MEE Family Law Flashcards
1
Q
Six Exceptions to Martial Property
A
Exceptions:
1) Property acquired before the marriage
2) Property excluded by a valid agreement between the parties
3) Property acquired by gift or inheritance
4) Property a party has sold, granted, or conveyed in good faith and for value prior to final separation
5) Property to the extent it has been mortgaged or otherwise encumbered in good faith and for value prior to separation
6) An award or settlement payment received for any cause of action or claim that accrued prior to marriage
2
Q
What is martial property?
A
In most states, all property acquired during the marriage is marital property.
3
Q
What type of alimony is Rehabilitative and how long is it awarded for?
A
meant to enhance and improve the earning capacity of the economically dependent spouse and only awarded for a limited period of time.
4
Q
What are the fault grounds for divorce?
A
1) Adultery
2) Cruelty
3) Desertion
4) Habitual drunkenness
5) Bigamy
6) Imprisonment
7) Indignity
8) Institutionalization
5
Q
What is Community Property?
A
Considers the marriage a partnership and typically requires an equal division of marital property
6
Q
How does marital fault play into a property division award?
A
It doesn’t, however dissipation (pissing away) of marital property may be considered.
7
Q
Which defense to divorce accounts for a spouse forgiving the marital misconduct?
A
Condonation is when a spouse forgives marital misconduct. There must be knowledge of the misconduct, and the party must resume relations with the guilty party.
8
Q
What are the requirements for a marriage license?
A
- Meet the minimum age restrictions
- Fulfill the waiting period
- Complete premarital medical testing (only in some states)
- Marry before the expiration date
9
Q
When won’t a marriage license be issued?
A
- One of the parties is married to someone else
- The parties are too closely related
- The marriage is a sham
- The parties are incapable of understanding the nature of the act
Note: Most jurisdictions refuse to issue a license when one or both parties is under the influence of drugs or alcohol when the license is sought
10
Q
What evidences the intent to enter into a common-law marriage?
A
Words in the present tense are preferred, but a court may accept cohabitation or reputation as evidence. Cohabitation alone is insufficient and words of intent to marry in the future do not reflect a present intent to be married.
11
Q
How can a valid marriage be terminated?
A
annulment, divorce, or death
12
Q
Consent is a defense to which two grounds for divorce?
A
adultery and desertion
13
Q
What are the grounds for a voidable marriage?
A
1) Age
2) Impotence
3) Intoxication
4) Fraud, misrepresentation, duress, coercion, or force
5) Lack of intent
14
Q
What are the defenses to a claim that the marriage is voidable?
A
Unclean hands, laches, estoppel
15
Q
What are the requirements for common-law marriages?
A
consent, cohabitation, and holding themselves out to be married
16
Q
Grounds for void marriage
A
Bigamy, Consanguinity, mental capacity
17
Q
What action does not sever marital ties but allows the court to determine spousal support and property division?
A
limited divorce/divorce from bed and board
18
Q
What is the only defense to a claim that the marriage is void?
A
deny the existence of the impediment that voided the marriage.
19
Q
What is an interlocutory decree?
A
This represents the period of time between when a divorce is initially granted and when it is finalized. During this time, neither spouse may remarry.
20
Q
What issues may a mediator assist with in terminating a marriage?
A
A neutral, court-approved mediator assists both parties with spousal- and child-support issues, as well as custody and visitation rights.
21
Q
What are the factors courts typically consider when awarding spousal maintenance?
A
1) Financial resources
2) Standard of living
3) Time for spouse to find employment or training
4) Length of the marriage
5) Contributions to the marriage
6) Age and health of the parties
7) Marital misconduct
22
Q
How is marital misconduct considered in determining spousal support?
A
Marital misconduct may be considered in many states when determining spousal support. The weight depends on the jurisdiction, with some jurisdictions considering it merely a factor and others giving it preclusive effect.
23
Q
What are the typical types of spousal support?
A
1) Lump sum
2) Permanent
3) Limited duration
4) Rehabilitative
5) Reimbursement
6) Palimony (available in only a few states)
24
Q
What kind of support is available to an unmarried cohabitant in a minority of jurisdictions?
A
palimony
25
What is the scope and purpose of permanent alimony?
Permanent alimony is an award for the remainder of the dependent spouse's life, unless certain circumstances occur. The purpose is to compensate the dependent spouse for either the lost earning capacity or benefit conferred to the other spouse during marriage. This is typically awarded only when the marriage was one of long duration.
26
When does the obligation to pay child support end?
