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Family Law AOG > Marriage > Flashcards

Marriage Flashcards

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1
Q

Marriage - Gral Elements (3)

A

1) Capacity (18 y/o)
2) Mutual consent (usually btwn man and woman)
3) Civil contract: actual celebration of contract as prescrbied by law

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2
Q

Marriage - Validity Reqs (7) CALF SAW

A

1) Consanguinity - no closer than 2nd cousins
2) Already married - living spouse at time of marriage
3) License
4) Filed certificate
5) Solemnization
6) Age of Majority
7) Witnesses - 2 physically present

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3
Q

Marriage - Validity Req - License/from whom, valididity, lack of

A
  • from county editor
  • Validity for 3-60 days to celebrate marriage
  • Failure to obtain doesnt per se invalidate marriage
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4
Q

Marriage - Validity Req - Filed Certificate/ formal req

A
  • Signed by W + officers
  • Filed with county editor and state registrar
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5
Q

Marriage - Validity Req - Solemnization / celebration

A
  • Celebrated by authorized person/officer
  • i.e. judge, court commissioner, licensed/ordained clergy
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6
Q

Marriage - Validity Req - Age of Majority

A
  • Gral rule: 18
  • Under 18th: with parent/court consent, unless pregnancy
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7
Q

CL marriage

A
  • w/legal effect despite no license/ceremony
  • Not recognized by all states BUT if valid in the state where contracted then valid in all states
  • DOMA: unCX to fed prohibition
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8
Q

CL marriage - Elements (3)

A

1) 2 people living together (co-habit)
2) Have writtena agreement ( E of capacity of being married + intention to be married)
3) Hold themselves to other people as married

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9
Q

Registered Domestic Partnership - SUR18 elements

A
  • Share household
  • Un-married to other person
  • Registered in the state
  • 18 y/o or older
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10
Q

Dissolution (Divorce) - Concept

A

A court decree that dissolves a marriage

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11
Q

Marriage - Actions - Other than dissolution (5)

A

1) Temporary relief (child custody/visitation, support, TRO, protection order)
2) Legal Separation
3) Declaration of Invalidity
4) Financial burden on spouse: i.e. maintenance
5) Foreign Divorce Decree Enforcement

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12
Q

Temporary relief for marriage - Gral / when, guiding pple

A
  • Available pending dissolution decree
  • Application of “best interest” when children involved
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13
Q

Temporary relief for marriage - Types (4)

A

1) Children custody and visitation plans
2) Child support orders
3) TRO (temporary restraint order)
4) Protection Orders for Domestic Violence

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14
Q

Temporary relief for marriage - Children custody and visitation plans / guiding pple, possible content

A
  • permanent when dissolution decree or temporary
  • Application of “best interest of the children”
  • Possible content: designate primary residential parent, schedule of contact, allocation of decision making, transportation arrangements, restrictions of contact
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15
Q

Temporary relief for marriage - Child Support Order / method of determination, permanency

A
  • Determined by court based on state schedule in relation to parent’s income
  • Usually not include income from new spouses
  • Periodical reviewed/modified
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16
Q

Temporary relief for marriage - Child Support Order - Content/Elements SODA THIEF (9)

A

1) Standard Calculation
2) Other expenses (i.e. day care, athletics, lessons, etc)
3) Deviation from state standard is possible
4) Adjustments (Motion) /Modification (Petition)
5) Transportation: for long distance travel for visitation
6) Health Care: when extraord and in excess of standard calculation
7) Insurance: court can compel parent for life insurance
8) Educational Support
9) Federal Tax Exempt

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17
Q

Temporary relief for marriage - Child Support Order - Elements - Standard Calculation

A

Figure from state schedule divided by parents on their portion of the total house hold net-income

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18
Q

Temporary relief for marriage - Child Support Order - Adjustment/Modification / time for and of, E for determination

A
  • usually every 2 years or according to agreement
  • No possible retroactive change
  • Use of pay-stubs and tax returns as basis for calculation
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19
Q

Child Support Order - Educational Support / conditions for “higher ed” (4)

A
  • No duty to support higher education after 18/graduation
  • Can be imposed by court if:
    a) parent ability to pay
    b) aptitude/ability of child
    c) whether parents received secondary education
    d) whether there was intention to support from parents during marriage
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20
Q

Temporary relief for marriage - TRO - to prevent (4):

A

1) Disposal/concealment of property
2) Interference w/peace of other parent or child
3) Entry to family home
4) Remove a child from court JDX

21
Q

Temporary relief for marriage - Protection Orders for Domestic Violence / when, procedure

A
  • For cases of abuse/threat of physical harm.
  • Resolved in separated civil proceeding
  • Requires a high standard of proof
22
Q

Legal Separation - Gral / when, how

A
  • Spouses live apart while remaining married
  • By mutual consent or judicial decree
23
Q

Legal Separation - Differences with dissolution (4) (legal sep/dissolution)

A

1) Status of marriage: married vs dissolved (free to marry)
2) Reconciliation: dismiss case / re-marry
3) Waiting period: none (180 days fater decree entered to turn into decree of dissolution) / 30-90 since service and filing before decree of dissolution
4) Conversion to dissolution decree

24
Q

Marriage - Declaration of Invalidity - Gral /standing, purpose, effect

A
  • Required by 1/both parties
  • Ask court to determine the validity status of marriage
  • If found invalid court enters into decree of dissolution
25
Q

