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Utah Essay Bar Studies > Family Law > Flashcards

Family Law Flashcards

1
Q

Types of Marriage

A

Ceremonial

Common Law

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2
Q

Ceremonial Marriage

A

License

Solemnization

Exchange of promises to be valid

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3
Q

Requirements of License - Marriage

A

18 or parental consent) in all JDX

Waiting period in most JDX

Premarital medical testing in some JDX

Generally has an expiration date.

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4
Q

Exceptions to License - Marriage

A

Married to someone else

Too closely related

Sham

Incapable of understanding nature of act

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5
Q

Solemnization - Marriage

A

No particular form required

Most states require at least two witnesses

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6
Q

Requirements of Common Law Marriage

A

Agree they are married

Cohabit as married

Hold out in public as married

Requires capacity and intent (present tense)

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7
Q

Recognition of Common Law Marriage

A

Most states have abolished

Almost all states recognize if

Entered into in jurisdiction that does recognize

UNLESS violates strong public policy

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8
Q

Marital Property

A

All property acquired during marriage

Subject to equitable distribution

Maj: equitable distribution

Min: community property

Property division not modifiable

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9
Q

Equitable Distribution of Marital Property

A

Distribute marital property fairly

All circumstances between parties

Does not mean 50/50.

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10
Q

Factors for Division of Marital Property

A

Length of the marriage

Prior marriages

Age, health, earnings potential, liabilities, and needs of spouse

Contributions to education

Needs for future acquisitions

Income, medical needs, retirement of spouses

Contributions to increases in marital property (including child-rearing)

Value of separate property

Reduction in value in marital property by one spouse

Standard of living

Economic circumstances of each spouse at time of divorce

Custodianship of any minor children.

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11
Q

Community Property

A

Treats marriage as a partnership

All marital property is 50/50

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12
Q

Exceptions to Marital Property

A

Property acquired prior to marriage

Excluded by agreement

Property acquired by gift, bequest, devise, or descent

Property sold, granted, conveyed, or disposed of in good faith and for value before date of final separation

Property mortgaged or otherwise encumbered in good faith for value before date of final separation

Award or settlement payment received received or accrued before marriage (regardless of when received)

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13
Q

Types of Common Marital Property Commonly Tested

A

Professional Licenses/Degrees

Retirement/Pension Benefits

Personal Injury Claims

Goodwill

Sick and Vacation Days

Future Interest

Social Security

Post-Separation Property

Stock Options

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14
Q

Professional Licenses/Degrees

A

Generally not marital property but

Can affect alimony or give reimbursement for actual contribution

Toward other spouse’s education or living expenses to obtain

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15
Q

Retirement/Pension Benefits

A

If acquired during marriage

Considered marital property

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16
Q

Two Scenarios for Personal Injury

A

Considered Marital

Allocation

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17
Q

Considered Marital for Personal Injury (some JDX)

A

If cause of action between date of marriage and final separation

Proceeds marital property even if paid later

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18
Q

Allocation for Personal Injury (some JDX)

A

Look to the nature of award

Compensatory damages for pain and suffering considered separate property of injured spouse

Lost wages, loss of earning capacity, and medical expenses are allocated between spouses

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19
Q

Goodwill Marital Property

A

Considered marital property in some jurisdictions.

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20
Q

Sick/Vacation Days Marital Property (split JDX)

A

Accrued vacation and sick days marital property and subject to division at time of divorce

Accrued vacation and sick days subject to distribution when received OR

Accrued vacation and sick days not marital property

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21
Q

Future Interest Marital Property

A

Possible future interests not distributable

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22
Q

Social Security Marital Property

A

Subject to distribution

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23
Q

Post-separation Property Marital Property

A

Maj: property acquired until decree granted marital property

Min: treat property after permanent separation to be separate property.