Age of majority or is emancipated. Some jurisdictions continue the obligation through college. Additionally, it can be continued indefinitely for a child incapable of self-support due to a disability.
27
Under the doctrine of equitable estoppel, a husband may be required to pay support for his wife's child even when he is not the biological father when which requirements are met?
1. There is a representation by the husband that he would provide for the child;
2. The wife relied on his representation; and
3. The wife suffered an economic detriment as a result of the reliance
28
What Act provides a court with personal jurisdiction over an out-of-state parent to establish or enforce child support or to determine parentage?
The Uniform Interstate Family Support Act (UIFSA), which has been adopted by every state.
29
What evidence may be used to determine paternity?
1. Blood tests
2. Prior statements regarding paternity by deceased family members
3. Medical testimony on the probability or improbability of conception
4. The defendant's acknowledgment of paternity
5. In some states, the resemblance of the child to the defendant
30
What is the amount of child support typically based on?
income from any source
31
What is the name of the agreement made between spouses who are planning for divorce, and what happens to this agreement upon divorce?
Separation agreements are made between spouses planning for divorce. They are generally merged into the final judgment for divorce, as long as they are based on full and fair disclosure.
32
What are the requirements for a marital agreement to be enforceable?
1. Full disclosure
2. Fair and reasonable
3. Voluntary
4. In writing
5. Signed by the party to be charged
33
When may a court deviate from the child support guideline, and how?
Deviations are permitted as the circumstances warrant. The court must set forth specific findings explaining and supporting the deviation, including the amount that would have been awarded under the guidelines.
34
When may a child support order be modified?
Generally, modifications are permissible when there is a substantial change in circumstances regarding the child's needs or the parents' financial situation, and that change is expected to be continuing, rather than temporary.
35
What is the most important requirement for a marital contract?
Full disclosure. Absent full disclosure, a court will generally refuse to enforce it.
36
When may a child become emancipated?
To be emancipated, a minor child must be self-supporting and beyond the sphere of influence of his parents or independent of parental control.
37
Who has jurisdiction to modify a child support order?
A state court with continuing jurisdiction may modify an existing order.
38
What is the most important standard in determining child custody?
The best interests and welfare of the child
39
How are child support and spousal support orders enforced?
Support orders are typically enforced through civil contempt, income withholding, or withholding of tax refunds.
40
What custody arrangement is the outcome in a majority of child custody cases and even the statutory presumption in many jurisdictions?
Joint physical custody is preferred, but it does not necessarily require a 50-50 time-sharing arrangement.
41
What is the standard courts apply when determining whether to modify a child custody order?
The majority of jurisdictions apply a change-in-circumstances standard, requiring some substantial and unforeseen change since the issuance of the prior order. Some jurisdictions have also applied time barriers before an application for modification can be filed absent consent or endangerment. The purpose of these considerations is to promote stability in the child's life.
42
What Act applies to interstate custody disputes, including visitation rights, as well as parental kidnapping cases?
The Parental Kidnapping Prevention Act (PKPA)
43
How are child-custody and visitation orders enforced?
A party seeking enforcement can request assistance through the courts. The court can impose a variety of sanctions, including compensatory visitation, attorney's fees, court costs, fines, and jail time. Tort damages may also be awarded to a parent for the period of time that the child is wrongfully out of the parent's custody.
44
While property division clauses are enforceable in a premarital agreement, what clauses are generally unenforceable?
Child support and custody
45
Regarding premarital agreements, what choice-of-law approach do most states use in deciding which state's law will govern enforcement?
The significant relationship test. Most states apply the law of the state with the most significant relationship to the agreement and the subsequent marriage.
46
When does a court's exclusive-continuing jurisdiction end?
A court that makes the initial ruling in a custody case has exclusive continuing jurisdiction over the matter until:
1. The parties no longer reside in the state, or
2. The child no longer has a significant connection to the state
47
What is the rule for the special weight given to a fit parent's decision regarding their children?
A fit parent has a fundamental right to the care, custody, and control of his children. State courts must give special weight to a fit parent's decision to deny nonparent visitation.
48
Why might a court set aside a valid agreement that has been voluntarily executed and meets the test for reasonableness, fairness, and full disclosure?
If its result winds up leaving one spouse woefully impoverished to the extent that he or she becomes dependent on the state
49
Under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), what is the test to determine if a court has home-state jurisdiction?
A court has subject-matter jurisdiction to preside over custody hearings if the state:
1. Is the child's home state (the state in which the child has lived for at least 6 consecutive months, or since birth if the child is less than 6 months), OR
2. Was the child's home state in the past 6 months, and the child is absent from the state, but one of the parents/guardians continues to live in the state.
