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Family Law Flashcards

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1
Q

In GA, what happens if you decide to break off your engagement? What type of action might your fiancee have against you?

A

Breach of the promise to marry - contract action

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2
Q

What damages can you get for a breach of a promise to marry?

A

Actual damages (wedding preparation costs), mental suffering, counseling

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3
Q

What must you do with gifts given in contemplation of marriage?

A

You must return them.

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4
Q

How do you determine whether the gift was given in the contemplation of marriage?

A

Consider these factors:

  • type of property given
  • fraud
  • conditions attached to the gift
  • intent of the donor
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5
Q

How old do you have to be to marry in GA? What about with parental consent?

A

18: no parental consent

16 and 17 years old: okay to marry with parental consent

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6
Q

What’s it called when you can’t marry blood relatives?

A

Consanguinity of affinity restrictions

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7
Q

Who can’t marry in GA?

A 
Parents and children 
Grandparents and grandchildren
Siblings  (whole or half)
Aunts and nephews
Uncles and nieces 
* 1st cousins can marry!
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8
Q

Who else can’t marry in GA (other than consanguinity of affinity restrictions)?

A

no gay marriage
mentally incompetent (can’t comprehend and voluntarily marry)
no physical capacity (must be able to have sex)
no bigamy or polygamy

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9
Q

Is there a waiting period b/w the time you get the license and when you can get married? Must you take a medical test?

A

No waiting period

No medical test

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10
Q

Who can solemnize the wedding?

A
  • judge
  • minister
  • person of a religious sect authorized to perform marriages
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11
Q

What happens if the person who solemnized the wedding was improper?

A

Doesn’t affect the validity of the wedding

Improper officiant could be subject to FINES

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12
Q

Is common law marriage allowed in GA?

A

No. It was abolished in 1997. Any common law marriages existing before 1997 will be recognized.

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13
Q

Is physical presence required to get married?

A

Yes, both must sign the wedding license.

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14
Q

Is consummation required? What does consummation mean in this context?

A

Yes. Consummation means officiant signs marriage license

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15
Q

What are the 2 state of mind requirements

A
  1. no duress

2. capacity to consent: must have the mental capacity to understand your actions and agree to your actions

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16
Q

What are marriage articles?

A

Premarital contracts entered into between two parties
Contingent on the marriage
The consideration is the marriage itself

*if the contract is made in contemplation of divorce: premarital agreement

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17
Q

Must marriage articles be written? How many witnesses must sign?

A

They can be oral or written.

2 witnesses necessary

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18
Q

Requirements for a marriage article to be enforceable?

A
  1. good faith
  2. NO undue influence
    * make sure it is fair and that one party didn’t take fraudulent advantage of another
    * did both sides disclose all of their property and financial situations?
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19
Q

Does GA recognize tenancy in the entirety?

A

NO

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20
Q

How do spouses take property if not stated? (Default?)

A

Tenants in common

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21
Q

Are heart balm actions such as alienation of affects or criminal conversation recognized in GA?

A

NO. Spouse may be able to recover for loss of consortium in a negligence action against a 3rd party.

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22
Q

Does GA still recognize interspousal immunity?

A

Yes. However, the court won’t recognize if the traditional policy reasons for having it don’t apply in a particular case. (preserving marital harmony and preventing collusion by spouses)

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23
Q

Is there interspousal immunity if one spouse sues the other in wrongful death actions?

A

NO

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24
Q

When will a spouse be liable to a third party for the other spouse’s purchases?

A

When the purchases are NECESSARIES

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25
Q

Confidential Marriage Communications Privilege: what is it? who can waive/assert?

A

Can be claimed by either spouse. Only the spouse AGAINST whom the testimony is offered may waive.
Communications made during marriage that are confidential

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26
Q

2 ways that marriage ends?

A
  1. annulment

2. divorce

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27
Q

Annulment: when is it available?

A

If the marriage is VOID or VOIDABLE

Bigamy
Consanguinity
Insufficient age
Lack of capacity
Mental incompetence 
Duress 
Fraud
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28
Q

Voidable marriage

A

Event or condition affecting adequacy of consent to the marriage

A voidable marriage will be treated as valid UNLESS/UNTIL it is annulled.
The impediment can be removed (cured by ratification) –> insufficient age is an example

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29
Q

When will an annulment NOT be granted in GA?

