Family Law Flashcards
Antenuptial Agreements (A.K.A. Prenuptial or Premarital Agreement) - What are the requirements for an enforceable prenuptial agreement? + Remember Duress Requirement + Requirements for Financial Disclosure
A spouse may successfully challenge an antenuptial agreement if:
1) it is IN WRITING and SIGNED by both parties,
2) the agreement was VOLUNTARY (not entered into under duress) (MUST BE PHYSICAL threat), or
3) adequate FINANCIAL DISCLOSURE
Financial disclosure will be ADEQUATE if (1) the party entering into the agreement MADE FINANCIAL DISCLOSURE at the time the agreement was entered into, (2) the challenging party had KNOWLEDGE of financial assets, OR (3) there was WAIVER OF DISCLOSURE
Antenuptial Agreements: What if there is a provision for child care/support?
These provisions are always subject to JUDICIAL REVIEW and MODIFICATION at the time of a subsequent divorce
Getting Married: Common Law Marriage - Portability
If someone enters into a common law marriage in a different state and moves to PA, they will have a valid marriage in PA
Ways to Terminate a Marriage (Describe Their Differences)
1) Annulment (a ground that arose BEFORE the marriage occurred)
2) Divorce (a ground that occurred AFTER the marriage)
Termination of Marriage: Annulment - Void v. Voidable
Void: The marriage never legally took place, making an annulment OPTIONAL (i.e. for clarity of annulment and to resolve any collateral issues) AND cannot be waived by the parties
Voidable: The marriage did take place, but there is grounds for an annulment AND can be waived
Termination of Marriage: Grounds for Void Marriage + Remember Rule for Missing Spouse
1) Bigamy or Polygamy
2) Incest (ancestors, descendants, lineal relatives, or first cousins)
3) Lack of Mental Capacity or Intent
Remember: A spouse is PRESUMED DEAD if they have been missing for 7 YEARS (or decree of presumed death can occur sooner)
Termination of Marriage: Grounds for Voidable Marriage + Remember Age Requirements + Remember Implied Waiver + Remember Lying About Finances
1) Either party under the age of 18 (OK if 16 or older with consent of 1 parent, OK if under 16 with judicial consent),
2) Under the influence of drugs or alcohol during marriage ceremony, AND annulment is brought within 60 days of ceremony,
3) Duress, fraud (misrepresentation or concealment of essential aspect of marriage), or coercion, OR
4) Incurable physical incompetence
Remember: You have impliedly waived annulment by continuing a marriage after annulment reason is over
Remember: Lying about finances IS NOT GROUNDS for annulment
Divorce: When does PA have jurisdiction to hear a divorce case? + Remember if a spouse seeks economic remedies
In general, one spouse MUST be a PA domiciliary AND a resident of the state for at least 6 months (only works for ending marriage, not solving property)
Remember: A spouse seeking economic remedies from the other, he or she NEEDS PERSONAL JURISDICTION over the other spouse
Divorce: Grounds for Divorce - Fault Based + Remember Desertion Elements + Remember Imprisonment Time
1) Adultery (consensual),
2) Bigamous Marriage,
3) Cruel and Barbarous Treatment,
4) Desertion (willful, malicious, without cause, continuous for one year),
5) Imprisonment (2 or more years),
6) Indignities (e.g. constant verbal abuse),
7) Insanity or Serious Mental Disorder (institutionalized for 18 months, and no cure for another 18 months)
Divorce: Fault Based Grounds for Divorce Defenses - Condonation Elements
A waiver, requiring (i) knowledge of misconduct, (ii) forgiveness of misconduct, and (iii) resumption of marital relations
Divorce: Fault Based Grounds for Divorce Defenses - Connivance
Enticing the spouse into the misconduct that is now being alleged for divorce
Divorce: Fault Based Grounds for Divorce Defenses - Recrimination
The spouse seeking divorce has “unclean hands,” or otherwise also is at fault for divorce
Divorce: Fault Based Grounds for Divorce Defenses - Provocation
Spouse seeking divorce instigated the fault for divorce
Divorce: Fault Based Grounds for Divorce Defenses - Insanity + Remember Grounds for Divorce
A spouse can be acquitted for acts (i.e. indignities) if they are insane
Remember: Will not help with actually being divorced, however, because that can be grounds if it meets elements (18 months before and 18 months after filing)
Divorce: No-Fault Divorce - Bilateral Elements
(i) Both parties consent, (ii) marriage is irretrievably broken, and (iii) 90 days have elapsed from the date of the commencement of the action
Divorce: No-Fault Divorce - Unilateral Elements + Remember Definition of Separate and Apart
(i) Marriage is irretrievably broken, and (ii) parties have lived SEPARATE and APART for a period of at least ONE YEAR
Remember: Separate and apart means COMPLETE CESSATION of any and all COHABITATION, whether living in the same residence or not
What is the approach used in dividing property upon divorce? + Steps in the process
