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Bar Prep > Family Law > Flashcards

Family Law Flashcards

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MBE flashcards
1
Q

Breach of promise to marry

A

It is the calling off of an engagement- not actionable in the state of MD

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2
Q

What must a party show to have a pre-marital agreement upheld?

A

o Made a full disclosure of his financial worth or
o Independent knowledge of finances or
o Terms of the agreement are not unfairly disproportionate or
o No overreaching because the other party had legal counsel and understood the rights being waived- objective standard

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3
Q

What defenses may a spouse challenging the validity of the pre-marital agreement use…

A

any contract defenses

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4
Q

What are the two requirements of Marriage

A

o Marriage License (must have capacity)
• Intoxicated, mentally ill, too young (these come up in annulment circumstances)
o Marriage Ceremony
• Need an officiant ( any clergyman of any faith or denomination, and any civil official who may administer an oath, a judge in the tax court
• Need to exchange promises (vows)

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5
Q

Does MD recognize Common Law Marriage?

A

No, however Common law marriage is portable.
Meaning that If they enter into common law marriage in a state that accepts it then MD will recognize it but MD does not have common law marriage laws.

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6
Q

Two ways to end a marriage

A
  • Annulment and

* Divorce

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7
Q

Annulment

A

will be based on a ground that predates the marriage. When H and W got marriage there was a preexisting problem that neither of them knew or only one knew.

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8
Q

Divorce

A

predicated on grounds that arise after the marriage- problem arises after marriage

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9
Q

2 subgroups of grounds for annulment

A
  1. Void Marriage

2. Voidable Marriage

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10
Q

Void Marriage means

A

you are not married- you may walk away at any time

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11
Q

Voidable Marriage means

A

You are married and may not walk away unless you go to court

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12
Q

Grounds that render a marriage Void

A 
•	Lack of mental capacity 
o	You must be of sound mind 
•	Bigamy 
•	Consanguinity- incest 
o	Ancestors, siblings, or descendants 
o	Lawful to marry first cousins
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13
Q

Grounds that render a marriage voidable

A

• Non-age (too young)
o 16 or 17 may get married with consent of one parent
• pregnant or already had a baby you can get married if you have medical proof
o Waivable by continuing to co-habit after the impediment is removed
• Living together under the same roof and having sex
o Impediment is removed once person turns 18
• Drunk or under the influence at the time of ceremony
o Must be really drunk
o Waived by cohabitation
• Duress
o Waived by cohabitation after the threat of violence is eliminated
• Fraud
• Impotence
• Watered down incest

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14
Q

Fraud

A

o One party prior to the marriage misrepresents or conceals from the other a fact that goes to an essential aspect in the marriage. (materiality requirement)

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15
Q

What are some examples of fraud

A

 Lying or secrets about religion (big deal)

 Lying about sex or procreation

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16
Q

What are examples of situations where it is not significant enough to claim fraud?

A

 Lying about money, property, or social status

17
Q

2 different types of divorces

A

o Absolute Divorce= real divorce and

o Limited Divorce= legal separation not a divorce

18
Q

Absolute Divorce (Fault Basis)

A

• Adultery
• Desertion– unjustified departure from the marriage for a continuous period of 12 or more months and
o Must be unjustified
o Must be consecutive
o Doing something inconsistent with the marriage
• Conviction of a crime
o If period of incarceration is 3 years or more then you may file for divorce when the incarcerated party has been in jail for at least one year
• Cruelty
o Any conduct that seriously impairs the health or destroys the happiness of the complaining spouse.
• Constantly degrading, belittling, etc.
• Excessively Vicious conduct
o Domestic Violence
• Mentally ill and has been institutionalized
o Can only get it when spouse has been in hospital for at least 3 years and
o Testimony from at least two psychiatrists that it is incurable

19
Q

If you are the Defendant in a fault based divorce you can raise a few affirmative defenses such as:

A

o Condonation

o Recrimination: Unclean hands

20
Q

No Fault Divorce Grounds

A

• Must separate and must live separate and apart for one full year
o Must live in separate houses and
o NO SEX

21
Q

Limited Divorce fault based grounds

A

 Cruelty
 Excessively Vicious Conduct
 Desertion
• Any period so long as it is suggestive of a permanent departure

22
Q

Limited Divorce no fault based grounds

A

 Voluntary and mutual separation

23
Q

What are the effects of a Limited Divorce?

A

 Legalizes separation
 Permits court to order alimony, child custody, and child support
 Does NOT permit remarriage
 Does NOT resolve all property claims

24
Q

What court should a person go to in MD for Divorce?

A

Family Division of the Circuit Court

25
Q

In order for a court to have jurisdiction to grant a divorce you need what?

A

one spouse domiciled in the state +(plus)
o One year residents OR
o The grounds arose in MD

26
Q

What does the concept of Divisible Divorce mean?

A

May pursue divorce in one state but must pursue economic remedies in another state.

• In order to get economic remedies the other spouse must be located in MD (court must have personal jurisdiction)

27
Q

Where is Venue Proper?

A

o Appropriate in the county where the P or D live
o County where D works
• annulment-county where marriage was performed
• Child- the county where child resides
• No contingent fee in Divorce case
o May not represent both people

28
Q

What are the three steps in Equitable distribution?

A
  • Categorize the assets
  • Value the assets
  • Distribute the assets
29
Q

Categorize the Assets

A

Separate Property and Marital Property

30
Q

What is considered separate property?

A

• (1) Any assets owned by the spouse prior to the marriage
• (2) Any gift or inheritance received after the marriage in the sole name of one spouse
• (3) Passive appreciation in items in categories 1 and 2 above
o Increase in value due merely to the passage of time and market forces alone
• (4) Money received in Personal Injury litigation to compensate for injuries or pain and suffering

31
Q

What is considered marital property?

A

property acquired by a spouse during the marriage

32
Q

Value The Assets

A

 Net value as of the date of divorce not of separation

33
Q

Distribute the assets

A

 Normally a cash award

34
Q

What are the two exceptions to distribution in “kind”

A

o Principal residence may be given to one spouse

o Interest in a pension may be awarded in kind

35
Q

The court determines the amount and method of payment of a monetary award or the terms of a transfer of an interest after considering the following:

A
  1. contributions, monetary and nonmonetary, of each party to the well-being of the family
  2. value of all property interests of each party
  3. economic circumstances and age of each party;
  4. Duration of the marriage and the circumstances that contributed to the estrangement of the parties;
  5. Physical and mental condition of each party
  6. How and when specific marital property was acquired, including the effort expended by each party;
  7. contribution by either party of nonmarital property used to acquire real property held by the parties as tenants by the entirety;
  8. Any award of alimony and any award or other provision with respect to the family use personal property or the family home; and
  9. Any other factor the court considers necessary or appropriate, such as dissipation of marital funds by one party.
36
Q

What are the tax consequences of equitable distributions?

A

Equitable distributions are not taxable as ordinary income

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