A

If a child was born as a result of the marriage or a pregnancy resulted.

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30
Q

Void marriage

A

Null from inception

CANNOT be ratified

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31
Q

Who can attack a void marriage?

A

One of the two parties OR

a third party may collaterally attack

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32
Q

How can you ratify a voidable marriage?

A

Cohabitation after removal of the infirmity/defect

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33
Q

What is the effect of annulment?

A

The marriage is set aside AS IF it NEVER existed

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34
Q

Can alimony and child support be awarded in an annulment?

A

Yes (but remember that the child must have been before the marriage or else no annulment allowed if child born during marriage)

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35
Q

How can a divorce case be tried in GA?

A

judge OR jury!

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36
Q

What gives the GA court jurisdiction to hear a divorce case?

A

1 of the 2 parties must have been a bona fide resident of GA for at least 6 months before filing.

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37
Q

When will another state given full faith and credit to a GA divorce decree?

A

If 1 of the 2 parties had been a domicile of GA.

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38
Q

When will another state given full faith and credit to a GA decree that includes property rights, child support, etc?

A

GA court must have had personal jurisdiction over the defendant.

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39
Q

How does a P assert personal jurisdiction over D in GA when trying to get property rights, child support, etc decided?

A

Use the Domestic Relations Long-Arm Statute

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40
Q

When can you use the Domestic Relations Long-Arm to get PJ over a non-resident?

A

If nonresident

  1. maintains a matrimonial domicile in GA at the time P files the action OR
  2. D resided in GA before the filing (whether cohabiting or not)
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41
Q

What are the two types of grounds for divorces in GA?

A
  1. fault

2. NO fault

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42
Q

Fault based grounds

A
  1. adultery
  2. desertion for a period of 1+ year
  3. cruel treatment
  4. voluntary drug addition or habitual drunkenness
  5. mental incapacity
  6. conviction for moral turpitude crime AND 2+ years in jail
  7. force, menace, duress, or fraud in obtaining the marriage
  8. the wife was pregnant with another man’s child at the time of the marriage and the husband did NOT know
  9. incurable mental illness
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43
Q

How do you prove adultery?

A

Circumstantial evidence:

  1. opportunity
  2. adulterous disposition
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44
Q

How do you prove incurable mental illness so that you can use “fault” grounds

A

court OR 2 physicians must say incompetent

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45
Q

What are defenses to fault based grounds for divorce?

A
  1. collusion
  2. connivance
  3. condonation
  4. recrimination
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46
Q

What is collusion?

A

Defense based on parties (spouses) agreeing to simulate the grounds for divorce

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47
Q

What is connivance?

A

Defense based on the WILLING consent by one spouse to the other’s misconduct

Ex: open marriage

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48
Q

What is condonation?

A

Defense that the spouse seeking fault based divorce forgave the other spouse with full knowledge that a marital offense has occurred AND the spouse resumed living in a marital relationship

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49
Q

What is recrimination?

A

The party seeking the fault based divorce has also committed a fault. (form of unclean hands)

Parties will have to use no fault divorce

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50
Q

No fault divorce: what do you need to show?

A

Show that the marriage was irretreviably broken with no possibility of reconciliation

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51
Q

How long do you have to wait to get a no fault divorce?

A

30 day waiting period

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52
Q

Why would one spouse want to institute an action for legal separation and NOT divorce?

A

It leaves the marriage intact in name only (religious reasons possibly?)
But, legal separation allows for a division of property and alimony awards just like divorce

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53
Q

How is property divided in Georgia?

A

Equitable division of marital property

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54
Q

How does court determine equitable division of marital property?

A
  1. court determines what is separate property and what is marital property
  2. makes an equitable division
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55
Q

What does equitable division?

A

EQUITABLE DOES NOT MEAN EQUAL

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56
Q

What is separate property?

A

Property owned prior to marriage and any appreciation

Any property acquired during marriage b/c of gift or inheritance

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57
Q

How does the court handle “mixed property?”

