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Family Law: Bar Review > Marriage and Divorce, Spousal and Child Support > Flashcards

Marriage and Divorce, Spousal and Child Support Flashcards

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1
Q

Do most states recognize CL marriage?

A

No, few states (including Colorado) recognize CL marriage

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2
Q

What are the necessary elements to CL marriage?

A
  1. Capacity
  2. Present agreement
  3. Cohabitation
  4. Holding out a marital relationship to the community
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3
Q

True or false: A marriage valid in one state will not be recognized in another state, regardless of public policy

A

False. Marriages valid in one state will be valid in another state unless it violates strong public policy in another state.

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4
Q

Explain a putative marriage, why does it matter?

A

Putative marriage: an innocent party participated in a ceremonial marriage and believes in good faith the marriage is valid, but later discovers there was an impediment.

Allows the innocent party to seek legal remedies like spousal support and property distribution.

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5
Q

What is the typical standard for no fault divorce?

A

Irreconcilable differences. NO REQUIRED ATTEMPT AT RECONCILATION

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6
Q

What are grounds for fault-based divorce?

A
  1. Adultery
  2. Cruelty
  3. Desertion

Note that cruelty requires some sort of physical abuse

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7
Q

True or false: Some states require physical separation for a period before granting divorce

A

True

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8
Q

What is a mediator’s code of conduct?

A
  1. Be impartial and disclose COIs
  2. Explain the process
  3. Control the proceedings
  4. No coercion or improper influence
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9
Q

List the two ways in which a jurisdiction will divide property upon dissolution. What is the majority rule?

A
  1. Community property (minority): equal 50/50 division
  2. Equitable distribution (majority): equitable/fair division, looking at parties’ circumstances
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10
Q

Explain the difference between marital property and separate property

A

Marital Property: equitably divided between spouses
+ property or assets acquired during the marriage by any means other than gift, descent, or devise

Separate property: property of the owning spouse
+ assets acquired during the marriage by gift, descent, or devise
+ anything acquired before the marriage

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11
Q

Are wages earned by a spouse during a marriage separate or marital property?

A

Marital property

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12
Q

May a court overrule the spending decisions of a married couple during their marriage if one spouse objects?

A

No. Each spouse during a marriage has full management rights of his/her earnings and a court may not overrule spending decisions of a spouse if the other objects

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13
Q

Does marital property accrue when parties are separated and awaiting divorce?

A

Yes, in most states in continues to accrue until divorce decree is entered.

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14
Q

In what ways can separate property transform to marital p roperty?

A
  1. If marital funds/efforts increase marital property
  2. If marital funds/effort build equity

Usually with a home/property

Ex: A spouse purchases a house before marriage. During the marriage, the spouse uses their wages (marital property) to pay the mortgage on the house. At divorce, the other spouse is entitled to MP share of the value of the home.

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15
Q

Does title in one spouse’s name matter for the purposes of property division?

A

No. Taking title in one spouse’s name is not conclusive.

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16
Q

What are the specific types of marital property?

A
  1. Retirement/Pension
  2. Professional licenses/degrees
  3. PI claim proceeds
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17
Q

How do courts typically determine how to distribute retirement or pension benefits?

A

Courts look at the current value of the pension, not future.

Note: Timing matters, as it can be both marital and separate property. May start as separate, but then accrued during marriage. Understand the difference.

Ex: Spouse 1 worked for 5 years before marriage and had a pension that accrued during that time. After marriage, Spouse 2 continued to earn the pension for another 10 years. The court would divide the benefits accordingly:

15 years of accrual = 1/3 (5 years)separate, 2/3 (10 years) as marital

18
Q

How do courts treat a professional degree distribution?

A

Majority: not distributable property, but may affect support payments or distribution of assets

Also, courts may reimburse a spouse for amounts that spouse contributed to the other spouse’s education

19
Q

How do courts treat distribution of personal injury proceeds?

A

Approach 1: All proceeds are treated as marital property
Approach 2: Damages divided by type
+ Compensatory (pain/suffering/disability): separate property of injured spouse
+ Consortium: separate property of non-injured spouse
+ Lost wages/earning/medical: divided equally

20
Q

True or false: Courts may modify a property division after the divorce decree is entered

A

FALSE. Property division is not modifiable after the fact because it’s based on the parties’ assets at the time of divorce.

