Ongoing Family: Support Duties Flashcards
what are the two basic property systems
common law and communal property
what is common law property system
whoever has the title owns the property - joint ownership is created by affirmative act only. disadvantages homemaker
what does Oregon saw about common law property
wee have it – spouses not liable for each other’s debts
what equitable remedies are available for common law property
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
what’s an example of constructive trust
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
what is community property system
property accumulated during court of marriage is subject to division upon divorce. each have one half interest
what’s the procedure for common law upon death of one spouse
-pass by will: inherit whatever spouse left them
-pass by intestacy: spouse gets 1/2 if no kids, 1/3 if kids
what’s the procedure for community property upon death of one spouse
spouse already owns 1/2
who has burden of proving the property is separate form marriage
the person saying it is
what is quasi community property
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
will the court get involved if a husband won’t buy his wife stuff she needs
nope not as long as they are married
what is common law doctrine of necessities
common law doctrine that one spouse is liable of expenses of other spouse for necessities, no consent needed
what does Oregon have as a creditor remedy
basically the exact same thing as doctrine of necessities for expenses of family
what are the four kinds of marital k
- pre nup
- mid marriage agreement
- reconciliation agreement
- separation agreement
what is a mid marriage agreement
A contract entered into regarding how the parties are acting in a marriage, or how to treat their property upon death or divorce
what is a reconciliation agreement
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
what’s a separation agreement
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
what do we need for mid marriage agreement
k principles
- consideration (can be hard because already exchanging stuff)
- writing
-fairness when entered (disclosure, voluntary)
- fairness at enforcement
can you contract with wife to do your hospice care in return for leaving her inheritance
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
what is the policy behind spouses not being able to contract for care with each other
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.
what can spouses not k for
duties of marriage. home labor. sex. cohab
will court enforce a pre nup that seems fine at the time of marriage but became super unfair by the time of divorce
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.
what do we need for pre nup
- consideration (not an issue because either parties are relinquishing rights or marriage is the consideration)
-writing
-fairness
what can parties pre nup to
alimony, property division
what can parties not pre nup to
-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
what kind of clauses bother courts in pre nups
clauses that
-encourage divorce
-foreclose divorce
-concern child custody/support
-waiver of spousal support that would make one indigent
-limit remedies for DV
what if someone is dumbo and enters bad pre nup
Absent fraud, misrepresentation, or duress, spouses should be bound by the terms of their agreements.
what is UMPAA framework for pre nup
-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
what is UPAA framework for pre nup
-burden of proof with party seeking enforcement
-no counsel needed
-no enforcement if procedural unfairness or unconscionable at time of execution
what is ALI framework for pre nup
-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
