mee_copy_20190714075117 Flashcards
Ceremonial Marriage requires
License, Capacity, and Solemnization (ceremony)
Common-law marriage requires
Agreement they are married, cohabitation, and holding themselves out as married.
Marriages are void for what three things?
Prior existing marriages, Incest, and mental incapacity at the time of marriage
Marriages are voidable for?
Age, impotence, intoxication, fraud, duress, or lack of intent
Are children of an anulled marriage considered marital children?
Yes
Putative marriage doctrine allows what?
A party of a ceremonial marriage who believed in good faith that the marriage is valid to use a state’s divorce provisions if the marriage is later found to be void
What are the seven grounds for at fault divorce?
Adultery, cruelty, desertion, habitual drunkenness, bigamy, imprisonment, institutionalization for insanity
What defenses are available to at fault divorce?
Many: recrimination, unclean hands, connivance, condonation, collusion, provocation, insanity, consent, justification, religion
Nonmarital property includes?
Property acquired before the marriage, property excluded by the parties valid agreement, property acquired by gift or inheritance, and awards or settlements for causes of action accruing before the marriage
What types of alimony (spousal maintenance) are there?
Lump sum, permanent (long marriage), limited duration (short marriage), rehabilitative (improve earning capcity), reimbursement (rarely granted).
Can visitation rights be denied for nonpayment of child support?
No
Can nonmarital children inherit from their father’s estate?
Yes, if paternity was proven prior to the fathers death, the father adopted the child, the father holds himself out as the father
A husband can be estopped from denying his obligation to pay child support for his wife’s non-biological child when?
There is a representation that he would provide, the wife relied on this representation, and the wife would suffer economic detriment if he did not.
Courts have personal jurisdiction over out of state parents for child support by?
The long-arm provision of the Uniform Interstate Family Support Act
What does a child receive under the income-shares model?
The same proportion of parental income as if the parties continued to live togeter
When can child support be modified?
There is a substantial change in circumstances
When can child support be terminated?
Emancipation, child marries, or death
What courts have jurisdiction to modify child support?
The court that rendered the order if that court has continuing jurisdiction, otherwise a state where there is a significant connection.
Under the Uniform Child Custody Jurisdiction and Enforcement Act, what courts have jurisdiction to enter, modify custody or visitation orders?
Home state first, significant connection, default jurisdiction.
What is the standard for determining child custody?
Best interest and welfare of the child.
When does an unwed biological father have a right to contact with his child?
When he demonstrates a commitment to the responsibilities of parenthood
When can a parents religious beliefs be overriden by a court for medical care?
When necessary to prevent serious harm to the child
What can a separation agreement define?
Property divsion, spousal support, child support, custody, and visitation
Premarital agreements are enforceable if?
There is full disclosure of finances, the agreement is fair and reasonable, and the agreement is voluntary. (also in writing and signed by party to be charged)
Are provisions of a premarital agreement preventing modification of child support enforceable?
No
Are provisions of a premarital agreement preventing modification of property rights and spousal support enforceable?
Yes
Under the adoption and Safe Families Act, when can a state move to terminate parental rights?
When the child has been outside of the home and not with a relative for 15 of the past 22 months and reunification attempts have been provided
What courts have jurisdiction for divorce and alimony?
Ones with personal and subject matter jx
Who is liable for pre-incorporation transactions?
Promoters (they are fiduciaries) unless a later novation.
The articles of incorporation must include
the name, the agents, names and addresses of incorporates, duration, the purpose (usually any lawful activity) and authorized shares
When is the corporation incorporated?
When the secretary of state accepts the fee and files the articles
If by laws and articles of incorporation conflict, which wins?
Articles
What is the de facto corporation rule?
When a corporation isnt properly formed but acts as a corp, it will be treated as a corp if there was a good faith attempt to incorporate and there was no actual knowledge of the faulty corporate status.
What are the three factors to pierce the veil?
Alter ego, undercapitilization, and fraud
What are issued shares?
Number of authorized shares actually sold
What are outstanding shares?
Shares that were once issued and remain in the possession of shareholders
What are treasury shares?
Shares one issued but subsequently reacquired by the corporation
Par value is?
The minimum value to sell a share at (it is not required)
Watered stock is?
Stock sold for less than the par value. Shareholders who buy watered stock are liable to creditors of the corp.
How long is a stock subscription irrevocable for pre incorporation?
six months
Preemptive rights allow what
The person to maintain their percentage of ownership when new shares issue
Who can authorize dividends?
Directors unless would cause insolvency
Must every corp hold an annual meeting?
Yes.
Special meetings are for?
Voting on fundamental changes
Notice for meetings must occur?
no fewer than 10 days and no more than 60 days before the meeting
Directors must set a record date when?
no fewer than 10 days before the meeting and no more than 70 days before the meeting
A proxy must be?
