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BAR EXAM > South Carolina - Domestic Relations > Flashcards

South Carolina - Domestic Relations Flashcards

1
Q

MARRIAGE > Common Law Marriage

Elements

Other Issues

A

(“CHAS”)

  1. AGREEMENT to be married
  2. COHABITATION
  3. HOLDING OUT as married to others
  4. At least SIXTEEN (16) Years Old
  5. No other impediments

OTHER ISSUES
Parties must have CAPACITY to be married

Parties must have the PRESENT INTENT to enter marriage arrangement

-If there’s an impediment, once it’s removed, a new mutual agreement must be formed

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2
Q

MARRIAGE > Formal Marriage Elements

A

(“CLC” No No No)

  1. License (parental consent between 16-18)
    (2. No Impediment
  2. No fraud or duress
  3. Consummation by Cohabitation
  4. No Proxy Marriage
  5. Conducted by an official authorized by law
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3
Q

MARRIAGE > Consanguinity and Affinity

Allowed

Effect of marriage in violation

A

First cousins is allowed

Voidable

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4
Q

MARRIAGE > Mental Incompetence

Effect: temporary mental incompetence

Effect: Permanent mental incompetence

A

Temporary mental incompetence: voidable marriage

permanent mental incompetence: VOID marriage

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5
Q

MARRIAGE > Bigamy

Effect

Exception

A

VOID, unless

the non-party husband/wife was absent for 5 years AND not known to be living

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6
Q

MARRIAGE > Fraud and Duress

A

Marriage voidable

Caveat: Marriage by fraud that is void does not relieve the fraudulent actor from providing spousal support that would have otherwise existed

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7
Q

MARRIAGE > Consummation by Cohabitation

Effect of failure

A

Deemed to be a lack of consent

Marriage is voidable

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8
Q

MARRIAGE > Administered by an authorized person

A
  1. minister of the gospel
  2. jewish rabbi
  3. notaries public
  4. Native American Chief or Spiritual Leader
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9
Q

MARRIAGE > Rights > Confidentiality

A

CONFIDENTIAL COMMUNICATIONS made by one spouse to another DURING MARRIAGE, except for

  1. child abuse or neglect cases;
  2. death of a child;
  3. Criminal sexual conduct with a minor
  4. commission or attempt of a lewd act on a minor

Testifying spouse holds privilege

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10
Q

MARRIAGE > Separate Support and Maintenance

Timing

Extent of Support

Modifiability

A

TIMING: any time (even before dissolution of marriage) but spice cannot be living together

EXTENT OF SUPPORT: determined by circumstances (first spouse’s needs vs. second spouse’s ability to pay)

MODIFIABILITY: can be modified upon showing of MATERIAL and SUBSTANTIAL change of circumstances

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11
Q

MARRIAGE > Orders of Protection

Timing

A

Hearing must be granted within FIFTEEN (15) days

Emergency Hearing: may be held for GOOD Cause within TWENTY FOUR (24) hours of the hearing’s petition

“Good Cause”: “Immediate and Present” danger of bodily injury

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12
Q

MARRIAGE > Orders of Protection

What does it enjoin a spouse from doing

What else can it order?

A
  1. abusing, threatening to abuse, or molesting
  2. communicating or attempting to communicate
  3. entering or attempting to enter the petitioner’s place of residence, employment, education, or other location

It can also order
-Temporary custody/visitations rights
-Temporary financial support
-temporary possession to the petition of the residence to the respondent’s exclusion
-Prohibition on transferring, destroying, encumbering, or disposing of real/personal property mutually owned
-Temporary possession of personal property (if respondent hasn’t been evicted)
-Award Costs
-Any other relief authorized by §63-3-530

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13
Q

MARRIAGE > Orders of Protection

Duration/Extension

A

DURATION: fixed time between 6 months and 1 year (unless reconciliation–order of dismissal by petitioner)

HEARING TO EXTEND: Respondent has right to order to extend within THIRTY (30) DAYS of date upon which order will expire

Parties may extend/terminate upon a showing of good cause

RECONCILIATION IN PERSON
Dismissed without a hearing if
1. petitioner appears personally
2. shows proper ID
3. signs written request to dismiss
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14
Q

MARRIAGE > Orders of Protection

Considerations WRT Child Custody Determination

A

Court must consider DOMESTIC VIOLENCE, including

  1. Physical and Sexual Abuse, and
  2. If appropriate, which party was the primary aggressor
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15
Q

MARRIAGE > Orders of Protection

Uniform Interstate Enforcement of Domestic Violence Protection Orders Act

A

If victim moves to SC, and aggressor comes to SC to violate an order issued in another state, the order can be enforced in SC

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16
Q

MARRIAGE > Spousal Evidentiary Privilege

A

Civil Proceeding: spouse can’t be required to disclose Confidential Communications made during marriage

Criminal Proceeding: Spouse can’t be required to disclose ANY communication made during the marriage

Exception: physical acts of assault

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17
Q

Child Abuse and Neglect Cases >

Who represents the children?