50
How may a court provide for equitable distribution of property between unmarried cohabitants when there is no express contract between the parties?
A court will generally provide equitable distribution based on a resulting trust, constructive trust, or quantum meruit theory to avoid unjust enrichment.
51
When may an unwed father be prevented from objecting to an adoption?
The right to object may be denied if the father does not demonstrate commitment to the responsibilities of parenthood. The right to object cannot be denied if such a commitment has been made.
52
Under the UPAA, what must someone prove in order to invalidate a marital agreement?
1. Involuntariness; or
2. The agreement was unconscionable when executed, the party did not receive fair and reasonable disclosure, and the party did not have adequate knowledge of the other's assets and obligations
53
What is the purpose of adoption registries?
Some jurisdictions have created adoption registries for the purpose of determining the identity and location of putative fathers and providing notice in the event of an adoption. A putative father's failure to register within the prescribed period of time constitutes a waiver of his right to notice of the adoption and irrevocably implies his consent to the adoption.
54
What are some of the main factors courts consider in equitably distributing marital property upon divorce?
- Income. educational/vocational skills, employability of each party
- duration of the marriage
-standard of living during the marriage
- assets, debts, and liabilities of the parties
- obligations for support arising out of prior marriage
- contributions made by each spouse towards the accumulation of marital property (including contributions to the home/household)
- needs of the parties
- provisions for custody of minor children
- whether distribution is in lieu of alimony/spousal support
- health of the parties
55
Is infidelity directly leads to divorce, can the unfaithful party still be eligible for spousal support?
Generally yes, marital fault is not a relevant factor in assessing spousal support in most states.
56
To what extent is infidelity factored into the equitable division of marital property?
It is generally not. Marital fault is not a relevant factor in assessing spousal support in most states.
57
If an unmarried couple who live together contractually agree to share property is the K valid?
Yes. K's between unmarried cohabitants to share property or engage in other forms of economic sharing are valid.
EXCEPT where sexual services is the sole consideration supporting the K, then it will be invalid (b/c prostitution...)
58
How can a bigamous marriage be validated under the Uniform Marriage and Divorce Act (UMDA)?
Removal of impediment.
Under UMDA a bigamous marriage can be validated upon the removal of the impediment (i.e. when the prior marriage is terminated).
59
What is the presumption of validity regarding the general marriage prohibition on bigamy/polygamy?
Under the presumption of validity, the last of the several marriages is presumed valid, which may be rebutted by evidence that the prior marriage(s) still persist.
60
What is the marriage limitation regarding consanguinity? What does consanguinity concern?
people who are too closely related/incest.
61
What age limitations usually exist with regard to marriage?
most states impose a minimum age requirement, usually 18, before a person can consent to marriage.
Some states allow minors to marry if the is parental consent or judicial approval.
62
What factors are considered in determining whether parties to a marriage validly consent?
Courts look at capacity and intent.
63
What is the state-of-mind requirement for marriage?
Both parties must consent to marriage, meaning they each intended to take on the obligations of marriage.
64
What requirements must be satisfied after a solemnization with regard to the marriage license?
License must be completed/signed by person who solemnized the marriage and filed with the appropriate government office.
> creates a public record of the marriage
65
What are the two usual procedural requirements for marriage
license and solemnization
66
What two types of requirements exist for a valid marriage?
procedural and state-of-mind.
67
Must CL marriage be recognized in a different state that does not have CL marriage
Generally yes, however, not if the marriage goes against strongly held public policy of the jx (i.e. considered incestuous or too closely related).
68
What is CL marriage?
A couple is legally considered married w/o having registered or performed legal requirements for marriage.
69
What factors determine whether and to what extent a court will enforce a premarital K?
Full and fair disclosure, voluntariness, unconscionability.
Courts may consider whether parties were represented by legal counsel, and is required in some states.
70
Can a premarital K be amended? If so what consideration is required?
may be revoked or amended by written agreement signed by both parties. Amendment is enforceable without consideration.
71
What must parties fully and fairly disclose for a premarital K to be valid?
financial worth
72
What are the requirements for a premarital K to be valid?
Writing (satisfy SOF)
voluntariness
full & fair disclosure
73
What is the purpose and effect of a premarital K?
premarital agreements are Ks that provide for distribution of assets upon divorce or death in a way that varies from what the law would otherwise require.
74
When can a spouse be held liable under the necessaries doctrine?
one spouse may be held liable to creditors for necessaries purchased by the other spouse.
