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Z - Others > MD Family Law > Flashcards

MD Family Law Flashcards

1
Q

Marriage Creation: Requirements

A
  1. license (a. Clerk of county b. 6pm next day wait c. w/in 6 mo)
  2. ceremony (a. Religious b. Clerk c. Deputy clerk d. State/fed judge)
  3. valid CL elsewhere
  4. NO impediments (void OR voidable)
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2
Q

Marriage void if:

A
  1. consanguinity 3 generations / 1 degree lateral (aunt/niece/cousin)
  2. incapacity: can’t understand nature of marriage K
  3. bigamy
  4. lack of intent
    → don’t need annulment but good idea
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3
Q

Marriage voidable if:

A
  1. fraud: 1. Goes to essence 2. Induced
  2. duress 1. @ time of ceremony 2. Override free will
  3. temporary incapacity: alcohol/drugs
  4. inability to consummate
  5. nonage
  6. evasion of state law MAYBE
    → valid until one gets annulment, can confirm/ratify or if one dies
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4
Q

Nonage

A

under 18 -> voidable OJO!

a. 16-17 and 1. Parent consent/swear OR 2. Certificate pregnant/had kid
b. 15 and 1. Parental consent AND 2. Certificate pregnant/kid
- > If boy 15+ and girl 13+ NOT void OR voidable

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5
Q

Liability for spouse

A

A. no tort liability UNLESS w/ participation and sanction
B. no K liability if breach in the other’s name/responsibility
-> judgment/other satisfied only by separate assets OJO! transfer w. intent to prejudice 3rd party then liable
BUT  duty of support → misdemeanor!

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6
Q

Parental rights/obligations for kids

A

rights and obligations: custody, control, education, medical care (gross negligence civil/crim liable),
→ jointly and severally → superior to others
cannot agree in derogation
UNTIL 1. 18 or
2. IF still in school until 2. Dies 3. Married 4. Emancipated (abandonment, mistreatment, vol. relinquish) 5. Graduates/leaves 6. Turns 19

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7
Q

Parents liable to children

A

Generally parent-child immunity EXCEPT  treat cruelly/inhumanely  cause malicious/wanton harm
 wrongful death  personal injury/property damage from driving

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8
Q

Parental rights termination

A

ONLY w/ adoption/guardianship → impedes vol relinquish

FACTORS: services offered, parent efforts, abuse/neglect, drugs, crime, sibling termination, kids feelings, home

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9
Q

Divorce: JDX

A

SM: circuit ct all equity necessary
PERSONAL: 1. If grounds in MD, one spouse domiciliary 2. If grounds outside MD, also one resided one year required
VENUE: Where D resides/works. OR where P lives (for annulment, also where marriage performed. for child custody/support, also where custodial parent or kid lives)
FILING: 1. While grounds exist 2. If support dispute, with financial statement

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10
Q

Support order: Continuing JDX

A

Continuing JDX if it issued the controlling order AND: 1. one party resides in MD at time of modification request 2. parties consent even if no one lives there

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11
Q

Child custody: JDX

A

Initial home state JDX IF 1. child lives in MD when action commences or 2. child lived in MD w/in 6 mo of action commencing but one parent/guardian still lives in MD
Initial non home state if no other home state and 1. Significant connection of kid + 1P besides presence 2. Substantial evidence in MD 3. All other states declined
ENDS: 1. Neither kid nor kid+ 1P has significant connection and no significant evidence
2. OR MD or other ct decides nobody resides in MD

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12
Q

Divorce: Limited

A

EFFECT: can’t remarry BUT support and legal separation, not liable for each others’ debts
GROUNDS:
1. cruelty of treatment to party or minor child
2. excessively vicious conduct (not just shove)
3. desertion: a. actual: leave w. intent to abandon b. constructive: misconduct impossible to stay w/o loss health/self-esteem OR fear of injury to justify
4. vol. separation w/o reasonable hope of reconciliation, no time limit

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13
Q

Divorce: Absolute

A
  1. adultery → prove by disposition and opportunity
  2. desertion (actual or constructive) if a. 12 months b. Deliberate c. Final d. No reasonable reconciliation
  3. convicted of crime if a. At least 3 yrs prison and b. Already served 12 months
  4. insanity if a. Institution 3 yrs b. Two psychiatrists say incurable c. One is MD resident 2yrs
  5. cruelty of treatment + no reconciliation
  6. excessively vicious conduct
  7. no-fault: vol. separation for continuous 12 months OR separation for two years
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14
Q

Divorce: Defenses

A
  1. NOT recrimination (adultery factor to consider)
  2. condonation
  3. NOT reconciliation- unaccepted offer/rejected attempt not a defense
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15
Q

Divorce: Settlement

A

presumed valid, must explicitly specify nonmarital property

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16
Q

Divorce: Modification

A

Can modify child custody and support and spousal support OJO! NOT if provision specifying can’t OR express waiver of support

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17
Q

Divorce: Enforcement

A

 IF merged → contempt power  IF incorporated → breach of K OR contempt

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18
Q

Division of Property: Steps

A
  1. what is marital property 2. value the marital property 3. decide on equitable division
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19
Q

Marital Property: Defined

A

however titled, all acquired by one or both during marriage. NOT got b4 marriage, inherit or gift, by agreement, directly traceable to any of these