A

The family court must appoint legal counsel and a guardian ad litem for the children (can be the same person)

In no case can the child be appointed the same counsel as the parent, guardian, or other person

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18
Q

DISSOLUTION OF MARRIAGE > Void vs. Voidable Marriage

A

Void Marriage is never valid. Invalidity can be maintained at any time (even after death)

Voidable Marriage is valid until set aside. When set aside, it is rendered void from the beginning (i.e., never valid)

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19
Q

DISSOLUTION OF MARRIAGE > Annulment

Grounds for annulling marriage (voidable grounds)

A

*Ground for annulment must exist at time of entry into marriage

  1. Failure to Consummate by cohabitation
  2. Duress
  3. Fraud
  4. Affinity and Consanguinity
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20
Q

DISSOLUTION OF MARRIAGE > Annulment

Duress

A

Great fear of bodily harm such that party could not and did not act as a free agent

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21
Q

DISSOLUTION OF MARRIAGE > Annulment

Fraud

A

Representation as to something ESSENTIAL to the marriage

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22
Q

DISSOLUTION OF MARRIAGE > Annulment

Effect of annulment on spousal support/alimony

legitimacy of children

property division

A

ALIMONY/SUPPORT
Temporary (pendente lite) support: may be available during annulment action

Alimony: may be granted after annulment

LEGITIMACY OF CHILDREN
unclear

PROPERTY DIVISION
unclear

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23
Q

DISSOLUTION OF MARRIAGE > Annulment

Defenses to Annulment

A
  1. Condonation: past marital offense was forgiven with full knowledge that they had been committed
  2. Laches: annulment action must be filed in a timely manner after discovery of defect
  3. Ratification: Continuing cohabitation after removal of the defect
  4. Recrimination (unclean hands): party seeking annulment is also guilty of the misconduct for which the divorce may be granted.
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24
Q

DISSOLUTION OF MARRIAGE > Void Marriage

Grounds

A
  1. Non-age^
  2. Permanent lack of capacity
  3. Polygamy/Bigamy
  4. Same-Sex marriage*

^If an impediment can be removed (e.g., non-age), the marriage becomes voidable

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25
Q

DIVORCE >

Divorce Waiting Period

A

No hearing on divorce until TWO (2) MONTHS after filing of the complaint

No final decree before THREE (3) MONTHS after the filing of the complaint

EXCEPTIONS

  1. grounds are desertion;
  2. Separation of one year
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26
Q

DIVORCE >

Residency Requirement

A

ONLY ONE PART IS RESIDENT
π must have been DOMICILED in SC for at least 1 year prior to commencement of action;

If πis a nonresident, then ∆ must have been DOMICILED in SC for at least 1 year before commencement of the action

BOTH PARTIES ARE SC RESIDENTS
Must have DOMICILE in SC at least THREE (3) MONTHS before filing commencement of action

Domicile: true, fixed, and permanent home + intent to remain for an unlimited period

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27
Q

DIVORCE > Uniform Divorce Recognition Act

If both parties are domiciled in SC at the time a divorce proceeding commenced in a different jurisdiction.

A

No force or effect in SC

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28
Q

DIVORCE >

Personal Jurisdiction for out-of-state respondents

A
  1. physical presence in SC;
  2. Ownership of property in SC;
  3. Minimum contacts with SC; or
  4. Consent
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29
Q

DIVORCE >

Venue for Divorce Actions

A
  1. County where ∆resides at commencement of action
  2. If ∆is non-resident or with due diligence can’t be found, where πresides; or
  3. Where parties last resided as H&W, unless πis a nonresident, in which case it must be brought in the county where ∆resides
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30
Q

DIVORCE >

Grounds for Divorce

A

(“CHADS”)

  1. Adultery
  2. Desertion of a period of ONE (1) YEAR
  3. Physical Cruelty (Not Mental Cruelty)
  4. Habitual Drunkenness (and Drug Abuse)
  5. No Fault: 1-year physical, continuous separation
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31
Q

DIVORCE > Adultery

Elements

Proof Required

Permitted Evidence For Finding of Adultery

A

ELEMENTS: Extramarital sexual activity

PROOF:
(1) Clear and positive; and (2) established by a clear preponderance of the evidence

PERMITTED EVIDENCE FOR FINDING OF ADULTERY
Where there is the OPPORTUNITY and the INCLINATION to commit adultery

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32
Q

DIVORCE > Desertion

Elements

A
  1. Cessation from cohabitation for ONE (1) YEAR without (a) cause (b) justification, or (c) consent
  2. Absenting party intends not to resume cohabitation
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33
Q

DIVORCE > Physical Cruelty

Elements

Timeframe

A

*not mental cruelty

ELEMENTS

(1) Actual personal violence or course of treatment that
(2) Endangers life, limb or health; and
(3) render cohabitation unsafe

TIMEFRAME
The physical cruelty must
-occur at/near time of filing of the action, and
-must contribute to the cause of the breakup of the marriage

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34
Q

DIVORCE > Habitual Drunkenness and Drug Abuse

Elements

Note

A

The use or abuse of alcohol/drugs is

(1) a fixed habit, and
(2) causes the breakdown of normal marital relations

NOTES:
Does not necessarily imply continual drunkenness/drug abuse

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35
Q

DIVORCE > Separation for One Year without Cohabitation

Elements

A

ELEMENTS (“COID”)

  1. Separate Domiciles
  2. Continuous separation
  3. Intentional Separation
  4. Separation must be at least 1-year immediately prior to filing the action
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36
Q

DIVORCE >

Defenses to Divorce (listed)

A

(Chris [and] Credence Clearwater Revival Rest In Peace)

  1. Collusion
  2. Condonation
  3. Connivance
  4. Insanity
  5. Provocation
  6. Reconciliation
  7. Recrimination
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37
Q

DIVORCE > Collusion

Elements

A

(1) Parties to a divorce proceeding colluded; OR

OR (2) The act complained of was done
(a) with the knowledge or assent of the plaintiff (b) with the purpose of obtaining a divorce

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38
Q

DIVORCE > Condonation

Elements

Notes

A

(1) Forgiveness (express/implied) on the condition that antecedent offense WILL NOT BE REPEATED
(2) Mutual intention to renew the marital relationship (usually with cohabitation), and
(3) Full knowledge of marital offense

NOTES
Revival for Divorce Purposes: subsequent conduct that leads complaining party to REASONABLY BELIEVE that a new ground or the original ground will be committed

Revival For Alimony Purposes: cannot revive as a bar to paying alimony, unless other spouse repeats the offense

