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Family Law > Midterm Countdown > Flashcards

Midterm Countdown Flashcards

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1
Q

A spouse’s P2IGS are separate (not marital) property

A

P – PROPERTY acquired by either spouse PRIOR to the marriage

P – PERSONAL injury awards to one spouse during the marriage

I – Property INHERITED by one spouse during the marriage

G – GIFTS to one spouse only, from someone other than the other spouse

S – Property purchased with one spouse’s SEPARATE property

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2
Q

What is the first thing you check for when doing a family law analysis?

A

Jurisdiction rules

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3
Q

What are the factors in determining a Committed Intimate Relationship?

A

a. Cohabitation
b. Duration of relationship
c. Pooling of resources
d. Purpose of relationship – stable and marital like
e. Intent to be in a committed marital like relationship.
f. Holding out to the community
g. Property distribution at “dissolution?” WA courts ask – what would be fair? Other states: see statute or refer to contract principles.

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4
Q

What questions do you ask after a CIR analysis?

A

Did the CIR lead to marriage and, if so, does the jurisdiction backdate asset acquisition?

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5
Q

What are the factors for common law marriage?

A

i. check jurisdiction rules for any jurisdiction that could apply (domicile)
ii. No ceremony
iii. Benefits and obligations of being married
iv. Cohabitation
v. Correct public perception
vi. Hold out as married – rights and obligations
vii. Intent and agreement to be married – both parties or 1 and uncorrected

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6
Q

When a client asks about getting a divorce, what is the first question you have to ask?

A

Was there ever a marriage?

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7
Q

What constitutes a void marriage?

A

c. Void – no divorce because marriage never existed. See Annulment
i. Consanguinity – incest – check jurisdiction
ii. Bigamy (check state procedure rules)

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8
Q

What are the steps of the competing marriage analysis?

A
  1. Presume 2nd marriage is valid
  2. 1st spouse has burden to show 1st marriage is valid on procedural and substantive grounds. 1st spouse must show no dissolution where the spouses were domiciled.
  3. 2nd spouse can disprove 1st marriage by finding dissolution in any jurisdiction and 2nd marriage ceremony was after dissolution
  4. If 2nd marriage is void then Bigamy - check putative spouse doctrine
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9
Q

What if there was neither a marriage nor a CIR? What are the next steps?

A

Check contract principles / express or implied contract / unjust enrichment

a. Clean hands doctrine

b. What was the intent of the parties?

c. What were the terms of the contract?

d. Can’t contract for sex

e. Check mutual benefit – defense for unjust enrichment

f. Unjust enrichment only applies to specific transactions, not to relationships

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10
Q

What is a voidable marriage?

A

i. Age, not of sound mind, duress – cured by continuing the marriage after
ii. Fraud – going to the heart of the marriage
iii. If cured – divorce
iv. If not cured - annulment

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11
Q

Who can challenge if a marriage is voidable or not?

A

Only the parties to the marriage can challenge whether the marriage is voidable or not.

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12
Q

What is a putative spouse?

A

An individual who believes in good faith that he or she is married and is afforded legal rights as a result of the individual’s reliance on the good-faith belief. Entitled to some of the spouse benefits at issue.

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13
Q

What are the steps of the putative spouse doctrine?

A

a. Check jurisdiction – not recognized everywhere.

b. Marriage ceremony with valid date (valid = check void/bigamy)

c. Good faith belief – check jurisdiction for test: subjective AND objective

i. Subjective – check for suspicions?

ii. Objective – what would a reasonable person believe based on facts

d. No recognized marriage, equitable remedy only

e. Property rights as if marriage was valid

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14
Q

What kinds of divorce are available?

A

Fault and no fault. Check the jurisdiction.

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15
Q

What are the steps in determining a fault divorce?

A

a. Check jurisdiction for which faults (if any) are recognized in this jurisdiction

b. Adultery – Majority of states require actual proof

c. Cruelty – physical or emotional (some states) requires proof of harm, harassment, false allegations, ridicule, abuse of relatives. (check jurisdiction for rules or precedents)

d. Desertion – Abandonment without consent or justification, statutory period

i. Constructive desertion – behavior that abandons (refusing sex)

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16
Q

What are the defenses to a fault divorce?

A

Condonation, Collusion, Connivance, Provocation, and Recrimination

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17
Q

In terms of defenses to fault divorces, what is condonation?

A

Forgiveness

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18
Q

In terms of defenses to fault divorces, what is Collusion?

A

Agreement to false claim to facilitate the divorce.

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19
Q

In terms of defenses to fault divorces, what is connivance?

A

Planning fraud to facilitate divorce or setting a trap

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20
Q

In terms of defenses to fault divorces, what is provocation?

A

Innocent spouse provoked the fault

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21
Q

In terms of defenses to fault divorces, what is recrimination?

A

Both spouses are at fault

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22
Q

Where is no-fault divorce available?