Min: Determine character as date of filing

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24
Q

Stock Options Marital Property

A

Marital if acquired during marriage

Even if exercised after divorce

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25
Requirements of Premarital Agreements
Full disclosure Agreement is fair and reasonable Voluntary
26
Full Disclosure Premarital Agreement
Full disclosure of financial status, including Income, assets, and liabilities of all parties
27
Fair and Reasonable Premarital Agreement
Parties’ wealth, age, and health Agreement obtained by fraud, duress, or undue influence May be set aside as procedurally unfair Courts look to terms of agreement to see if unconscionable
28
Voluntary Premarital Agreement
Time pressure Previous business experience Opportunity to be represented by independent counsel
29
Impoverished Spouse Premarital Agreement
Even meets all requirements May be set aside if would leave one spouse Woefully impoverished to point of becoming Dependent of state
30
Modification Premarital Agreement
Regarding child support and custody b/c not enforceable
31
Annulment
Voids a marriage and declares as Having never been valid
32
Void Marriage Annulment
Prior existing marriage Incest OR Mental incapacity
33
Voidable Marriage Annulment
Under age w/out parental approval Impotence (natural and incurable) Intoxication (unless continues to voluntarily live together), then ratified Fraud (goes to essence and must separate as soon as discovered) Misrepresentation, duress, coercion, or force Lack of intent (i.e. jest)
34
Distribution Annulment
May seek equitable distribution, spousal support, and/or Child support (children still considered marital children)
35
Putative Spouse
Even if requirements not met Innocent participant duly solemnized a matrimonial union Void or voidable, because of some legal infirmity If putative spouse exists, then putative marriage
36
Innocent Spouse Putative Spouse
Must not have known
37
Legal Infirmity Putative Spouse
Such as license invalid or Other party married at time of marriage
38
Divorce
Legal dissolution of marriage Maj: require at least one party to be resident of state
39
Types of Divorce
No Fault Fault
40
No Fault Divorce
Every jurisdiction recognizes Maj: require a party to allege marriage is irretrievably broken Half require couple to separate for period of time before filing Maj: abolished traditional defenses to divorce
41
Types of Fault Divorce
Adultery Cruelty Desertion Habitual Drunkenness Bigamy Imprisonment Indignity Institutionalization
42
Adultery Fault Divorce
Party had opportunity and inclination to commit
43
Cruelty Fault Divorce
Course of conduct harmful to plaintiff’s physical or Mental health and makes continued cohabitation Unsafe or improper Must be serious and not based on only one incident Maj: permit for physical, while only some permit for mental
44
Desertion Fault Divorce
Requires abandonment for period of time or May find desertion if one spouse forces other out with fear of returning
45
Habitual Drunkenness Fault Divorce
Does not require alcoholic but must be more than Occasional level May be rebutted with assumption of risk
46
Imprisonment Fault Divorce
Must be for specified period of time
47
Indignity Fault Divorce
One spouse’s behavior renders other spouse’s Condition intolerable and life burdensome Maj: No longer recognize
48
Institutionalization Fault Divorce
Must be specified period of time with No reasonable prospect of discharge or rehabilitation
49
Defenses to Fault Divorce
Must be affirmatively plead: Recrimination and unclean hands Connivance Condonation Collusion Provocation Insanity Consent Justification Religion
50
Recrimination and unclean hands Defense to Fault Divorce
When both spouses commit marital wrongdoing of like conduct
51
Connivance Defense to Fault Divorce
Consent to or participation in marital wrongdoing
52
Condonation Defense to Fault Divorce
One spouse has knowledge of wrongdoing and Gives forgiveness and resumes marital relations With guilty party
53
Collusion Defense to Fault Divorce
Both spouses conspire to fabricate grounds for divorce
54
Provocation Defense to Fault Divorce
If misconduct is provoked by moving party
55
Insanity Defense to Fault Divorce
One spouse does not know difference between Right and wrong or lacks Ability to understand it is wrongful
56
Justification Defense to Fault Divorce
One spouse left because of other’s misconduct
57
Religion Defense to Fault Divorce
When grounds for divorce based upon religion Fails in all states
58
Limited Divorce
Recognized in most states Used when parties do not sever Marital tie and still legally married
59
Separate Maintenance Action
Provides decree generally for wife and minor children Does not allow parties to live apart Still considered legally married
60
Interlocutory Decree Divorce
Maj: do not permit divorce to be finalized for specified time During period, neither party can remarry
61
Mediation Divorce
Must be a neutral Must disclose all potential grounds of bias and conflicts of interest Must explain how mediation works Must investigate domestic violence
62
Property Settlement Divorce
Property division one-time award of assets Based at time of divorce and cannot be modified post-divorce
63
JDX for Property Settlement Divorce
Must have PJ and SMJ: State courts have SMJ over domestic relations issues Petition to modify property settlement related to divorce is domestic relations issue May exercise PJ over individual if voluntarily present in state and served with process while there
64
Spousal Support
Obligation of one party to provide Other with support in form of income Awarded if one spouse cannot provide for Own needs with employment Cannot be discharged in BK
65
Factors for Spousal Support
Financial resources Standard of living during marriage Time to find employment or finish school Length of marriage Contributions to marriage Age and health of parties Fault or marital misconduct
66
Types of Spousal Support
Lump sum Permanent (for long-term marriage - 15 yrs) Limited duration Rehabilitative (until employment or completion of degree), Reimbursement (sacrifice during marriage i.e. when other getting degree) Palimony (support from unmarried cohabitant only allowed in few states)
67
Modification of Spousal Spouse
Must show “significant change” in Dependent spouse or financial abilities of obligor Spouse who voluntarily reduces income will Not receive reduction in support payments
