Family Law Flashcards
Breach of promise to marry
It is the calling off of an engagement- not actionable in the state of MD
What must a party show to have a pre-marital agreement upheld?
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
What defenses may a spouse challenging the validity of the pre-marital agreement use…
any contract defenses
What are the two requirements of Marriage
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)
Does MD recognize Common Law Marriage?
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.
Two ways to end a marriage
- Annulment and
* Divorce
Annulment
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.
Divorce
predicated on grounds that arise after the marriage- problem arises after marriage
2 subgroups of grounds for annulment
- Void Marriage
2. Voidable Marriage
Void Marriage means
you are not married- you may walk away at any time
Voidable Marriage means
You are married and may not walk away unless you go to court
Grounds that render a marriage Void
• 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
Grounds that render a marriage voidable
• 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
Fraud
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)
What are some examples of fraud
Lying or secrets about religion (big deal)
Lying about sex or procreation
What are examples of situations where it is not significant enough to claim fraud?
Lying about money, property, or social status
2 different types of divorces
o Absolute Divorce= real divorce and
o Limited Divorce= legal separation not a divorce
Absolute Divorce (Fault Basis)
• 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
If you are the Defendant in a fault based divorce you can raise a few affirmative defenses such as:
o Condonation
o Recrimination: Unclean hands
No Fault Divorce Grounds
• Must separate and must live separate and apart for one full year
o Must live in separate houses and
o NO SEX
Limited Divorce fault based grounds
Cruelty
Excessively Vicious Conduct
Desertion
• Any period so long as it is suggestive of a permanent departure
Limited Divorce no fault based grounds
Voluntary and mutual separation
What are the effects of a Limited Divorce?
Legalizes separation
Permits court to order alimony, child custody, and child support
Does NOT permit remarriage
Does NOT resolve all property claims
What court should a person go to in MD for Divorce?
Family Division of the Circuit Court
In order for a court to have jurisdiction to grant a divorce you need what?
one spouse domiciled in the state +(plus)
o One year residents OR
o The grounds arose in MD
What does the concept of Divisible Divorce mean?
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)
Where is Venue Proper?
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
What are the three steps in Equitable distribution?
- Categorize the assets
- Value the assets
- Distribute the assets
Categorize the Assets
Separate Property and Marital Property
What is considered separate property?
• (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
What is considered marital property?
property acquired by a spouse during the marriage
Value The Assets
Net value as of the date of divorce not of separation
Distribute the assets
Normally a cash award
What are the two exceptions to distribution in “kind”
o Principal residence may be given to one spouse
o Interest in a pension may be awarded in kind
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:
- contributions, monetary and nonmonetary, of each party to the well-being of the family
- value of all property interests of each party
- economic circumstances and age of each party;
- Duration of the marriage and the circumstances that contributed to the estrangement of the parties;
- Physical and mental condition of each party
- How and when specific marital property was acquired, including the effort expended by each party;
- contribution by either party of nonmarital property used to acquire real property held by the parties as tenants by the entirety;
- Any award of alimony and any award or other provision with respect to the family use personal property or the family home; and
- Any other factor the court considers necessary or appropriate, such as dissipation of marital funds by one party.
What are the tax consequences of equitable distributions?
Equitable distributions are not taxable as ordinary income
