! Ray Family Essay Flashcards
COMMON LAW
A common law marriage, recognized in PA, is entered into where the individuals express, in present language, their intent to be regarded as married.
Present language must be used. Cohabitation and reputation (holding one-self out as being married) is relevant circumstantial evidence of a common law marriage.
Family- Annulment
(void) BIG ALI
(voidable) A+ LIFD
A spouse may terminate a marriage by annulment or divorce. A spouse may commence action by filing complaint if court, so long as individual (or spouse) has been bona fide resident of Pennsylvania for at least 6 months prior to action.
Marriage is automatically void, but still should be filed to avoid collateral issues:** BIG ALI**
(1) bigamy, consangity, incenst
(2) lacked capacity to consent, (insane) or was
(3) incapable of consenting
** Disappearing spouse: 7 years presumed dead = ex parte order
A marriage is deemed voidable and subject to annulment where either party A LIFD
AGE
16 without authorization from court or
16/17 without parental consent and action was brought within 60 days of marriage ceremony)
LACK OF PHYSICAL CAPACITY
(impotence= cant consemate marriage/sex)
INTOXICATION: drugs alc
IMPOTENT
FRAUD: misrepresentation of religion, procreate.. NOT economic misrep
DURESS
(shotgun wedding)
Family- Divorce (No fault)
A marriage may be terminated by annulment (void/voidable) or divorce (fault/no fault).
Termination by divorce may be based on fault or no fault and is commenced by filing a complaint with the court, so long as he/she or spouse is bona fide resident of PA within 6 months of action. Bona fide means domicile (actual presence with intent to remain)
Grounds for NO FAULT divorce require showing by parties/party that marriage was
(i) irretreviably broken (estrangement of marital affairs)
and
(ii) lived “seperate and apart,” ceased cohabitation.
A court may grant divorce where it is alleged that marriage is irretrievably broken and 90 days has elapsed from the date of commencement of an action and has been signed/ evidence by parties consent.
Family: Divorce (Fault)
** ABCD III** + CCCC PR
A marriage may be terminated by annulment (void/voidable) or divorce (fault/no fault).
Termination by divorce may be based on fault or no fault and is commenced by filing a complaint with the court, so long as he/she or spouse is bona fide resident of PA within 6 months of action. Bona fide means domicile (actual presence with intent to remain).
A court may grant action for a fault-divorce where there is evidence of: ABCD III*
ADULTERY: sexual intercourse with person, other than ones spouse. (circum evidence to show opportunity and inclination)
BIGAMOUS MARRIAGE: knowingly entered into marital affairs.
CRUEL & BARB TREATMENT: conduct that endagers life or health of innocent spouse. (may be contin or minor)
ex: domestic violence; indignities: course of conduct that makes life intolerable (cold shoulder, no sex etc)
DESERTION: willful and malicious absence from home without justification for 1 yr or longer ( domestic violence, war abroad, back and forth)
IMPRISONEMENT INSANITYINDIGNITIES
Defenses ** CCCC + PR ***
1. Condonation- complete defense for adultery. (knowledge of misconduct, forgiveness resumption of marital affairs)
2. Connivance-corrupt consent to misconduct (fake prostitute)
3. Collusion: fraud (fabricate grounds for divorce)
4. Provocation: (self defense in barbarous relationship is a defense)
5. Recrimination: complete defense to adultery
(both cheating spouse- unclean hands)
Family- Alimony
Alimony is periodic payment of money for maitenance of former spouse pursuant to decree.
The court may award alimony for definite or indefite period of time. Ct has great discretion, balances factors including:
- MY PIES T*
(i) MARITAL MISCONDUCT
(ii) physical condition
(i) inheritance + income
(iii) earning capactity
(iv) standard of living
(vi) time it will take to acquire suitable employement.
Alimony pendente= helps spouse maintain standard of living
MARITAL MISCONDUCT IS RELEVANT TO DETERMINING ALIMONY NOT EDISTRI
Common law marriage= what should you file to define legal statuts
Gloria should file a declaratory judgment action in court. Declaratory judgment actions are for the purpose of defining the legal rights and status of a party.
Pursuant to a declaratory judgment action, the court will most likely decide if Gloria and Dave had a common law marriage during this time period.