(E.g. food, medical care, shelter, clothing, etc.)
75
How and when can one spouse be held liable for another spouse's purchases
Support- each spouse has an obligation to support the other, and one spouse may be held liable for another spouse's purchases.
i.e. under agency principles, one spouse can be held liable to third parties for purchases made by the other spouse where expressly or impliedly authorized
Necessaries doctrine- one spouse may be held liable to creditors for necessaries purchased by the other spouse.
76
What does the obligation of support during marriage encompass?
Each spouse has an obligation to support the other, and one spouse may be held liable for another spouse's purchases.
77
What may give rise to a tenancy by the entirety?
in many states, where spouses take real property jointly, a tenancy by the entirety is presumptively created.
78
What right to ownership and control do spouse shave with regard to property acquired before and during marriage?
Before and during marriage, each spouse owns and controls their own property, but property acquired during marriage may become owned as tenancy by the entirety.
79
If a marriage is annulled can either spouse still be entitled to spousal support?
Many states allow for temporary support during the annulment suit, although fewer states allow for spousal support following an annulment.
80
How is property divided after marriage is annulled?
most courts attempt to divide property in such a way that puts parties in the position they were in before the marriage commenced.
81
What are grounds for annulment?
bigamy/polygamy
consanguinity
non-age
incurable physical impotence
incapacity to consent
82
What is an annulment? What is the affect of an annulment?
annulment is a judicial declaration that the marriage was invalid due to some impediment at the time of marriage and, therefore, never occurred.
> a marriage can be annulled if it is void or voidable.
83
What is legal separation and how is it different from a divorce?
legal separation is a legal parting that does not terminate the marriage.
- not a divorce, does not terminate marriage, parties cannot remarry
-parties seek to have rights regarding property, spousal support, custody, child support, etc. determined in a separation proceeding.
-can become an absolute divorce in some states at the request of the parties after a specified period of time.
84
Can a spouse raise a defense to divorce to successfully prevent a court from entering a divorce decree?
No. Defenses to divorce exist in some states but a court will not force a marriage to continue if one party wants a dissolution.
85
What are potential grounds for divorce?
can be any or all:
-irretrievably broken (aka irreconcilable differences)
-living separate
-incompatibility
86
What is a fault vs. no-fault divorce?
traditionally, divorce required proof of fault, while some states retain fault grounds, every state offers a form of no-fault divorce.
87
What jurisdiction does a court have to determine rights to marital property located outside the state?
None.
A court does not have jx. to determine the right to property located outside the state or support decrees unless it has jx. over both parties.
88
When will a divorce granted in one state be recognized in other states?
Always under full faith and credit clause as long as one or both parties was domiciled in the state that granted the decree.
89
What residency requirements must be met for a court to have jx over a divorce petition?
to establish jx over a divorce, one or both parties must be domiciled in the jx where the action is brought.
> some states require a minimum durational residency before the action can be filed; designed to prevent forum shopping.
90
Which state's courts have jx over an annulment?
a state where either party is domiciled has jx to enter an annulment decree.
> most states also give jx to the court in the state where the marriage was entered into and recognized.
91
What two-step approach do courts take in analyzing and determining property division?
-categorize property as marital or separate
-determine equitable distribution of marital property
92
Can court orders regarding division of marital property be modified?
No. Property distributions are generally not modifiable in most states.
93
How does property division work under a community property system?
all property acquired during marriage is considered owned 50-50 by each spouse; all property owned prior to marriage or acquired by gift or inheritance is separate property.
94
What are the two main approaches that a state may use for dividing property upon dissolution of marriage?
equitable distribution (what is fair) or community property (50-50 even split).
95
What is commingled property? How can it arise and what is the effect?
separate property that is inextricably mingled with marital property or separate property of the other spouse can become marital property.
96
What types of property are generally considered to be marital property?
generally includes all property acquired during marriage that is not separate property, regardless of who holds title:
-appreciation b/c of effort
-pensions
-professional license or degree (sometimes reimbursement is ordered if one spouse supports the other in pursuit of the degree or license)
97
If separate property appreciates in value during the marriage, when is the value of the appreciation itself still considered separate vs. marital property?
appreciation b/c of time is typically separate, however appreciation b.c of effort is usually considered marital.
98
If a married couple buy a car but pay for the car with money inherited by one party before marriage is the car more likely separate or marital property?
Generally separate.
99
What types of acquired property are generally considered separate?
