indefinite and at discretion of the court. Can be modified upon material change in circumstances.

Lump sum alimony: Replicates present value of long-term support. Only for a specified time period. Does not expire at death. No modification.

Rehabilitative alimony: Equitable remedy to get spouse on their feet. Modification after material change.

Reimbursement alimony: Repayment for a contribution to education. In lump sum or installments at discretion of the court. No modification.

39
Q

Factors considered in determining whether to make an award?

A

1) Duration of the marriage
2) Standard of living during marriage
3) Financial resources of each party
4) Age and physical and emotional conditions of parties
5) Contributions to the marriage
6) Time needed to get education/training to enable party to find appropriate employment
7) Ability to pay, while meeting his/her own needs
8) Conduct, including marital fault (Court has discretion)

40
Q

Is modification allowed in spousal support decrees?

A

Yes. Only for substantial and material changes in circumstances (One spouse has to affect need–Other spouse has to have ability to pay).

41
Q

What kind of conduct completely bars a spouse from receiving spousal support?

A

Adultery

42
Q

How is child support calculated in GA?

A

Support is set under the “child support obligation table”. Amounts are based on each child’s need and the parent’s ability to pay.

43
Q

How is the amount to be paid determined?

A

By parental income from any source, and the time the parent is able to spend with the child

44
Q

Is visitation dependent on the payment of child support?

A

No, but non-payment may be used as a defense to a contempt action brought by a party

45
Q

When does child support naturally terminate?

A

Child support ends at 18, A court can, however, extend child support to 20, if the child is still in high school. No support for college expenses as a matter of law.

46
Q

Can there be a modification of child support?

A

Only for a substantial and material change in circumstances

47
Q

Can a party recover child support from a non-resident of GA? How?

A

Yes. Via the Uniform Interstate Family Support Act (prefers petitions in the child’s home state)

48
Q

What are the remedies for child support OR spousal support?

A

1) Contempt
2) Judgment or levy, where the spouse becomes a judgment creditor
3) Garnishment of wages
4) Attorneys fees

49
Q

What are the remedies for child support alone?

A

1) Automatic wage withholding
2) Interception of Tax Refunds
3) Child Support Recovery Act
4) Non-renewal of professional licenses (with the exception of law licenses)

50
Q

How does Georgia decide custody when more than one state is involved?

A

Via the UCCJEA, the Uniform Child Custody Jurisdiction and Enforcement Act

51
Q

When can GA make an initial award of custody?

A

1) If GA is the home state of the child (or was the home state within 6 months of the proceeding, and a parent is a current resident of GA)
2) If no state has home state jurisdiction, GA can assume jurisdiction if the child has significant connection, and there is substantial evidence of the child’s well-being in GA
3) If no state exists with home state or significant connection jurisdiction, and other states have declined because GA is more appropriate, GA can assume deferred jurisdiction
4) If no other state exercises jurisdiction, GA can by default

52
Q

When can another state modify an existing GA decree?

A

When no significant connection or substantial evidence exists in GA, or no child or parent reside in GA

53
Q

When can GA modify another state’s decree?

A

GA must have initial jurisdiction either as a home state or with a significant connection, and the other state court no longer has continuing, exclusive jurisdiction

54
Q

When must GA decline jurisdiction of a child custody proceeding?

A
  • If a proper proceeding was already pending elsewhere
  • If person seeking to invoke GA jurisdiction has engaged in unjustifiable conduct (unless all parties or the other state defers)
55
Q

When can GA grant temporary emergency jurisdiction?

A

Child is physically present, AND has been abandoned or it’s necessary to protect the child because a family member is subject to abuse

56
Q

What factors inform the Best Interest of the Child Standard?

A

1) Parents’ wishes or agreement
2) Wishes of the child. If 11-13, then not controlling. If 14, child’s interests control if court agrees
3) Interaction and relationship of child with family members and others who affect best interest
4) Child’s adjustment to home, school, and community
5) Mental and physical health of all people involved
6) Parental conduct and fitness

57
Q

What is the burden on non-parents for custody?

A

GA courts only decide custody for a non-parent against a parent if the parent is shown to be unfit by clear and convincing evidence.

58
Q

Can a custody award be modified?

A

Yes. Only for substantial and material changes in circumstances. Court will make an exception for new facts that were existing at the time of the decree.

59
Q

A court may limit a parent’s right to visitation if….?

A

The parent engages in conduct that may injure the child

60
Q

What are the rights of non-parents to visitation in GA? What must a court find to award such rights?

A

Grandparents have limited rights to seek visitation in a divorce or custody proceeding. A court must find that awarding such rights are:

  • In the best interest of the child
  • There would be harm unless visitation is granted

GA also considers these factors:

  • If the child lives with the grandparents 6 months or more
  • If grandparents have provided 1 year of financial support
  • If there is an established pattern of contact
61
Q

When will GA not enforce contracts between unmarried cohabitants?

A

If sexual relations constitute any portion of the consideration.

62
Q

Upon separation of unmarried cohabitants, how is property divided?

A

As titled. Untitled personal property is owned by the possessor

63
Q

Can a father exclude a non-marital child from inheriting?

A

Not by statute, but by will

64
Q

What attaches once paternity is established in GA?

A

A duty of support attaches and rights to visitation and custody may be asserted.

65
Q

Paternity is established in GA by what standard?

A

Clear and convincing evidence?

66
Q

Minimum age to make a will in GA? Minimum age for tort and criminal responsibility?

A
  1. 13.
67
Q

What will GA courts consider in determining whether or not spousal immunity is available?

A

The avoidance of collusion, and the preservation of spousal harmony

68
Q

Is there spousal immunity for intentional torts?

A

No.

69
Q

What do GA courts consider in determining parental immunity in negligence cases?

A

1) Avoidance of collusion
2) Preservation of family harmony
3) Depletion of the family assets
4) Maintenance of parental authority
5) Possibility of inheritance by parent of child’s damages

70
Q

Georgia also does not recognize what type of family court actions?

A

Interference with custody, or for seduction, though they may bring criminal responsibility

71
Q

Does GA have adoption by agency?

A

No, GA has private adoption through a hired lawyer

72
Q

What is needed for adoption in GA?

A

Termination of the bio rights of the natural parents

Creation of adoptive rights of new parents

73
Q

What consent is necessary for adoptions in GA?

A

Consent by the adoptee (14 or older, the adoptee must consent in writing and acknowledge it in the presence of the court)

Consent by the natural parents (discretion by court when there is unmarried father, and consent unnecessary when child is abandoned)

74
Q

Additionally, a court must approve the adoption and…regarding the suitability of the adoption?

A

Have an investigation

75
Q

What expenses may be paid in connection with an adoption?

A

Actual (rent, childcare) and Legal expenses

76
Q

Is adult adoption allowed in GA? What is required?

A

Yes. Consent by the adult.

Georgia Subjects (4 decks)

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