MEE Topics Flashcards
Elements for valid trust creation?
So I Viciously Punched That Bitch:
- Settlor
- Intent
- Valid purpose
- Property
- Trustee
- Beneficiary
Requirements for valid marriage?
Requirements: LCNC (Lovers Can’t Not Copulate)
- License
–Some defect in the license does not render a marriage invalid - Ceremony with authorized officiant
- No legal impediment
– Can’t be too closely related
– Can’t be married to someone else - no bigamy! - Capacity to consent
–Intoxication maybe
–age
Common law marriage requirements?
- Consent to marry
- Cohabitation
- Hold selves out as spouses
Reasons for no fault divorce?
No fault divorce:
- Irreconcilable differences
- Living separate and apart for a specified period
- Incompatibility
Reasons for fault divorce?
Fault divorce
- Adultery
– Usually circumstantial evidence
- Opportunity AND
Inclination
- Desertion (abandonment)
- Cruelty
- Habitual drunkenness or drug abuse
– Must happen AFTER the marriage began
- Insanity
Defenses to divorce?
Defenses to divorce:
No fault
- Reconciliation
Fault
- Collusion
- Connivance (P consents to other spouse’s misconduct
- Condonation (forgiveness)
- Recrimination (unclean hands)
3 approaches to dividing property at divorce?
- Community property
- Equitable division of all property
- Equitable division of marital property (most popular approach)
Two step process to property division upon divorce or separation?
- Classification of property
- Equitable division of property
– Done regardless of which spouse has title to the property
Property acquired before marriage but paid for after marriage, how to handle it?
Courts split, but majority seems to to apportion to separate and marital estates in proportion to the contribution of separate and marital funds to pay for the property. Other states focus on the inception of title and allow a reimbursement remedy.
Are pensions marital property?
Yes
3 special issues in property division upon divorce or separation?
Special issues:
Commingling: separate property can become marital if inextricably intertwined
Transmutation of separate property: Separate can become marital based on intent of parties
Improvement of separate property: court will grant reimbursement for value added
Is a professional license or degree marital property?
No. But will be considered in making an award of alimony.
Is property division upon divorce a taxable event?
No.
What are the 4 types of alimony?
- Permanent periodic support
- Lump sum support
- Rehabilitative spousal support
- Reimbursement support
Factors to be considered when awarding alimony?
(broadly, 2 primary considerations are
the needs of the claimant and
the ability of the other spouse to pay)
Standard of living during marriage
Duration of marriage
Age and physical and emotional condition of the parties
Financial resources of the parties
Contribution of each party to the marriage
Time needed for the party seeking support to obtain the training necessary to find appropriate employment
Ability of the payor spouse to meet their needs while paying spousal support
Marital fault
3 general steps when answering alimony Q?
- Start with broad factors for alimony (needs of claimant and other spouse’s ability to pay)
- Then four kinds of alimony
- Then the other possible considerations based on the facts
Is alimony taxable?
Current law: no.
Instruments/agreements before 2019: yes.
3 kinds of jdxn to award/enforce/modify child support?
Jdxn to award child support: UIFSA
Original jdxn
- Where FIRST FILED, UNLESS:
– 2nd petition filed before time to ans 1st has expired
– Petitioner objected to jdxn in first action
– 2nd state is child’s home state
Jdxn to enforce
- Direct enforcement (mail cs order to out-of-state employer, auto trigger withholding unless timely objection)
- Registration with other state for enforcement
(one state sends order to other state, enforced as if direct)
Jdxn to modify
- Court issuing order has continuing exclusive jdxn to modify
Child support modification is based one:
a substantial and continuing change of circumstances
Initial child custody determination based on?
- Child’s home state (at least lived with parent there for 6 consecutive months)
- Was child’s home state in past 6 months, but parent/guardian continues to live in the state
Child custody determinations are generally based on:
Child custody generally:
Best Interest of the Child
Some factors, not exclusive
Parents wishes
Child’s preference
Child’s relationship with parents, siblings, and others involved with parents
Child’s adjustment to home, school, and community
Parties’ mental and physical health
Primary caregiver (no gender preference)
Outcome won’t matter! Dazzle with analysis!
Custody to nonparent, how’s it work?
- Parent usually prevails
- Nonparents have burden of proof
– Show harm if custody left to parents
– Or general parental unfitness
– Then court conducts BIOC analysis
What need to show for modification of child custody?
Substantial and material change of circumstance
BIOC of the overriding concern
What is the purpose of spousal support?
to ensure an adequate income stream for persons whose economic dependency has resulted from the marital relationship
