KNS - Family Law Flashcards
1 - Breach of the promise to marry is rare today in most states. In those states where it exists, what does it provide?
Breach of the promise to marry provides for tort damages including actual damages (like loss of deposits or purchases for the wedding), as well as loss to reputation and mental anguish. Punitive damages may also be available.
2 - What is the gifts in contemplation of marriage rule?
Gifts made conditioned on the subsequent marriage, like engagement rings, are null and must be returned if the marriage fails to take place.
- If you receive a Q on this, consider the type of property given, the conditions attached, and the intent of the donor.
3 - Premarital Agreements - Have been tested four times in the last 20 questions -
Many states have adopted the Uniform Premarital Agreements Act (UPAA). What does this allow?
The Uniform Premarital Agreements Act allows parties to make agreements about property and alimony in the even of death or divorce. AKA prenup agreements.
4 What can a party agree to in a premarital agreement?
Parties can agree to the disposition of property at divorce and to alimony. Generally, waiver of alimony in a prenup agreement will be upheld unless doing so will cause disadvantaged spouse to become a public charge.
5 - Are courts bound by the provisions in a premarital agreement regarding children?
No - courts cannot be bound by provisions in the agreement regarding children (think child custody and child support)
6 - What are the requirements for validity of a premarital agreement? There are three - AND THIS IS OFTEN TESTED
A premarital agreement must -
- Must be in writing and signed
- Must be entered into voluntarily (without fraud, duress, or overreaching) and
- Must include full disclosure of assets or there is proof that party had independent knowledge of the assets. The idea is that the party needs to know what they are waiving.
7 What must occur for a court to reach the question of whether there was a full disclosure of assets in the prenuptial agreement?
Under the UPAA, the court must determine first that the agreement was unconscionable when executed AND THEN whether there was a fair disclosure of assets or independent knowledge of the assets.
Therefore, IF THE COURT DOES NOT FIND A PREMARITAL agreement unconscionable, then court doesn’t even reach the question of whether there was a full idsclosure of assets.
8 What else do some courts consider in regard to premarital agreements?
Some courts will consider general fairness to the parties and whether the parties were represented by independent counsel.
- Note - if you see facts that only one party had a lawyer or one party’s counsel drafted the agreement, and there were oppressive conditions in it, talk about it in your analysis. - courts tend to focus on general fairness and whether a party was at least afforded a lawyer to look at the agreement before being asked to sign.
9 - With premarital agreements, what state law applies?
the parties can agree on the state law to apply and if they do not, the law of the state with the most significant relationship to the parties and the transaction OR the law where the agreement was executed will apply.
10 - Marriage - what are the requirements of a marriage? - there are four.
- Note - marriage requirements have not been specifically tested in the last 20Qs but you need to know the requriements because they come up in annulment of marriage which often is tested.
Requirements of a marriage -
- license
- ceremony with authorized officiant
- no legal impediments to marriage
- capacity to consent
11 - Requirements of Marriage - #1 - license - what are the specific requirements regarding the license?
License -
- Some states require a medical certificate showing no disease.
- Most states provide a 72 hour waiting period after the application before the ceremony can take place.
NOTE - FAILURE OT MEET procedural requirements of a license will NOT invalidate the marriage. In the event there is a defect in the license and that the parties remain married for a period of time, states have determined they don’t want to invalidate marriages that were entered into, just because of an issue with the license. So failure in licensing requirements generally will not render a marriage invalid.
12 - Requirements of Marriage - #2 - Ceremony with authorized officiant. What are the requirements for this?
States vary in people authorized to perform marriage ceremonies. Typically judges, religious personnel, etc.
13 - Requirements to Marriage - #3 - No legal impediments to marry - what is included with this?
No legal impediments to marriage allowed -
- Too closely related -
a. Cannot marry grandparents, parents, children, grandchildren, siblings, aunt/uncle, nice/nephew, whether by whole or half blood.
b. Many states prohibit marriages between those related by marriage, step-relations, or adoption.
c. Marriage between first cousins is permitted in some states. - Another legal impediment to marraige is being married to someone else already.
14 - Requirements to Marraige - #4 - Capacity to consent. What does this mean?
Capacity to Consent -
- Capacity - must have the mental ability to consent at the time of the ceremony - so you look at THAT moment in time.
a. consider someone under the influence of alcohol or drugs or mentally handicapped - they may lack consent to enter into a valid marriage. - Age - must be of the age of majority, generally, 18. parental (16-17) or judicial consent (under 16) required for underage marriage.
15 - Common Law Marriage - has been tested on 3 of the last 20 Qs.
What are the three requirements for a valid common law marraige?
the three requirements for a common law marriage -
- Consent to marriage (not just to cohabit)
- Cohabitation
- HOlding yourself out publicly as spouses
16 - common law marriage requirements - one of them is consent to marry. What does this entail?
Parties have to actually say we want to be married and you need the capacity to consent and no legal impediments to wed.
17 - Common law marriage requirements - one of them is holding yourself out publicly as spouses. What does this mean?