Family: Equitable Distribution
* subject to “vine” *
Property acquired or earned before the marriage is NOT marital property.
Subject to a number of exceptions “VINE”
- veteran’s benefits,
- inheritance (must be named as devisee)
- non-possessory future interests -
- educational degrees,
Marital Property
(i) All property acquired during marriage
(ii) Increase in value of nonmarital property during marriage until date of separation or date of distribution hearing, whichever results in lesser increase
is subject to equitable distribution upon marriage termination.
- Increase in value stops accruing when parties begin living separate and apart.
- Equitable distribution payments are not taxable or deductible. Property xfers are tax free (carryover basis).
Here, Dave has given Gloria the ring after the ceremony. Despite the likely intent that only Gloria wear the ring, the ring will be considered marital property just like most other property acquired by either spouse during the course of the marriage.
Marital Property
“Grev”
Presumption that property is marital when acquired during marriage subject to specific exceptions:
- prop acquired in exchange for property acquired prior to marriage
- prop acquired after final separation
- prop was excluded by a valid agrmt of parties
Grev
- gift (except b/w spouses) or inheritance, or in exchange for such property
- rcvd from COA that arose before marriage or after final separation
- encumbered prop in good faith and for value prior to date of final separation
- veteran benefits
-Engagement rings nonmarital.
-Expectancy of inheritance not asset.
-Professional license not asset (but can get $ award for actual contribution to educational expenses).
Enterprise goodwill is taken into consideration, but professional goodwill (tied to person) is not.
Factors in Determing Equitable Distribution
MARITAL MISCONDUCT NOT CONSIDERED.
Valuation date = date as close to divorce as possible. Can distribute assets in kind or $ for value.
-Not considered: expectancy of inheritance
standard of living established during marriage, which party will be serving as custodian of children, tax expenses, length of marriage, prior marriages, age/health/station, amount/sources of income, employability, contribution by one to education/increased earning of another, contribution/dissipation of marital property, separate prop of each spouse, anything else.
Enforcement of Alimony
Court may
(i) enter judgment against that party
(ii) authorize seizure of goods, profits, etc.
(iii) attach no more than 50% of wages
(iv) award the other party interest on unpaid installments
(v) require security to insure future payments
(vi) civil contempt
(vii) order the party to pay fees/costs
(viii) suspend license
Alimony Pendente Lite
Maintain the status quo and pursue divorce; paid temporarily to a financially dependent spouse during the pendency of divorce litigation or annulment proceedings. Terminates at the end of litigation.
Does NOT consider marital misconduct or cohabitation.
Court considers
- ability of other party to pay
- separate estate and income of petitioner
- character, situation, surroundings of parties
Spousal support
Separate maintenance of spouse, which may be awarded at any time during the marriage. Reasonable living allowance, arising out of marital relationship itself and ends when marriage ends.
Not entitled to support if he is guilty of pre-separation conduct that would constitute valid grounds for divorce.
Child Support
Parents must contribute to kid’s reasonable needs in proportion to each parent’s share of combined net monthly income.
Neither deductible or includible in income. P who has custody for majority of year gets dependency exemption.
Custodial parent satisfies obligation directly; non custodial parent must make actual payments.
Can’t bargain away child support obligations (except for sperm donation w/ agrmt)
Obligation lasts until emancipation (18 or completes HS [whichever is later] or older if child is handicapped)
Standardized guidelines; reasonable needs and ability of obligor, primary emphasis placed on net incomes and earning capacities. Include provision for health insurance.
Modification of Support
Material and substantial changes in circumstances:
E.g., change in employment or substantial change in income, children getting older, retirement, illness, special needs.
Not grounds for modification: voluntarily assuming lower-paying job, quitting or being fired for cause.
Enforcement of Support Order
Uniform Interstate Family Support Act (UIFSA)
- Support obligation in one state can be enforced in another state so that Ps cannot avoid it
- Another state can’t modify another state’s order so long as either kid or 1 parent live in original forum (continuing exclusive jn)
Child Support Recovery Act (CSRA)/Full Faith and Credit for Child Support Orders Act (FFCCSOA)
Interception of P’s federal tax refunds.
