FINAL

Question 1

What are the 3 requirements for an enforceable prenuptial agreement (assuming form is valid)?

Answer 1

(1) the agreement is entered into voluntarily (or without fraud, duress, or deceit);
(2) there is a full disclosure of financial assets; and
(3) the terms of the agreement do not encourage divorce.

Question 2

Requirements to enter into a valid marriage?

Answer 2

(1) Capacity
(2) Be of legal age
(3) Intent to marry

Question 3

What is a sham marriage?

Answer 3

Sham marriage is one obtained for a specific, limited purpose (EG - immigration, naming a baby etc…)

Question 4

What is the test for capacity to enter into a marriage?

Answer 4

Whether the mind could and did act rationally regarding marriage – and the particular marriage in dispute; or whether it proceeded from a mind sane as respects the particular thing done (does not have to be considered wise)(See Larson v. Larson (1963))

Question 5

What are the requirements for a common law marriage? (acknowledged in OK)

Answer 5

• Intent to marry
• Capacity to marry
• “holding out” by the parties that they are husband and wife (some states require consummation. Also see if they refer to themselves as this, Christmas cards, etc.)

Question 6

What is the difference between a void and voidable marriage?

Answer 6

A void marriage is one that is non-existent; no formal procedure is necessary to terminate it. A void marriage can be attacked even after the death of one of the spouses (EG – incestuous marriages or involves a party below statutory age requirement)

A voidable marriage is effective until it is formally voided, usually as the result of a court order.

Question 7

Grounds for fault divorce?

Answer 7

o Abandonment
o Adultery
o Cruelty
o Neglect
o Drunkenness
o Felony
o Impotency
o Fraud
o Duress
o Coercion

Question 8

Grounds and requirements for no-fault divorce?

Answer 8

The marriage is irretrievably broken (both parties see no possibility of reconciliation); established through findings of “serious marital discord”

Some states require proof of a separation period (OK requires 90 days if there are children; 10 if none)

Question 9

Defenses to fault divorce?

Answer 9

Connivance = Plaintiff’s consent, express of implied, to the misconduct alleged as a ground for divorce

Condonation = one spouse’s forgiveness of the other spouse’s adulterous misconduct, usually evidenced by resumption and continuation of apparently normal matrimonial relations

Question 10

Which state has jx over a divorce proceeding?

Answer 10

State where the plaintiff is domiciled is sufficient to establish personal jx for divorce purposes.

Question 11

Which state has jx over interstate child custody proceedings? How long does the court have jx?

Answer 11

The Uniform Child Custody Jurisdiction and Enforcement Act establishes that the home state has jx over child custody determinations

(Home State = State where child resides at time of filing or for 6 months prior to filing)

The court which has made the child custody determination under § 201 has continuing jx over that determination until:

(1) court determines child does not have significant connection etc… OR
(2) a court determines that the child does not reside in state

(See Kukla case, where Mom in CA brought action against Dad in NY; NY court had jx because Dad did not purposefully avail himself to benefits of CA jx)

Question 12

Whats the difference between a community property state and a separate property state? Which one is OK?

Answer 12

Community Property States: everything acquired during marriage is marital property, unless it is kept separate and/or not commingled. Even if you acquired it before the marriage.

Question 13

What is separate property?

Answer 13

Property that is owned prior to coming into the marriage. Also, includes property appreciation (EG - a boat acquired before the marriage, but appreciates in value during the marriage, remains separate property)

Question 14

What is marital property?

Answer 14

Property that is acquired during the marriage. Similar to separate property, increases in value to marital property remains marital property. Also, gifts given to both spouses are marital property.

Question 15

When are the profits of separate property considered marital property?

Answer 15

The profits of separate property are either marital property or separate in accordance with whether they are the result of the individual efforts of a spouse (marital) or the in inherent qualities of the property itself (separate).

EG - investment profits are often separate property because they appreciate on their own inherent nature, not the efforts of the spouse.

Question 16

What is apportionment?

Answer 16

Dividing the property according to the logical distribution of profits, and use whatever method will achieve substantial justice between the parties.

EG - a farming operation increased in value due to both the inherent nature of the property and the efforts of the spouse. Courts will establish a mathematical relationship with the profits and assign percentages, the divide between the parties accordingly.

Question 17

What is commingling?

Answer 17

When the separate property is so intertwined that the court will classify it all as marital (EG - separate bank account used for marriage purposes)

Question 18

What is transmutation?

Answer 18

When a court classifies separate property intended as a gift as marital property because the nature of the property has changed (EG - a house that is gifted to one party but is put in the name of both parties)

Question 19

What is alimony and how is it calculated?

Answer 19

Spousal support used to help parties transition or ease into new standard of living after separation (when there is income disparity due to health, age, work etc…)

In order to calculate alimony, courts consider:

• Need
• Ability to pay
• and the many factors needed to assess need and ATP

Question 20

What are the three types of alimony?

Answer 20

• Rehabilitative alimony (for a specific period after divorce)
• Lump sum or reimbursement
• Indefinite term (which is paid until recepient remarries or either party dies)

Question 21

How long is child support paid in Oklahoma?

Answer 21

In Oklahoma, child support is paid until the child gets to 18 or they graduate from high school, whichever is sooner.

Question 22

Relevant factors when considering the BIOC?

Answer 22

• Wishes of child parents
• Wishes of child as to his custodian (Age 12 in OK)
• Relationship of child with his parent or parents, his siblings, and any other person who many significantly affect child’s interest
• Child’s adjustment to his home, school, and community
• Mental and physical health of all individuals involved

Question 23

What is the order of preferred custody in the BIOC?

Answer 23

1. Joint Custody
2. Sole Custody
3. Custody to a non-parent

Question 24

When does a custodial parent need to notify another for relocation in OK?

Answer 24

In Oklahoma, custodial parents who want to move more than 75 miles with their minor children must give specific notice to the other parent. If the non-moving parent objects to the relocation, the court will hold a hearing to determine if the move is in the child’s best interests.

Question 25

What is the standard for modification of a custody order?

Answer 25

Only when modification is in BIOC; modification is generally only permitted when there has been a substantial change in circumstances since the original custody order

Question 26

Separation Agreement

Answer 26

A separation agreement is an agreement entered into during the marriage, prior to the issuance
of the divorce decree, in which the parties may resolve economic issues.