Family Law Flashcards
Breach of Promise to Marry
Majority Rule: Not actionable
Illinois: You can sue, but only for actual damages (e.g., deposit for venue)
Premarital gifts
A gift conditioned on subsequent marriage can be recovered (e.g., engagement ring)
Challenging a Premarital Agreement
1) Subject to statute of frauds. Must be signed and written.
2) No consideration is required.
3) Challenger has two grounds for challenge:
a) Agreement was not entered into voluntarily
b) Agreement was unconscionable at the time it was executed, and no financial disclosure
How to get married?
1) Ceremonial Marriage
2) Common Law Marriage
- Not available in IL, but it is portable from other states
Ceremonial Marriage
License
- Capacity: age, sanity, single
- Maybe a waiting period btw. license and marriage
- License may expire
Ceremony
1) Officiant (clergy or gov’t officer)
2) Witness
3) Couple must exchange promises
Annulment
Based on a ground that predates the marriage. Either one or both were unaware at the time of the marriage.
Void and voidable
- If void, you’re not married. Non-waivable.
- If voidable, married unless you go to court for an annulment. Can be waived.
Some states give alimony, some don’t.
Annulment - Void Grounds
Non-waivable
1) Bigamy
2) Incest
- ancestors, descendants, siblings of the whole or half blood, lineal relatives up or down 1 generation
Annulment - Voidable Grounds
Waivable: continue to co-habit after the impediment is removed
1) Underage
- Generally have to be 18
2) Mental capacity
- Mental illness, diminished intellectual functioning, temporary (brought on by drugs/alcohol)
- Guardian will be assigned to bring suit
3) Incurable physical impotence
- Has to be incurable, and has nothing to do with procreation
4) Duress
5) Fraud
- Prior to the marriage, one party misrepresents or conceals a fact that goes to the heart of the marriage relationship
- Fraud about religion? Yes
- Fraud about sex/procreation? Yes
- Fraud about money/property/social status? No
Divorce - No Fault Divorce
The marriage is irretrievably broken, proved by:
1) Ceased co-habitation (no living together; no sex)
2) Separated for statutorily required period
- If both spouses agree –> 6 months
- If disagree –> 2 years
Divorce - Fault-based Ground
Grounds
1) Adultery
2) Desertion
- Unjustified absence from marital home for period of time
3) Cruelty
- Physical? single episode is enough
- Mental? usually requires a course of conduct
4) Habitual Drunkenness or Drug Addiction
5) Conviction of a Felony
6) Infest Spouse with an STD
Affirmative Defenses
1) Condonation (i.e., waiver)
- knowledge of misconduct + forgiveness + resumed co-habitation
2) Connivance (i.e., entrapment)
3) Recrimination (i.e., dirty hands)
Legal Separation
Court order making it permissible to live separate or apart, and adjudicating economic rights.
Grounds are similar to divorce, but may be broader.
Divorce - Procedure
To get a divorce, court needs is SMJ.
- If one spouse is domiciled in the state, and at least 90 days residence
To get economic remedies, court needs PJ.
Divorce - Property Division
Equitable Distribution
1) Categorize the Assets
- Separate Property Assets
- Marital Property
2) Distribute the Assets
- Separate Property remains with that spouse
- Marital Assets distributed in court’s discretion
- Distributed in-kind or cash payment
Alimony
Not punitive, and not automatic. Within the discretion of the court.
In IL: Court should not consider fault.
Possible structures
1) Periodic, permanent payments
2) Lump sum payment
3) Rehabilitative
4) Reimbursement
5) Periodic payments end on the death of either party, or on the re-marriage of recipient
Child Support (basics)
- Pay until child turns 18 (in IL: if child is still in high school, then until 19)
- Terminates upon death of child or parent (in IL: not death of parent)
- Modification based on a substantial and material change in circumstances
- Falling behind on payments is not modifiable
Child Support (Enforcement)
Mechanisms
1) Seize Property (liquid assets, personal property, real estate)
2) Wage withholding order
3) Intercept income tax refunds
4) Take away driver’s license
5) Hold in contempt of court
6) Take away license to practice your profession
7) Take away hunting/fishing license
Non-payor moved out of state?
1) Statutory direct enforceability of orders across state lines.
2) Forum state that issued first support order retains continuous and exclusive jurisdiction, as long as one parent or the kid lives there.
Child Custody
Types: Physical and legal custody
Jurisdiction: State has jurisdiction if it is now the home state of the child (or was within last 6 months)
- home state = state where kid has lived with parent for 6 consecutive months prior to custody case
Substantive Standard: best interest of the child
Non-parent? Presumption in favor of biological parent
Modification if best interests analysis changes
Visitation
Non-custodial parent usually gets visitation, unless court deems it would harm health or safety of child.
IL: If father and mother were never married, no presumption of visitation. Father must show that visitation would be helpful.
Non-custodial visitation: Have to show that there would be a serious detriment to kid in its absence.
Paternity
If mom is married –> rebuttable presumption that husband is the father
If mom is unmarried –> Dad may acknowledge paternity, or paternity suit (blood test)
Termination of Parental Rights
Voluntary relinquishment - putting child up for adoption
Involuntary termination: abuse, abandonment, neglect, failure to support, personal unfitness)
Adoption
1) Consents (biological parents, child over 14, anyone with custody of child)
2) Investigation of prospective adoptive parents
3) Trial placement (in some states)
4) Hearing to finalize - best interests of the child