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39
Q

DIVORCE > Connivance

Elements

A
  1. Plaintiff’s consent (express/implied)
  2. to the misconduct alleged as a ground for divorce

E.g., hiring someone to seduce wife

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40
Q

DIVORCE > Insanity

Defense to No-fault Divorce

Defense to Adultery

A

Defense to No-Fault Divorce: parties must be sufficiently competent to be conscious of the fact that the act of separation has occurred

Defense to Adultery: Adultery requires knowledge of the adultery’s wrongfulness (if adulterer cannot appreciate the act, then it’s a defense)

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41
Q

DIVORCE > Provocation

Elements

A

ELEMENTS

(1) Spouse would not have acted in a certain manner BUT FOR the misconduct of the complaining spouse; and
(2) the retaliatory cruelty complained MUST NOT BE OUT OF PROPORTION to the provoking conduct.

((often a defense to physical cruelty))

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42
Q

DIVORCE > Reconciliation

Elements

A

Similar to Condonation, but different

ELEMENTS

(1) Mutual Intent to reestablish the marital relationship on a permanent basis;
(2) parties intend to live together as husband and wife;
(3) accompanied by acts indicative of such intent

[[Reconciliation is unconditional–not conditioned on the fault not re-occuring. I.e., previous act cannot be revived. cf. condonation]]

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43
Q

DIVORCE > Recrimination

Elements

Effect on Alimony

A

If both parties have a ground for divorce (even if different), neither party can get it

Recrimination DOES NOT constitute a defense to barring alimony (spouse still barred from receiving alimony)

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44
Q

SEPARATE SUPPORT AND MAINTENANCE >

Effect of Fault on award of separate support and maintenance

A

The Fault must

  1. Affect the economic circumstances of the parties OR contribute to the breakup of the marriage; and
  2. Happen before the earlier of the formal signing of written property/settlement agreement OR the entry of a permanent order of separate maintenance and support or a permanent order of property/settlement agreement
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45
Q

SEPARATE SUPPORT AND MAINTENANCE >

WRT Adultery

A

No alimony/SSM may be awarded to a spouse who commits adultery before the earlier of those triggers (settlement agreement/permanent order by court)

Parties MAY waive use of adultery as a bar to alimony

There is no legal separation in SC, so must wait until the triggers

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46
Q

SEPARATE SUPPORT AND MAINTENANCE >

Mechanism to Obtain Temporary Support

Repayment

Relitigation

A

Granted in in Motions for Temporary Relief

Repayment of temporary support may be required if the order is successfully appealed OR later shown that supported spouse is not entitled to support

If there is a CLEAR ruling on support, there cannot be subsequently litigated

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47
Q

ALIMONY >

Alimony Agreement Requirements

Modifiability

A

REQUIREMENTS:
1. Must be entered into FAIRLY, REASONABLY, and VOLUNTARILY, and

  1. judicial approval
  2. and can be made nonmodifiable if agreement is in writing
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48
Q

ALIMONY > Interest

When does interest on an alimony payment become due

A

On the date each payment is DUE

(pre-judgment interest: 8.75%; post-judgment interest: 7.25%

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49
Q

ALIMONY >

Requirement to Procure Security as a Guarantee for Alimony Award

What devices may be used as a security

A

Required to obtain life insurance as a security for alimony award, if

SPECIAL CIRCUMSTANCES exist

((not compelling reason–special circumstances is a lesser standard))

DEVICES AVAILABLE: Only life insurance

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50
Q

ALIMONY > Alimony/Separate Maintenance Factors

A

“COCO TEEPEES DF”

  1. Condition (physical and emotional) of each spouse
  2. Other Support Obligations
  3. Custody of the children
  4. Other Factors the court considers relevant
  5. Tax Consequences: as a result of particular form of support awarded
  6. Employment History and Earning Potential
  7. Educational History: including add’l training/education to achieve spouse’s income potential
  8. Properties of the parties (both marital and nonmarital)
    * 9. Earnings: Current and reasonably anticipated (can be imputed by court)
  9. Expenses: Current and reasonably anticipated
    * 11. Standard of Living: established during marriage
    * 12. Duration of Marriage (consider ages at marriage and at divorce)
    * 13. Fault/Marital Misconduct: if misconduct affected/affects economic circumstances or contributed to the breakup of the marriage. Inconsequential whether or not used as a basis for divorce.
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51
Q

ALIMONY > Types of Alimony

A

Periodic (default)

Lump Sum

Rehabilitation

Reimbursement

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52
Q

ALIMONY > Types of Alimony

Lump Sum: when is it awarded

A

Special circumstances (e.g., necessity) or upon agreement of parties

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53
Q

ALIMONY > Types of Alimony

Rehabilitation & Reimbursement

A

Must show special circumstances

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54
Q

ALIMONY > Types of Alimony

Modifiability and Termination of Alimony Types

A

MODIFIABILITY: periodic and rehabilitative
NON-MODIFIABLE: lump sum; reimbursement

TERMINATION: periodic, reimbursement, and rehabilitative all terminate upon:

  1. Death of either spouse
  2. Remarriage of supported spouse
  3. Continued cohabitation of spice
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55
Q

ALIMONY > “shacking up statute”

[[don’t call it that]]

A

continued cohabitation of supported spouse with another person in a romantic relationship of a period of 90 or more consecutive days

Can be maintained if the supported spouse lives together with another for less than 90 days, and the two periodically separate in order to circumvent the 90-day requirement

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56
Q

ALIMONY > Reinstatement of alimony upon annulment of a subsequent marriage

A

Determined on a case-by-case basis.

