Family Law (MEE) Flashcards
1
Q
Ceremonial (statutory) Marriage
A
Parties must (i) obtain a license and (ii) participate in a ceremony
2
Q
License Requirements
A
- Need capacity to marry
- Most states require both parties to be 18+ (but most states allow marriage if party is under 18 provided party has parental consent)
- Waiting period between date of license application and date of issuance or ceremony
- Medical testing: State can mandate testing, but cannot condition a license on the results
- Expiration date: Most states impose expiration date on marriage license
3
Q
When will a marriage license NOT be issued?
A
- Prior marriage: One party is married to someone else
- Incest or Consanguinity: Parties are too closely related
- Marriage is a “sham“/fraud
- Parties are incapable of understanding nature of the act of marriage (e.g., substances render a party incapable or a lack of consent due to fraud or duress)
4
Q
Solemnization Requirements
A
- 2+ witnesses to the ceremony
- Most states require an officiant (e.g., judge, person of clergy, political official)
- Marriage license must be filed with appropriate government agency
- Proxy marriage: Some states allow a party to have a stand-in for them at the ceremony
5
Q
Common-Law Marriage
A
- Requirements: Parties (i) have capacity to marry, (ii) agree they are married, (iii) cohabit as married, and (iv) hold themselves out to the public as married
- Intent: Must be evidenced by words in the present tense
- Conflict of Laws: Marriage that is valid under law of place in which it was contracted is valid elsewhere under Full Faith & Credit Clause unless it violates a strong public policy
6
Q
Ways to terminate a marriage
A
- Annulment
- Divorce
- Death
7
Q
Annulment
A
- Judicial decree that voids a marriage and declares it as having never been valid
- Applies when an impediment to a legal marriage existed at the time of the marriage
8
Q
Void marriage
A
- Treated as if it never happened; does not need to be judicially dissolved; not legally recognized for any purpose
- Any party may seek an annulment for a void marriage (e.g., parent, guardian, party)
- Defenses: Only defense is to deny existence of impediment; removing impediment makes marriage voidable
9
Q
Situations in which a marriage is void
A
- Prior existing marriage: Second marriage will be void. Burden is on the person who is trying to prove the first marriage. Rebuttable presumption of validity of the latest marriage.
- Incest: Parties are too closely related by blood (consanguinity) or by marriage (affinity).
- Mental incapacity: A person who is unable to understand the nature of the marriage contract lacks the capacity to marry. Must be lucid for moment of marriage contract.
10
Q
“Enoch Arden” Rule
A
Some states allow a second marriage to become valid, despite a prior existing marriage, if one party had a good-faith belief that the marriage was valid and the impediment is removed.
11
Q
Voidable Marriage
A
- Valid until one party seeks annulment
- Requires a judicial decree to dissolve the marriage
- Defenses: Equitable defenses of unclean hands, laches, and estoppel
12
Q
Situations in which a marriage is voidable
A
- Age: Any party who is under age of marriage consent and who did not seek parents’ consent can ask for an anulment. Parent of minor child can also seek annulment. If underage party reaches age of majority and continues to cohabitate with spouse, can no longer seek annulment.
- Impotence: Naturally and incurably impotent, unless party knew prior to marriage
- Intoxication: Either party was incapable of contracting due to alcohol/drugs, unless parties continue to cohabitate after marriage
- Fraud, misrepresentation, durress, coercion, force: Fraud in existence at time of marriage that goes to essence of marriage. Parties must immediately cease living together once fraud is discovered. Insufficient grounds include lying about wealth, poor morals, bad habits, etc.
- Lack of intent: Parties acted with no intention to be married, unless marriage has since been consumated.
13
Q
Effect of Annulment
A
- Either party can still seek spousal support, equitable distribution of marital property, or child support if child was born within now-annulled marriage (considered a marital child)
- Courts try to put parties in same position as before marriage
14
Q
Putative Marriage Doctrine
A
A party who participated in a ceremonial marriage and believes in good faith that marriage is valid may use state’s divorce provisions even if marriage is later found to be void
15
Q
Jurisdiction to Hear Divorce Dispute
A
- Court must have both subject-matter jurisdiction and personal jurisdiction.
