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Family Law > Marriage > Flashcards

Marriage Flashcards

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1
Q

Irreconcilable Differences

A

A no fault divorce

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2
Q

Standard for child custody

A

What is in the best interest of the child

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3
Q

Marriage

A

Civil Contract that has a mutual exchange of promises between the parties and an understanding of the rights and responsibilities of marriage.

Can only be terminated or modified with a judicial decree

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4
Q

Two Main Types of Marriage

A

Ceremonial Marriage: Requires license and solemnization

Common Law Marriage: No license/solemnization required. Requires (capacity, consent, cohabitation, and conduct)

  • Agree they are married
  • Cohabitate
  • Hold themselves out to be married publicly
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5
Q

Barriers to Marriage

A
  • When one party is married to someone else
  • Parties are too closely related
  • Marriage is a sham
  • Parties are incapable if understanding the nature of the act (intoxication)
  • Age
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6
Q

Heartbalm Actions

A

Old Tort Laws that Were in Place for Not Marrying:

[When parties were engaged.]

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7
Q

Three Ways to End Marraige

A
  • Annulment (Judicial Decree)
  • Divorce
  • Death
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8
Q

Annulment

A

Two Types: Void and Voidable

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9
Q

Void Marriage

A

[Type of Annulment]

Marriage is treated as if it never happened. Any person can seek this out–not just the parties.

Reasons:

  • Prior Existing Marriage

[Some states have statutes stating that good-faith belief that spouse is deceased is a defense.]

[The presumption is that the latest marriage is valid.]

  • Incest

[Adoptive relationships are not prohibitive in some jurisdictions.]

  • Mental Capacity
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10
Q

Voidable Marriage

A

Marriage is legal until one party to the marriage seeks annulment. Requires a judicial decree.

  • Grounds:
  • Age

[Parent can seek this out. If minor reaches age of consent and stays in marriage, then can no longer seek this remedy]

  • Impotency [Unless other Party Knew]
  • Intoxication
  • Fraud, Misrepresentation, Durres, Coercion, Force
  • Lack of Intent
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11
Q

Equitable Distribution of Property in Annulment

A

Both parties have rights including spousal support, child support, equitable division of property.

CHILDREN

Children of an annulled marriage are still considered “marital children”.

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12
Q

Defenses to Annulment

A

Void Marriages: Only way is to deny the impediment to the marriage never existed. Removing this impediment only makes the marriage voidable.

Voidable marriages are subject to equitable defenses such as unclean hands, laches, and estoppel.

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13
Q

Putative Marriage Doctrine

A

Also known as the putative spouse doctrine.

Purpose is to protect a party who is unaware of an impediment to marriage that either makes it void or voidable.

Good faith belief that the ceremonial marriage is legit will be a defense to a void marriage.

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14
Q

Divorce Definition

A

The legal dissolution of marriage.

Most states have a residency requirement.

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15
Q

No-Fault Divorce

A

A ground for divorce.

No wrongs as grounds for dissolution.

Most require irreconcilable differences.

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16
Q

Grounds for Fault Divorce

A
  1. Adultery
  2. Cruelty [Inhumane Treatment, course of conduct, typically needs to be physical]
  3. Desertion [Left without consent AND no intent to return]
  4. Habitual Drunkenness
  5. Bigamy
  6. Indignity [Spouse life is rendered intolerable and life burdensome based on spousal actions.] [Not available in majority of states]
  7. Imprisonment
  8. Institutionalization
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17
Q

Defenses to Divorce

A

Defenses must be affirmatively pled when asserted.

  1. Recrimination and Unclean Hands [Both spouses have committed wrongs]
  2. Connivance [Consent was given to commit marital wrong-i.e. adultery]
  3. Condonation [Forgiveness from a spouse of a defense. Forgiveness must be given with actual knowledge.]
  4. Collusion [Spouses “conspired to fabricate” grounds for divorce.]
  5. Provocation [If misconduct of one party was caused by other party]
  6. Insanity
  7. Consent
  8. Justification
  9. Religion [Challenge to divorce on religious grounds will fail in all jurisdictions]
18
Q

Limited Divorce

A

No longer used because of no-fault divorces. Arcane.

19
Q

Mediation

A

Most divorces are resolved through mediation of parties.

20
Q

Division of Property

A

Two Methods

  • Equitable Distribution
  • Community Property
21
Q

Community Property

A

The equal division division of marital property.

Used in Nine States: Arizona, California, Idaho Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin.

22
Q

Equitable Distribution of Property

A

The objective is the fair distribution of all marital property–taking into consideration of the circumstances between the parties..

Does not necessarily have to be split equally.

23
Q

Marital Property

A

In most jurisdictions it is “all property acquired during the marriage.”

Some jurisdictions allow all property owned by either spouse to count (even if not acquired during the marriage).

Categories of marital property are broadly construed–including retirement benefits and appreciation of nonmarital property.