((consider length of subsequent marriage, support from annulled marriage; prejudice to payor spouse; proper annulment of subsequent marriage; and any change of circumstances after annulment))

No right to retroactive alimony following annulment of the marriage

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57
Q

ALIMONY > Modifying Alimony

A
  1. The Material and Substantial Change in Circumstances must be unanticipated; and
  2. Party seeking modification must show by a preponderance of the evidence that an unforeseen change has occurred.
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58
Q

ALIMONY > Modifying Alimony upon Retirement

A

Retirement is sufficient to grant a hearing to evaluate whether there has been a change in circumstances.

To determine whether there was a change in circumstances, the court should consider the following (“MACHO D”)

  1. Contemplated: Was retirement contemplated when alimony was awarded;
  2. Age: age of supporting spouse;
  3. Health: health of supporting spouse;
  4. Mandatory: is retirement mandatory or voluntary;
  5. Decrease in Income: will retirement result in a decrease in the supporting spouse’s income; and
  6. Other Factors: any other factors the court sees fit (including considerations relevant to initial setting of an alimony award)
  • Age alone is not sufficient to justify reduction/termination of alimony
59
Q

PROPERTY DIVISION > Analysis

A
  1. Determine property to be divided (marital vs. nonmarital)
  2. Determine worth of the marital property
  3. Determine what portion of property each spouse is entitled to.
  4. Determine how property should actually be divided (if similar, should divide in-kind)
60
Q

PROPERTY DIVISION >

What is included in marital property

A

(GAVE [to] Juliette [and] Grant)

  1. All real and Personal property (a) ACQUIRED by parties during the marriage; and (b) is owned as of the date of filing or commencement of marital litigation (regardless of title)
  2. ENHANCEMENT/appreciation in value of nonmarital assets as result of efforts of the other spouse during the marriage OR from contribution/expenditure of marital funds or assets
  3. GIFTS between spouses during the marriage
  4. VESTED/Nonvested benefits/funds accrued during marriage
  5. Real property held by parties as JOINT tenants with right of survivorship, regardless of when it was acquired
  6. Enterprise Goodwill
61
Q

PROPERTY DIVISION >

What is included in Nonmarital Property

A
  1. Property by inheritance, devise, bequest, or gift from a party other than the spouse
  2. Property acquired by either party BEFORE the marriage and AFTER the happening of the earliest of (i) PENDENTE LITE ORDER in a divorce/separate maintenance action; (ii) formal signing of a property/marital SETTLEMENT AGREEMENT; or (iii) entry of PERMANENT ORDER of SMS or a permanent order approving a property or marital settlement agreement between the parties
  3. Property acquired in exchange for property described in 1 or 2, above
  4. property excluded by written contract
  5. Increase in value of nonmarital property (unless from efforts of other spouse)
  6. personal goodwill
62
Q

PROPERTY DIVISION > Valuation of Marital Assets

At what time is the property valued

When is property valued if there are successive divorce actions (prior divorce actions are dismissed)

A

value is set on date of filing

SUCCESSIVE DIVORCE ACTIONS
Value at the date of filing of the action that actually results in the equitable division

63
Q

PROPERTY DIVISION > Valuation of Marital Assets

What happens to the status of the property if there is a separate maintenance action, then the parties reconcile?

What happens if the parties cannot arrive at a value for the property?

A

SMS THEN RECONCILE
divided property remains nonmarital unless it is transmuted

CANNOT ARRIVE AT A VALUE FOR THE PROPERTY
Property is actionned off at a public auction, then cash is equitably distributed

64
Q

PROPERTY DIVISION > Passive/Active Change in Value between date of filing and final resolution

A

PASSIVE CHANGE IN VALUE:
Change must be “BEYOND THE CONTROL” of the parties

Date of value will be taken at a post-filing date (closer to trial)

ACTIVE CHANGE IN VALUE
Will be valued at filing date

65
Q

PROPERTY DIVISION > Marital Debt

Rule

Debts acquired after marital litigation but before final divorce decree

Burden of Proof

A

Debt incurred for the joint benefit of the parties, regardless of who is “legally” liable for it.

Rule applies to debts acquired after marital litigation but before final divorce decree, if debt is for joint benefit of parties DURING the marriage

Debts incurred during marriage are assumed to be marital debts.

((just like marital assets: title doesn’t matter))

66
Q

PROPERTY DIVISION > Using marital debt when calculating distribution of property

A

If debt is already used in calculating the net value of an asset (e.g., a house), it cannot be used in the apportionment as well. (No double dipping)

67
Q

PROPERTY DIVISION >

Who is responsible for Tax Liability in the division?

A

It is shared between both parties, unless penalty/interest caused by another spouse’s failure to file in a timely manner

68
Q

PROPERTY DIVISION/ ALIMONY > Which is to be decided first?

A

Equitable Distribution is decided, then alimony.

That is, after equitable distribution, Court considers whether a judgment for alimony is to be made.

69
Q

PROPERTY DIVISION > Transmutation

What is transmutation

A

When property that is separate property of a spouse may be transmuted (changed) into marital property

70
Q

PROPERTY DIVISION > Transmutation

When does transmutation occur?

A

*INTENT is key factor

(SOUTH CAROLINA JURY INSTRUCTION)
1. Property is so COMMINGLED as to be untraceable (commingling alone is insufficient);

  1. Property utilized by parties in SUPPORT of the marriage;
  2. Property is titled JOINTLY; or
  3. Property otherwise used to show an INTENTION by the parties to make it marital property

[[If failed, spouse may have a special equity interest]]

71
Q

PROPERTY DIVISION > Transmutation

Burden of establishing transmutation

A

Spouse claiming transmutation has burden to show OBJECTIVE EVIDENCE that DURING the marriage, parties regarded the property as the COMMON property of the marriage

72
Q

PROPERTY DIVISION > Special Equity

What is a special equity interest?

When does it occur?

