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Family Law > Marriage & Divorce > Flashcards

Marriage & Divorce Flashcards

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1
Q

Webster’s 1913 dictionary of marriage:

A

a legal union of a man and woman for life

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2
Q

Wikipedia “today’s” marriage:

A

a socially recognized union or legal contract between spouses

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3
Q

How old do you have to be to get married?

A

17 for Male and 16 for Female

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4
Q

Caveat & exception

A
  1. a license will only be issued with consent of the minor’s parents if anyone is under the age of 18
  2. if there is a pregnancy, a circuit judge might order the county clerk to issue a license if it is in the minor’s best interest
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5
Q

Annulment for minors; how and by whom?

A
  1. consent of the parent(s) or guardian is NOT provided
  2. or there has been a misrepresentation of age
  3. the contract may be annulled upon the application of the parent or guardian to the circuit court having jurisdiction
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6
Q

Incest

A

ALL marriages between:
- parents and children (in every degree)
- grandparents and grandchildren (in every degree)
- brothers and sisters (of half as well as whole blood)
- uncles and nieces
- aunts and nephews
- first cousins
ARE declared incestuous and absolutely void!

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7
Q

Premarital agreement (definition)

A

an agreement between prospective spouses made in contemplation of marriage and to be effective upon marriage

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8
Q

Requirements for Premarital agreements

A
  1. must be in writing
  2. must be signed and acknowledged by both parties
  3. is enforceable without consideration
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9
Q

What can be put in a Premarital agreement

A
  1. the rights and obligations of the parties in any of property whenever and wherever acquired
  2. modification or elimination of spousal support
  3. the making of a will or trust to carry out the agreement
  4. death benefit from a life insurances policy
  5. choice of law governing the construction of the agreement
  6. any other matter, including personal rights and obligations (cannot be in violation of public policy or statue imposing criminal penalty)
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10
Q

What can NOT be put in a Premarital agreement

A

Child Support

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11
Q

Effective date for premarital agreement and Revocation

A
  1. effective date is when you get married
  2. the agreement can be amended or revoked after marriage so long as it is in writing, signed, and acknowledge by both parties
  3. the amendment or revocation is also enforceable with consideration
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12
Q

Property rights while married

A

a married person may bargain, sell, assign, and transfer his or her personal property, carry on any trade or business, and perform any labor or services on his or her sole and separate account

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13
Q

Separate property while married

A

a person can maintain his or her personal or real property throughout the marriage so long as the property is maintained individually; if the property is commingled, it becomes marital property

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14
Q

Annulment (definition)

A

WHEN either party to a marriage is incapable from:
1. want of age or understanding of consenting to marriage
2. is incapable of entering into the marriage due to physical causes
3. when the consent have been obtained by force or fraud
THE marriage shall be void from the time it’s nullity shall be declared by a court

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15
Q

Examples of grounds for annulment

A
  1. if you don’t tell your future spouse of a contagious disease
  2. if you are drunk, you cannot consent to marriage
  3. marriage induced by misrepresentation as to paternity of child (on ground of fraud)
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16
Q

Legal Separation

A

written agreements between husband and wife made and entered into in contemplation of either separation or divorce; constructions of separation agreements are governed by the rules generally applicable to other contracts

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17
Q

Invalidations of Legal agreements

A
  1. no independent knowledge of the extent of spouse’s income or assets
  2. can sue under a breach of contract theory to enforce the terms set in the agreement
  3. if the parties resume their marital relationship, by clear preponderance of the evidence, then they intended to cancel their agreement
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18
Q

Divorce form bed and board

A

you get to be “divorced” form one another, but you cannot marry anyone else

19
Q

Grounds for divorce (9)

A
  1. either party at the time of the contract was impotent
  2. either party convicted of a felony or other infamous crime
  3. addicted to habitual drunkenness for 1 year
  4. guilty of such cruel and barbarous treatment as to endanger the life of the other
  5. intolerable indignities
  6. either party committed adultery subsequent to the marriage
  7. husband and wife lived separate and apart for 18 continuous months without cohabitation
  8. spouses lived separate and apart for 3 or more years b/c of incurable insanity
  9. when either spouse legally obligated to support the other willfully fails to do so
20
Q

habitual drunkenness

A

a person does not have to be constantly drunk; it is sufficient if he has a fixed habit of frequently and repeatedly getting drunk when the opportunity presents itself or has lost the will power to resist temptation

21
Q

personal indignities contemplated by the statue as grounds for divorce include:

A

rudeness, vulgarity, neglect, injury, abusive language, manifestation of settled hate, alienation, estrangement

22
Q

how is adultery proved

A

proved by evidence of circumstances leading to an inference of guilt

23
Q

rules for separation due to incurable insanity

A
  1. the petitioning party must show that the insane spouse has been in a facility for 3 or more years; a judicially approved placement, an the person is still under the judicial orders
  2. the Petitioning spouse has to maintain the insane spouse so long as he/she lives
24
Q

Proof for Divorce (not the Grounds)