A

Mixed property is property that means both separate and marital.
Court will separate it unless the two are inextricably mingled

Example of mixed: pension you had before coming into marriage

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58
Q

Equitable division factors: 4 categories

A
  1. Spouses’ characteristics and backgrounds
  2. Spouses’ assets + standard of living
  3. How did spouses accumulate their assets?
  4. What considerations of the spouses should be considered?
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59
Q

Equitable division factors: spouses characteristics and backgrounds

A
  • age, education, background, and earning capacity of each spouse
  • duration of the marriage
  • were there prior marriages?
  • each party’s opportunity to acquire future income and assets
60
Q

Equitable division factors: spouses assets and standard of living

A
  • Each party’s income
  • Employability of each party
  • Standard of living during the marriage
  • Assets and liabilities of each party
61
Q

Equitable division factors: how did the parties accumulate their assets?

A
  • source of the funds used to buy property
  • contributions to the marital property
  • contributions by a homemaker
62
Q

Equitable division factors: what considerations of the spouses should be considered

A
  • health of the parties
  • needs of the parties
  • provisions for the custody of children
  • in lieu of or in additional to spousal support
  • CAN consider marital fault
63
Q

If there is a personal injury action, whose property is the pain and suffering of the injured spouse?

A

Separate property of the injured spouse

64
Q

If there is a personal injury action, whose property is a loss of consortium claim by the uninjured spouse

A

Separate property of the uninjured spouse

65
Q

If there is a personal injury action, whose property is lost wages and medical expenses during marriage

A

Marital property

66
Q

If there is a personal injury action, whose property is lost wages and medical expenses after marriage

A

Separate property of the injured spouse

67
Q

Pension earned during marriage: whose property?

A

both- marital property

68
Q

Professional degrees and licenses attained during marriage: whose property

A

NOT marital property

69
Q

Can an equitable division of property be modified?

A

Generally, no.

Only if you can annul the award judgment b/c of fraud

70
Q

Spousal support: what is it usually called?

A

Alimony or maintenance (these are somewhat on the decline)

71
Q

How do you determine whether a spouse is entitled to spousal support?

A

Based on need

One spouse must have an economic deficiency that has resulted, at least in part, from marriage.

72
Q

What are the 4 types of spousal support?

A
  1. Permanent periodic alimony
  2. Lump sum alimony
  3. Rehabilitative alimony
  4. Reimbursement alimony
73
Q

What is permanent periodic alimony?

A

Alimony that is paid monthly for an indefinite amount of time

74
Q

When does permanent periodic alimony end?

A

When either party later dies OR
When the recipient remarries OR
When the recipient cohabits w/ lover

75
Q

When can a permanent periodic alimony be modified?

A

there must be a material change in circumstances

76
Q

What is a lump sum alimony?

A

Money is paid up front (or in installments) and is discounted to present value
If paid in installments, there is a fixed period.

77
Q

When does a lump sum alimony end?

A

DOES NOT EXPIRE upon death of either spouse or remarriage

78
Q

When can a lump sum alimony be modified?

A

NONE - treated like a contract

79
Q

What is rehabilitative alimony?

A

Money to get nonworking spouse back into workplace

Specified time period

80
Q

When does rehabilitative alimony end?

A

Death of either spouse OR
When the recipient remarries OR
When the recipient cohabits w/ lover

81
Q

When can rehabilitative alimony be modified?

A

When there has been a MATERIAL CHANGE in the circumstances

82
Q

What is reimbursement alimony?

A

It is repayment based on what one spouse contributed to the education of another.

This is based on the amount of contribution, not based on the current value of the degree.

Lump sum or installments

83
Q

When does reimbursement alimony end?

A

DOES NOT EXPIRE upon death of either spouse or remarriage

84
Q

When can reimbursement alimony be modified?

A

Can’t be modified - treated like a contract

85
Q

Spousal support (alimony) factors

A
  • duration of the marriage
  • standard of living during the marriage
  • financial resources of each party, including how the marital property is being divided
  • age and physical and emotional condition of the parties
  • contributions of each spouse to the marriage
  • time needed to get education or training to enable a party to start working
  • ability to pay the alimony amount
  • conduct, INCLUDING MARITAL FAULT
86
Q

What bars a party’s claim for alimony?

A

If that party committed adultery BUT ONLY IF the adultery was the cause of the spouses’ separation.

87
Q

When can marital fault be considered by court?

A

Both in the equitable division of property AND in the spousal support

88
Q

How can a spousal support award be modified?