A

DEFINITION: judicial recognition that a spouse has a vested right in property owned by the other spouse

OCCURRENCE: contribution of one spouse’s funds/property, labor, or other service above and beyond “normal marital duties” in the acquisition, improvement, or maintenance of the subject property

73
Q

PROPERTY DIVISION > Equitable Division

Factors

A

(“HOLO HANDICRAFT V”)

    1. Duration of the Marriage: w/ ages at marriage and divorce/SMS
    1. Fault or Marital Misconduct ((dif than alimony somehow))
    1. Value of Marital Property: consider direct economic contributions and indirect home-making contributions
    1. Income: income of each spouse, earning potential, and opportunity of future acquisition of capital assets
      1. Health: both physical and emotional
      2. Additional Training or Education necessary to achieve income potential
    1. Nonmarital Property of each spouse
      1. Vested Retirement Benefits: existence or non-existence
      2. Alimony award or award of SMS
      3. Home: desirability of awarding marital home to spouse having custody of children
      4. Tax Consequences: as result of particular form of equitable apportionment
      5. Other support obligations
      6. Liens or other encumbrances upon marital/nonmarital property
      7. Child Custody
      8. Other relevant factors as the court shall expressly enumerate in its order
74
Q

PROPERTY DIVISION >

Methods of distributing retirement benefits

What is the mechanism for modifying the ownership of a retirement plan to give the divorced spouse his/her share of the asset?

A
  1. Net present value method (default)
  2. Reserved Jurisdiction Method: decided upon retirement

QDRO ((Qualified Domestic Relations Order))

75
Q

PROPERTY DIVISION > Workers Compensation and Personal Injury Awards

When are they included in equitable apportionment?

Rules on Division

A

yes–if they come into existence before marital litigation begins

DIVISION
need not be divided by the same percentage as is established for other marital property

76
Q

PROPERTY DIVISION > Rule for equitable apportionment of future commissions

A

if future commission generated DURING marriage, it will be subject to equitable distribution (even if payable after)

77
Q

PROPERTY DIVISION > Rule for equitable apportionment of businesses

A

Business created during marriage valued at fair market value

Business that is more of a hobby can be be valued by its inventory

78
Q

Modifiability of

  1. Alimony
  2. Separate Support and Maintenance
  3. Equitable Distribution
  4. Child Custody
A
  1. ALIMONY: change in circumstances (cannot modify lump sum)
  2. SMS: modifiable upon change in circumstances
  3. EQUITABLE DISTRIBUTION: Not modifiable (unless fraud or appeal)
  4. CHILD CUSTODY/SUPPORT: Material and Substantial Change in Circumstances affecting child’s welfare and in the BIOC [[anything related to child is always modifiable]]
79
Q

PROPERTY DIVISION > Court’s jurisdiction regarding arbitration awards

A

COURT CANNOT
a family court CANNOT review an arbitration award’s substantive fairness

COURT CAN
Can review whether arbitration was entered FAIRLY and VOLUNTARILY; Court CAN ENFORCE arbitration award.

80
Q

CHILD CUSTODY AND SUPPORT > Elements in issuing/modifying a child custody order

A

BEST INTEREST OF THE CHILD USING TOTALITY OF THE CIRCUMSTANCES

Best Interest of the Child Using a Totality of the Circumstances

FACTORS (“PHARMACIST DOPER CV”)

  1. Temperament and Developmental Needs: of the child
  2. Capacity and Disposition: of parents to understand/meet needs of child
    * 3. Preferences of each child
    * 4. Preferences of the parents
    * 5. Relationship/Interaction (past/current) of child with each parent, w/ siblings, or other person, who may significantly affect BIOC
    * 6. Encouragement of parents to continue child’s relationship w/ other parent
    * 7. Manipulation/Coercive behavior to involve child in parents’ dispute
  3. Disparagement of other parent in front of child
  4. Involvement (ability to be involved) in child’s life
  5. adjustment of child to home, school, community
  6. stability of child’s existing and proposed residences
  7. Health (mental/physical) of all individuals involved
  8. Cultural/Spiritual background of child
  9. Abuse or Neglect of child (history of)
    * 15. [Parent’s] domestic violence or child abuse
    * 16. Relocation of one parent more than 100 miles from child’s primary residence in the past year (unless for safety reasons)
  10. other factors
81
Q

CHILD CUSTODY AND SUPPORT > “Other Factors” Considered

A
  1. Assumption that primary caretaker will be awarded custody
    * 2. Court should consider the “TOTALITY OF THE CIRCUMSTANCES”
  2. Immoral conduct that is detrimental to the welfare of the child
  3. religion
    * 5. Welfare of the Child
  4. written agreement btw the parties [[really?]]
82
Q

CHILD CUSTODY AND SUPPORT > Factors NOT considered anymore

A
  1. Gender Bias: i.e., mother is an aggressive career woman
  2. Race
  3. Tender Years Doctrine: presumption that smaller children placed with mothers
83
Q

CHILD CUSTODY AND SUPPORT > Who has custody of an illegitimate child?

A

solely the mother, unless she relinquished rights to child

Father can establish paternity

84
Q

CHILD CUSTODY AND SUPPORT > Priority of Persons to Receive Custody

A
  1. Parents have equal claim
  2. Step parents over strangers
  3. Third parties (including grandparents) come after parents, unless parents are unfit.
85
Q

CHILD CUSTODY AND SUPPORT > How does court determine the type of custody to award?

A

By looking at the best interest of the child based on the evidence presented

86
Q

CHILD CUSTODY AND SUPPORT >

When may a court award custody to non-parents (guardians)?