A

In all 50 states

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23
Q

What are the steps of a no fault divorce analysis?

A

a. Establish Jurisdiction – domicile for 90 days

b. Jurisdiction Rules – Irretrievable breakdown / differences and/or living separate & apart

c. 302 – Irretrievable breakdown or irreconcilable differences

i. Living separate and apart for 6 months
ii. Serious marital discord that makes 1 party no longer want to be married

d. Some states: having lived separate and apart for statutorily required period, typically 6 months if voluntary 12 months involuntary (1 party doesn’t want divorce)

e. 305 – mutual agreement or hearing, if hearing:

i. Court can find irreconcilable differences or
ii. Court can order counselling/conciliation then determine if irreconcilable

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24
Q

How is marital property distributed?

A

Between separate and community property

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25
Q

What counts as separate property?

A

a. Property acquired prior to marriage (or CIR)
b. Inheritance or gift during marriage

26
Q

What counts as separate property that has become marital property?

A

Appreciation and transmutation into marital property

27
Q

How can appreciation be viewed as marital property?

A

i. Passive appreciation on separate property is separate property
ii. Active appreciation from non-owner traced to unique substantial actions is marital property

28
Q

What are some different possible jurisdictional rules as to how property actively appreciates?

A

i. Check jurisdiction
ii. Equity earned during marriage is community property or
iii. Equity earned is separate property unless it was active appreciation or
iv. Equity earned on separate property is separate property.

29
Q

How can something that is separate property become marital property?

A

Commingled or used for the benefit of the marriage

30
Q

What is it called when there is a lack of intent to transmute property?

A

Tracing out

31
Q

What is defined as marital property?

A

All income or property acquired during the marriage, including vested future income

32
Q

What is community propert?

A

50/50 division of marital assests, unless there is a pre-nup

33
Q

What do state consider as giving to the marriage in terms of equitable distribution?

A

i. separate financial assets
ii. income/earnings
iii. Homemaker, childcare, unpaid/low paid labor for family business
iv. Unpaid contributions that increased assets/income of the other party
v. Educational or economic opportunities forgone
vi. Management of marital assets

34
Q

What do some states see as detractions from the marriage?

A

i. Economic misconduct
ii. Faults recognized by the jurisdiciton

35
Q

What are the three kinds of recognized spousal support?

A

Traditional, rehabilitative, and reimbursement

36
Q

What are the factors courts look at to determine traditional spousal support?

A

i. Baseline eligibility: 20 to 25 year marriage
ii. Is there a need for support based on assets received from marital estate division? Is the income insufficient to maintain lifestyle without dissipation of assets?
iii. Physical health, age, emotional health
iv. State of marital distribution for each party from marital estate
v. Earnings potential of asking party – education, skills, training, work experience, time away from workforce
vi. Ability to become self sufficient and the time necessary to achieve self sufficiency
vii. Ability to enjoy the same standard of living
viii. Tax consequences
ix. Prenup
x. Agreement between the parties regarding financial contributions in exchange for future compensation or financial contributions.

37
Q

What are the factors courts look at to determine rehabilitative spousal support?

A

i. Physical health
ii. Age
iii. Emotional health
iv. State of marital distribution for each party from marital estate
v. Earnings potential of asking party – education, skills, training, work experience, time away from workforce
vi. Ability to become self-sufficient and the time necessary to achieve self sufficiency
vii. Ability to enjoy the same standard of living
viii. Tax consequences
ix. Prenup

38
Q

What is rehabilitative spousal support?

A

Temporary due to economically vulnerable position until expected independence

39
Q

What are the factors courts look at to determine reimbursement spousal support?

A

i. Agreement between the parties regarding financial contributions in exchange for future compensation or financial contributions.
ii. Mostly look at marital estate distribution.
iii. Loss of income due to forgone education and experience.
iv. The loss of income for spouse who gave up education, skills
v. Support of other spouse.

40
Q

What are the elements of a voidable marriage?

A
  1. Only during the marriage
  2. Only the two parties to the marriage
  3. May legally challenge the validity of the marriage prior to the curing of the basis for vodability
  4. Either party can challenge the validity of the marriage

Underage person marries, if the person becomes of age, then no longer voidable

41
Q

What are the factors courts look at when determining child support?

A

a. What is the net income of each parent?

b. What is the % of the total coming from each parent?

c. How many children do these 2 parents share?

d. What is the total amount of the shared child support obligation?

e. What is the share of the total that each parent is obligated to pay?

f. What is the % of the total obligation allocated to the % of time spent with each parent?

g. What is the difference between the $ allocated to parent 1 in prior step and the $ allocated to parent 1 in step 5. This amount is paid to the other parent.

h. Children should enjoy the same standard of living in each home

i. Sometimes, the custodial parent pays child support to the non custodial parent

j. Visitation rights are not tied to child support obligations.

k. Child support can not be negotiated between parents

42
Q

What is required when a parent seeks a modification of child support?