In writing, signed by the shareholder as of the record date, sent to the secretary, state that it authorizes another to vote, and cannot be valid for more than 11 mos
Quorum of shareholders is?
A majority of the outstanding shares, not shareholders
Necessary vote of shareholders is?
When more of the votes of a shareholder quorum for the proposal exceed the votes against
Shareholders can inspect corp records so long as they?
State a proper purpose
Shareholders can sue
Directly or derivatively (on behalf of the corp)
Derivative law suits require
Claim made in corp name, contemporaneous stock ownership, was a shareholder at time of harm, fairly represents interests of the corp, and made a demand to board unless it would have been futile
A controlling shareholder may owe a duty to a minority shareholder if
There is sale of stock to an outsider or lotter, the shareholder is transacting with the corporation
For directors, a quorum is
A majority of the total number of directors
Directors may dissent and avoid liability by
Entering dissent in minutes of the meeting, filing a written dissent before the meeting adjourns, or provide a written dissent to the secretary
Directors and officers owe what to the corporation?
A fiduciary duty of care (duty of care and duty of loyalty)
The business judgment rule is?
Absent fraud, illegality or self dealing, courts will not disturb good-faith business decisions
A self-interested transaction may be upheld if?
It is ratified by a majority of disinterested directors or shareholders.
Fundamental changes require approval of?
Both shareholders and directors
Merger is
when two or more corps combine and one survives assuming the assets and liabilities of the others
Consolidation is
the combination of two or more corps when neither survives and a new one is created assuming the assets and liabilities
Involuntary dissolution can occur by?
Creditors showing a corp is not paying its debts, shareholders show the corp is wasting assets, the directors are committing fraud, or the directors and shareholders deadlock.
Appraisal rights are?
When a shareholder dissents from a fundamental change he can demand his shares to be purchased by the corp for FMV.
LLCs require filing ___ and its owners are called ____ instead of shareholders?
An operating agreement; Members.
What are goods?
Movable tangible property
What are rights to payment?
Instruments, chattel paper, accounts, payment intangibles
What is attachment?
An arrangement linking a debt to collateral, upon attachment interest becomes enforceable.Requires value given, the debtor to have rights, and either a security agreement or possession/control
What is required in a security agreement?
Identify collateral, shows inten tof debtor to be bound, and is in a tangible medium
Accessions are?
Goods that are united with another good but are identifiable. The security interest continuous in the accession.
Commingled goods are?
A good that is united but the identity of the good is lost. The security interest transfers to the larger good.
Proceeds are?
Whatever is exchanged for the collateral. The security interest in the collateral attaches to the proceeds automatically.
Perfection can occur by?
Filing, possession/control, automatic perfection, or alternate perfection systems (like for car registration)
Filing a financing statement can perfect all interests except those in?
Deposit accounts, cars, money, and letters of credit
Where must a financing statement be filed to perfect an interest?
For everything except interests in real property, filing is in the central filing office where the DEBTOR is located. This is the state of incorporation for a corporation or the principal residence of individuals. For real property interests, it is filed in the county where toe property is located.
Financing statements require what information to perfect an interest?
The names of the parties, the description of the collateral and if it is for real property, name of the record owner and describe the property.
What information is non essential to perfect but will cause the financing statement to be refused at the office?
Addresses of the parties and an indication of whether the debtor is an individual or a corporation.
A mistake in a financing statement will only affect perfection if it is?
Seriously misleading.
Financing statements lapse after ___ years but may be continued within ___ months before lapsing.
Five, Six.
A security interest in money can only be perfected by?
Possession
Interests in deposit accounts and letter of credit rights can only be perfected by?
Control
A PMSI in ____ will automatically perfect.
Consumer goods.
Priority between Perfected int v. perfected int? (Non-PMSI)
First in time to file OR perfect
Priority between perfected v unperfected? (Non-PMSI)
Perfected wins
Priority between two unperfected? (Non-PMSI)
first to attach or become effective
Perfected v Lien creditor?
Perfected wins
Unperfected v lien creditor?
Lien creditor wins unless the secured party has already filed a financing statement, the debtor has authenticated the security agreement, and the secured party hasnt given value yet.
Sec int v statutory lien
Statutory lien wins if the lien 1) is effective based on possession of the goods, and the lien is for payment or performance of an obligation furnished in the ordinary course of business.
Sec party v sec party over future advances?
First to file or perfect
A buyer takes subject to a perfected security interest unless?
The secured party authorizes the sale is free and clear, the buyer is in the ordinary course of business, or it is a consumer to consumer buyer.
What is a buyer in the ordinary course of business?
A buyer who buys goods from a merchant, in the ordinary course of that business, in good faith and without notice of the security interest.
What is a consumer to consumer buyer?
