Family Law Flashcards
Which defense to a fault ground for divorce arises when the party seeking the divorce is also guilty of misconduct for which a divorce may be granted?
Recrimination is a defense that arises when the party seeking the divorce is also guilty of misconduct for which a divorce may be granted. This offense may be pleaded to bar a suit for divorce, irrespective of the ground on which the suit was brought.
Connivance is the willing consent by one spouse to the other’s misconduct and condonation asserts that while marital offenses may have occurred in the past, they were forgiven with full knowledge that they had been committed.
Collusion is an agreement to simulate grounds for divorce, or an agreement not to bring up an existing or potentially existing defense.
Under the Uniform Premarital Agreement Act (“UPAA”), a court determining enforcement of a properly executed premarital agreement considers:
Under the UPAA, a court determining enforcement of a properly executed premarital agreement considers only two things: voluntariness and unconscionability. If an agreement was unconscionable when executed, the court will then consider whether the complaining party (i) was not provided fair and reasonable disclosure of the other party’s property or financial obligations; (ii) did not waive in writing such disclosure; and (iii) did not have, or reasonably could not have had, adequate knowledge of the other party’s property or financial obligations.
Void Marriage
v.
Voidable Marriage
A voidable marriage is deemed valid unless a spouse seeks to have it annulled because of an impediment existing at the time of the marriage. This type of marriage cannot be attacked collaterally or by third parties.
On the other hand, a void marriage is one that never existed for any purpose. Generally, parties may walk away form void marriages without a court order. Any interested party may seek annulment of a void marriage, and the marriage is subject to collateral attack even after death of one of the parties.
For the purpose of determining jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”), a child’s home state is the state in which:
the child lived with a parent (or person acting as a parent) for at least 6 consecutive months immediately before the commencement of the proceeding.
When analyzing the constitutionality of a government action based on a distinction between marital and nonmarital children, the action will be stricken unless it is:
Substantially related to an important Gov’t interest
Which defense to a fault ground for divorce asserts that while marital offenses may have occurred in the past, they were forgiven with full knowledge that they had been committed?
The defense of condonation asserts that while marital offenses may have occurred in the past, they were forgiven with full knowledge that they had been committed. Resumption of marital relations after the forgiveness is the key element of this defense
What is commingled property?
Commingled property is separate property that has become marital property because it has been inextricably mingled with marital property or with the separate property of the other spouse. Commingling does not occur if the separate property can be traced into the new product. Some jurisdictions hold that transmutation occurs when separate property is treated in a way that evidences an intention for the property to be marital property so that it becomes marital property. When separate property is improved by the use of marital funds or the effort of the nonowning spouse, courts generally hold that the property remains separate property, but most jurisdictions grant the marital estate or the nonowning spouse reimbursement for the value added to the separate property
A party who acted in good faith in entering a marriage that was subsequently declared invalid is known as a:
Putative Spouse.
The putative marriage doctrine enables a court to provide equitable relief to a party who acted in good faith in entering a marriage that was subsequently declared invalid. A putative spouse may acquire the rights of a legal spouse, including rights to alimony and property, when the marriage is invalidated. However, it is generally held that the rights of a putative spouse may not supersede a legal spouse’s rights, and the court must use equity in apportioning their rights to alimony and property.
What are the requirements for a CL Marriage?
The basic requirements for the creation of a valid marriage at common law are: (i) an exchange of consents between two people, (ii) cohabitation, and (iii) a holding out publicly of living together as spouses.
What are the grounds for a voidable marriage?
what are the grounds for a void marriage?
A voidable marriage is valid unless one spouse seeks to have it annulled because of an impediment that existed at the time of the marriage. Valid grounds for the finding of a voidable marriage are: (i) nonage; (ii) lack of physical capacity; and (iii) lack of mental capacity.
A void marriage is one that never existed for any purpose and that any interested party may seek to attack on the following grounds: (i) bigamy or polygamy; and (ii) consanguinity or affinity. Abuse is not a valid ground for finding a marriage voidable.
Periodic spousal support generally terminates if either spouse ____________________.
Periodic spousal support generally terminates upon the death of either spouse, or the remarriage of the recipient spouse. Spousal support awards can be enforced out of state, so support generally does not terminate just because either party leaves the jurisdiction. A significant change in income might be grounds for the modification of a spousal support award, but would not always terminate support.
Under the Uniform Interstate Family Support Act (“UIFSA”), if there are two child support orders in two different jurisdictions, which state law will control?
If there are two child support orders in two different jurisdictions, the law of the child’s home state controls
Provided that there was full and fair disclosure and that the agreement was entered into voluntarily and is essentially fair, a court will be bound by a separation agreement with respect to what provisions?
Spousal support & Property division.
Provisions relating to child custody and support are treated differently. A court will not enforce child custody and support provisions that are not in the child’s best interest. Even if the court decides to go along with these provisions, the award of custody and support is always subject to modification by the court.
Generally speaking, will a custodial parent be permitted to move to another state with the child?
YES, a custodial parent to move to another jurisdiction with the child as long as it is motivated by a benefit to the custodial parent and not merely by a desire to frustrate visitation rights.
Even if the noncustodial parent is against the move, courts generally will not unduly restrict the residence of the custodial parent. However, removal of the child from the jurisdiction may be considered a violation of the visitation provisions of the custody order. Therefore, it is advisable to have the custody order modified for this purpose before the custodial parent and child move to another state. Under the (“UCCJEA”), the court that made the initial child custody or visitation determination has exclusive continuing jurisdiction over the matter until the court determines that: (i) neither the child nor the child’s parents (or persons acting as parents) continue to reside in the state; or (ii) the child no longer has a significant connection with the state (e.g., a close relationship with a parent who lives in the state), and substantial evidence relating to the child’s care, protection, training, and personal relationships is no longer available in the state. Therefore, a court could retain jurisdiction over the matter even if the custodial parent and child move out of state, if the other parent remains in the state.
Under the Full Faith and Credit Clause, an ex parte divorce:
an ex party divorce dissolves the marriage, but does not settle the parties’ money rights.
Under the FF&CC, binding effect must be given to any divorce granted in the plaintiff’s domicile, notwithstanding the fact that the other spouse was not subject to the jurisdiction of the court. Although an ex parte divorce dissolves the marriage, it generally does not affect the monetary rights of the nonresident party. If the court does not have personal jurisdiction over a party, it cannot validly impose an alimony or child support obligation against that party, nor can it make any division of property in which that party has an interest (unless the property was located in the jurisdiction).