Marriage -Declaration of Invalidity - Grounds DAFT LUV (7)

A

1- Duress: only for forced party

2- Already married prohibition

3- Fraud: fraudulent inducement

4- Consanguinity (too close related)

5- Lacked Capacity

6- Under-age

7- Void out-of-state marriage

26
Q

Marriage -Declaration of Invalidity - Grounds - Fraud examples

A
  • Promise to have children
  • Promise to convert to spouse’s religion
  • Concealment of serious physical/mental injury
27
Q

Financial burden on spouse (maintenance) - JDX Requirement for court to establish it

A

Court needs PJDX

28
Q

Foreign Divorce Decree Enforcement / formal reqs (2)

A

1- Most states give FFC when at least 1 spouse domiciled in forum state

2- Requires reasonable notice and opportunity to be heard for the other spouse

29
Q

Marriage -Dissolution - JDX requirement (2)/ when, reqqs

A
  • At time of filing:
    a) Requiring spouse domiciled and reside in the state forum

OR

b) Either spouse with significant relation with state

30
Q

Marriage - Dissolution - Venue requirement

A

Any county in the state where at least 1 spouse/child resides

31
Q

Marriage - Dissolution - Grounds/ gral rule, what and waht not to prove

A
  • Gral Rule: “NO FAULT dissolution”
  • Only need to allege irreconciliable diferences / irreparably broken relation
  • No need to prove misconduct
32
Q

Marriage - Dissolution - Exception to no need to prove misconduct for dissolution / distribution of property (2)

A
  1. When spouse has disposed common estate because of gambling
  2. Abusive behaviour
33
Q

Marriage -Dissolution - Minimum Waiting Period

A
  • 30 to 90 days from filling/serivce for dissolution
  • even if parties in full agreement
34
Q

Mediation and Settlement - for Divorce Agreement / by whom, purpose, conditions

A
  • By mediator
  • To provide enough info for spouses to make informed decision
  • Agreement has to be fair - not disadvantage to 1 party
35
Q

Grounds for setting aside divorce agreement (4) FDCM

A
  1. Fraud
  2. Duress
  3. Coercion
  4. Misconduct of mediator
36
Q

Marriage - Dissolution - Procedure regarding irreconcilable diferences

A
  • If respondent doesn’t deny: court enters into decree of dissolution
  • If respondent denies: court can makes determination and can refer to counseling agency (for reconciliation or dissolution)
  • Court can refuse to enter decree if substantial ancillary issues in maintenance/support/children pending
37
Q

Marriage - Property Division - Gral/ what, by whom, application

A
  • All property (joint/separate)
  • By court in just and equitable distribution
  • Applies to dissolution, legal separation, declaration of invalidity
38
Q

Marriage - Property Division - Process IVD steps

A

1st- Identify all property and debts of marital estate

2nd- Value property

3rd- Divide property among spouses in just and equitable manner

39
Q

Marriage - Property Division - Factors for just and equitable manner distribution (3) DEP

A

1) Duration of marriage: 0-5, 5-30, 30>
2) Economic Circumstances of spouses at time of separation
3) Property Amount: independent of character of property (joint /separate)

40
Q

Marriage - Property Division - Factors for just and equitable manner - Duration of marriage rules - types (3)

A
  1. Short term: less than 5 = return parts to pre-marriage positions
  2. 5-30: discretional to court
  3. Long term: more than 30: equalizing of assets and incomes
41
Q

Marriage - Property Division - Pre-nuptial agreement - Gral/ formal reqs, when, purpose, possible exclusions

A
  • written and signed contracts
  • celebrated pre marriage (or civil union)
  • Used to designate property as joint-separate at time of death
  • Some states exclude child support or custody designation that later can be proved unfair
42
Q

Property Division - Pre-nuptial agreement - FOG requirements for validity

A

1- Full disclosure of material facts

2- Opportunity for both parties to seek independent council

3- Good faith from both parties

43
Q

Marriage - Property Division - Joint and Separate Property - Gral/ time of distinction, effects

A
  • Court makes characterization before award
  • although it does not control distribution of property
44
Q

Marriage -Property Division - Joint Property (3) CGH

A

1) Compensation: all income,earning, benefits during marriage
2) Goodwill: professional reputation or practice can be valued (determined by expert testimony) - Intimate relation to 1 spouse considered at time of just/equitable distribution
3) Hidden: post distribution - discovered asset, both parties as tenant in common in 50%

45
Q

Marriage -Spousal Maintenance - Gral/ for whom, type, establisment

A
  • For spouse/child
  • it can be permanent or temporary
  • Decided on case-by-case w/high degree of discretion for court
46
Q

Marriage -Spousal Maintenance - Court discretion factors (3)

A

1) Need for maintenance vs ability to pay
2) Standard of living of requesting party w/attention to physical and emotional conditions
3) Education/training of seeking spouse in order to find employment (i..e rehabilitative maintenance)

47
Q

Marriage -Spousal Maintenance - Court discretion factors - Education - Rehabilitive Maintenance

A

Court is allowed to stablish a temporary maintenance for one of the spouses in ordert obtain education or training to increase posibilities of livehood.

48
Q

Marriage - Modification of Decree of Dissolution /when, whose burden

A
  • When circumstances significantly + unforeseeable changes on parental income/job or in children needs
  • Burden on the moving party

Family Law AOG (2 decks)

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