- Subject-matter jurisdiction: Most states have residency requirements to establish subject-matter jurisdiction: at least one party must be a resident of the state, but length of residency requirement varies
- Personal jurisdiction: Court may not exercise personal jurisdiction unless the defendant has minimum contacts with state in which court sits and exercise of jurisdiction would be fair and reasonable.
16
Q
Divisible/Ex Parte Divorce
A
- Court has PJ over one party but does not have PJ over the other party
- Court grant grant an ex parte divorce (i.e., deterimine marital status only)
- Court without PJ over one of the spouses cannot issue orders on property division, spousal support, or child custody or support
17
Q
No-Fault Divorce
A
- Marriage is irretrievably broken
- Irreconcilable differences must exist for a specific period of time prior to filing of divorce action
- One spouse who desires to reconcile cannot prevent dissolution
- Most states have abolished traditional defenses to divorce
18
Q
Grounds for Fault-Based Divorce
A
- Adultery
- Cruelty
- Desertion: One sposue voluntarily leaves marital home without cause or consent from other spouse, with intent to remain apart on a permanent basis. Can have a constructive desertion when one spouse is forced out.
- Habitual Drunkenness: Frequent intoxication that impairs marital relationship.
- Bigamy: One party knowingly entered into a prior legal and existing marriage before entering into current marriage.
- Imprisonment: Of one spouse for a specified period of time.
- Indignity: One spouse exhibits negative behavior to other that renders that spouse’s condition intolerable and life burdensome.
- Institutionalization: If one spouse is confined to a mental institution and there is no reasonable prospect of discharge or rehabilitation.
19
Q
Fault-Based Divorce: Cruelty
A
Must demonstrate course of conduct by other party that is:
(i) harmful to plaintiff’s physical (sometimes mental) health that
(ii) makes continued cohabitation between parties unsafe/improper.
* Cannot be just a one-time incident.
20
Q
Fault-Based Divorce: Adultery
A
Must show (i) opportunity and (ii) inclination by other spouse
21
Q
Defenses to Fault-Based Divorces
A
- Must be afffirmatively pleaded when asserted
- Recrimination: Both spouses commit marital wrongful act of like conduct
- Unclean Hands: Plaintiff’s own behavior is in question
- Connivance: Complaining spouse gave consent to participate in marital wrong.
- Condonation: Spouse forgave for whatever wrongful act other spouse did. Spouse must have knwoledge of wrongful act and must resume marital relations.
- Collusion: Both parties have conspired to fabricate grounds for divorce
- Provocation: Misconduct of respondent is due to something other spouse is doing
- Insanity: One spouse does not know and cannot understand difference betwen right and wrong
- Consent: Consent to desertion or adultery
- Justification: One spouse leaves home because of other’s misconduct
22
Q
Mediation
A
Mediatior must follow a code of conduct: (i) be impartial and disclose any conflicts of interest; (ii) clearly explain process and make sure parties have all information required; (iii) control mediation proceedings; and (iv) not coerce or improperly influence a party to make a decision
23
Q
Community Property
A
- Most community property states require equal division of marital property
24
Q
Equitable Distribution
A
- Objective of an equitable distribution system is a fair distribution of marital property, taking into consideration all of the circumstances between the parties.
- In most states, all property acquired during marriage is marital property and subject to equitable distribution.
