PP, Equity, DR Flashcards
Gifts: When is a check delivered to a child?
Uniform Transfer to Minors Act
- Money paid to financial institution to an account
- In name of transferor, other adult, or trust
- Followed by, “as custodian for (name of minor) under Michigan’s UTMA.”
Action for Replevin and Conversion
Replevin
To recover property that has been unlawfully taken or unlawfully detained, so long as you have a right to possess the property taken/detained.
Conversion
Common Law: Any act of dominion wrongfully exerted over another’s personal property inconsistent with his rights.
Recovers fair market value at the time and place of conversion.
Statutory: Another person steals property or converts it to their own use, or someone who buys or sells goods knowing they are stolen.
Recovers 3x actual damages and attorney’s fees.
Preliminary v. Permanent Injunction
Preliminary:
- Party will suffer irreparable harm if injunction is not granted (non-compensable)
- Balance benefit vs. burden
- Will granting it harm public interest?
- Plaintiff’s likelihood of success on the merits
Permanent: TAPERD
- Theory
- Adequacy: Monetary damages must be inadequate. Damages are inadequate if they are speculative, would lead to a multiplicity of actions, or there is an imminent danger of irreparable harm.
- Property: Is there a property right present?
- Enforcement: How difficult is it to enforce the injunction (i.e., prohibitory vs. mandatory)?
- Relief: Balance the benefits vs. burden (must be great disparity; consider public interest)
- Defenses
- Waiver
- Estoppel: Plaintiff did something to make you believe something, and you are prejudiced.
- Free Speech: court will not grant an injunction to limit free speech
- Laches: Plaintiff waited too long to bring a claim and now you are prejudiced
- Unclean Hands: Plaintiff is acting in bad faith re: a similar restriction
DR: 100-Mile Rule
Burden and order of operations
Burden is on parent trying to move more than 100 miles to show, by POE, that it is of a beneficial nature.
- Is there court/parental approval?
- Is there joint or sole legal custody? This will tell you whether there is a right to a full evidentiary hearing.
- Look at the 5 factors
A) Will the change improve the quality of life of the child and the parent moving?
B) Did the parents comply with their parenting time schedule? Is the parent trying to move to frustrate the parenting time schedule?
C) Is it possible to modify the parenting time schedule in a manner that can preserve a parental relationship between the child and each parent? And are the parents likely to comply with it?
D) Extent to which the parent opposing the move is motivated by a desire to secure a financial advantage re: support?
E) Domestic violence
Changing/Modifying a Custody Order: Analysis
a) Threshold Inquiry
The parent must show there are proper changed circumstances that support modifying the order.
This is done by establishing appropriate grounds that relate to one of the 12 best interest factors, which will significantly affect the child’s well-being.
b) Is there an established custodial environment?
Exists if the child naturally, over time, looks to one of the parents for guidance, discipline, the necessities of life, and other parental comfort.
If it exists: clear and convincing evidence is needed
if it does not: preponderance of the evidence
c) Best Interest Factors
- Love and affection between parents and child
- Capacity for love and affection between parents and child
- Capacity of the parents to provide child with food, clothing, medical care
- Length of time the child has been in a stable environment, and the desirability of maintaining that
- Permanence of the proposed environment
- Moral fitness of the parents
- Mental and physical health of parents
- School, community, and home record of the child
- Reasonable preferences of the child
- Ability and willingness of the parties to facilitate a relationship between the other parent and child
- Domestic violence
12: Other factors
When and how is spousal support awarded?
It is awarded when the court considers it just and reasonable.
WHALE APP
- Work of the parties
- Health of the parties
- Age of the parties
- Length of the marriage
- Equities
- Ability to pay
- Property
- Prior relations/conduct
- Present Situation
- Prior standard of living
- Present and Future Needs
When parties divorce, how do they divide property?
If there is no existing agreement, the court’s goal is an equitable determination.
Marital property is divided (not gifts, inheritances, property from before marriage).
Commingling of things before marriage with marital assets may turn them into marital.
CHAPEL END
- Contributions of the parties
- Health of the parties
- Age of the parties
- Prior relations/conduct
- Earning abilities of the parties
- Life status of the parties
- Equities
- Necessities of the parties
- Duration of the marriage
NO ONE FACTOR IS DETERMINATIVE OF THE WHOLE.
Prenuptial Agreements
Enforceable because they favor public policy (settlement).
If they are fair and reasonable, and entered into voluntarily.
They will not be enforced when:
1. When they were entered into with duress, mistake, nondisclosure, etc., or
- If there is a change in facts/circumstances that is significant that renders the agreement unfair/unreasonable (must be unforeseeable - not length of marriage, kids, profitability of business, etc.)
Court can deviate from agreement if (retained powers):
- Agreement gives all marital property to one party
- Agreement is insufficient to support and maintain either party/children
Spousal Support: Dividing Marital Property
What happens if the profitability of the business increases? How is that divided? Is it marital property?
Any increases in value during the business are marital property, but the value of a business before the marriage is separate property.