-acquired before marriage
-by gift or bequest
- separate property proceeds (prop. acquired by separate property proceeds)
-appreciation b/c of time
100
If a divorce was caused by one spouse's infidelity, to what extent will this factor into the equitable division of marital property?
It won't. Marital fault is not a relevant factor in division of marital property.
101
Can spousal support be awarded as a single payment or must it be awarded as a monthly payment?
Can be awarded short-term or indefinitely, and as lump sum or periodic payments.
102
Under what view or through what lens does a court determine a spouse's need for spousal support purposes?
Discretion- courts have significant discretion in determining whether and to what extent to award spousal support; needs are determined under the totality of the circumstances.
103
When might a court award spousal support?
if a spouse's separate property is insufficient for maintenance.
104
If a parent fails to make spousal or child support payments can that parent's visitation rights be denied?
No.
105
What is the usual duration of child support payment obligations.
age of majority or emancipation.
106
What is used in each state to determine the proper amount of child support
guidelines and formulas set by the jx.
107
What absolute duty do all parents have with regard to children?
absolute duty to support their children.
108
When may a court give non-parents visitation rights?
- the non-parent has a substantial relationship with the child;
-non-parent visitation is in the child's best interest; and
- A fit parent does not object.
109
For what grounds may a court deny visitation rights to a parent who does not have custody.
if visitation would endanger the child's wellbeing.
110
If one parent has sole custody, is the other parent entitled to visitation rights?
yes.
111
What factors would a court consider in determining child custody?
- parents' wishes
- child's wishes (if older like 8 or older)
-ability and willingness of each parent to provide for child's needs
-interaction and interrelationship of child with parents, siblings, and others who affect the child's best interests; and
- child's adjustment to home, school, and community
112
What do courts focus on in making child custody determinations?
child's best interest.
113
What does joint custody mean?
can be either or both of:
- sharing decision-making but child lives with one parent
-child divides time between each parent's home
114
What is the difference between legal custody and physical custody
legal- right to make major decisions affecting child's life
physical- possession and control of the child.
115
What must a parent show for a court to modify a child custody order?
substantial, material change in circumstances, courts will not make changes unless in child's best interest.
116
When are child support orders modifiable?
substantial change that affects either the needs of the child/children or the ability of the parent to pay.
117
If a parent who owes spousal support voluntarily changes to a lower paying job, will this justify a court lowering that parent's spousal support obligations?
generally no.
118
What must be shown for a court to modify a spousal support order?
substantial, material, and unanticipated change in either party's circumstance.
119
Under what theories might a court grant an equitable distribution of property where unmarried cohabitants break up?
courts may grant an equitable distribution of property based on rehabilitative alimony or one of the following theories:
Resulting trust- party makes claim to property in another's name
constructive trust- imposed to prevent a party from being unjustly enriched by obtaining title through wrongful conduct
quantum meruit- recovery in quasi-K for valuable services
120
What circumstances might cause a court to allow an unmarried cohabitant to seek support from their partner?
Implied K (formed by parties conduct).
Court may construe an arrangement as a joint venture, constructive trust, or partnership.
121
If an unmarried couple who live together contractually agree to share property, is the K valid?
K between unmarried cohabitants to share property or engage in other forms of economic sharing are valid.
122
If paternity is established through a paternity suit what arises?
Once paternity is established a duty of support attaches.
123
Can a person be ordered to take a blood or genetic test for purposes of determining paternity.
yes.
124
Does a mother who has custody of her non-marital child have rights to receive child support payments?
Discrimination based on non-marital child status are almost always unconstitutional.
125
To what extent can a mother be compensated when putting her child up for adoption
coverage of pregnancy-related medical expenses. You can't buy/sell babies.
126
In what situations might an adoptee be required to consent to his adoption?
prospective adoptees over a certain age, generally 12 or 14.
127
If an unmarried mother wants to allow the adoption of her child, must the father consent
an unwed father's consent may not be necessary if he has not assumed parental responsibility,
>> but an unwed father considered fit to be a parent has a constitutional right to have an opportunity to develop a quality relationship with his infant child.
128
What legal relationships are affected when an adoption occurs?
adoption terminates the legal relationship between the biological parents and their children and establishes a new legal relationship between parent and child.
129
What is a surrogacy? is a surrogacy agreement treated as a valid K?
"gestational agreement" where a woman agrees to bear a child conceived through assisted reproduction for the intended parents.
Most states allow surrogacy in some form and treat the agreement as a K.
130
Do sperm/egg donors generally have parental rights over a conceived child?
Generally no unless donors and parents agree to it in writing.