Buyer buys consumer goods, for their own consumer use, froma consumer seller, without knowledge of the security interest. (This does not apply if there is a financing statement covering the goods).
A buyer takes subject to an unperfected interest unless?
The buyer gives value, receives the collateral, and doesnt know of the interest.
PMSI v lien creditors
Same as usual, if perfected PMSI if unperfected lien creditors, but a 20 day grace period to perfect where the interest is considered perfected.
PMSI v sec interests
PMSI in goods other than inventory take priority over all other interests no matter whne perfected if perfected within 20 days (otherwise its first in time to file or perfect).
PMSI in inventory has priority over all other interests in that inventory when?
If the PMSI is perfected before delivery and the holder sends an authenticated notification to the other secured parties.
PMSI v PMSI
Seller beats lender, otherwise apply the first to file or perfect rule.
Are leases never governed by UCC art 9?
No, only true leases. Look to whether the “lease” is actually a secured transaction.
How are proceeds distributed after disposition?
1) reasonable expenses for collection/enforcement, 2)pay the debt to the foreclosing party, 3)pay subordinate interest if there is a formal demand, 4) return the surplus to the debtor. Senior security interests survive in the collateral!.
To change domicile a person must?
Abandon previous domicile, establish a physical presence in new domicile, and show an intent for an indefinite time to stay
A corporation is domiciled where?
In its state of incorporation
What are the 3 approaches to choice of law?
Vested rights, governmental interest analysis, and most significant relationship
What is the vested rights approach?
The law of the place where the legal right vested is applied, that is where the last act takes place necessary to give rise to the cause of action.
What is the government interest analysis?
A law applies if it would promote the policies and purposes of the law. First determine if there is a false (only one state interested) or a true (both states are interested) conflict. If false, apply the law of the interested state, if true, then apply the law of the forum state.
When is a state interested in applying conduct-regulating laws?
When the wrongful conduct is within their territory or when a state domiciliary is injured anywhere.
When is a state interested in applying loss-shifting laws?
When doing so would benefit a state domiciliary.
What is the most significant relationship test?
Apply the law of that state that has the most significant relationship, consider if application furthers the policies of the states, systemic interests such as predictability and simplicity, and whether justified expectations of the parties will be protected. If unclear which has a more significant interest, apply the law of the forum state.
What is depecage?
When differest states laws apply to different issues in the case. Not allowed under vested rights, is allowed for the other approaches.
What is renvoi?
When the court applies the entire law of another state including choice of law rules. This only applies to property rights in land.
What law applies to tangible moveable property?
The choice of law int he contract OR the place where the property was located at the time of the transactions.
What law applies to intangible property?
The law of the state where it was created.
What law applies to immovable property at death?
The law of the situs.
What law applies to moveable property at death?
The decedent’s domicile unless there is a choice of law provision in the will.
Validity of a marriage is based on?
The law where the marriage was celebrated
Movable marital property is governed by?
The law of the state where the couple was domiciled at the time the property was acquired.
If community property is moved to a non-community property state what is it considered?
Still community property.
Will a court enforce penal laws of another state?
No.
When can a court refuse to enforce a foreign law?
If it violates a fundamental and strongly held public policy.
Procedural issues are?
Always governed by forum law.
Parol evidence rule is considered?
Substantive
Privilege is considered?
Procedural.
Damages are considered?
Substantive but caps are procedural.
Statutes of limitation are considered?
Procedural unless inextricably bound up with a substantive right.
Fed courts in diversity apply?
The substantive law of the state in which it sits and FRCP. Note, SoL are substantive for Erie purposes. A state law is substantive if it is outcome determinative. A federal court in diversity Must apply the choice of law rules of the state in which it sits (unless transferred from a proper venue).
What is the last in time rule?
The later of two valid final judgments is entitled to full faith and credit.
If a court has personal jx over one spouse, are its determinations over incidents of divorce entitled to full faith and credit?
No, only incidents of divorce determinations from bilateral divorces are entitled to full faith and credit
In intestacy, what is the spouses share if the decedent is survived by: spouse and shared descendants?
Spouse takes entire estate
In intestacy, what is the spouses share if the decedent is survived by: Spouse + parents but no descendants
Spouse takes 300k and 75% of the remaining estate
In intestacy, what is the spouses share if the decedent is survived by: Spouse + shared descendants + spouse’s nonshared kids
Spouse takes 225k and 50% of the remaining estate
In intestacy, what is the spouses share if the decedent is survived by: Spouse + non-shared kids
Spouse takes 150k and 50%
In intestacy, what is the spouses share if the decedent is survived by: Just spouse
Spouse takes everything.
Per Stirpes is when
Surviving child stands in place of deceased parent
Per capita with representation is when?
the estate is divided at the first level with surviving members and the shares of those who are deceased in that generation drop down to the surviving issue at the next generation. If deceased member with no issue, they get no share.