Changes in circumstance do not affect the property division but may affect support.

21
Q

What are some of the factors courts will use to determine spousal support (look for the facts)?

A

Financial resources of both parties
Standard of living during marriage
Length of marriage
Time it will take for receiving spouse to find employment or finish education
Age and health of both parties
Contributions to the marriage

Marital misconduct (only in some states)

22
Q

What are the different types of spousal support?

A
  1. Permanent alimony – remainder of dependent spouse’s lifetime
    + typical after long marriages
  2. Limited duration alimony – when marriage was short duration
  3. Rehabilitative support – compensates a spouse for financial sacrifices during the marriage resulting in a reduced standard of living in order to secure an enhanced standard of living in the future
23
Q

Provide an example of reimbursement alimony

A

A spouse worked two minimum wage jobs and did not pursue a higher degree during marriage so that the other spouse could go to school and obtain an advanced degree or professional license. The working spouse may receive reimbursement alimony due to past contributions to the marriage.

24
Q

What is the standard courts use to determine of spousal support modification is appropriate?

A

Party seeking modification has the burden: “significant and continuing change in circumstances”

25
Q

If a spouse remarries and has children with their new spouse, will the spousal support be reduced?

A

Likely yes, most jurisdictions will terminate or reduce spousal support

26
Q

True or false: courts must only have smj to decide a family law dispute

A

False. Courts must have PJ and SMJ to render a decision.

27
Q

Can a state court grant a divorce to one spouse domiciled in the state, even if it does not have PJ over the other spouse?

A

YES. States are required to give full faith and credit divorce decrees issued in other states.

The court can grant the divorce to the one party, but it cannot address property division, spousal support, or child support unless there is PJ over the out of state spouse.

28
Q

W and H are married and live in State A. W moves out of the home and relocates to State B, with the intent to remain in State B. H remains in State A. W files an action for divorce in State B court and requests spousal support.

Does the State B court have any jurisdiction to take further action?

A

State B court has the jurisdiction to grant W the divorce, but it may not issue a binding spousal support order b/c it lacks PJ over H.

29
Q

True or false: the higher earning parent is legally required to support minor children.

A

False. Both parents are legally required to support minor children

30
Q

Can parents bargain away child support payments in premarital or settlement agreements?

A

No

31
Q

Can visitation rights be denied for nonpayment of support?

A

No

32
Q

When does a child’s father have rights to custody and visitation (and also duty to support the child)?

A

Once identity and paternity are established

33
Q

What is the governing statute that has person jurisdiction over an out of state parent in an action to establish/enforce child support or paternity?

A

Uniform Interstate Family Support Act

34
Q

What are the various situations in which a court has PJ over an out of state parent?

A
  1. Out of state parent is served within the state
  2. Out of state parent consents to jurisdiction by showing up to proceeding in the court
  3. Out of state parent engaged in sexual intercourse in the state, child may have been conceived by that act
35
Q

What are the factors court use to determine amounts of child support to be paid?

A

Best interests of the child
Age of the child
Special needs
Assets of both parties
Standard of living during relationship

36
Q

When are child support modifications permissible?

A

When there is substantial change in circumstances re: child’s needs or parents’ financial situation

Parking seeking modification of child support has the burden of showing substantial change in circumstances

37
Q

Are there circumstances when a voluntary reduction in income is a substantial change in circumstance to modify child support

A

If in good faith the court may reduce the amount owed.

Note: if voluntary reduction of income is done to deprive the child or punish other parent in bad faith, no reduction.

38
Q

Generally, when do child support modification orders go into effect?

A

Prospectively – from the date of the motion moving forward

A court will not reduce an amount retroactively owed prior to the motion

39
Q

when does a parent’s child support obligation terminate?

A

When the child reaches the age of majority
Termination of parental rights
When a child completes college
When a man discovers he is not the father of the child

40
Q

What does the Uniform Interstate Family Support Act say regarding jurisdiction of courts in modifying child support?

A

The state that issued the initial child support order has continuing exclusive jurisdiction to modify the child support order UNLESS

Both parents and the child no longer reside in the state OR
The parties expressly agree to permit another state exercise jurisdiction

41
Q

What should a parent receiving child support do to help enforce a child support order from another state?

A

Register that child support order in the new state – new state must honor under full faith and credit act

Family Law: Bar Review (3 decks)

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