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2022 MEE > OLD Family > Flashcards

OLD Family Flashcards

1
Q

Nonmarital property (NMP)

A

assets acquired before marriage or acquired during marriage by gift, descent or devise.

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2
Q

MP

A

all property acquired during marriage

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3
Q

NMP can become MP if

A

marital funds contributed to it

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4
Q

Increase in value of NMP can count as MP if

A

if it resulted from either spouse’s effort.

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5
Q

Retirement funds as MP

A

Yes if acquired during marriage

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6
Q

Modification of a property division award

A

Not modifiable

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7
Q

Post-separation property in property division – MP?

A

MP in IL

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8
Q

Spousal support is awarded when

A

one spouse cannot support himself with his own employment

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9
Q

Spousal support can be discharged in bankruptcy?

A

false

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10
Q

Spousal support can be waived?

A

Yes. it can be waived for other consideration (e.g. waive maintenance in exchange for the house)

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11
Q

5 Types of spousal support

A
  1. lump sum, 2. permanent, 3. durational,4. rehabilitative, 5. reimbursement
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12
Q

Permanent alimony is awarded when

A

awarded to compensate for the lost earning capacity or benefits conferred during the marriage.

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13
Q

Durational alimony is awarded when

A

awarded to provide a party with economic assistance for a limited time following a short-term marriage. Typically cannot exceed the length of the marriage.

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14
Q

Rehabilitative alimony is

A

temporary alimony awarded to help improve a spouse’s earning capacity

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15
Q

Reimbursement alimony is awarded when

A

a spouse made sacrifices during the marriage that resulted in a reduced standard of living. It is based on past contributions rather than present or future needs.

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16
Q

Palimony may be awarded to

A

unmarried partner who cohabitated in a long, stable relationship. © IL does not recognize palimony.

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17
Q

To seek modification of spousal support, a party must establish

A

A significant change in the circs of the recipient’s needs or financial abilities of the payor.

Payor cannot take on new obligations prior to entering into a separation agreement and later claim change of circumstances to reduce the award

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18
Q

Modification of spousal support

  • when the recipient remarries
  • when the recipient cohabitates with a non-family member
A

If remarries, support may be terminated

If cohabitates, support may be modified if the recipient’s needs decreases as a result of cohabitation

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19
Q

Termination of spousal support upon payor’s death

A

Terminated. Usually not included as a liability of the deceased’ estate, unless specified.

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20
Q

Alimony pendente lite definition

A

alimony paid during the pendency of the divorce litigation

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21
Q

Alimony pendente lite does not terminate when

A

cohabitation of the recipient spouse with a nonfamily member

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22
Q

Family expense statute

A

A creditor may sue either spouse for payment of necessaries

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23
Q

Ex-parte divorce jurisdiction

A

A court may grant divorce to one spouse even if it doesn’t have PJX over the other spouse. The court does not have JX to address property division, spousal support, or child support.

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24
Q

Child support generally

A

Both parents, regardless of their marital status, are legally required to support their minor children.

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25
Q

Applicable law when a state has personal jurisdiction over an out-of-state parent for child support actions

A

UIFSA

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26
Q

Under UIFSA, court obtains personal jurisdiction when 6 circumstances:

A
  1. Personal service;
  2. Consent of out-of-state parent;
  3. Residency: Past residency with the child in that state;
  4. Directed/Caused: Out-of-state parent directed or caused child to reside in that state;
  5. Sex: Out-of-parent had sex that may have conceived the child in that state; or
  6. Registry: Out-of-state parent asserted parentage via putative father registry in that state
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27
Q

Child support after father’s death?

A

child may inherit from father’s estate if paternity proved before death.

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28
Q

Nonbiological father may be required to pay child support when ∑ 3

A
  1. Representation–husband represented that he would provide for the child
  2. Reliance–wife relied on the representation; and
  3. Detriment–wife suffered economic detriment as a result (e.g. loss of opportunity to obtain child support from bio father)
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29
Q

Two methods of calculating child support:

A
  1. Income-shares model

2. Percentage-of-income model.

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30
Q

Modification of child support is allowed when

A

a substantial change in circumstances regarding the child’s needs or parents’ financial situation.Modification only applies to prospective payments.

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31
Q

Modification of child support when a spouse voluntarily reduces income

A

Courts will impute an income amount unless change was made in

(1) good faith and there’s
(2) no hardship to the child

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32
Q

Child support can terminate when

A
  1. child reaches the age of majority 18 or
  2. is emancipated

An employable child’s right to support terminates when failure to comply with reasonable parental demands.