A

For substantial and material changes in circumstances

89
Q

How does the court determine child support?

A

It uses a detailed statutory scheme.

There is a child support obligation table

90
Q

How does the table determine child support? What does it consider?

A
  • child’s need
  • parent’s ability to pay
  • there is a formula that takes into account:
    1. number of children
    2. ages of the children
    3. special needs of the children
    4. ALL sources of parental income
    5. time spent with the child
91
Q

How is the amount of time spent with the child during marriage relevant to the child support award?

A

More time spent with child, less paid in child support.

92
Q

What if you don’t pay child support? Can you still visit your kids?

A

Yes. They are independent of each other.

93
Q

When does child support end?

A

At 18.

Court, in its discretion, can order child support until 20 if child is still in high school.

94
Q

How can you modify a child support award?

A

Only for a substantial change in circumstances.

95
Q

What can you do if your ex-spouse doesn’t pay you spousal support or the child support?

A
  1. contempt (could include jail time until you pay)
  2. judgment or levy - spouse becomes creditor
  3. garnishment of wages - spouse can get wages directly from other party’s employer
  4. attorney’s fees
96
Q

What are additional remedies for failure to pay child support?

A
  1. automatic wage withholding
  2. interception of federal returns if he owes you more than $500
  3. Child Support Recovery Act
  4. non-renewal of professional license
97
Q

What does the custody determination include? (2 aspects)

A
  1. legal custody

2. physical custody

98
Q

Legal custody: what is it?

A

Right to make major decisions affecting the child

99
Q

Physical custody: what is it?

A

Actual possession and control of the child

100
Q

What is the law governing custody when more than one state is involved?

A

The UCCJEA

101
Q

When can GA make the initial custody determination/award?

A

If GA is the home state of the child -> child has lived in GA for 6 consecutive months (home state)

102
Q

What if child is not still living in GA, but a parent is. Can GA make initial custody determination?

A

Yes, if the child lived in GA within 6 months of the proceeding (for at least 6 months) AND the parent is a current resident of GA

Ex: File for custody in GA on June 1. Child doesn’t live in GA anymore, but did from May of last year until May of this year

103
Q

Definition of home state

A

Any state where the child has lived with a parent for 6 consecutive months

104
Q

What if no state has home state jurisdiction? When can GA make initial custody determination?

A

If the child has significant connections with GA and there is substantial evidence of the child’s well-being in GA.

105
Q

If there is no home state and child doesn’t have substantial connection to GA, GA could still do initial custody award if ….

A

deferred jurisdiction (all other states have declined b/c GA more appropriate)

106
Q

When can a GA court modify a GA custody award?

A

GA has continuing exclusive jurisdiction UNLESS

  • no significant connection or substantial evidence in GA OR
  • no child or parent resides in GA
107
Q

What if GA wants modify ANOTHER STATE’S custody decree?

A

GA must have jurisdiction b/c it is a home state OR child has significant connections and there is substantial evidence of the child’s well being

PLUS the other state must no longer have continuing exclusive jurisdiction

108
Q

When should GA decline jurisdiction over a custody award?

A

When a proper proceeding is pending somewhere else

When P has engaged in unjustifiable conduct

109
Q

When can GA exercise TEMPORARY emergency jurisdiction?

A
  1. child is physically present AND

2. child has been abandoned or it is necessary to protect the child b/c someone in family is subject to abuse

110
Q

What is the standard used in custody awards? Visitation?

A

Best interest of the child standard used for both custody and visitation

111
Q

best interest of the child (factors)

A
  1. parents’ wishes
  2. wishes of the child
  3. relationship of the child to parents, siblings
  4. child’s adjustment to home, school, community
  5. mental and physical health of the individuals involved
  6. parental conduct and fitness
  7. other relevant factors
112
Q

How strongly will a court consider a child’s wishes for custody when the child is 11-13 years old?

A

Not controlling, but taken into account

113
Q

How strongly will a court consider a child’s wishes for custody when the child is 14+ years old?

A

Child’s wishes control unless court determines not in child’s best interest

114
Q

Do courts try to keep siblings together?

A

Yes

115
Q

What if a nonparent tries to get custody? What must nonparent prove?

A

Heavy burden against nonparents - nonparent must prove by clear and convincing evidence that the parent(s) is unfit

116
Q

When will a child custody modification be considered?

