Family Law Generally Flashcards
With regard to Premarital Agreements, what factors will the court consider relevant to procedural fairness?
Factors considered relevant to procedural fairness may include [In re Marriage of Matson, 705 P.2d 817 (Wash. Ct. App. 1985)]:
(1) the fullness of disclosure of net worth;
(2) the availability of independent counsel or knowing and voluntary waiver of such representation;
(3) the timing of the presentation of the agreement, giving sufficient time to review before the wedding; and
(4) the relative bargaining power of the parties, and their relative levels of financial or legal knowledge.
[other relevant cases: In re Yannalfo, 794 A.2d 795 (N.H. 2002); In re Marriage of Spiegel, 553 N.W.2d 309 (Iowa 1996); In re Marriage of Shirilla, 89 P.3d 1 (Mont. 2004); In re Marriage of Bonds, 5 P.3d 815 (Cal. 2000); Peters-Riemers v. Riemers, 644 N.W.2d 197 (N.D. 2002); Blige v. Blige, 656 S.E.2d 822 (Ga. 2008); Mallen v. Mallen, 622 S.E.2d 812 (Ga. 2005).
What statute of the SC Code grants the Family Court jurisdiction in domestic matters, and what are these “domestic matters”?
SC Code § 63-3-530:
(A) The Family Court has exclusive jurisdiction:
(1) Uniform Interstate Family Support Act;
(2) Divorce & separate support & maintenance, and other marital litigation;
(3) Adoption;
(4) Termination of parental rights;
(5) (Reserved);
(6) Annulments;
(7) (Reserved);
(8) Name changes;
(9) Correction of birth records;
(10) Consent for minors to enlist in military service and/or employment of a minor;
(11) Spousal & child support;
(12) Protection of neglected or dependent minors in support actions;
(13) Contempt actions;
(14) Spousal & child support;
(15) Inclusions in child support order;
(16) Fixed periods for support payments;
(17) Time frame for how long support payments should be paid;
(18) Support (even) for deserting spouse when conduct of other spouse was cruel or inhumane;
(19) Who can be made a party to the litigation;
(20) Awarding custody;
(21) Determine how support should be paid & applied;
(22) Security for support & contempt if not paid;
(23) Suspend or revoke sentence for non-payment of support;
(24) Probation for non-payment of support;
(25) Modify or vacate any order issued by the court;
(26) Order mental, physical, or psychiatric exam if necessary;
(27) Exclude public from courtroom;
(28) Send process or mandates to other counties in South Carolina;
(29) Compel attendance of witnesses;
(30) Make any order necessary to carry out and enforce this title & to hear any questions of support, custody, separation, or any other matter over which the court has jurisdiction without the intervention of a jury;
(31) Require spouse to pay support if at time of filing:
- residing or domiciled in the county or county is the matrimonial domicile of the parties
- spouse is not domiciled in the county but is found in the county provided that the petitioning spouse is residing or domiciled in the county
- not domiciled or found in the county but while domiciled in the county spouse failed to pay support & petitioning spouse is still domiciled in the county;
(32) Domicile/petitioner for support;
(33) Grandparent visitation;
(34) Child custody w/rights of guardianship;
(35) Protection from domestic abuse;
(36) Order public officials to perform official acts;
(37) Appointment of guardians ad litem;
(38) Suit money;
(39) Court mandated mediation;
(40) Contempt orders for parents who do not follow plan adopted by the court for minors involved in delinquency matters (DJJ);
(41) Ordering supporting parent to attend employment training program if support is being enforced under Title IV-D of the Social Security Act & child is receiving Temporary Assistance to Needy Families benefits;
(42) Order joint or divided custody;
(43) Enforce subpoena issued by Department of Social Services pursuant to § 63-17-850 and enforce fines assessed by the department pursuant to § 63-17-850, § 63-17-2310(C), & § 43-5-598(G);
(44) Order sibling visitation;
(45) Hear & determine actions concerning the control of the person of a minor, including guardianship; and,
(46) Order custody of a minor to the de facto custodian pursuant to §63-15-60.
