Midterm Flashcards
Age of Capacity
- The minimum age below which a young person may not marry - commonly set at age 14
KSA 23-2505
Can be 15 with consent, 16 and up have to have consent of legal guardians or judge if guardians are not available
Common Law Marriage
- A marriage created by the conduct of the parties rather than through a formal ceremony. Creation usually requires agreement, cohabitation, and a reputation in the community as husband and wife
- Created by the conduct of the parties in the absence of a formal ceremony
- modern definition is the voluntary union of two persons, as spouses, to the exclusion of others
Cohabitation
Two unmarried persons living together in an intimate relationship. The term applies to both same-sex and heterosexual couples.
Marital Unity
A common law principle espousing that upon marriage a husband and wife become one, resulting in the suspension of the wife’s legal identity
Incest
Unlawful sexual relations between persons who are closely related to each other; marriages contracted in violation of incest provisions are invalid
KSA 21-5604
Aggravated Incest: marriage to a person who is under 18 years old and is known to the offender to be related to the offender; engaging in acts with a person who is 16 or more years of age but under 18 years of age and who is known to the offended to be related to them
Postmarital Agreements
Similar to a premarital agreement, but entered after rather than before a marriage: contract entered into by prospective spouses in which they seek to establish their respective rights in the event the marriage fails; most commonly, provisions address spousal support and the allocation of property
No-contact Order
A protective order that prohibits someone from having any contact with the party they have abused
Restraining Order
a court order directing a perpetrator to refrain from committing further acts of domestic violence against the party seeking protection from abuse; may also protect the children
Stay-Away Order
a court order, pursuant to an abuse prevention law, requiring the perpetrator to keep away from the victim’s home or from the places where the victim regularly goes
Procedural Fairness
Fairness of the parties in their treatment of one another in the process of negotiating an agreement
A near universal rule is that for a premarital agreement to be enforceable, the parties must have entered into it freely and with full knowledge of the other spouse’s financial circumstances; if a court determines that in the course of negotiating the agreement one party did not treat the other fairly, such as by not fully disclosing assets, it may invalidate the agreement
Substantive Fairness
Fairness of the actual terms of an agreement
Courts in most jurisdictions will review the actual terms of the agreement to see if they are fair; fairness can be measured as it existed at the time the contract was executed, or as it exists at the time of performance or both
Second Glance/Chance Doctrine
review by a court if the terms of premarital agreement to determine whether they are fair as of the time of enforcement
Violence Against Women Act
A federal law providing protection to victims of domestic violence and funding or antiviolence programs
Void/Voidable Marriage
Void - A marriage that is without any legal effect from its inception; a void marriage does not require a decree of annulment to invalidate it.
Voidable - A marriage that is considered valid unless and until it is declared invalid by a decree of annulment
Child Support
the duty of financial support owed by a noncustodial parent to their minor children and to children over the age of majority in limited situations, such as in cases of disability
Recrimination
a divorce defense that prevents a divorce from being granted on the basis that both parties are guilty of martial misconduct; may be ameliorated by the doctrine of comparative rectitude
Tender Years Presumption
the traditional custodial assumption that children of a young age should be raised by their mothers
Primary Caretaker
the parent who has been mainly responsible for the day-to-day care and nurture of the child
Child Support Guidelines
mandated by federal law, guidelines employing numeric criteria used to calculate the amount of child support to be paid by the noncustodial parent; under certain circumstances, deviations from the resulting amount may be allowed
Imputed/attributed Income
the attribution of income to a party who is deliberately unemployed or underemployed, based on earning capacity, for the purpose of establishing the amount of their support obligation
Emancipation
the point at which a child is no longer considered a dependent of their parents; generally occurs at the generally occurs at the age of majority or upon the occurrence of certain acts, such as marriage of the child
Transitional Assistance to Needy Families (TANF)
designed to help needy families achieve self-sufficiency. if parents apply for benefits, automatically referred to a IV-D Agency for Child Support services
Child Support Enforcement and Establishment of Paternity Act of 1974
the 1974 Child Support Enforcement and Establishment of paternity act required each state to develop a comprehensive child support program and to designate a single state agency - known as IV-D Agencies - to administer the program
Marriage Formalities
Age of Consent
- The age at which a young person becomes eligible to consent to their own marriage
Bigamy/Polygamy
- All states prohibit a person from having more than one spouse at a time
- The unlawful act of contracting a second marriage while one or both of the partners is already married to someone else
KSA 21-5609
(a) bigamy is any of the following:
(1) marriage within this state by any other person who has another spouse living at the time of such marriage
(2) marriage within this state by an unmarried person to a person known to such unmarried person to be the spouse of some other person; or
(3) cohabitation within this state after marriage in another state after marriage in another state or country under circumstances described in subsection (a)(1) or (a)(2)
(b) Bigamy is a severity level 10, nonperson felony
(c) It shall be a defense to a charge of bigamy that the accused reasonably believed the prior marriage had been dissolved by death, divorce, or annulment
Statute of Frauds
a rule requiring that certain kinds of contracts be in writing in order to be enforceable
Premarital Agreements
a contract entered into by prospective spouses in which they seek to establish their respective rights in the event the marriage fails; most commonly, provisions address spousal support and the allocation of property
Equal Protection Clause