Factors for making the determination

A

When parents relinquish rights; or

parents are deemed unfit

FACTORS (Freaks w/ Carts Attack Children)
1. Parent’s FITNESS–able to care for the child and provide a good home

  1. Amount of CONTACT which the parent had with child while he was in the care of a third party
  2. CIRCUMSTANCES under which temporary relinquishment occurred
    * 4. Degree of ATTACHMENT between child and temporary custodian
    * rebuttable presumption favors parent over third party
87
Q

CHILD CUSTODY AND SUPPORT > What may court do if custodial parent denies noncustodial parent reasonable visitation

A

award extra visitation

award custody or primary custody to the noncustodial parent

punish by contempt of court

88
Q

CHILD CUSTODY AND SUPPORT > Grandparent Visitation–Test

A
  1. Child’s parents/guardians are UNREASONABLY DEPRIVING grandparent of opportunity to visit the child
  2. Awarding visitation would not interfere with the parent child relationship
  3. Clear and Convincing evidence that parents/guardians are UNFIT; OR clear and convincing evidence of COMPELLING CIRCUMSTANCES
89
Q

CHILD CUSTODY AND SUPPORT >

Duties of Guardian Ad Litem

A
  1. REPRESENTING the best interest of the child
  2. Conducting an independent, balanced, and impartial INVESTIGATION
  3. ADVOCATING for the child’s best interest
  4. ATTENDING all court hearings related to custody/visitation issues
  5. Final Written REPORT regarding the best interest of the child (must not include a recommendation on custody)
90
Q

CHILD CUSTODY AND SUPPORT > How is child support determined

A

If combined parental income is $30,000 or less, use DSS support guidelines

If over $30,000, determined on a CASE-BY-CASE BASIS

91
Q

CHILD CUSTODY AND SUPPORT >

Who covers medical expenses

A

Shared by parents

92
Q

CHILD CUSTODY AND SUPPORT > Procedure for setting/modifying child support

A
  1. File financial declaration
  2. Calculate total child support

3 Assign Percentages

93
Q

CHILD CUSTODY AND SUPPORT > Factors for imputing income of unemployed party

A
  1. recent work history
  2. occupational qualifications
  3. prevailing job opportunities (in the area)
  4. earning levels in the community
94
Q

CHILD CUSTODY AND SUPPORT > When does child support end?

A
  1. Child reaches 18
  2. Child marries; or
  3. child becomes self-supporting

Court may require support to 19 if (1) child is still in HS, and (2) child is making satisfactory progress toward completion

95
Q

CHILD CUSTODY AND SUPPORT > When can a court order child support for higher education beyond 18

A

“BAWCA”

  1. child’s characteristics indicate child will BENEFIT from education;
  2. Child demonstrates ability to do WELL or at least make satisfactory grades;
  3. child CANNOT otherwise go to school (w/o the financial help);
  4. parent has the FINANCIAL ABILITY to help pay for such an education;

5 child applies for financial AID: loans, scholarships, grants, and otherwise helps pay for college

96
Q

CHILD CUSTODY AND SUPPORT > Parental Kidnapping Prevention Act

Purpose/Effect

Modifying Court order in a Different State

What if there is no home state?

A

PURPOSE/EFFECT
Gives preference to home state child resided in within past 6 months to prevent child’s parent from initiating legal action in a different state (more favorable forum).

MODIFYING ORDER IN DIFFERENT STATE
Provides exclusive continuing jurisdiction: prevents a subsequent state from modifying the child custody decree of another state

Subsequent state can modify if (1) it has jurisdiction, and (2) court of prior state now lacks jurisdiction or declines to exercise jurisdiction

NO HOME STATE
If no home state, use state with significant connection

97
Q

CHILD CUSTODY AND SUPPORT > Uniform Child Custody and Enforcement Act

HOME STATE

EMERGENCY JURISDICTION

ENFORCEMENT

DECLINING JURISDICTION

A

HOME STATE
-Requires deference to the “home state” (like PKPA)

-Under UCCJEA, once state takes juris, it retains juris, so long as state maintains significant connection with parties

EMERGENCY JURISDICTION
-Allows for temporary emergency jurisdiction: long enough to ensure safety of person threatened and until case can be transferred to the “home state”

ENFORCEMENT
requires a state to enforce a custody/visitation order form another state that substantially conforms with the act

DECLINING JURISDICTION

  • Inconvenient Forum
  • Party’s unjustifiable conduct
98
Q

MARITAL AGREEMENTS > Prenuptial Agreements

Statute of Frauds

A

Requires a writing

May be removed from the statute of frauds if partial performance

99
Q

MARITAL AGREEMENTS >

Validity of Marital Agreements presumed if

Defenses

A

WAVE

  1. In Writing
  2. After financial disclosure
  3. Voluntarily Executed
  4. Each party is represented by counsel
DEFENSES
fraud
duress
mistake
Misrepresentation/nondisclosure
*Unconscionability
*Changed Circumstances
100
Q

Pop Quiz! Can child support be waived?

A

NO

101
Q

MARITAL AGREEMENTS > Validity of Marital Agreements Incident to Divorce (entered while married in attempt to settle divorce action)

A
  1. Voluntarily Made,
  2. In good Faith, and
  3. Fair and equitable
102
Q

MARITAL AGREEMENTS > Marital Agreements Incident to Divorce (entered while married in attempt to settle divorce action)

Statute of Frauds

A

Doesn’t fall within statute of frauds (but subject matter might)

103
Q

MARITAL AGREEMENTS > Alimony and Child Support Agreements

What it governs

Modifiability

ENFORCEABILITY

A

GOVERNS: duration/amount of payments

MODIFIABILITY: substantial change in circumstances (same as court-approved agreements and orders)

ENFORCEABILITY: Family court lacks jurisdiction to enforce if agreement specifically provides it will not be enforceable in family court

104
Q

MARITAL AGREEMENTS > Property Agreements

Test for Property Agreement

modifiability

A

Test: parties intended agreement to be a final settlement of obligations wrt property

