MEE Family Law Flashcards
Six Exceptions to Martial Property
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
What is martial property?
In most states, all property acquired during the marriage is marital property.
What type of alimony is Rehabilitative and how long is it awarded for?
meant to enhance and improve the earning capacity of the economically dependent spouse and only awarded for a limited period of time.
What are the fault grounds for divorce?
1) Adultery
2) Cruelty
3) Desertion
4) Habitual drunkenness
5) Bigamy
6) Imprisonment
7) Indignity
8) Institutionalization
What is Community Property?
Considers the marriage a partnership and typically requires an equal division of marital property
How does marital fault play into a property division award?
It doesn’t, however dissipation (pissing away) of marital property may be considered.
Which defense to divorce accounts for a spouse forgiving the marital misconduct?
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.
What are the requirements for a marriage license?
- Meet the minimum age restrictions
- Fulfill the waiting period
- Complete premarital medical testing (only in some states)
- Marry before the expiration date
When won’t a marriage license be issued?
- 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
What evidences the intent to enter into a common-law marriage?
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.
How can a valid marriage be terminated?
annulment, divorce, or death
Consent is a defense to which two grounds for divorce?
adultery and desertion
What are the grounds for a voidable marriage?
1) Age
2) Impotence
3) Intoxication
4) Fraud, misrepresentation, duress, coercion, or force
5) Lack of intent
What are the defenses to a claim that the marriage is voidable?
Unclean hands, laches, estoppel
What are the requirements for common-law marriages?
consent, cohabitation, and holding themselves out to be married
Grounds for void marriage
Bigamy, Consanguinity, mental capacity
What action does not sever marital ties but allows the court to determine spousal support and property division?
limited divorce/divorce from bed and board
What is the only defense to a claim that the marriage is void?
deny the existence of the impediment that voided the marriage.
What is an interlocutory decree?
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.
What issues may a mediator assist with in terminating a marriage?
A neutral, court-approved mediator assists both parties with spousal- and child-support issues, as well as custody and visitation rights.
What are the factors courts typically consider when awarding spousal maintenance?
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
How is marital misconduct considered in determining spousal support?
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.
What are the typical types of spousal support?
1) Lump sum
2) Permanent
3) Limited duration
4) Rehabilitative
5) Reimbursement
6) Palimony (available in only a few states)
What kind of support is available to an unmarried cohabitant in a minority of jurisdictions?
palimony
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.
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.
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?
- There is a representation by the husband that he would provide for the child;
- The wife relied on his representation; and
- The wife suffered an economic detriment as a result of the reliance
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.
What evidence may be used to determine paternity?
- Blood tests
- Prior statements regarding paternity by deceased family members
- Medical testimony on the probability or improbability of conception
- The defendant’s acknowledgment of paternity
- In some states, the resemblance of the child to the defendant
What is the amount of child support typically based on?
income from any source
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.
What are the requirements for a marital agreement to be enforceable?
- Full disclosure
- Fair and reasonable
- Voluntary
- In writing
- Signed by the party to be charged
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.
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.
What is the most important requirement for a marital contract?
Full disclosure. Absent full disclosure, a court will generally refuse to enforce it.
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.
Who has jurisdiction to modify a child support order?
A state court with continuing jurisdiction may modify an existing order.
What is the most important standard in determining child custody?
The best interests and welfare of the child
How are child support and spousal support orders enforced?
Support orders are typically enforced through civil contempt, income withholding, or withholding of tax refunds.
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.
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.
What Act applies to interstate custody disputes, including visitation rights, as well as parental kidnapping cases?
The Parental Kidnapping Prevention Act (PKPA)
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.
While property division clauses are enforceable in a premarital agreement, what clauses are generally unenforceable?
Child support and custody
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.
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
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.
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
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.
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.
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.
Under the UPAA, what must someone prove in order to invalidate a marital agreement?
- Involuntariness; or
- 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