- Factors: Length of marriage; prior marriages; age, health, earnings, earning potential, liabilities, and needs of both spouses; contributions to education; income, medical needs, retirement of both spouses; homemaking and child-rearing services; value of separate property; reduction in valuation in marital property by one spouse; standard of living; economic circumstances of each spouse at time of divorce; custody of any minor children
25
Q
Marital Property
A
- All property acquired during the marriage
- Burden of proof on party asserting property is nonmarital
- Increases in value of separate property resulting from either spouse’s efforts is considered MP
- Increases due to MP funds is also considered MP
26
Q
Nonmarital Property
A
- Property acquired before marriage
- Property excluded by parties’ valid agreement
- Property acquired by gift or inheritance (except for gifts between spouses)
- Property a party has sold or conveyed for value in good faith before date of final separation
- Property mortgaged or encumbered in good faith before final separation
- Any award or settlment payment receieved for a COA or claim that accrued before marriage
27
Q
Treatment of specific types of marital property
* Professional licsenses/degrees
* Retirement or pension benefits
* Personal injury claim proceeds/workers’ compensation
* Goodwill
* Accumulatd sick/vacation days
* Expectancy interest in property
* Social Security benefits
* Post-separation property
* Unexercised stock options
A
- Professional licsenses/degrees: Not a property interest but can affect alimony
- Retirement or pension benefits: MP if acquired during marriage
- Personal injury claim proceeds/workers’ compensation: Some states find if COA accrued during marriage, proceeds or award are MP. Other states allocate proceeds/award between MP and SP. Damages for pain/suffering/disability are SP of injured spouse. Consortium losses are SP of non-injured spouse. Awards for lost wages, loss of earning capacity, and medical expenses are split according to proportion attributable to time during marriage.
- Goodwill: Reputation and clientele of a professional practice is MP
- Accumulated sick/vacation days: States split on classification
- Expectancy interest in property: Not distributable
- Social Security benefits: Not subject to equitable distribution
- Post-separation property: Can be MP
- Unexercised stock options: MP if acquired during marriage
28
Q
Modification of a Property Division Award
A
- Once a property division occurs, it is non-modifiable.
- Changes in circumstances after divorce are not considered once the property division award is entered because the property division is based on the parties’ assets at the time of divorce.
29
Q
Spousal Support Factors
A
- Financial resources, including property to be awarded in divorce
- Child support
- Spouse’s earning potential
- Other spouse’s ability to pay support
- Spouse’s standard of living
- Time to find employment or complete any education or training necessary for a job
- Length of marriage (short: 7 years; medium: 7-15 years; long: 16+ years)
- Contributions to marriage (particularly those that enhanced the earning potential of the other spouse)
- Age and physical and mental health of each spouse
- Marital misconduct
30
Q
Types of spousal support
A
- Lump sum: Fixed amount; cannot be modified in absence of fraud
- Permanent: Typically awarded only when marriage was of long duration (15+ years)
- Limited duration: Typically awarded when marriage was of short duration, but there is still an economic need for support
- Rehabilitative: To enhance and improve earning capacity of economically dependent spouse for a limited time until spouse receives education or employment
- Reimbursement: To compensate a spouse for financial sacrifices made during marriage that resulted in reduced standard of living to secure enhanced standard of living in the future (rarely granted)
- Palimony: Support provided by one unmarried cohabitatant to another after the dissolution of a stable, long-term relationship (only available in a few states)
31
Q
Modification of Spousal Support
A
- Party seeking modification has burden of establishing a significant and continuing change in circumstances in needs of dependent spouse or financial abilities of obligor that warrant modification
- Willful or voluntary reduction in income: No reduction in support paymenets
- Death of spouse: Terminates support
- Remarriage: If receiving spouse remarries, support may be terminated. If paying spouse remarries, court may modify support.
- Cohabitation: If receiving spouse cohabits with someone who is not family, spousal support may be modified (not automatic)
- Retirement: Effect depends upon jurisdiction
32
Q
Child’s Right to Support
A
- Both parents are legally required to support their minor children; respective obligations of support are adjusted as physical possession of child changes between parties
- Obligations based on child’s needs, not parents’ ability to pay
- Parents can enter into agreements regarding child spport payments but cannot agree to any release or compromise that would negatively affect child’s welfare