Look for facts like wehther they call themselves Mr and Mrs, whether they file tax returns as married filing, whether they have health insurance together, also look for legal docs and wehther the community considers them to be married.
19 - Marriage by estoppel or putative marriage - what is it?
Marriage by estoppel or putative marriage is an equitable remedy that may be given by some courts to the innocent party who acted in good faith when entering an invalid marriage.
- in some states, the putative spouse can acquire all the rights of a legal spouse.
Classic example - when a party enters into a marriage with someone who is still married ot someone else and they found out years later their spouse is married to someone else.
20 Rights and Responsibilities Among Spouses - Property
Is title dispositive in equitable division of property upon divorce?
Each spouse owns and controls his or her own property but in the event of divorce, title will not be dispositive in the equitable division of property. It could be that one spouse has titled every piece of property that was acquired during marriage in his name. At the time of divorce, that doesn’t mean he gets everything.
21 Property rights and responsibilities among spouses - what happens if spouses take title to real estate in their joint names?
Generally, if spouses take title to real estate in their joint names, a tenancy by the entireties is presumed and therefore one spouse cannot convey or encumber the property without the consent of the other spouse.
22 - Rights and responsibilities among spouses - support - what type of support do spouses owe during marriage?
during marriage, spouses owe support to one another.
23 - what is the doctrine of necessaries?
The doctrine of necessaries can be used to make one spouse liable to third parties for the other spouse’s purchases for necessary expenses, such as food, clothing, and health care.
24 - Spousal Abuse - Laws in every state protect victims of domestic abuse both in and outside of marriage.
What is a victim of abuse entitled to?
The victim is entitled to a protective order against the other spouse which can be granted ex parte (without notice) and can last for one month to several years depending on the jurisdiction. Typically, the ex parte order lasts for a short period of time and then notice is given to the other spouse. The other spouse can then come into court and refute the allegations.
25 - What is a claim of tortious interference?
A lot of states have eliminated these claims.
These are claims against a third party. Claim is that the third party came into the marital relationship and committed a tort that affected the marital relationship.
26 - What is the first type of tortious interference claim?
- Alienation of Affection - with this claim, adultery is not a requirement.
Requirements -
a. genuine love and affection between spouses who are validly married (and proving this love and affection is not hard)
b. love and affection was alienated and/or destroyed.
c. defendant’s acts caused the loss of love and affection - most difficult to prove.
27 What is the second type of tortious interference claim?
Criminal conversion -
Requirements -
a. Marriage of the spouses
b. adultery between the defendant and the spouse during marriage
c. Damages are the same as the alienation claim.
Note - in most cases where adultery is present, litigants bring both alienation of affection claims and criminal conversion claim in the same suit. Cannot double up on damages, but they do provide two avenues of relief.
#28 - annulment - has been tested twice in last 20 questions - What is an annulment?
An annulment is a declaration that a marriage is invalid.
29 - When is an annulment available?
An annulment is available for defective marriages taht are legally void or voidable - AND THERE IS a big distrinction between a VOID marriage and a voidable one.
30 - what is a void marriage?
Void marriage -
- fails to meet essential requriements, so invalid - in this case, people don’t even actually need to bring legal action because they are not married but most parties do because they want the court to decide matters like property division.
- can be attacked by one of the parties or collaterally by a third party
- may or may not be remedied by continued habitation after removal of impediment to the marriage.
- UMDA and some states permit the marriage to be valid after removal of the impediment. For example, after the death of a prior spouse, a void marriage can be validated.
31 - What are some common examples of why a marriage would be void?
bigamy and too closely related.
32 - What is voidable marriage?
Voidable marriage -
- event or condition affecting adequacy of consent to marriage contract - like age, or drunk, or mentally incapacitated, etc.
- Treated as valid marriage until annulled
- can be attacked only by or on behalf of a party to the marriage (so no third party attacks) and in some cases only by the party who is sought to be protected - AKA the person missing consent.
- Marriage can be ratified by continued cohabitation after removal of infirmity - like drunk spouse sobers up and they live together as married - they have ratified the marriage and cannot seek to have it annulled.
33 - What are some examples of voidable marriage?
nonage, incurable physical impotence, lack of capacity, duress, fraud - BUT FRAUD must affect an essential element of marriage to count (like you said you were pregnant with their baby but you knew it was another mans).
34 - Jason and Meg married after a whirlwind courtship while both were taking the bar review course. At the wedding, Meg was so drunk, she could barely stand up. Two weeks later, meg learns Jason is still married and left his wife back in state A. Can the marriage but annulled, and if so, by whom and on what basis.
Meg can seek an annulment because the marriage is void because Jason is still married, and it is voidable because she was drunk (no capacity) at the ceremony (note that she may have ratified after she sobered up and held herself out as married) but she and jason can still seek annulment because the marraige is void.
36 - What are the five effects of annulment?
- the marriage is set aside as if it never existed
- children remain legitimate
- child support can be awarded
- spousal support can be awarded, but not in all states.
- property generally treated as if never married; put spouses in “premarital” state.
37 - Divorce and separation - has been tested 2 of the last 20 times -
Who has jurisdiction over a divorce?
