Ongoing Family: Support Duties

Question 1

what are the two basic property systems

Answer 1

common law and communal property

Question 2

what is common law property system

Answer 2

whoever has the title owns the property - joint ownership is created by affirmative act only. disadvantages homemaker

Question 3

what does Oregon saw about common law property

Answer 3

wee have it – spouses not liable for each other’s debts

Question 4

what equitable remedies are available for common law property

Answer 4

separate estate in equity – express written trust

resulting trust–> other spouse contributed money, there was a common intention to share the property for benefit of both

constructive trust –> other spouse contributed money but with no common intent required, requires wrongdoing or unjust enrichment

Question 5

what’s an example of constructive trust

Answer 5

Stella and John were married, Stella used john’s money in her businesses and she managed the finances. she left him jack titties so court imposed constructive trust so he could get a cut since he contributed, even though they didn’t intend to share it all

Question 6

what is community property system

Answer 6

property accumulated during court of marriage is subject to division upon divorce. each have one half interest

Question 7

what’s the procedure for common law upon death of one spouse

Answer 7

-pass by will: inherit whatever spouse left them
-pass by intestacy: spouse gets 1/2 if no kids, 1/3 if kids

Question 8

what’s the procedure for community property upon death of one spouse

Answer 8

spouse already owns 1/2

Question 9

who has burden of proving the property is separate form marriage

Answer 9

the person saying it is

Question 10

what is quasi community property

Answer 10

if you acquired property in common law state and then move to a community property state and die there, it will be divvied up like community

Question 11

will the court get involved if a husband won’t buy his wife stuff she needs

Answer 11

nope not as long as they are married

Question 12

what is common law doctrine of necessities

Answer 12

common law doctrine that one spouse is liable of expenses of other spouse for necessities, no consent needed

Question 13

what does Oregon have as a creditor remedy

Answer 13

basically the exact same thing as doctrine of necessities for expenses of family

Question 14

what are the four kinds of marital k

Answer 14

1. pre nup
2. mid marriage agreement
3. reconciliation agreement
4. separation agreement

Question 15

what is a mid marriage agreement

Answer 15

A contract entered into regarding how the parties are acting in a marriage, or how to treat their property upon death or divorce

Question 16

what is a reconciliation agreement

Answer 16

entered into by parties on the precipice of divorce. The contract will define how the parties should act through the reconciliation, separation and how to divide property through a separation or divorce

Question 17

what’s a separation agreement

Answer 17

agreement entered into by ones who are married, but who have decided to live separately. The agreement may address terms that include alimony, personal and real property, child support, and custody arrangements

Question 18

what do we need for mid marriage agreement

Answer 18

k principles
- consideration (can be hard because already exchanging stuff)
- writing
-fairness when entered (disclosure, voluntary)
- fairness at enforcement

Question 19

can you contract with wife to do your hospice care in return for leaving her inheritance

Answer 19

no. wife is obligated to provide nursing-type care for her spouse. Contracts for care are then void for public policy. The court says they apply equally to both genders

Question 20

what is the policy behind spouses not being able to contract for care with each other

Answer 20

1) To enforce a contract would demean the basic idea of marriage.
(2) Promotes marital discord.
(3) Swamp the courts.
(4) Family Privacy.

Lacks consideration when the provided support is a duty of the marriage.

Question 21

what can spouses not k for

Answer 21

duties of marriage. home labor. sex. cohab

Question 22

will court enforce a pre nup that seems fine at the time of marriage but became super unfair by the time of divorce

Answer 22

no – the terms must be fair and equitable at the time of execution, and the terms must not be unconscionable at the time of dissolution.

Question 23

what do we need for pre nup

Answer 23

• consideration (not an issue because either parties are relinquishing rights or marriage is the consideration)
  -writing
  -fairness

Question 24

what can parties pre nup to

Answer 24

alimony, property division

Question 25

what can parties not pre nup to

Answer 25

-any violation of public policy, family privacy, or criminal statute
-essentials of the marriage
- stuff that is too private for court to want to get into

Question 26

what kind of clauses bother courts in pre nups

Answer 26

clauses that
-encourage divorce
-foreclose divorce
-concern child custody/support
-waiver of spousal support that would make one indigent
-limit remedies for DV

Question 27

what if someone is dumbo and enters bad pre nup

Answer 27

Absent fraud, misrepresentation, or duress, spouses should be bound by the terms of their agreements.

Question 28

what is UMPAA framework for pre nup

Answer 28

-burden of proof is with party seeking enforcement
-access to counsel is required. other must pay if needed
-no enforcement if procedural unfairness or unconscionable/substantial hardship at time of execution

Question 29

what is UPAA framework for pre nup

Answer 29

-burden of proof with party seeking enforcement
-no counsel needed
-no enforcement if procedural unfairness or unconscionable at time of execution

Question 30

what is ALI framework for pre nup

Answer 30

-burden of proof with party seeking enforcement
-if no counsel, k must be easy to understand
-presumption that is procedurally fair if someone was advised to get lawyer
-no enforcement if procedural or substantive unfairness (person fighting must prove)
-court will consider length of marriage, purpose of agreement, effect of agreement on kids, what would’ve happened if not married