Modifiability: Cannot be modified by the family court

Enforceability: enforceable if entered (1) voluntarily, ((without undue influence, without coercion))

105
Q

ATTORNEY’S FEES > Analysis

A
  1. Entitlement + 2. Amount
106
Q

ATTORNEY’S FEES > Entitlement Factors

A

“Barney And Fred Sing”

    1. Beneficial result for the client;
      1. Party’s Ability to pay his/her own attorney fee;
      2. Parties’ respective Financial conditions; and
      3. effect of the attorney fee on each party’s Standard of living
107
Q

ATTORNEY’S FEES > Amount Factors

A

Only analyzed if positive result on Entitlement Factors
NTBSCC (NaTional BiSCuit Company)

  1. Nature, extent, and difficulty of the case
  2. Time necessarily devoted to the case
  3. Professional standing of counsel
  4. Beneficial results obtains
  5. Customary legal fees for similar services; and
    6 contingency of compensation
108
Q

The Uniform Interstate Family Support Act (UIFSA)

Purpose

Choice of Law

A

allows person to pursue an action in SC FAMILY COURT for support against an out-of-state obligor

Law of state in which obligor (respondent) resides

109
Q

CONTEMPT > When is criminal contempt permitted

A
  1. When a party WILLFULLY defaults/disobeys

((“Willfully”: voluntarily and intentionally with the specific intent to do something the law forbids, or the specific intent to fail to do something the law requires))

  1. Disobedience shown BEYOND A REASONABLE DOUBT
  2. Due Process required
110
Q

CONTEMPT > What must be shown for contempt

A

Affidavit identifying

  1. court order, decree, or judgment that the responding party allegedly violated;
  2. the specific acts or omissions which constitute contempt; and
  3. The specific relief which the moving party is seeking
111
Q

CONTEMPT > Maximum punishments for contempt

A
  1. fine not more than $1500
  2. no more than 300 hours of public service
  3. jailed no longer than 1 year (but really 6 months–b.c jury trial not available in family court)
112
Q

PATERNITY > Rule for Paternity

A

Presumption is of legitimacy. Rebuttal of this presumption requires CLEAR AND CONVINCING EVIDENCE

113
Q

PATERNITY > Illegitimate Children

Who are they?

A

Born out of wedlock (unless parents later marry)

Born of a VOID marriage (unless born to an innocent party–GF and ignorance of defect)

114
Q

PATERNITY > Who may bring an action to determine the paternity

A
  1. mother
  2. putative father
  3. child
  4. guardian (person whose care the child has been placed)
  5. authorized agent
115
Q

PATERNITY > Venue for Paternity Actions

A

county where putative father resides

116
Q

ADOPTION >

How to adopt adult in SC

LEGAL EFFECT

A

requires the consent of

  1. adult adoptee (or guardian), and
  2. adoptive parent’s spouse

LEGAL EFFECT: Only for intestate succession

117
Q

ADOPTION > When will adoption in SC be granted to out-of-state residents

A

(FIRE SIDE BULL SHIT)

  1. child is to be placed with relative (biological/by marriage); OR
  2. unusual/exceptional circumstances, such that the adoption will serve BIOC (adoptive parent’s participation in birth of the child; bonding between child and adoptive parents; birth parent’s selection of adoptive parents); OR

((3. a parent is serviced in military service in SC; OR))

  1. child is a special needs child; OR
  2. Child is in foster care for at least 6 months after being legally freed for adoption
  3. Notoriety concerning child/child’s family would make the out-of-state adoption in BIOC
118
Q

*ADOPTION > Who must consent in order for adoption?

Unwed Father

A

For unwed father’s, it depends on child’s age

CHILD OVER SIX (6) MONTHS OLD: consent required when the unwed father has maintained contact by

(a) paying support, AND
(b) either trying to visit the child at least monthly OR regular communication with the child

CHILD IS LESS THAN SIX (6) MONTHS OLD: consent required if unwed father if

(a) he lived with the mother for SIX (6) months immediately preceding the placement for adoption and HELD HIMSELF OUT as father; OR
(b) paid support for the child or expenses of mother’s pregnancy/birth expenses

119
Q

ADOPTION > Who must consent in order for adoption?

Adult Adoption

A

Adult to be adopted and spouse of adoptive parent

120
Q

ADOPTION > Who must consent in order for adoption?

Legal Guardian, Child Placing Agency, or Child’s legal custodian

A

if both parents are deceased; OR

parental rights of both parents have been judicially terminated

121
Q

ADOPTION > Who must consent in order for adoption?

Mother of the child

A

Required, whether married or not

122
Q

ADOPTION > Who must consent in order for adoption?

Minor child

A

If he is more than FOURTEEN (14) years old, unless the court determines either

(1) minor does not have the mental capacity to consent; OR
(2) the BIOC are served by not requiring consent

123
Q

ADOPTION > Who must consent in order for adoption?

Person facilitating the adoption (agency/person)

A

If the child has been relinquished for adoption to that agency/person

124
Q

ADOPTION >

Can consent for adoption be withdrawn?