Per capita at each generation is?
Estate divided at first level with surviving member then remaining is pooled and redivided to issue at next level.
Can you disinherit a child?
Yes in a properly executed will.
What is required to execute a will?
Capacity (over 18), singed writing, witnesses, and testamentory intent.
What types of presence is acceptable for witneses?
Most require line of sight presence, others allow conscious presence.
What is the purge theory?
A witness with an interest in the will will have his interest purged in excess of what the witness would take by intestate succession. UPC no longer follows the purge theory.
What happens if there is a failure to satisfy formalities of will execution?
at common law the will is invalid, modern view allows substantial compliance, i.e. if there is clear and convincing evidence that the document was intended to be a will it will be admitted to probate.
What is a holographic will?
An informal, unwitnessed will. Must be signed to be valid. At common law any non testator marking invalidate, at UPC the material provisions must be written by the testator. There must be intent!
How can a will be revoked?
Any time until death by subsequent instruments that are inconsistent or expressly revoke the prior will, physical acts with intent to revoke, or operation of law (divorce revokes provisions in favor of former spouse).
How does revoking a codicil affect a will?
It revokes only the codicil and revives the original will.
What is dependent relative revocation?
If a will is revoked on the basis of mistake in law or fact, the DRR will revive the revoked will.
How are wills constructed?
Plain meaning unless the will states otherwise.
A will can incorporate a document if?
The document exists at the time of execution, the testator intends the document to be incorporated, and the document is described sufficiently to identify it.
What is an anti-lapse statute?
It prevents a gift from lapsing if there is a family relationship and the intended recipient is survived by issue.
What is the order for abatement?
Residual gift, General bequests to others, general bequests to family, specific bequests to others, specific bequests to family, specific bequests to spouses.
Ademption has what two rules?
Traditionally, the devise is extinct, under the UPC however, the testators intent is considered and the beneficiary may take replacement property.
What is a surviving spouses elective share?
A choice to take 50% of the decedents augmented estate.
What are the views on lifetime gifts to children?
Common law viewed them as satisfying a child’s intestate share, the UPC views them as satisfying intestate share only if that was declared in a writing.
If a child is unintentionally disinherited, what do they take?
If no other children, their intestate share, if other children,their share of that inheritance.
Undue influence requires:
Showing the beneficiary received a substantial benefit under the will, had a confidential relationship, and that the testator had a weakened intellect at time of execution.
A no contest clause is?
Unenforceable under the UPC.
An agency relationship is created by
Assent, benefit and control.
An agent requires ____ capacity.
Minimal.
Do you need a writing or consideration to form an agency relationship?
No.
A principal is liable to third parties for contracts of the agent if there is
Authority: actual )express or implied) or apparent Or Ratification.
A principal is liable for an agents torts if?
Within the scope of agency.
An agent can be liable as a party to a contract if:
The identity of the principal is not disclosed.
Agents have what duties?
Duty of care and lyoalty.
Principals have what duties?
Duty not to interfere and duty to indemnify A for losses in scope of agency.
What is a partnership?
When two or more persons or entities intend to carry on a for-profit business as co-owners. Do NOT need intent to form a partnership.
Do you need a written agreement to form a partnership?
No.
What is the profit sharing test?
If there is profit sharing, there is a presumption that there is a partnership.
What is a partner by estoppel
A person will be treated as a partner if: there is a representation that the person is a partner, the person makes or consents to the representation, a third party reasonably relies on the representation, and the third party sufferes damages as a result.
Partners are ___ of the partnership
Agents
Partners owe duties of ____ and ___
Loyalty; Care.
A partner ___ transfer his or her rights in the partnership
Can. This does not cause dissolution or dissociation.
Property acquired by partners or partnership is presumed to belong to the ____
Partnership.
A new partner must get the consent of __ the existing partners.
All.
A ____ of partners must approve ordinary business decisions while ___ partners must approve matters outside the ordinary course.
Majority; all.
A partner ___ derive a personal benefit from the use or possession of partnership property.
Cannot.
A partner is ___ to the partnership for damages caused by wrongful dissociation.
Liable. A dissociation is wrongful only if in breach of provision of the partnership agreement or before the completion of the undertaking.
A partnership must indemnify a dissociated partner against all partnership liability incurred when?
Before or after the dissociation.
A partnership is ____ for a partners torts in the course of the partnership business
Liable
Partners are ____________ for all partnership obligations?
Jointly and severally liable. A judgment is first satisfied from the partnerhsips assets then the partners assets.
A dissociation from a partnership at will causes?
The partnership to dissolve.
Before winding up is complete, a partnership ____ resume carrying on its business as if dissolution had never occured.
May.
At formation, an LP must have
at least one general partner and one limited partner.
