Family Law Flashcards
Separation Agreements Standard
Court will enforce UNLESS:
(1) unconscionable or
(2) based on fraud
Factors: voluntary, time-pressure, parties’ previous business experience opportunity to be represented by independent counsel.
Fault Divorce and Distribution of Property
Majority– at- fault ground is NOT a factor in the distribution of property
**but MAY be used in spousal support depending on jx
Fault Divorce and Spousal Support
Marital misconduct MAY be taken into account for spousal support in many states
The weight/applicability of it depends on jx
Spousal Reimbursement
A court can use its equity power to award a spouse reimbursement for his actual contribution toward the other spouse’s educational and related living expenses.
Types Spousal Support
lump sum permanent limited duration rehabilitative, or reimbursement.
Permanent Alimony
Typically awarded only when the marriage was one of long duration (usually 15 years+)
Rehabilitate Alimony
For a limited time, such as until the spouse receives education or employment.
Purpose: enhance and improve the earning capacity of the economically dependent spouse.
Factors:
couple’s standard of living during the marriage,
time it will take for a spouse to complete edu or training, length of the marriage, and
parties’ age and
parties’ health.
premarital agreement is enforceable if
- full disclosure
- agreement is fair and reasonable
- voluntary
UPA premarital agreement
Party against whom enforcement is sought must prove
(1) involuntariness or
(2) both
(a) unconscionability at the time of execution AND
(b) lack of disclosure and adequate knowledge of the other’s assets and obligations.
Court may not refuse to enforce a premarital agreement based on substantive unfairness UNLESS it also finds lack of adequate disclosure or knowledge.
voluntarily
no fraud
no duress
no misrepresentation
Factors:
time-pressure,
parties’ previous business experience,
opportunity to be represented by independent counsel
**A party’s insistence on the agreement as a condition to marriage is NOT considered duress.
equitable distribution
Objective: fair distribution of all marital property, taking into consideration all of the circumstances
Majority, all property acquired during the marriage is marital property
Appreciation in nonmarital property will depend on whether appreciation can be attributable to spousal labor.
Factors in the distribution of marital property
length of the marriage age health earning potential needs of both spouses value of separate property spouses’ standard of living economic circumstances of each spouse at the time of divorce
Full disclosure
both parties MUST disclose:
all income
assets
liabilities
CL Marriage
Elements: Capacity, present agreement, co-haibtation, holding out a marital relationship;
CoL: valid in one state = valid in another, UNLESS strong long-held Public policy issues
SP can be turned to MP if
marital funds/ efforts enhance value
Property Division Modification
NOT ALLOWED b/c based on parties assets @ time of divorce
does NOT matter if there is a change in circumstances
