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Family Law > Matters Preceding Marriage > Flashcards

Matters Preceding Marriage Flashcards

1
Q

Premarital agreement (Definition)

A

Prenuptial agreements – contingent planning document

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2
Q

Challenge to Validity of K (prenuptial agreement) at the time of Divorce

A

a. K not voluntary
i. Physical coercion
ii. One Party not represented by counsel
iii. Verbal Threats
iv. PA = Threats to call off the wedding is not duress
b. NO financial disclosure by H, No independent knowledge of assets & no waiver of disclosure
ii. No obligation for H to explain the rights under the prenuptial agreement

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3
Q

How to get marriage - Elements

A
  1. License – So PA get the opportunity to ensure that you have the capacity to marry
    a. PA – now same sex couples can get married
  2. Ceremony
    a. Officiant – someone to conduct the ceremony
    i. Members of the clergy
    ii. Civil Officers – Judges
    iii. Can officiate at your own ceremony
    b. Witness needed
    c. Exchange of Promises
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4
Q

PA = Common Law Marriage

A

Abolished in 2005

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5
Q

Terminating the Marriage - Annulment (definition)

A

Looks back in time to the problem that pre dates the marriage

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6
Q

Terminating the Marriage - Annulment (Void)

A

Grounds are not waivable by the parties

  1. Marriage does not exist. It is a nullity
  2. Here the annulment is an optional proceeding
    a. Clarifies the record
    b. Can Adjudicate collateral Issues
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7
Q

Terminating the Marriage - Annulment (Void - Grounds)

A

a. Bigamy – in order to have a capacity to marry, must be single
i. EX: One spouse is missing, can get a decree of presumed death
b. Insanity
c. Incest

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8
Q

Terminating the Marriage - Annulment (Voidable)

A

Grounds are waivable

1. Married unless & until you get the annulment

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9
Q

Terminating the Marriage - Annulment (Voidable - Grounds)

A

a. Age = PA is 18+ (At 16 w/parental consent or under with judge consent)
i. Waived – continued cohabitation after impediment removed
1. Cohabitation = sexual relationship
b. Incapacitated = Drunk, Stoned
i. Waived after 60 days
c. Duress = must be acting with free will
i. Waived if continue marriage after impediment tis removed
d. Fraud = one party makes a misrepresentation or conceals information that goes to an essential aspect of the marriage
i. Lying or keeping secrets about $, social status, property (economic status) not grounds for an annulment
ii. Can’t have children
iii. Lies to the husband that he is the biological father
iv. Significant lies about sexual history
v. Sexual Agenda – expectations
vi. Incurable impotence – can’t have sex
1. If couple had refrained from sexual intercourse until wedding night
vii. Religion
1. Type of religion
2. Degree of religious beliefs

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10
Q

Terminating the Marriage - Annulment (Remedy)

A

Can get the same economic remedies as in divorce

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11
Q

Divorce (definition)

A

Based on a subsequent problem (Problem that post dates the marriage)

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12
Q

Divorce - Civil Procedure - PA = Hybrid jurisdiction (Fault)

A

i. PA = One spouse must be domicile & 6 month residence = will only award divorce
ii. To get economic division there must be personal jurisdiction = minimum contacts (divisible divorce)

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13
Q

Divorce - PA = Hybrid jurisdiction (Fault grounds)

A

Desertion – willful and malicious absent from the home without reasonable cause for a period of 1 year.
Adultery
Cruel & Barbarous Treatment
1. Conduct that endangers the life or health of plaintiff spouse
2. Intentional & unprovoked violence
Bigamy
Imprisonment - Locked up for two or more years
Indignities
1. Mental cruelties - Continuing course of conduct that renders the P’s life burdensome or intolerable
Refusal to have sex
1. Must be significant
Insanity - Must be institutionalized for at least 18 months & no prospect of cure for another 18 months

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14
Q

Divorce - PA = Hybrid jurisdiction (Fault grounds)

Affirmative Defenses

A

Condonation
1. Knowledge of the misconduct, forgiveness & sexual relationship
2. Never present in the sexual violence case
Connivance
1. P lures the D into committing the misconduct
Recrimination
1. Equity Concept – Dirty hands
a. Both parties are guilty of cheating
Provocation
1. Self Defense
Insanity

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15
Q

Divorce - Civil Procedure - PA = Hybrid jurisdiction ( No Fault)

A

Marital misconduct – not essential

No affirmative defenses, cheaper, faster

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16
Q

Divorce - PA = Hybrid jurisdiction (No Fault Grounds)