68
Significant Changes Modification of Spousal Support
Death Remarriage Cohabitation (not pendente lite) Retirement (in some jurisdictions)
69
JDX Modification of Spousal Support
Must have PJ and SMJ
70
Divisible Divorce JDX Modification of Spousal Support
Court has PJ over one party but not other Can grant divorce but cannot rule on property Alimony or child support
71
Child Support
Payment by one parent to other for support of child Both parents legally required to support minor children Child support ends when child reaches majority Min: require payment through college BUT can be Conditional upon them taking it seriously
72
Incapable - Child Support
Can be continued indefinitely for child incapable of Self support linked to physical or mental disability
73
Nonmarital Children
Same support benefits as marital children Paternity must be proven before father dies
74
Paternity Nonmarital Children
Proven by blood test Other evidence Marital presumption (if parents married prior to birth)
75
Status Change Nonmarital Children
Parents marrying after birth Father consents to putting name on birth certificate Father holds himself out as father Judicial decree
76
JDX (UIFSA) Child Support
PJ over an out of state parent: Personal service Consent Past residency in state with child Conception of child in state Asserted parentage via putative father registry Any other federal/state basis
77
Factors to Amount of Child Support
Wages or income of any kind Age of child Unusual needs of child Support obligations of parents Assets Standard of living during marriage Best interest of child
78
Modification of Child Support
Allowed when substantial change in circumstances Regarding child’s needs or parent’s financial situation Parent who VOLUNTARILY reduces income Will not be enough to modify OG state may modify if continuing, exclusive jurisdiction Unless parties, including child, no longer Reside in state or parties agree Not retroactive
79
Enforcement (UIFSA) Child Support
Must be registered to be enforceable in another state Home state can place parent in civil or criminal contempt Garnish wages or place other sanctions
80
Child Custody
Can include Joint Custody by both parents Parent in best position to care for minor child unless Parent determined unfit
81
Joint Custody Restriction
Must be willing and able to cooperate for Best interest of child and NEITHER parent has Superior right to make unilateral decisions
82
Legal Custody
Gives parent(s) right to make major decisions including Health, education, and religion of child
83
Physical Custody
Gives parent(s) right to have child reside with parent and Gives obligations to provide routine daily care and Control of child Under Joint Custody, not necessarily require 50/50 time-sharing arrangement
84
Best Interest of the Child Standard
Standard for determining child custody is best interests and welfare of child Parent considered to be in best position to care for minor child Unless determined unfit
85
Factors to Best Interest of the Child
Primary caretaker prior to divorce Excluding race, religion, or past sexual conduct unless negatively impacts child Third-party rights Child’s preference (if sufficient maturity) Guardian ad litem Siblings (generally won’t separate) Presence of domestic violence
86
Visitation Child Custody
Parent allowed reasonable visitation because Parents have constitutional right to have contact with child Only denied if iwould seriously endanger child’s physical Mental, or emotional health Must give “special weight” to determine if parent fit
87
Home State JDX (UCCJEA) Child Custody
Child’s home (lived at least 6 months prior to custody proceeding) Child’s home within last 6 months, now gone, but one parents still lives there
88
Significant Connection JDX (UCCJEA) Child Custody
No other state has jurisdiction Child and at least one parent have significant connection to state Substantial evidence in state concerning child’s care, Protection, training, and personal relationships
89
Default JDX (UCCJEA) Child Custody
No state has home state or substantial connection jurisdiction Then appropriate connections has jurisdiction
90
Temporary Emergency JDX (UCCJEA) Child Custody
No JDX may obtain temporary emergency jurisdiction if Child in danger and requires immediate protection If custody order, then court must allow reasonable time Period for parties to return to OG jurisdiction If no custody order, then temporary order remains until Decision rendered by home state Otherwise, emergency order continues in full effect
91
Enforcement Child Custody
Other states can enforce custody order if: Parent registers with new jurisdiction and Provides certified copy of court order
92
Modification Child Custody
Only by showing “change in circumstances” Substantial and unforeseen at time of final judgment In best interest of the child Cannot be changed for violation of visitation orders or paying child support OG state retains SMJ
93
Adoption
Prior child-parent relationship terminated and new one created Records are sealed except for birth parents’ medical records
94
Voluntary Termination Adoption
Biological parents may voluntarily give up rights as parents If putative father fails to register within particular period of time Impliedly consents to adoption
95
Involuntary Termination Adoption
Only court can involuntarily terminate one’s constitutional right Can be based on: Abandonment Incapacity Abuse of sibling Neglect Must be clear and convincing evidence
96
Constitutional Rights Parental Custody
Fit parent has fundamental right to care, custody, and Control of children State courts must give “special weight” to fit parent’s Decisions on care, custody, and control
97
Separation Agreement
Generally enforce unless unconscionable or fraud Must be voluntarily considering: Time-pressure Previous business experience Opportunity to independent counsel
98
Not UPAA Fair and Reasonableness Premarital Agreement
Unconscionability at time of enforcement As 0pposed to execution
99
Dissolution of Adoption
CL: cannot dissole for any reason ML: Only in special circumstances such as Discovery of undisclosed mental or physical illness
100
Factors of Dissolution of Adoption
Length of relationship Child's needs Parent's motives

Utah Essay Bar Studies (16 decks)

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