Equitable distribution of marital property
Steps: 1) Go through every asset owned by the couple and categorize the property, and 2) apply equitable principles to distribute property
Equitable Distribution: Classifications of Property + Remember Separate Property Definition Before Marriage and After Marriage
1) Spouse A’s separate property,
2) Spouse B’s separate property, and
3) Marital property
Remember: Separate property of the spouse is ANY asset acquired by that spouse PRIOR to the marriage
After marriage, any GIFT or INHERITANCE made in the name of one spouse is their separate property OR property bought or acquired after separation
Equitable Distribution: Marital Property Definition + Exceptions + Remember Title in One Spouse’s Name
Marital property is ALL PROPERTY acquired by EITHER spouse during the marriage and ANY INCREASE in value of nonmarital/separate property
Remember: Even if the title is in one spouse’s name, the property acquired during marriage is considered marital property
Equitable Distribution: Special Cases for Defining Marital or Separate Property - Personal Injury/Workers Comp Distribution
A personal injury distribution is considered when the CAUSE OF ACTION AROSE, not when money was received
Equitable Distribution: Special Cases for Defining Marital or Separate Property - Professional or Educational Licenses
Not a marital asset, BUT if a spouse helped fund education, he or she can ask for reimbursement
Equitable Distribution: What factors might a court consider in dividing property? + Remember what is never considered?
- Length of marriage
- Any prior marriage of either party
- Age, health, station, current income, job skills
- Opportunity for future income
- Standard of living
Remember: A court WILL NOT consider marital misconduct (i.e. having an affair)
Alimony: What factors might a court consider in awarding alimony? + Remember Marital Misconduct
Similar to dividing property after a divorce, these include:
- Relative earnings
- Expected inheritances
- Standard of living
- Capabilities of self-supporting
Remember: Unlike dividing property at divorce, marital misconduct IS A FACTOR in deciding alimony payments
Alimony: Modification of Alimony Awards
Either party may petition the court for a modification, and to prevail they must show a SUBSTANTIAL CHANGE IN CONDITIONS
Alimony: Automatic Termination Events
Alimony will automatically terminate on either the death of either party OR remarriage of the recipient (or cohabitation with another)
Alimony: How to get money if a spouse is not paying
A court has the power to attach and use assets to satisfy the obligation (e.g. bank accounts, personal property, or real estate)
Child Support: Presumption of Father
Courts presume the husband of a mother who has a child is the legitimate father of the child
Child Support: Modification
Modification will be allowed by courts in instances where a payer receives a windfall, payer loses his job, or other significant event affecting income/payment
Child Support: Termination
Occurs when child turns 18 (unless physically disabled), or upon death of one of the parents
Child Custody: What court has jurisdiction to hear a custody case? + Remember Uniform Statute for Child Support
The state of the child’s “home,” meaning the state in which the child lived with a parent or guardian for AT LEAST 6 consecutive months immediately before the proceeding
Remember: All states have adopted a uniform statute allowing judgments of child support to be enforced across state lines
Child Custody: How will custody be determined? + Tip BIC
The standard to be applied in awarding custody is the BEST INTEREST of the CHILD
Child Custody: How will visitation be determined? + Remember Removal of Child from Jurisdiction
A court has a strong policy to promote the relationship between the child and both parents by ensuring both parents have reasonable visitation rights - absolute denial is very rare
Remember: Removal of child from the jurisdiction may be considered a violation of the visitation provisions of the custody order
Child Custody: Who has standing of child custody that is also not a parent?
You can only have standing if you are not a parent if: 1) you are a grandparent/great grandparent AND the child has lived with you for 1 year, OR 2) some other person that stands IN LOCO PARENTIS (acting as a parent with consent of parent)
Child Custody: What standard must a non-parent show a court to receive custody of a child?
A non-parent must show by CLEAR AND CONVINCING evidence that the child would benefit more by being placed with him or her
Parentage: Termination of Parental Rights - Voluntary v. Involuntary
Voluntarily: Put a child up for adoption
Involuntary: Petition filed by either parent against the other parent, state adoption agency, or legal guardian, claiming (i) abandonment for 6 months or more, (ii) abuse or neglect, (iii) unknown parents identity