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33
Q

Modification of child support:

rules for jurisdiction

A

the state that issued the initial child support order has continuing exclusive jurisdiction. unless exceptions.

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34
Q

The state that issued the initial child support order has continuing exclusive jurisdiction to modify, unless 2 exceptions

A

The state that issued the initial child support order has continuing exclusive jurisdiction.

  1. Parties (both parents) and the child no longer reside in that original state; OR
  2. Parties expressly agree to permit another court to exercise JX.
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35
Q

Applicable law that governs child custody/visitation issues

A

UCCJEA

36
Q

Jurisdiction under UCCJEA

A

Adjudication (Entering or modifying custody/visitation orders) under UCCJEA requires subject matter jurisdiction

37
Q

5 types of subject matter jurisdiction under UCCJEA

A
  1. Home state jurisdiction;
  2. Significant-connection jurisdiction;
  3. Default jurisdiction;
  4. Exclusive-continuing jurisdiction
  5. Temp. Emergency
38
Q

A court has initial home state jurisdiction if

A
  1. The state is the child’s home state OR

2. The state was the child’s home state in the past 6 months but one parent/guardian continues to live in it.

39
Q

Home state

A

state where child lived with a parent/guardian for at least 6 consecutive months prior to custody proceeding

40
Q

A court has significant connection jurisdiction if ∑3

A

(a) . No other state is home state
(b) . Child AND at least one parent has a significant connection to the state
(c) The state has substantial evidence regarding child’s welfare, training and relationships

41
Q

A court has default jurisdiction if ∑2

A

(a) no other state has home-state or significant-connection jurisdiction; and
(b) state has appropriate connections to the child

42
Q

A court that makes initial custody ruling has exclusive continuing jurisdiction until 2 situations:

A

(1) Both parties no longer reside in that state or
(2) Child no longer has a significant connection to that state + no more substantial evidence connecting the child to that state.

43
Q

A court can assume emergency jurisdiction if ∑ 2

A

(a) Child is in danger and

(b) Need immediate protection

44
Q

Standard for determining child custody

A

best interests of the child

45
Q

Factored considered in determining child custody:

A

parent’s role (primary caretaker), older child preference, siblings, domestic violence

46
Q

Legal parents are presumptively entitled to custody against third parties unless 2

A
  1. parent is unfit or

2. parental custody would be detrimental to the child or

47
Q

Visitation rights of a noncustodial parent

A

A noncustodial parent is allowed reasonable visitation with a minor child.

48
Q

A court can deny visitation by noncustodial parent if

A

if it would seriously endanger child’s wellbeing

49
Q

Visitation rights of an unwed bio father

A

Unwed bio father has a constitutional right to have contact with the child ONLY WHEN he demonstrates a commitment to parental responsibilities (participation in child-rearing or financial support).

50
Q

Modification of custody/visitation order is permitted if

A

there is a SUBSTANTIAL change in the circs that is UNFORESEEN at the time of the final judgment

51
Q

Modifying custody order:Relocation of a custodial parent and child

A

may qualify as substantial change in circs if there’s a legitimate and reasonable purpose for the move.

52
Q

Modifying custody order: Custodial parent lives with a partner

A

Custody change is generally NOT granted unless cohabitation adversely affects the child.

53
Q

Three types of marital agreement

A
  1. Premarital;
  2. Separation;
  3. Property-settlement
54
Q

Choice of law that governs premarital agreements:

A

Most states apply the law of the state with the most significant relationship to the agreement

55
Q

A premarital agreement is enforceable if ∑4:

A

Enforceable if ∑4:

(a) in writing and signed by the party being charged;
(b) full disclosure of asset and liabilities;
(c) agreement is fair (conscionable);
(d) voluntary.

Many states: The agreement must expressly state its applicability to divorce.

56
Q

To invalidate a premarital agreement under UPAA

A

UPAA requires clear and convincing evidence that the agreement was

(1) (a) unconscionable (unfair)
(b) without fair disclosure and
(c) didn’t/couldn’t have had adequate knowledge of the other’s assets and obligations; OR

(2) involuntary

Mediator misconduct may be grounds for not enforcing a separation agreement or property settlement agreement.

57
Q

Enforcing a premarital agreement AFTER a marriage is voided

A

enforceable only if it will avoid an inequitable result.

58
Q

Prenup: “Fair and reasonable” factors

A

look at both procedural and substantive fairness.