Standard of Review

A

Not unless the court finds

  1. withdrawal is in the BIOC, and
  2. consent/relinquishment was NOT GIVEN VOLUNTARILY or was obtained under DURESS or by COERCION

Standard of review: POTE

*cannot revoke/withdraw after final order of adoption

125
Q

ADOPTION > Petition for Adoption

Timing

Contents

GAL

Hearing Requirement

Notice Requirement

A

Timing: Within SIXTY (60) days from the date the child is placed with the proposed adoptive parents

CONTENTS

  1. any required consents/relinquishments
  2. Pre-placement investigative report
  3. Background investigative report; and
  4. Statement of all payments

REQUIREMENTS:
GAL must be appointed for the adoptee

Hearing may not be held until at least 90 days after the fling of petition

Must notify anyone who has not consented and may be a biological parent

126
Q

MINORS > CHILD ABUSE

Define “abused or neglected child”

A

A child whose physical or mental health is HARMED or at SUBSTANTIAL RISK OF HARM

127
Q

MINORS > CHILD ABUSE

For purposes of abuse/neglect, define “harm”

A
  1. Being abandoned
  2. Being abused
  3. Being neglected
  4. having delinquency encouraged
128
Q

MINORS > CHILD ABUSE > “Harm” > “Being Abandoned”

A

(1) able parent
(2) makes no provision for child’s support OR no effort to communicate with the child, and
(3) has no intent to return

129
Q

MINORS > CHILD ABUSE > “Harm” > “Being Abused”

A
  1. Parent who is responsible for the child’s welfare commits a WILLFUL ACT
  2. that results in a physical, mental, or sexual injury, or

is likely to significantly impair the child’s physical, mental, or emotional health

((excludes reasonable corporal punishment))

130
Q

MINORS > CHILD ABUSE > “Harm” > “Being Neglected”

A
  1. Financially able parent
  2. deprive child of necessities of life (i.e., food, shelter, education, health care), and
  3. such deprivation caused or presents substantial risk of physical or mental injury
    * does not depend on custody
131
Q

MINORS > CHILD ABUSE > “Harm” > “Encouraged Delinquency”

A

parent condones, encourages, or approves delinquent acts by the child

132
Q

MINORS > Emergency Protective Custody

A

BY OFFICER
1. SUBSTANTIAL AND IMMINENT danger AND no time to apply for court order

  1. PARENTS ARRESTED and child’s welfare is threatened
  2. CHILD LOST and child’s welfare is threatened

BY COURT
SUBSTANTIAL AND IMMINENT DANGER

133
Q

MINORS > Termination of Parental Rights

A

A. Family court finds TPR is in the BIOC, AND

B. the court finds any of the following (“Foo Fighters Hate SAVAGE Clowns”)

  1. Harm: child is harmed and not reasonably likely that home can be made safe within TWELVE (12) months
  2. Father: Presumptive legal father is not the biological father, and BIOC to TPR of presumptive legal father
  3. Emergency Protective Custody: child has been out of home for SIX (6) months, and parent has not remedied the conditions for which the child was removed
  4. Visit: child has lived outside home of either parent for a period of SIX (6) months, AND during that period, parent willfully failed to visit the child
  5. Support: child has lived outside home of either parent for a period of SIX (6) months, AND during that period, parent willfully failed to support the child
  6. Foster Care: child has been in foster care of the state for 15 of the past 22 months
  7. Diagnosable Condition: Parent has a diagnosable condition (like alcoholism) that is unlikely to change within a reasonable time, and condition makes parent unlikely to provide minimally acceptable care for the child
  8. Abandoned/Surrendered: Parent has willfully abandoned or surrendered the child, w/o making adequate arrangements for the child’s needs and care
  9. Abuse (physical): resulting in death/admission to the hospital, and parent has been convicted or plead nolo contendere to that crime.
  10. Guilty/Nolo Contendere to murder of other parent
134
Q

MINORS > Termination of Parental Rights

Standard of Proof

A

Clear and Convincing

135
Q

MINORS > Termination of Parental Rights

Child’s representation

A

GAL must be appointed for the child

Attorney must be appointed for the child

one person could be both

136
Q

MINORS > Psychological Parent

Difference between Psychological Parent and De Facto Custodian

Definition

A

DIFFERENCE: Psychological Parent (Common Law)//De Facto Parent (Statutory)

[[DEFINITION: A psychological parent is a person who has been found by the court to have assumed the role of a parent by fulfilling the child’s physical and psychological needs for care and affection on a day-to-day basis for a substantial period of time]]

137
Q

MINORS > Psychological Parent

Test

A

(“CLOT”)

  1. Biological/adoptive parent CONSENTED to and FOSTERED ret’l btw Psychological parent and child;
  2. Psychological parent and child LIVED TOGETHER in same household;
  3. Psychological parent ASSUMED OBLIGATIONS of parenthood without seeking financial compensation; AND
  4. Psychological parent has been in a parental role for a SUFFICIENT TIME.
138
Q

MINORS > Psychological Parent

Effect of Psychological Parent Status

A

gets greater protection under the law in custody and visitation proceedings than normally afforded to a person who is not a biological/adoptive parent

may be considered “compelling circumstances” to overcome presumption that legal parent should maintain control over the child

139
Q

MINORS > De Facto Custodian

Test

A

Clear and Convincing Evidence to be PRIMARY CAREGIVER FOR and FINANCIAL SUPPORTER of a child who either

(a) child under 3 y/o: resided with the person for six months or more; or
(b) over 6 y/o: resided for more than a year

140
Q

MINORS > De Facto Custodian

Effect

A

Standing to seek visitation or custody

if parents are unfit or other compelling circumstances exist, can obtain visitation or custody

141
Q

What is wiretapping

A

a 3P taping a conversation to which he/she is not a party

[[penalties: fines//up to 5 years]]

142
Q

Federal Stored Communications Act (SCA)

A

Proscribes unauthorized access of electronic communication while it is in electronic storage

143
Q

Servicemembers Civil Relief Act (SCRA)

A

Applies to active service members

allows serve member to request an AUTOMATIC STAY of civil/administrative proceedings in which he/she is a party (applies to family court actions)

When requested, must be granted unless party’s ability to defend/prosecute is NOT MATERIALLY AFFECTED by military service

144
Q

Omnibus Adult Protection Act

A

Sets out analysis for determining whether someone is a “vulnerable adult”

standard of proof is clear and convincing evidence

BAR EXAM (8 decks)

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