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
