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IL Family Law > Full Set > Flashcards

Full Set Flashcards

1
Q

TERMINATION methods

A

Annulment (“declaration of invalidity”) • death • divorce

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2
Q

Void Marriage

A

no court needed, one of requirements missing (bigamy w/ good faith exception & defenses Enoch Arden, Last in Time • incest • mental capacity)

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3
Q

Voidable Marriage

A

needs judicial decree (age, can be nullified by aging • impotency @ time of ceremony w/o knowledge, SOL 1yr • intoxication • fraud • sham)

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4
Q

Annulment effects

A

children are marital

maybe entitled to some spousal support

some equitable distribution of property

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5
Q

Annulment defenses

A

unclean hands

laches

estoppel

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6
Q

Putative marriage doctrine applies in IL, what is it?

A

good faith belief entered into valid marriage

courts will protect innocence

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7
Q

NO FAULT DIVORCE

A
  1. “irretrievably broken” (2yr separation, reduce to 6mo. w/ writing
  2. failed reconciliation
  3. not best interest to keep trying
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8
Q

COMMUNITY PROPERTY JURISDICTION VS. EQUITABLE DISTRIBUTION JURISDICTION

A

COMMUNITY PROPERTY – held jointly & equally divided by court

CL EQUITABLE DISTRIBUTION – “fair” and “equitable” guided by contribution and need

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9
Q

Special Assets - PROFESSIONAL LICENSES & EDU

A

Not in IL or the majority of states

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10
Q

Special Assets -RETIREMENT & PENSION

A

Yes, if earned during M.

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11
Q

Special Assets - PERSONAL INJURY CLAIMS

A

Not necessarily in IL. In the minority, yes if CoA occured during M.

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12
Q

Special Assets - Goodwill

A

Not in IL. Yes in the majority

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13
Q

Special Assets -SICK & VACATION DAYS

A

No, unless paid out in certain (also no in majority).

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14
Q

Special Assets - FUTURE INTEREST

A

No

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15
Q

Special Assets - Social Security

A

No

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16
Q

Special Assets - POST-SEPARATION PROPERTY

A

sometimes because bright line is the divorce not the separation.

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17
Q

Special Assets - Stock options

A

yes, if acquired during M

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18
Q

FAULT DIVORCE

A

Adultery (opportunity & inclination)

cruelty

1yr intentional desertion w/ defense of spouse staying behind

2yrs habitual drug use

bigamy

imprisonment

STD transmission

impotency

attempted murder of spouse

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19
Q

DIVORCE DEFENSES

A

Connivance (spouse consented to wrongdoing)

knowledgeable forgiveness w/ resumed sex, not available if “forgive-able” act after filing

collusion

insanity

consent to marital misconduct

religion

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20
Q

COMMON-LAW DIVORCE, FINALIZING DIVORCE, MEDIATION

A

CL Divorce – 1. legally married and entitled to support, 2. no remarriage

There’s an interlocutory finalization period.

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21
Q

MARITAL OR NON-MARITAL

A

MARITAL – acquired during the marriage • title immaterial

NON-MARITAL – acquired before • excluded by valid agreement • gift, legacy, decent • property sold before the final separation • after divorce • PI w/ COA prior to marriage • judge awarded from one spouse to other • increased value of separate property • income from NMP

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22
Q

DISTRIBUTION OF MARITAL ESTATE (factors)

A 
duration 
obligations from prior marriage 
income 
debts/needs 
age/health 
contribution to spouse’s education 
value of homemaking 
standard of living 
child custody 
spousal support 
tax implications to each party 
significant contribution and enhancement to other spouse’s NMP
23
Q

UNITARY THEORY OF PROPERTy

A

must be EITHER marital or non-marital, if mixed default to receiving party

24
Q

PERSONAL EFFORT to other party’s NMP

A

if that substantially appreciates it may end up in marital estate

25
Q

SPOUSAL SUPPORT FACTORS

A 
GENERAL 
• financial resources 
• standard of living 
• time for reemployment 
• length • age/health 
• fault (not IL)

IL SPECIFIC 
• those above & fault 
• custody 
• tax consequences 
• valid agreement 
• formula for max $ & duration

IL FORUMULA

• couple’s gross

26
Q

SPOUSAL SUPPORT PAYMENT METHODS

A 
lump
permanent award
limited duration
rehabilitative
reimbursement
palimony (cohabitants))
27
Q

SPOUSAL SUPPORT MODIFICATION

A

Substantial change in circumstances (cannot be from voluntary unemployment)

death
remarriage of receiver
good faith retirement 
income change
duration of support
tax consequences
effort to be self-supporting
future earning capacity
property acquired
anything else the judge wants to
28
Q

SPOUSAL SUPPORT DURING MARRIAGE

A

JSL for basic necessities, can sue for family expenses

29
Q

SPOUSAL SUPPORT TAX CONSEQUENCES

A

support recipient as income, payer is deductible

30
Q

SPOUSAL SUPPORT JURISDICTION OF COURT

A

Subject matter & personal

RESIDENCY at least one spouse 90 days

EX PARTE can only dissolve the marriage contract cannot do any other ancillary stuff

31
Q

CHILD SUPPORT DUTY/RIGHTS

A

All parents obligated. The right is the child’s. Parents cannot bargain it away.