(1) agreement was obtained by fraud, duress, or undue influence, or
(2) mediator misconduct

-Substantively unfair if terms

59
Q

Prenup: Voluntariness factors

A

(1) time-pressure,

(2) opportunity to be represented by independent counsel

60
Q

Prerequisite to adoption

A

Before adoption may occur, the biological parents’ rights must be terminated.

61
Q

An unwed father can consent to terminate parental rights through conduct when he:

A
  1. Failure to register in the adoption registry or

2. Failure to demonstrate a commitment to parental responsibilities

62
Q

Involuntary termination of parental rights can occur when 5 situations

A 
Abuse/neglect,
Abandonment, 
Incapacity, 
Termination of rights over a sibling, 
Consent to an adoption is unreasonably withheld.
63
Q

Legal effect of adoption on parental rights

A

Adoptive parents have all the rights and responsibilities of legal parents

Biological parents no longer have visitation rights in most states

64
Q

Can you dissolve adoption?

If so, on what ground

A

Only permitted in some states in limited circumstances

(discovery of an undisclosed mental or physical illness).

65
Q

Can a parent withdraw consent to adoption

A

Only with court approval, before the final decree.

66
Q

putative spouse

A

Under this doctrine, a party who
1. participated in a ceremonial marriage and
2. believes in good faith that the marriage is valid
may use state’s divorce provisions if the marriage is later found void due to an impediment

67
Q

Effect of putative spouse doctrine

A

although the claim does not result in a divorce, party may obtain equitable relief through maintenance and property

68
Q

Separation agreement & property settlement agreements enforceability

A

a court generally will enforce spousal maintenance and property division provisions so long as the agreement is not unconscionable or based on fraud

To invalidate, a party must show

  1. unconscionability or
  2. fraud.
69
Q

A marital contract is unconscionable when

A

when it is so unfair to one party that no reasonable person in the position of the parties would have agreed to it.

70
Q

Modification of child support after divorce after father discovers non-paternity

A

Traditionally, not modifiable because courts cite child’s best interest as reason to deny admission of evidence of non-paternity or to deny a motion to disestablish paternity.

Some courts disestablish paternity and terminate support

71
Q

In evaluating adoption dissolution claims, courts consider

A

length of the relationship,
child’s needs,
parent’s motives

72
Q

A statutory marriage requires

A
  1. Marriage license and

2. Ceremony.

73
Q

Marriage license is NOT issued when 4

A
  1. already married
  2. closely related
  3. marriage is a sham
  4. lack of capacity to consent
74
Q

A common law marriage requires ∑ 4

A
  1. Agreement that parties presently intend to be married
  2. Cohabit as married
  3. Capacity to marry (mental and legal)
  4. Hold themselves out to public as married
75
Q

Three ways to end a marriage

A
  1. annulment
  2. divorce
  3. death
76
Q

Definition of annulment

A

Annulment voids a marriage if an impediment exists at the time of the marriage

77
Q

Void marriage vs. voidable marriage

A

Void marriage does not require judicial decree.

Voidable marriage requires judicial decree.

78
Q

Impediments in a voidable marriageAFIII

A

valid until judicial dissolution:

(1) age
(2) fraud/duress
(3) intoxication
(4) impotence
(5) lack of marital intent.

79
Q

Who can seek annulment based on age as an impediment?

A

Only a minor/guardian can seek annulment based on age, unless that minor reached 18 and continued to cohabit.

80
Q

Impediments in a void marriage

A
  1. Prior existing marriage
  2. Incest
  3. Mental incapacity

Removal of an impediment makes the marriage still makes the marriage voidable

81
Q

Bases for a fault-based divorce (ABCD HII)

A

Adultery, bigamy, cruelty, desertion, habitual drunk, imprisonment, institutionalization

82
Q

To claim adultery as a ground for a fault-based divorce

A

must show 1. opportunity and 2. inclination by the alleged cheater

83
Q

To claim cruelty as a ground for a fault-based divorce

A

must show a course of abusive conduct that makes cohabitation unsafe

84
Q

To claim desertion as a ground for a fault-based divorce

A

must show one spouse 1. voluntarily left the house with 2. the intent to remain apart permanently

85
Q

Bigamy definition

A

one party knowingly marries while there’s a pre-existing marriage

86
Q

Requirements for a divorce

A
  1. residency (at least one party must be a resident)

2. no-fault or fault-based marriage

87
Q

Choice of law that governs premarital agreements:

A

Most states apply the law of the state with the most significant relationship to the agreement

2022 MEE (11 decks)

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