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20
Q

Marital Property: Source of funds

A

trace property to source of funds acquired by. When by both → hybrid OJO not applicable to real estate held by tenants by the entireties, must be marital property

21
Q

Marital Property: Active efforts

A

Active efforts to increase value of nonmarital property during marriage may make increase marital property NOT passive

22
Q

Marital Property: Specific examples

A

pensions gotten during marriage, life insurance, worker’s comp for lost earnings, lottery

23
Q

Marital Property: Specific examples NOT

A

professional degrees, pain and suffering personal injury damages, social security

24
Q

Marital Property: Specific examples MAYBE

A

partnership interest, stocks/options depends on traceability, professional goodwill depends on if personal, marital home depending on how acquired

25
Q

Marital Property: Family Home

A
  1. Was principal residence 2. Owned/leased 3. Is/will be used by one and child
    - > enable kid to stay, provide continued use by one who has custody and need
26
Q

Marital Property: Family Use Personal Property

A
  1. Acquired during marriage 2. Owned by one/both 3. Primarily for fam purposes
27
Q

Valuing marital property

A 
joint statement (list, describe, title, FMV, debt); marital debt = to get marital property, nontransferable between items
→ Qualified Dom Rel. Order for ERISA share pension, contribution to share liability
28
Q

Dividing marital property

A

If division by title would be inequitable, give single monetary award, transfer retirement, FUPP, principal residence. FACTORS: contrib., value of each, econ circumstances, fault, duration, age of each, physical/mental condition, how/when MP acquired (effort expended), contrib. to get TbE property, alimony/FUPP award, any other

29
Q

Alimony pendent lite

A

temporary award till end of litigation → need and maintain status quo

30
Q

Alimony: purpose

A

to put dependent spouse in self-sustaining position over defined period OJO only where there’s evidence that spouse cannot become self-supporting

31
Q

Alimony: factors

A

ability to support, time to gain, standard of living, duration of marriage, contribs. Circumstances, age, physical/mental, payor to meet needs, fin. Needs and resources, adult nursing home assistance

32
Q

Alimony: modification

A
  1. Petition of either party NOT if agreement no modify or waived 2. Circs/justice requires
33
Q

Alimony: termination

A
  1. Date specified 2. Death 3. Marriage of recipient 4. Necessary to avoid harsh/unjust (5. Cohabit)
34
Q

Child support: What kids

A
  1. Under 18 2. Infirm 3. 19 secondary school unmarried and unemancipated
35
Q

Child support: How divided

A

Federal guidelines so that child gets same proportion of parental income as if the parents were together. -> Proportionate to parents’ AGI or potential income if voluntarily unemployed to avoid paying (“imputed”). OJO depends on joint vs. sole custody: shared = overnight >35%/128days per yr

36
Q

Child support: Deviating orders

A

deviation finding 1. Guideline amt 2. How departing 3. Why best interest of kid 4. Value of property conveyed

37
Q

Child support: Establishing paternity

A
  1. Acknowledged or 2. Established by a. paternity action or b. marital presumption 3. Equitable estoppel if knew wasn’t the father but held self out to be
38
Q

Child support: Modification

A

If material change in circumstances

39
Q

Child support: Enforcement and JDX

A

Uniform Interstate Family Support Act federal original personal JDX IF:
1. personally served 2. Submits 3. Resident + gave prenatal expenses in MD 4. Kid resides in MD b/c of parent’s orders 5. Conceived in MD 6. Any other const. basis

40
Q

Child Custody: Default

A

both parents equivalent right, but ultimately determined by best interests of child

41
Q

Child Custody: Best Interests

A

Best Interest: fitness, character/rep, desire, natural family relations, pref of kid, marital opps, age, health, sex of kid, opp for visitation, length of separation, prior abandonment OJO! Fault in divorce not presumed, need nexus

42
Q

Child Custody: Legal v. Physical Custody

A

legal: right/obligation long term decisions
physical: to provide home, make day to day decisions
sole = both

43
Q

Child Custody: Factors for Joint

A

willingness of each, ability to agree/communicate, geography, fitness, prefor kid, disruption, employment, age, sincerity, financial status, federal assistance, beni to parents

44
Q

Child Custody: Modification

A

material change in circumstances - BI of child (NOTE: relocation of a parent sufficient)

45
Q

Child Custody: Termination

A
  1. Death → survivor or 2. Turns 18 otherwise emancipated
46
Q

Child Custody: Visitation

A

FOR FIT PARENT: : fit parent must be granted if no custody, schedule on BI of kid, reasonable, geographic, employment, age of kid
FOR 3RD PARTY: if parents unfit OR exceptional circumstances (default parents know best), THEN consider BI of kid

47
Q

Protective Order: Proof and Orders

A
  1. Clear and convincing evidence of abuse -> can order 2. no abuse 3. no contact 4. vacate home 5. stay away from home, job, day care 6. temporary custody. 7 days, extended up to 6 months. (Permanent is one year)
    OJO can be considered in divorce proceedings
48
Q

Abuse

A
  1. serious bodily harm 2. fear of imminent serious bodily harm 3. sexual offenses 4. false imprisonment or 5. stalking

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