Family Law and Conflicts Flashcards
May gifts made in contemplation of marriage be returned?
Yes.
What are the requirements to marry?
Parties must (i) be a minimum age, (ii) not be too closely related, (iii) be of opposite sex, (iv) have capacity to consent, (v) not have a prior undissolved marriage to a living spouse.
What are the procedural requirements for marriage?
License plus solemnization (ceremony performed by judicial officer/member of clergy)
State of mind requirement to marry
Parties must understand actions and voluntarily agree
What is a common law marriage?
(i) Exchange of consents between two people with capacity, (ii) cohabitation, (iii) holding out publicly of living together as husband and wife.
What is one thing that is NEVER binding on a court when present in a premarital contract?
Child custody provisions. In some states they are void, while in others they are subject to judicial review.
What four things are required for premarital contracts to be enforceable?
(i) Agreement entered voluntarily
(ii) Contract must be in writing and signed by party to be charged,
(iii) Both parties must make a fulland fair disclosure of their financial worth, and
(iv) Economic provisions must be fair and reasonable
What is an annulment?
A declaration that a marriage is invalid because there was an impediment at the time of the marriage. Once decreed, parties treated as though never married.
What are grounds for a VOID marriage?
(1) Bigamy or polygamy
(2) Consanguinity
(3) Nonage (some states)
IF THE IMPEDIMENT IS REMOVED, THE MARRIAGE BECOMES VOIDABLE
What are grounds for a VOIDABLE marriage?
(1) Nonage (some states)
(2) Incurable physical impotence
(3) Lack of capacity (mental incompetence, duress, fraud involving the essentials of marriage)
What is a no-fault divorce?
Requires a showing that (i) the marriage is irretrievably broken; and/or (ii) the parties have been living apart for a specified time. The only defense to a no-fault divorce is to deny the existence of one of the above grounds.
What are the usual fault grounds for divorce?
(1) Adultery
(2) Willful desertion for a specified time
(3) Extreme physical or mental cruelty
(4) Voluntary drug addiction or habitual drunkenness
(5) Spouse’s mental illness
What are the defenses to fault grounds for divorce?
Collusion – agreement to simulate grounds for divorce.
Connivance – willing consent by one spouse to other spouse’s misconduct.
Condonation – forgiveness of marital offense w/ full knowledge of commission plus resumption of marital relations.
Recrimination – other party also guilty of something.
What are the jurisdictional requirements for a divorce?
To have jurisdiction over the divorce itself requires only that one spouse be domiciled in the forum state. To have jurisdiction over spousal support, property rights, etc., the court must have personal jurisdiction over the defendant.
What is the “equitable division of marital property”?
Each spouse takes his separate property and the court divides the property acquired during the marriage.
Factors considered:
(1) Age, education, background, and earning capacities of both parties,
(2) Duration of marriage, whether prior marriages,
(3) Standard of living during marriage
(4) Present incomes, vocational skills, and employability
(5) Source of money used to purchase property
(6) Health of parties
(7) Assets, debts, and liabilities of parties
(8) Needs of parties
Etc. etc. etc. (see page 11 in Conviser)
Property divisions are NOT MODIFIABLE
Factors considered in determining spousal support:
(i) Duration of marriage and standard of living established during,
(ii) Age, physical/emotional condition of parties,
(iii) Financial resources of the parties
(iv) Contribution of each party to the marriage,
(v) Time needed for the party seeking support to obtain training necessary to find appropriate employment
(vi) Ability of payor spouse to meet his needs while paying spousal support
Types of spousal support
Permanent periodic – paid regularly
Rehabilitative support – periodic payments for a limited time to enable spouse to become self-supporting
Lump sum – nonmodifiable, fixed amount payable either all at once or broken down into a series
Reimbursement – awarded in minority of jurisdictions to spouse who supported the other while latter obtained a professional license or degree. Fixed sum, not modifiable nor terminable, based on amount of contribution, not value of degree
When does spousal support terminate?
Periodic spousal support terminates upon death of either spouse or remarriage of recipient spouse. In some states, if recipient spouse cohabits with another person of opposite sex.
Lump sum support is not modifiable and survives death of either spouse.
How are child support awards calculated?
Formula based on number of children, their ages, special needs, parents’ incomes.
What is the Full Faith and Credit for Child Support Orders Act?
It says that full faith and credit must be given to the child support orders of a court in another state.
How are spousal support and child support obligations enforced?
By holding the nonpaying party in contempt of court. Other sanctions include: a judgment, seizure of real estate, attachment of wages, order of payment of attorney’s fees.
What is the Uniform Interstate Family Support Act?
Provides methods for enforcement and guidelines for modifications of support orders issued in another state.
Income w/holding may be mailed to (i) obligor’s out of state employer, automatically triggering w/holding unless timely objection, or (ii) the support enforcement agency in the obligor’s state. Can also register a support order with a sister state.
What about modifying a support order under the UIFSA?
Generally, court that issues the controlling child support order has continuing and exclusive jurisdiction to modify it. Role of court in other state is ONLY TO ENFORCE, unless (i) parties no longer reside in issuing state, or (ii) the parties consent in a record to the nonissuing court’s assertion of jurisdiction to modify the order.
What must a separation agreement have to be enforceable?
It must be entered into voluntarily, and there must have been a full and fair disclosure by both parties.
Provisions relating to property and spousal support will be enforced by court. Child custody and support provisions will be enforced only if they are in child’s best interests.