A

Irretrievable Breakdown of the Marriage

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17
Q

Divorce - PA = Hybrid jurisdiction (No Fault) Proof

A

a. Both Parties Agree (Complaint after 90 days, Affidavit filed)
b. Only one party agree (Parties must live separate or apart for 2 continuous yrs.)
i. PA = no requirement to leave the home; just no sex

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18
Q

Economic Issues that Surround Terminating the Marriage -

Separation Agreements

A

a. Enforceable just like a prenuptial agreement
b. Not Modifiable unless the agreement says that it can be modified
c. Waiver of child support in a separation is void
i. Subject to court oversight

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19
Q

Economic Issues that Surround Terminating the Marriage - Property Division (Separate Property Definition)

A

Acquired prior to the date of the marriage

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20
Q

Economic Issues that Surround Terminating the Marriage - Property Division (Separate Property) - Types

A

Gift after marriage in one person’s name
Any Property acquired after the filing of the separation of the marriage
Anything that the parties agree to treat as separate property
Federal Veteran disability payments

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21
Q

Economic Issues that Surround Terminating the Marriage - Property Division (Equitable Distribution)- Categories Assets

A 
Marital Property 
a.	Anything acquired during the course of the marriage 
b.	Irrelevant who paid or who has title.
i.	Good will in the business
ii.	Pension plans
iii.	Appreciation in value on separate property items attributable to the period of the marriage
c.	Expectancies are not marital property
Husband’s Separate Property 
Wife’s Separate Property
22
Q

Economic Issues that Surround Terminating the Marriage - Property Division (Equitable Distribution)- Divide Assets

A

In Kind
a. Judge can divide the property
Cash Payment
a. Judge can divide property by what the property is worth

23
Q

Economic Issues that Surround Terminating the Marriage - Property Division (Equitable Distribution)- Factors in dividing assets

A

(Ct. cannot look at marital fault in division)

a. Age & Health of the Parties
b. Income, Education, Job Skills of the two parties
c. Whether either parties dissipated marital funds
d. Whether one party is the custodial of the marital children
e. Anything else that the court deems appropriate

24
Q

Economic Issues that Surround Terminating the Marriage - Property Division (Equitable Distribution) - Tax Consequences

A
  1. No immediate tax obligation

2. Receiving spouse has a carry over basis in the property

25
Q

Economic Issues that Surround Terminating the Marriage - Property Division (Alimony) Definition

A

a. Allows the party to make the transition back to being single abrupt. Only awarded if necessary.

26
Q

Economic Issues that Surround Terminating the Marriage - Property Division - Types of Alimony

A

Temporary Alimony
1. Allows a party to receive support while divorce proceeding is in process
2. Terminates automatically, when case concludes
Permanent Alimony
1. Post divorce decree termination.
2. Set period or open & indefinite

27
Q

Economic Issues that Surround Terminating the Marriage - Property Division - (Alimony) Determining Amount Factors

A 
Earning Capacity / current earnings
Age, physical or emotional condition 
Expectancies
Duration of Marriage
Property Division Awarded
If Furthering Education (time & $)
Marital Misconduct
28
Q

Economic Issues that Surround Terminating the Marriage - Property Division - Modification of Alimony

A

Must show substantial change in circumstances

ii. Prospective only

29
Q

Economic Issues that Surround Terminating the Marriage - Property Division - Termination of Alimony

A

If court sets a date, then it terminates at the end of the decree
Terminates at the death of either party
Terminates at the remarriage of the receiving party
1. Includes cohabitation

30
Q

Economic Issues that Surround Terminating the Marriage - Property Division - Enforcement of Alimony

A 
Can seize assets  
Can seize wages (No more than 50%) 
In PA – Can lose Drivers License
Imprisonment 
1.	Contempt of court
31
Q

Economic Issues that Surround Terminating the Marriage - Property Division - Alimony (Tax Consequences)

A

Alimony is deductible to payor and income to the receipitant

32
Q

Issues Relating to Children - Identifying Parents

If married Woman

A

= Husband of marriage is presumed to be the father of the marital children.

i. If there has been a separation and the child was born there after the husband can rebut by showing
1. Physical inability
2. Lack of access

33
Q

Issues Relating to Children - Identifying Parents (If unmarried Woman)

A

Non marital child

i. Paternity Suit (not needed if evidence in writing)

34
Q

Issues Relating to Children - Identifying Parents (Supporting Children)

A

Every child is entitled support until 18 (if disability then support goes over 18)
1. Award is entered against non custodial parent
Award based on income of parent
1. CT can depart from guidelines if specific findings that the guidelines would be unjust
2. Must include a provision that provides for health insurance

35
Q

Issues Relating to Children - Identifying Parents (Modification of Child Support)

A

Modification of Child support

a. Change in Circumstances
i. Increase or decrease to income

36
Q

Issues Relating to Children - Identifying Parents (Termination of Child Support)

A

Termination of Child Support

a. Terminates on the death of parent or child

37
Q

Issues Relating to Children - Identifying Parents (Enforcement of Child Support)

A

a. Same as Alimony
b. Can file provisions with the Federal or State Tax Authority
c. Can file provisions with the State Lottery Provision
d. If non paying parent moves to another state
i. Uniform Interstate Family Support Act
1. Makes a court order enforceable across state lines
2. Provides that the state that issued the initial support order will retain exclusive jurisdiction as long as one parent or one kid lives in that state.