A

Significant change in circumstances affecting best interests of the child concern

117
Q

Is a parent entitled to visitation?

A

Yes. Other parent MUST be given reasonable visitation rights

118
Q

What if a grandparent wants visitation? What do GA courts consider?

A
  • did child live with grandparents 6+ months?
  • did grandparents financially support child for 1+ year
  • is there an established pattern of child care
  • any other relevant factors
119
Q

If grandparents get visitation, how much must they be given?

A

24+ hours a month

120
Q

Will a GA court enforce a contract if any part of the consideration is sexual relations?

A

No. NO part of the consideration can be sex. (opposite of general rule)

*Look for this if there is no marriage but parties entered into some sort of agreement when living together

121
Q

How is property divided when unmarried people who were living together split up?

A

divided as titled

122
Q

Nonmarital children - what is the standard if statute classifies based on this?

A

intermediate scrutiny: gov’t must show that the law is substantially related to an important gov’t interest

123
Q

Nonmarital children: can they inherit through intestacy

A

Yes. They have the RIGHT to inherit from their intestate fathers (would just have to prove paternity)

*statute can’t eliminate this right

124
Q

How must paternity be proven?

A

By clear and convincing evidence

125
Q

What if a child enters into a contact for a motorcycle at age 16? Contract for necessaries at age 16?

A

Motorcycle: voidable
Necessaries: bound

126
Q

How old do you have to be to write a valid will in GA?

A

14 years old

127
Q

How old do you have to be to have tort or criminal liability in GA?

A

13

128
Q

What if you commit a crime and you’re under 13?

A

Juvenile court

129
Q

When is there no spousal immunity?

A

When one spouse commits an intentional tort

130
Q

What factors will GA courts use to determine whether spousal immunity applies in NEGLIGENCE actions?

A
  1. avoidance of collusion
  2. preservation of family harmony
  3. depletion of family assets
  4. maintenance of parental authority
  5. possibility of inheritance (no windfall)
131
Q

What if one ex-spouse interferes with custody or kidnaps?

A

No tort action in GA, but criminal action

132
Q

Adoption- what if child you are adopting is 14+ years old?

A

The child must consent in writing and consent must be acknowledged in court

133
Q

Adoption: steps

A
  1. consent from natural parents

2. investigation and court approval (court must make sure adoptive parents are suitable)

134
Q

Do you need to get consent from an unmarried father?

A

It depends on how active he has been in the child’s life.

- did the father live with the child? care for him? admit paternity? pay child support?

135
Q

What can be paid to the natural parents during adoption?

A

Only actual expenses and legal expenses (hospital, medical expenses)

136
Q

Does GA allow private adoptions?

A

Yes

137
Q

Annulment: when can you get an annulment

A

Declaration that a marriage was invalid -due to an impediment at the time of marriage

138
Q

Three elements that the person seeking to enforce a prenup must prove:

A
  1. no duress, fraud, misrepresentation, mistake
  2. not unconscionable
  3. not unfair and not unreasonable in light of current circumstances
139
Q

No duress prong

A
  1. full disclosure of the parties’ assets
  2. the party opposing enforcement entered into the agreement freely, voluntarily, and with a full understanding of its terms after being offered the opportunity to consult with independent counsel
140
Q

Not unconscionable prong

A

One party can’t take fraudulent advantage of the other

141
Q

Not unfair or unreasonable

A

If there are changes beyond what was contemplated, it may be unfair if unforeseeable.

142
Q

Common law marriage elements

A
  1. both parties must agree to a marriage relationship
  2. cohabit, and
  3. both parties must hold themselves out to be married
143
Q

Marriage articles: enforced in what type of court?

A

Enforced in court of equity

144
Q

Separate property: what happens if it increases in value during the marriage?

A

Still separate property unless both spouses worked together to form the appreciation, in which case marital estate would be granted a reimbursement for the value added.

145
Q

What if one person does a downpayment before marriage and then house is paid for by both during marriage?

A

Figure out what proportion was paid separately and what was paid as marriage property.

146
Q

What if people are not married and they enter into an agreement as to how they want to divide property when they break up?

A
  • use general contract principles

- look out for normal contract defenses AND whether any part of the consideration was sex (invalid)

Family Law (1 decks)

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