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Utah Essay Bar Studies > Family Law > Flashcards

Family Law Flashcards

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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
Q

Requirements of Premarital Agreements

A

Full disclosure

Agreement is fair and reasonable

Voluntary

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26
Q

Full Disclosure Premarital Agreement

A

Full disclosure of financial status, including

Income, assets, and liabilities of all parties

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27
Q

Fair and Reasonable Premarital Agreement

A

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

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28
Q

Voluntary Premarital Agreement

A

Time pressure

Previous business experience

Opportunity to be represented by independent counsel

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29
Q

Impoverished Spouse Premarital Agreement

A

Even meets all requirements

May be set aside if would leave one spouse

Woefully impoverished to point of becoming

Dependent of state

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30
Q

Modification Premarital Agreement

A

Regarding child support and custody b/c not enforceable

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31
Q

Annulment

A

Voids a marriage and declares as

Having never been valid

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32
Q

Void Marriage Annulment

A

Prior existing marriage

Incest OR

Mental incapacity

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33
Q

Voidable Marriage Annulment

A

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)

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34
Q

Distribution Annulment

A

May seek equitable distribution, spousal support, and/or

Child support (children still considered marital children)

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35
Q

Putative Spouse

A

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

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36
Q

Innocent Spouse Putative Spouse

A

Must not have known

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37
Q

Legal Infirmity Putative Spouse

A

Such as license invalid or

Other party married at time of marriage

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38
Q

Divorce

A

Legal dissolution of marriage

Maj: require at least one party to be resident of state

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39
Q

Types of Divorce

A

No Fault

Fault

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40
Q

No Fault Divorce

A

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

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41
Q

Types of Fault Divorce

A

Adultery

Cruelty

Desertion

Habitual Drunkenness

Bigamy

Imprisonment

Indignity

Institutionalization

42
Q

Adultery Fault Divorce

A

Party had opportunity and inclination to commit

43
Q

Cruelty Fault Divorce

A

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
Q

Desertion Fault Divorce

A

Requires abandonment for period of time or

May find desertion if one spouse forces other out with fear of returning

45
Q

Habitual Drunkenness Fault Divorce

A

Does not require alcoholic but must be more than

Occasional level

May be rebutted with assumption of risk

46
Q

Imprisonment Fault Divorce

A

Must be for specified period of time

47
Q

Indignity Fault Divorce

A

One spouse’s behavior renders other spouse’s

Condition intolerable and life burdensome

Maj: No longer recognize

48
Q

Institutionalization Fault Divorce

A

Must be specified period of time with

No reasonable prospect of discharge or rehabilitation

49
Q

Defenses to Fault Divorce

A

Must be affirmatively plead:

Recrimination and unclean hands

Connivance

Condonation

Collusion

Provocation

Insanity

Consent

Justification

Religion

50
Q

Recrimination and unclean hands Defense to Fault Divorce

A

When both spouses commit marital wrongdoing of like conduct

51
Q

Connivance Defense to Fault Divorce

A

Consent to or participation in marital wrongdoing

52
Q

Condonation Defense to Fault Divorce

A

One spouse has knowledge of wrongdoing and

Gives forgiveness and resumes marital relations

With guilty party

53
Q

Collusion Defense to Fault Divorce

A

Both spouses conspire to fabricate grounds for divorce

54
Q

Provocation Defense to Fault Divorce

A

If misconduct is provoked by moving party

55
Q

Insanity Defense to Fault Divorce

A

One spouse does not know difference between

Right and wrong or lacks

Ability to understand it is wrongful

56
Q

Justification Defense to Fault Divorce

A

One spouse left because of other’s misconduct

57
Q

Religion Defense to Fault Divorce

A

When grounds for divorce based upon religion

Fails in all states

58
Q

Limited Divorce

A

Recognized in most states

Used when parties do not sever

Marital tie and still legally married

59
Q

Separate Maintenance Action

A

Provides decree generally for wife and minor children

Does not allow parties to live apart

Still considered legally married

60
Q

Interlocutory Decree Divorce

A

Maj: do not permit divorce to be finalized for specified time

During period, neither party can remarry

61
Q

Mediation Divorce

A

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
Q

Property Settlement Divorce

A

Property division one-time award of assets

Based at time of divorce and cannot be modified post-divorce

63
Q

JDX for Property Settlement Divorce

A

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
Q

Spousal Support

A

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
Q

Factors for Spousal Support

A

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
Q

Types of Spousal Support

A

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
Q

Modification of Spousal Spouse

A

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
Q

Significant Changes Modification of Spousal Support

A

Death

Remarriage

Cohabitation (not pendente lite)

Retirement (in some jurisdictions)

69
Q

JDX Modification of Spousal Support

A

Must have PJ and SMJ

70
Q

Divisible Divorce JDX Modification of Spousal Support

A

Court has PJ over one party but not other

Can grant divorce but cannot rule on property

Alimony or child support

71
Q

Child Support

A

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
Q

Incapable - Child Support

A

Can be continued indefinitely for child incapable of

Self support linked to physical or mental disability

73
Q

Nonmarital Children

A

Same support benefits as marital children

Paternity must be proven before father dies

74
Q

Paternity Nonmarital Children

A

Proven by blood test

Other evidence

Marital presumption (if parents married prior to birth)

75
Q

Status Change Nonmarital Children

A

Parents marrying after birth

Father consents to putting name on birth certificate

Father holds himself out as father

Judicial decree

76
Q

JDX (UIFSA) Child Support

A

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
Q

Factors to Amount of Child Support

A

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
Q

Modification of Child Support

A

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
Q

Enforcement (UIFSA) Child Support

A

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
Q

Child Custody

A

Can include Joint Custody by both parents

Parent in best position to care for minor child unless

Parent determined unfit

81
Q

Joint Custody Restriction

A

Must be willing and able to cooperate for

Best interest of child and NEITHER parent has

Superior right to make unilateral decisions

82
Q

Legal Custody

A

Gives parent(s) right to make major decisions including

Health, education, and religion of child

83
Q

Physical Custody

A

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
Q

Best Interest of the Child Standard

A

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
Q

Factors to Best Interest of the Child

A

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
Q

Visitation Child Custody

A

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
Q

Home State JDX (UCCJEA) Child Custody

A

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
Q

Significant Connection JDX (UCCJEA) Child Custody

A

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
Q

Default JDX (UCCJEA) Child Custody

A

No state has home state or substantial connection jurisdiction

Then appropriate connections has jurisdiction

90
Q

Temporary Emergency JDX (UCCJEA) Child Custody

A

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
Q

Enforcement Child Custody

A

Other states can enforce custody order if:

Parent registers with new jurisdiction and

Provides certified copy of court order

92
Q

Modification Child Custody

A

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
Q

Adoption

A

Prior child-parent relationship terminated and new one created

Records are sealed except for birth parents’ medical records

94
Q

Voluntary Termination Adoption

A

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
Q

Involuntary Termination Adoption

A

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
Q

Constitutional Rights Parental Custody

A

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
Q

Separation Agreement

A

Generally enforce unless

unconscionable or fraud

Must be voluntarily considering:

Time-pressure

Previous business experience

Opportunity to independent counsel

98
Q

Not UPAA Fair and Reasonableness Premarital Agreement

A

Unconscionability at time of enforcement

As 0pposed to execution

99
Q

Dissolution of Adoption

A

CL: cannot dissole for any reason

ML: Only in special circumstances such as

Discovery of undisclosed mental or physical illness

100
Q

Factors of Dissolution of Adoption

A

Length of relationship

Child’s needs

Parent’s motives

Utah Essay Bar Studies (16 decks)

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