Jurisdiction over divorce
- One of the spouses must be domiciled (residence and intent to remain) in the state seeking to enter the divorce.
- Generally, if a spouse is a resident of the state for a minimum period of time (90 days to 6 months), then there is a presumption he is domiciled there and the court will have jurisdiction.
38 - Who has jurisdiction over financial matters in a divorce?
Compare jurisdiction for a divorce (where court only needs domicile over one party) to jurisdiction over determining financial issues (like property rights and support). For financial issues relating to divorce, the court must have personal jurisdiction over BOTH parties.
40 - grounds for divorce
- No fault divorce - what is it?
No fault divorce -
- allows for dissolution of marriage without regard to marital fault.
- generally, can be allowed on proof of
a. irreconcilable differences - this type of divorce may require agreement of the spouses to get divorced.
b. living separate and apart for a specified time period is another type of no fault divorce.
- if the spouses agree, it is generally for a shorter period
- if it is unilateral no-fault and only one party wants a divorce, that time can be longer.
c. incompatibility - party alleges incompatibility
41 - grounds for divorce
- fault divorce - what is it?
Fault divorce - very fact driven -
- Adultery -
a. often proven by circumstantial evidence of OPPORTUNITY and INCLINATION - these are the two prongs of the test for adultery. - Desertion for a specified time - unjustifiable departure from the marital home for a specified period of time with no intent to return.
- Cruelty (physical or mental)
- Habitual drunkenness or abuse of drugs commencing after marriage
- insanity (may require that the spouse was institutionalized).
42 - What are the defenses to divorce for no fault divorces?
For no fault divorces, defenses are generally unavailable, but one spouse can claim reconciliation to restart the time clock for living separate and apart.
43 - What are the defenses for divorce on fault based grounds?
The defenses for fault based grounds are rarely used, but still exist.
- Collusion - The parties agreed to simulate the grounds for divorce - example - the parties say we both committed adultery to get divorced quickly, but then one party changes his mind and asserts this as a defense.
- Connivance - the plaintiff willingly consented to the other spouse’s conduct - think swingers couples
- Condonation - the plaintiff forgave the martial offense with full knowledge of the offense (generally, requires sex after forgiveness).
- Recrimination - the plaintiff is also guilty of marital fault (doctrine of unclean hands). Idea is the plaintiff seeking a divorce on FAULT grounds cannot get a divorce on fault grounds because they are also at fault.
44 - Some states have legal separation. When is legal separation permitted?
Legal separation is often permitted for the same grounds as divorce.
45 - What are the effects of legal separation?
- parties are still married
2. parties can seek to have their rights regarding property, spousal support, child custody, and child support decided.
46 - what may the court do with property in legal separation?
the court may permanently divide marital property when legal separation is granted. If so, after acquired property is separate property. If there is no final property division at the time of legal separation, property will be divided when (and if) divorce is granted.
47 - why would people choose legal separation over divorce?
religious reasons, elderly people, or to keep marriage status for insurance or tax benefits.
48 - PROPERTY DIVISION - GETS tested 50% of the time!
What are the three main approaches to dividing property at divorce?
The three main approaches to dividing property at divorce are - community property states, equitable division of all property owned by either spouse, and equitable division of marital property.
49 - What happens in community property states?
In community property states, all property acquired during marriage is owned one half by each spouse and property owned before marriage is separate.
50 - what happens in states that follow the equitable division of all property owned by either spouse?
court equitably divides ALL property owned by either spouse, whether the property was marital or separate.
51 - what happens in states that follow the equitable division of marital property? (Most popular approach)
Each spouse takes her separate property and the property acquired during marriage is divided equitably.
52 - Are property distribution decrees modifiable?
No, property distribution decrees are not modifiable, however, SUPPORT AWARDS are.
53 - What is the typical two step process in property division for the most popular approach?
- Classification - classify property as either marital property or separate property.
- Division - make an equitable division of the marital estate no matter how the property is titled.
* ** Note - equitable division does not necessarily mean equal. It may be, but it does not have to be.
54 - What is included in separate property? LONG LIST but you need to know.
Separate Property -
- All real and personal property owned by a spouse BEFORE marriage, including assets held in individual retirement accounts.
- Property acquired by a spouse at any time by gift, bequest, devise, or decent.
- property acquired in exchange for property acquired before the marriage. So if they spouse had separate funds he bought a house with during marriage, the house is his separate property.
- income from and appreciation of separate property (but see special issues in property division below)
- pain and suffering awards, victim of crime compensation awards, future medical expenses, and future lost wages, and
- Property acquired by a spouse after an order of legal separation where the court has made a final disposition of property.
55 - What is included in marital property?
Marital property includes
- all property acquired by either or both spouses during marriage up to the final divorce decree (some jurisdictions use the date of separation or the date of filing for divorce)
- includes value of vested and unvested pension, vested and unvested stock option rights, retirement or other fringe benefit rights relating to employment that accrued during the period of marriage.
- includes recovery in personal injury, workers comp, social security disability, and other similar actions for WAGES lost during the marriage, reimbursement of medical bills incurred and paid with marital property, and property damage to marital property.