In SC, Family Court and _________ Court have concurrent jurisdiction.
Probate
Can the Family Court award money damages?
No. The family court has no authority to award monetary damages.
The Family Court does not have jurisdiction to alter or amend a judgment, sua sponte, once the judgment is ____________.
More than 10 days old.
see Heins v. Heins, 344 S.C. 146, 543 S.E.2d 224 (Ct. App. 2001).
What are the two (2) types of marriages in SC?
(1) “Ceremonial” or Statutory Marriage; and
(2) Common Law Marriage
Name five (5) U.S. Supreme Court Cases that involve family law matters.
(1) Obergefell v. Hodges, 135 S.Ct. 1039 (2015)
(2) Zablocki v. Redhail, 434 U.S. 374 (1978)
(3) Loving v. Virginia, 388 U.S. 1 (1965)
(4) Griswold v. Connecticut, 381 U.S. 479 (1965)
(5) Moore v. City of East Cleveland, 431 U.S. 494 (1977)
Others:
Eisenstadt v. Baird, 405 U.S. 438 (1972)
Lawrence v. Texas, 539 U.S. 558 (2003)
What are the four (4) requirements for Ceremonial Marriage in SC?
(1) License [§ 20-1-210]
(2) 24 Hour Waiting Period [§ 20-1-220]
(3) Registration of Completed License
(4) Conducted by authorized persons [§ 20-1-20]
What are the four (4) requirements for Common Law Marriage in SC?
(1) An actual and mutual agreement to live publicly as husband and wife (agreement must be made in SC to be valid)
(2) “Holding Out,” meaning that the couple must publicly represent themselves to be married
(3) Cohabitation
(4) Parties must have the capacity to enter into a marriage contract [Must be of age and not already married to another person]
What are four (4) general prohibitions or restrictions on marriage in SC?
(1) Mentally Incompetent Persons [§ 20-1-10(A)]
(2) Persons Already Married / Bigamy [§ 20-1-80]
(3) Certain Degrees of Affinity & Consanguinity [§ 20-1-10(B) and (C)]
(4) Age Minimums [§ 20-1-100]
What is the Enoch Arden Rule?
It is the exception to the general rule that prohibits bigamy. It is applied in cases where one spouse has disappeared or abandoned the other spouse. There are two (2) requirements:
(1) A continuous, unexplained five (5) year absence creating a presumption of death; and
(2) The abandoned spouse must make a good faith effort to find the deserting spouse.
Abandoned spouse should also seek a Judicial Declaration of Presumed Death [§ 20-1-540] to ensure that a second marriage will be declared valid is the deserting spouse from the first marriage actually returns.
A marriage between people who are closely related by blood or marriage is Void or Voidable?
Voidable.
A marriage that includes a person under the age of 16 is void or voidable? What are the exceptions to the 16+ age requirement?
Void. A person must be 16 years old in order to marry with parental consent, and 18 to marry without parental consent.
Two (2) Exceptions:
(1) A Common Law Marriage may be created between persons as young as 16 years old without license or consent.
(2) Pregnancy: a pregnant female or one that has already given birth, regardless of her age, if the groom is the putative father of the child, and the parent or guardian of the female gives consent for the marriage.
May a spouse deny his/her partner sex?
YES. See S.C. Code § 16-3-615, Spousal Sexual Battery Statute.
What is the Necessaries Doctrine?
A Common Law doctrine allowing 3rd Parties providing necessaries to Husband or Wife to bring an action against the individual’s spouse.
Two (2) Approaches:
(1) Make one spouse primarily responsible for payment of his or her own debts for necessaries before seeking reimbursement from the other spouse; or
(2) Make both spouses jointly and severally liable for necessaries.
See S.C. Code § 20-5-60 and Richland Memorial Hospital v. Burton, 318 S.E.2d 12 (1984).