A
  1. resident of the state for at least 60days (3 months before divorce can be granted)
  2. cause of divorce occurred within this state
  3. cause of the divorce occurred within 5 years of the filing of the action
25
Q

Divorce can be denied based on:

A
  1. condonation (has been abolished)
  2. connivance
  3. collusion
26
Q

Condonation

A

if the petitioning party knew of the defendant’s actions underlying the divorce grounds and continued the marriage, a court is likely to deny the divorce petition (THIS HAS BEEN ABOLISHED)

27
Q

Connivance

A

if the petitioning spouse has a hand in the offending spouse’s actions, a divorce will be denied; willingness to secretly allow or be involved in wrongdoing (this is like consent)

28
Q

Collusion

A

agreements between the parties to do something that would be grounds for divorce

29
Q

Domestic Violence: Petitioner’s county of residence (DEFINE)

A

where the petitioner lives or stays for a short time, such as a domestic violence shelter

30
Q

Domestic Violence: Dating relationship (DEFINE and EXAMINE)

A

A romantic or intimate social relationship between 2 individuals that shall be determined by examining:

  1. the length of the relationship
  2. the type of relationship
  3. the frequency of interaction
31
Q

Domestic Abuse (Definition 2)

A
  1. physical harm, bodily injury, assault, or the infliction of fear of imminent physical harm, bodily injury, or assault between family or household members
  2. any sexual conduct between family or household members, whether minors or adults, that constitutes a crime under the laws of this state
32
Q

Family or household members (Definition)

A

means any:

  • spouse and former spouses,
  • parents and children,
  • persons related by blood within the fourth degree of - consanguinity,
  • persons who presently or in the past have resided or - cohabited together,
  • person who have or had a child in common,
  • persons who are presently or in the past have been in a dating relationship
33
Q

Who can file for an Order of Protection

A
  1. petition can be filed by and adult on her own behalf, on behalf of a minor or an incompetent; can also be filed by an advocate employed by a shelter or domestic violence center
34
Q

A petition for an Order of Protection must include:

A
  1. allege the existence of domestic abuse
  2. disclose any pending litigation between the parties
  3. disclose any prior oop petitions
35
Q

Order of Protection (guideline)

A
  1. must file along with the petition, an affidavit setting forth specific facts and circumstances of domestic abuse and the relief sought
  2. must have a hearing within 30 days of filing
  3. the respondent must be served at least 5 days prior to the hearing
36
Q

What are the remedies for an Order of Protection

A
  1. excluded respondent from home
  2. exclude respondent form place of business, school or other locations where petitioner commonly appear
  3. order temporary custody
  4. support
  5. reasonable attorney’s fees
  6. issue a no contact order
37
Q

Violations of an Order of Protection

A
  1. a violation of an order of protection is a Criminal Offense
  2. prevents you from possessing firearms
  3. full faith and credit
38
Q

Domestic Battery in the 1st degree

A
  1. with the purpose of causing SERIOUS physical injury, the person causes SERIOUS physical injury to a family or household by means of a DEADLY WEAPON
  2. with the purpose of SERIOUSLY & PERMANENTLY DISFIGURING a household member, the person causes such a an injury
  3. the person causes SERIOUS physical injury to a household member under circumstances manifesting extreme indifference to the value of human life
  4. the person KNOWINGLY causes SERIOUS physical injury to a household member who is 60 yrs of age or older, or 12 yrs of age or younger
39
Q

Domestic Battery in the 2nd degree

A
  1. with the purpose of causing physical injury, the person causes SERIOUS physical injury to a household member
  2. with the purpose of causing physical injury, the person causes physical injury to a household member by means of a DEADLY WEAPON
  3. the person RECKLESSLY causes SERIOUS physical injury to a household member by means of a DEADLY WEAPON
  4. the person KNOWINGLY causes physical injury to a household member who is 60 yrs or older, or 12 yrs of age or younger
40
Q

Domestic Battery in the 3rd degree

A
  1. with the purpose of causing physical injury to a household member, the person causes physical injury
  2. the person RECKLESSLY causes physical injury to a household member
  3. person NEGLIGENTLY causes physical injury to a household member by means of a DEADLY WEAPON
  4. person PURPOSELY causes stupor, unconsciousness, or physical or mental impairment or injury to a household member by administering to the member, w/out consent, any DRUGE or other SUBSTANCE
41
Q

Aggravated assault on a family or household member

A
  1. engages in conduct that creates a substantial danger of death or serious physical injury
  2. displays a firearm in a manner that creates a substantial danger of death or serious physical injury
  3. prevents the respiration of a household member, or the circulation of the member’s blood by applying pressure on the throat or neck (clocking the nose or mouth)
42
Q

1st degree assault

A

the person RECKLESSLY engages in conduct that creates a SUBSTANTIAL risk of DEATH or SERIOUS physical injury to a household member

43
Q

2nd degree assault

A

the person RECKLESSLY engages in conduct that creates a SUBSTANTIAL risk of physical injury to a household member

44
Q

3rd degree assault

A

the person PURPOSELY creates apprehension of imminent physical injury to a household member

Family Law (7 decks)

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