32
Q

CHILD SUPPORT HEALTH INSURANCE

A

generally included

33
Q

CHILD SUPPORT DEVIATION

A

rebuttable presumption in favor of guidelines, IL courts need finding of facts to deviate

34
Q

CHILD SUPPORT MODIFICATION

A

always available

  • GENERALLY substantial change in child’s needs or parent’s employment, only prospective
  • WITHOUT SUB. CH. if 20% off, 36 mo. after prior order, on public aid & is enforceable
35
Q

CHILD SUPPORT TERMINATION

A

emancipation • majority age (extensions available) • death of child • termination of parental rights

GENERALLY substantial change

36
Q

CHILD SUPPORT JURISDICTION HOME STATE

A

(Uniform Interstate Family Support Act) with initial jurisdiction continuing and exclusive

37
Q

CHILD SUPPORT TAX CONSEQUENCES

A

not taxable for either party

38
Q

CHILD SUPPORT ENFORCEMENT

A

civil/criminal contempt

license suspension

withhold income

withhold tax refunds

wage garnishment

39
Q

CHILD SUPPORT AGE OF CHILDREN

A

19 if in HS, forever if incapacity or student (consider acad. perform., parental circumstances, & SOL sans divorce)

40
Q

CHILD SUPPORT PATERNITY

A
  • by DNA
  • acknowledgment
  • 60 days of acknowledging or after order
  • SOL through all of child’s minority by estoppel (representation of providing, wife relied, wife would suffer $ detriment)
41
Q

CHILD SUPPORT PERSONAL JURISDICTION

A
  • broad through long arm statute of Uniform Interstate Family Support Act (personal service)
  • consent
  • residency
  • past residency
  • one-act
  • assertion through registry
  • anything else
42
Q

CHILD SUPPORT AMOUNT

A

based on NET INCOME (spousal support on GROSS INCOME)

IL imputes income & uses PERCENTAGE OF INCOME MODEL (flat % of both net increasing exponentially to 6 children in 1 household)

43
Q

Factors for CHILD CUSTODY

A
  • LEGAL/PHYSICAL/SOLE/JOINT CUSTODY
  • IL has no preferences best interest of the child standard
  • BEST INTEREST OF THE CHILD (primary caretaker • race/religion • domestic violence • child’s preference • GAL)
  • THIRD PARTIES (no right • estoppel • stepparent custody 5y • grandparent custody living parent 1 mo./incarceration)
  • HOMESTATE JURISDICTION (6 mo./birth • one parent still in home state)
  • Significant Connection Jur, default, emergency, exclusive to original (unless decree or no parents residence

• NO HOMESTATE PROBLEM (significant connection • default connection • emergency • exclusive to original, unless decree or no parents reside))

44
Q

VISITATION & MODIFICATION OF CHILD CUSTODY

A
  • LEGAL PARENTS have right
  • NON-CUSTODIAL PARENTS get reasonable visitation
  • THIRD PARTY in loco parentis • burden to rebut presumption • need to be specifically contemplated in the statute
  • PUTATIVE FATHERS must show commitment – responsibilities of parenthood • 2 yr SOL
  • MODIFICATION substantial change • relocation in best interest of child • motives medical • decisions both, but Mormons
  • ENFORCEMENT under UCCJEA w/ registration and expedited enforcement procedure
45
Q

MARITAL AGREEMENTS elements

A
  1. full & fair disclosure
  2. reasonable terms
  3. voluntary
  4. writing
  5. signed

clear and convincing evidence standard

46
Q

MARITAL AGREEMENTS DISCLOSURE

47
Q

MARITAL AGREEMENTS REASONABLE TERMS/VOLUNTARINESS

A

@ execution (unconscionability • sophistication • fraud • duress)

48
Q

MARITAL AGREEMENTS MODIFICATION

A

available, can make some things explicitly unmodifiable

49
Q

PREMARITAL AGREEMENTS

A

(Uniform Premarital Agreement Act • act is consideration • law where agreement was, IL is minority • contract principles • IL voids provision against spousal support if become public dependant • can’t contract away child support or custody)

50
Q

SEPARATION AGREEMENT

A

property division, child custody • visitation • favored by courts • can be encorporated in divorce judgment to make it enforceable as judgment creditor

51
Q

AGREEMENTS BETWEEN COHABITANTS

A

enforceable, but IL is hostile to them, if not in writing

52
Q

TERMINATION OF PARENTAL RIGHTS FOR PURPOSE OF ADOPTION

A
  • voluntary (unwed dads register 30 days, CCE, if child is 6mo+ then has he lived w/, contacted last 6mo.
  • surrender, irrevocable 72hr, SOL fraud/duress 1y, 14y+ must consent) & involuntary (CCE only courts, abuse, unreasonably withheld, death, incapacity, neglect, not with legal parent 15/22mo, 2 steps unfit then whether termination is best)
53
Q

SURROGACY

A

valid in IL

  1. writing
  2. 21yr
  3. both counsel
  4. prior birth
  5. husband signs too

IL Family Law (1 decks)

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