24
Q

Exceptions to Marital Property

A
  1. Property acquired before marriage
  2. Property excluded by parties’ valid agreement entered into before, during, or after marriage
  3. Property acquired by gift or inheritance
  4. Property sold, granted, conveyed or otherwise disposed of in good faith and for value before date of final separation
  5. Property that has been mortgaged or encumbered in good faith before final separation
  6. Awards or settlements received or claim accrued before marriage–regardless of when payment was received
25
Q

Factors for Distribution of Property

A

Courts may consider:

  • Length of marriage
  • Prior marriages
  • Age, health, earning potential, liabilities of parties
  • Contribution to education
  • Needs for future acquisitions
  • Income, medical needs, retirement of parties
  • Contributions to increases in marital property (includes 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
  • Custodianship of minor children

[Generally, fault-based grounds are not considered –such as adultery]

[However, dissipation may be if one spouse uses marital property for sole benefit after marriage is irreconcilably broken down]

26
Q

Professional Degrees or Licenses as Marital Property

A

Majority: Do not treat professional license or degrees as marital property.

[Court may consider degree/license in consideration of earning capacity or if other spouse made actual contribution to that degree]

27
Q

Retirement Benefits as Marital Property

A

Retirement or pension benefits acquired during the marriage = marital property. Including military pensions.

28
Q

Personal-injury Claim Proceeds as Marital Property

A

Two Approaches:

  • Marital Property as long as the cause of action accrued during the marriage.
  • Compensatory damages are not marital property, but awards for lost wages/income/earning capacity are split. Court calculates from the time of the accident to the end of marriage and treats that as marital property.
29
Q

Goodwill as Marital Property

A

Some jurisdictions consider reputation and clientele of professional practices as marital property.

30
Q

Accumulated Sick/Vacation Days as Marital Property

A

Three Approaches

  1. Vacation/Sick Days are marital property and subject to division at time of dissolution
  2. Vacation/Sick Days are marital property and subject to division at the time they are used/distributed
  3. Vacation/Sick Days are not Marital Property
31
Q

Future Interest as Marital Property

A

A possible future interest (such as inheritance) is not distributable.

32
Q

Social Security as Marital Property

A

Social Security benefits are not subject to equitable distribution.

33
Q

Post-Separation Property as Marital Property

A

Three Approaches

  1. Property acquired before divorce granted is marital property (Majority)
  2. Property acquired by one spouse after permanently separating from other spouse is separate property
  3. Marital and separate property distinction only occurs on date divorce is filed
34
Q

Stock Options as Marital Property

A

Stock options acquired during the marriage are marital property even if they will not be exercised until after the marriage.

35
Q

Tax Consequences of Equitable Distribution

A

Equitable distribution payments are not taxable income. Any property that is transferred is tax-free at time of transfer.

36
Q

Modification to Property Division Award(s)

A

This time of award is not modifiable as it is based on parties’ assets at time of divorce. Change in circumstance after divorce are not considered once award has been entered.

37
Q

Indigent Parties and Court Fees

A

RULE: It is unconstitutional for a court to require an indigent party to pay costs and fees (so as to access the court system)(Boddie v Connecticut).

This does not extend to right to counsel for divorce proceedings.

Court may consider indigent status when awarding attorney’s fees and costs.

38
Q

Jurisdiction of Matrimonial Courts

A

Must generally have subject-matter and personal jurisdiction. Full Faith and Credit Clause applies.

Matrimonial Courts sitting in jurisdiction have full equitable power to:

  • Division of Property
  • Divorce or Annulment
  • Custody
  • Support and Alimony
  • Award of Attorney’s Fees
  • Enforcement of Separation Agreements
  • All other matters related to matrimonial actions
39
Q

Divisible Court Doctrine

A

Also known as an ex parte divorce

Occurs when court has sufficient jurisdiction to grand a divorce BUT LACKS jurisdiction with respect to other divorce related matters (division of property, alimony, child support, etc.).

This happens when a court has subject-matter jurisdiction for the divorce and personal jurisdiction over ONE spouse.

[To bind the other spouse the party seeking divorce must take action to court with personal jurisdiction over other spouse]

40
Q

Child Support General Rules

A
  • Both parents are legally required to support minor children
  • Some jurisdictions carry obligation through college
  • Jurisdictions may extend indefinitely if child is unable to support themself due to physical or mental disability
  • Child support is separate from visitation rights. Visitation rights cannot be denied for nonpayment
  • Parents cannot bargain away legal obligation to pay child support (as in a divorce proceeding)
41
Q

Paternity Rules

A
  • Cours generally use blood tests to establish paternity. If father is indigent then state resources may be used
  • Paternity actions are confidential and not public
  • Other evidence may be used to establish paternity: prior statements from deceased family member(s), medical testimony, father’s acknowledgement of paternity, and sometimes resemblance of the child.
  • Generally, time limits on filing a paternity petition is unconstitutional because it violates the Equal Protection Clause (subjects illegitimate children to restrictions legitimate children do not have)

Family Law (2 decks)

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