A

Substantial material change circumstance that will affect ability to pay child support (this also applies to spousal support)

43
Q

Was a loss in income foreseeable at the time of the original order?

A

i. Yes – no modification

ii. No – was the change voluntary or involuntary

  1. Voluntary: motivated to reduce support = no modification
  2. Voluntary: good faith = best interest analysis

a. How will child benefit overall?

b. Is it temporary? Will long term income increase?

c. Temporary decrease in payment amount is possible

  1. Involuntary: modification is possible by likely temporary
44
Q

Was an increase in income foreseeable at the time of the original order?

A

i. Yes – no modification (blame the lawyer for not anticipating it)

ii. No – modification if the child has increased need

45
Q

What is the first question we always ask in Family Law?

A

What jurisdiction am I in?

46
Q

What are the requirements for getting married?

A

i. Parties must agree to marry

ii. Must be generally competent to marry

iii. Must be eligible to marry

iv. Must go through state-required forms

47
Q

How can you end a valid marriage?

A

Divorce/dissolution

48
Q

What does it mean when a voidable marriage is self-correcting?

A

If the issue is self-corrected (ie if Jorge stopped sleeping with Blanca) then the legal basis
has been corrected and marriage is no longer voidable

49
Q

What is the rule/analysis for common law marriage?

A

i. *is it recognized in where I am claiming a valid marriage? –if no– STOP

ii. Both parties INTEND to be married or at least one party did and the other party never contradicted

iii. The parties COHABITATED for a sufficient duration

iv. The parties HELD THEMSELVES OUT AS A MARRIED COUPLE

v. The parties never corrected PUBLIC PERCEPTION that they were a married couple

  1. Evidence to establish these includes sharing names, wearing wedding ring, same address, correspondence using marital monikers, accepting gifts
50
Q

What is the legal effect of a common law marriage?

A

If a common law marriage exists then it is a valid marriage

51
Q

What are the steps of a valid marriage analysis?

A

i. General Rules

  1. Marriage is void if there has been bigamy or incest
  2. A voidable marriage is valid until one of the parties challenges it

a. In a voidable marriage, only the parties to the marriage can annul

b. In a void marriage, any interested party can
ii.

Analyze

  1. Example: Michael and Amy have a voidable marriage because the parties engaged in fraud, never consummated, and don’t live together
52
Q

What are the steps for the competing marriage analysis?

A

i. Second Marriage is presumed valid

ii. First wife bears the burden of proving her marriage never dissolved

  1. Must only demonstrate in the places where either party lived

iii. Then, burden shifts to 2nd wife to show that the first marriage WAS dissolved

53
Q

What is the putative spouse doctrine?

A

i. One whose marriage is legally invalid but who has engaged in:

  1. A marriage ceremony or solemnization, on the
  2. Good faith belief in the validity of the ceremony (no reason to suspect there was
    anything wrong with your marriage)

ii. Does not make you married, just looks to give equitable distribution as if you were
married.

54
Q

What is the Committed Intimate Relationship (CIR) Test?

A

i. Not a common law marriage and does not have the same legal effect

ii. Parties must first meet 5 factor test:

  1. Continuous Cohabitation: living together for an uninterrupted period of time
  2. Pooling of resources: commingling of assets
  3. Duration of the relationship: has to be of a certain length as determined by the court
  4. Intent of the Parties: to be in a marital like relationship but not in a marriage
  5. Purpose: shared goals
55
Q

When is fault divorce granted?

A

i. Granted divorce only where one and only one of the spouses could be said to have
flouted the bonds of marriage in instances of adultery, cruelty, or desertion (willful or constructive)

56
Q

What is adultery?

A

a. If there is demonstrated attraction between the two parties plus an inclination to engage in adultery plus opportunity – that is circumstantial evidence establishing adultery in some states

b. Attraction + inclination + opportunity = assumed adultery

c. Actual proof for majority of states, opp & intent in minority

57
Q

What is cruelty?

A

Emotional and or physical harm or abuse (not all states recognize emotional abuse). Example: harassment etc.

58
Q

What is willful desertion?

A

Physical exiting the household, providing support, meeting the marital obligations

59
Q

What is constructive desertion?

A

Remain in household but you’ve stopped
engaging in the marital duties (financial support, sex with spouse)

60
Q

What are the steps of a no-fault divorce analysis?

A

i. Parties agree to divorce

ii. Irretrievable breakdown/irreconcilable differences/ voluntary or involuntary step

  1. (can’t allege both irretrievably broken AND living separate and apart)
  2. Irretrievable Breakdown (IB)

a. Is there a court hearing finding of such?

  1. Irreconcilable Differences? (ID)

a. Is there a required separate period to demonstrate irretrievable breakdown or irreconcilable differences?

  1. Voluntary or involuntary step

a. In which parties demonstrate that they have lived separate and apart for the statutorily required time

b. Can’t also allege IB or ID

61
Q
A

Family Law (1 decks)

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