a clause in the 14th amendment that prevents states from imposing arbitrary and discriminatory legislative classifications
Divorce
legal dissolution of a marital relationship, such thar the parties are no longer spouses
Marriage Restriction Laws
laws that prevent certain people, such as close relatives, from marrying each other
Ex Parte
a hearing that is held without prior notice to the other side due to the urgent nature of the proceeding or the harm that such notice would cause
Annulment
a decree establishing that spouses were never actually married because an impediment existed at the time the marriage was celebrated
Best Interest
the predominant legal standard for resolving custody disputes between parents; the standard is child-centered, focusing on the needs of the child rather than the rights of the parents
Marital Interest
Desertion
a fault ground for divorce; involves the voluntary, nonconsensual departure of one spouse without justification for a period of time defined by statute
Cruelty
a fault ground for divorce based on mistreatment of a relatively serious nature; cruelty generally can include either physical or emotional wrongdoing
Condonation
a divorce defense, the essence of which is that the plaintiff has forgiven the acts of martial misconduct upon which th9ie complaint for divorce is based
Collusion
agreement by a couple to obtain a divorce in avoidance of the fault principle that requires a guilty and an innocent spouse
De Facto Parent
an individual who has no biological relation to a child but who has functioned as a family member; must show that they resided with the child ad shared caretaking responsibilities with the consent and cooperation of the legal parent
Virtual Visitation
the use of electronic communication tools as a supplemental way for a child and a noncustodial parent to connect
Title IV-D Agency
the 1974 Child Support Enforcement and Establishment of paternity act required each state to develop a comprehensive child support program and to designate a single state agency - known as IV-D Agencies - to administer the program
assistance in locating absent parents, establishment of child support awards, periodic review of awards, enforcement of support awards, establishment of paternity
Extraordinary Expenses
large, discrete expenditures that do not recur on a regular basis, as distinct from the day-to-day expenses of raising a child
Modification of Child Support
child support orders are not generally considered final judgments and may be modified. petitioner must show that there has been a change in circumstances that justifies and upward or downward revision. change was not foreseeable.
Change in Circumstances
a future event that arguably makes an existing order unfair and serves as the basis for a request for modification
Domestic Violence
abusive behavior toward someone with whom one is in a dating, familial, household, or intimate relationship/violence between partners who are in a relationship
Obergefell Case
- The well established constitutional rule that marriage is fundamental applies with “equal force to same-sex couples” based on four essential principles
- The right to personal choice regarding marriage is inherent in the concept of individual autonomy
- the right to marry is fundamental because it supports a two-person union unlike any other in its importance to the committed individuals
- safeguards children and families and thus draws meaning from related rights of childrearing, procreation, and education
- marriage is a keystone of our social order; there is no difference between same-and-opposite-sex couples with respect to this principle
Adultery
voluntary sexual intercourse between a married person and someone who is not their spouse; a fault divorce ground
Due Process Clause
a clause found in both the 5th and 14th amendments that protects persons from arbitrary or intrusive governmental actions. the clause provides both procedural protections and substantive rights
Unconscionability
when a contract is grossly unfair to one side; usually involves parties with a significant disparity in bargaining power
Legal Separation
a judicial decree permitting parties to live apart, usually for cause, without dissolving the legal relationship of spouses
Protective Order
In domestic violence cases, a court order to shield the victim from harm; although civil in nature, violation of these orders is a criminal offense in many states. A court order limiting discovery that is unreasonable or oppressive.
Vacate Order
a court order requiring a perpetrator of domestic violence to move out of the home that they share with the part who has been abused; vacate orders do not affect title to property
Temporary Order
an order made during the pendency of a legal proceeding; temporary orders are superseded by the judgement
Separate Maintance
similar to a legal separation, but here the essence of the action is a request for support
No-Fault Divorce
a divorce that is based in the breakdown of the marital relationship rather than on the marital fault of one spouse
Noncustodial Parent
a parent who has been divested of both legal and physical custody, but is still a legal parent with enforceable rights, such as visitation
Fault Divorce
a divorce that is premised on the marital fault of one spouse
Connivance
a divorce defense, the offense of which is that the plaintiff consented to the wrongdoing upon which their complaint for divorce is based
Joint/Sole Custody
Joint - as distinct from sole custody, the sharing of parental rights and responsibilities - can apply to legal or physical custody, or both
Sole - the vesting of custodial rights in one parent - can apply to legal custody, physical custody, or both
Legal/Physical Custody
legal - as distinct from physical custody, legal custody confers on a parent the authority to make major decisions related their child’s life; legal custody can be sole or joint
physical - as distinct from legal custody, physical custody refers to where a child lives a parent with physical custody usually maintains a home for the child is responsible for the child’s day-to-day care; legal custody can be sole or joint
Parent Locator Service
a federal or state agency that is responsible for locating absent parents in order to establish or enforce a child support award
Parenting Plan
a written agreement in which the parents detail how they intend to care for their children following a divorce
Contempt Proceedings
a proceeding against a party who is in violation of a court order; contempt proceedings can be either civil or criminal in nature. the purpose of a civil contempt actin is to obtain compliance with a court order, while the purpose of a criminal contempt cation is to punish a party for their noncompliance.