38
Q

Issues Relating to Children - Identifying Parents (Tax Consequences)

A

None

39
Q

Issues Relating to Children - Identifying Parents (Type of Custody)

A

Can be shared or exclusive in one parent

a. Legal Custody - Decision making power
b. Physical Custody - Physical possession & control

40
Q

Issues Relating to Children - Identifying Parents (Standard Used in Awarding Custody)

A

Best Interest Of the Child

  1. Wishes of the Parties (including kids over 12)
  2. Physical / Health Condition of all parties
  3. Parental Convictions of Crimes & Pending Charges
  4. Parental Substance Abuse Problems
  5. New Companions to Either Parents
  6. Domestic Violence (Weighed More Heavily)
  7. Custody Should Not be awarded to a Parent who murdered the other parent, unless the child is old enough and consents
41
Q

Issues Relating to Children - Identifying Parents (Other issues related to Awarding Custody)

A

The Court is obligated to state its reasons on the record that it awarded custody
If an abusive parent is given any time with the child there must be safety provisions written in the order
If the parents are living separate & apart in the same residence, no custody order is effective until custodial parent moves
Shared Custody is permissible, but no presumption in favor of it
Non custodial parent is entitled to visitation
i. Denied if there is a risk of safety to the child
ii. Not contingent on child support payment
iii. If custodial parent interferes with visitation = contempt of court

42
Q

Issues Relating to Children - Custody Request by Non Parents

A

Must have standing

i. Statutory Standing =
1. If no in loco parentes
a. parental consent or court order
b. willing to assume responsibility for the child
c. the child is a dependent, substantially at risk, or lived w/ grandparent for 12 months
2. In loco parentis – acting like a parent with the permission of the parent (Particularly – grandparents)
ii. Clear and convincing evidence that the child would benefit from being in their custody

43
Q

Issues Relating to Children - Visitation rights by Non Parents

A

Strict Scrutiny - Must be a compelling reason for the court to disregard parents wishes

44
Q

Issues Relating to Children - Modification of Non Parents Rights

A

Substantial change in circumstances that affect the best interest of the child
ii. Stability in the child’s arrangement is a huge consideration

45
Q

Issues Relating to Children - Parental Relocation

A

Custodial parent must get court approval

i. Judge must look at the potential advantages of the move
1. Economic advantages to kid & parent
2. Noneconomic advantages to kid & parent
ii. Court considers the integrity of the motives
1. All Parties acting in good faith
2. Realistic / Substitute visitations that can be maintained

46
Q

Issues Relating to Children - Interstate Custody

A

Uniform Child Custody Jurisdiction and Enforcement Act
i. A state is entitled to enter an initial custody order if
(1) It is currently the home state of the child, or (2) it was the home state of the child within the last 6 months
a. Home state – if kid lived with parent in that state for 6 months
Fall back Jurisdictional rules
1. The state has the most connection to the child
Once the state enters an order, that state has exclusive jurisdiction

47
Q

Termination of Child Rights & Adoption - Definition

A
  1. In order for the child to be available for adoption the biological rights must be terminated
48
Q

Termination of Child Rights & Adoption - Voluntary

A

Subject to Court hearing in due course

49
Q

Termination of Child Rights & Adoption - Involuntary

A

Contested Proceeding

50
Q

Termination of Child Rights & Adoption - Involuntary (Grounds)

A
  1. Abandonment of the Child
    a. No parental support for 6 months
  2. Abuse or neglect
    a. Fail to feed the child
    b. Hit the child/hurt the child/ Sexual abuse
  3. Parents Identity is unknown
  4. Fathered through rape or incestuous relationship
  5. Temporarily removed child & parent has not fixed the problem
51
Q

Termination of Child Rights & Adoption (Adoption)

A

Consent
i. If child over 12 child can consent to the adoption
ii. If married
1. Need consent of both parents to adopt
2. If one parent is the biological parent – need consent by custodial parent
iii. Need consent of a guardian if there is a capacity problem
iv. Gay couples can adopt
Investigation
i. Home visits, etc.
Hearing to finalize the adoption
i. Best Interest of the Child Standard

Family Law (2 decks)

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