014 Domestic Relations

Front 1

Marriage requirements:

Back 1

1.License--both spouses apply in person unless one is incarcerated
2. Ceremony with authorized officiant
-no ship's captain
3. parties NOT
-too closely related by blood or marriage (even after marriage ends) i.e blood relatives up to first cousins.
-bigamy; same-sex(not recognized even if allowed in another state)

Front 2

Voidable Marriages--subissue usually

Back 2

affected by any event or condition affecting ADEQUACY of CONSENT to the marriage contract.

-action must be brought by one of spouses

-parent with custody of child is entitled to child support but NOT ALIMONY,
-children remain legitimate
-PROPERTY treated as if parties never married.

The marriage can be ratified by continued cohabitation after removal ofthe infirmity.

Typical grounds include:
impotency,
mental disability or nonage,
fraud,
mistake,
and pregnancy by someone other than the husband that exists at the time of the marriage without the husband's knowledge.

Front 3

Void marriages

Back 3

Void marriages are said to be utter nullities,

-subject even to collateral attack by third parties;
-they are not validated by continued cohabitation after removal of the impediment.

Void marriages include bigamous marriages,
same-sex marriages,
marriages within the prohibited degrees of kinship,
and
marriages to parties who have been adjudicated insane.

Front 4

Bigamy as a bar to validity of marriage

Back 4

A second marriage may not be contracted until the first manage has been dissolved.

However, if a spouse has been absent for 5 years and is not known to be living, the other spouse may marry again without first obtaining a divorce.

There is a rebuttable presumption of validity in favor of the last marriage.

Front 5

annulment--both parties underage

Back 5

grounds for annulment,
BUT
if the parties continue in the relationship for a reasonable time after the underage party attains the age of majority.

Front 6

Effect of Annulment:

Back 6

1. marriage is set aside
2. No alimony award possible
3. children remain legitimate
4. CHILD CUSTODY can be awarded
5. PROPERTY treated as if parties never married.
-look for a short marriage i.e. 31 days

Front 7

underage marriage

Back 7

-16-18 parental consent required
-under 16 can marry with court approval i.e. pergnancy

Front 8

Jurisdiction and Venue:

Back 8

-filed in Circuit or Chancery court of the county 1. where ∆ SPOUSE lives or 2. where the parties resided when they separated.

OR

3. If ∆ spouse is out of state:
TN long-arm statute provides jurisdiction over ∆ spousei.e. venue is in TN
IF the parties lived together
in marriage in the state
AND
π spouse remains in Tennessee.

-compl. must allege the jurisdictional facts, but need not allege grounds specifically.
Must be sworn to, except when ground is irreconcilable differences.

Front 9

Grounds--All 16

CARDIAC-PHOBIC

Back 9

mention applicable grounds then, in the alternative, plead irreconcilable differences.

1. Impotence(actual) and inability to procreate since time of marriage
2. Bigamy
3. Adultery
4. Desertion
5. Conviction of an infamous crime
6. Conviction of a felony and sentence to confinement
7. attempt on the life of spouse by poision or any other means showing malice
8. Refusal to move to TN with spouse for TWO years
9. Pregnant at time of marriage by another person, without husband's knowledge (unless sex before marriage)
10. Habitual drunkenness commencing AFTER marriage
11. Inappropriate marital conduct as renders cohabitation unsafe and improper aka inappropriate marital conduct.
12. indignities to the spouse's person as to render the spouse's position intolerable, and thereby force the spouse to withdraw
13. Abandonment and refusal to provide for spouse for 2 years
14. 2 yr separation(continuous, separate residences, not cohabiting as man and wife, no minor children.
15. Failure to reconcile after a decree of legal separation
16. Irreconcilable differences

Front 10

Irreconcilable Differences

Back 10

-parties must AGREE on all the issues and do all the work. Judge must then approve
-mandatory waiting period after filing complaint (60 days if no minor children; otherwise 90 days)
-parties execute a MARTIAL DISSOLUTION Agreement (MDA) to all issues: including property, support and if children a parenting plan.
-usually EX PARTE hearing is held and divorce is granted.

Front 11

Inappropriate marital conduct or indignities

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IMC=catch-all
"any series of misconduct which makes cohabitation unacceptable."

Defenses:
1. Insanity--if ∆ proves that at the time of the acts, as a result of mental defect or disease, he lacked sufficient capacity either to appreciate the wrongful nature of the acts or the volition to control his acts.
2. In addition to insanity, ∆ can raise in defense that the "ill conduct" of is the JUSTIFIABLE CAUSE of his bad actions.

indignities:

Indignities offered to the other spouse as to render his/her condition intolerable, and thereby forcing him/her to withdraw.

Front 12

Desertion/constructivce desertion

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Desertion--willful or malicious absence of either party without a reasonable cause for one entire year.

constructive desertion,
mistreatment of one spouse forces the mistreated spouse to leave the home or separate within the home and stay away.

Front 13

2 year separation

Back 13

requires no minor children

Front 14

What is required to prove impotency as a ground for divorce?

Back 14

One must show that one of the parties was, at the time oft he marriage, and still is "naturally impotent and incapable of procreation."

Temporary impotence, or impotence that is curable is not sufficient as grounds,
UNLESS the impotent party refuses to submit to treatment.

Sterility is not sufficient; the defendant must be shown to be unable to copulate and procreate.

Front 15

Adultery

Back 15

-may involve post-separation conduct
-prove by C&C opportunity and inclination

Front 16

Defenses

Back 16

1. Recrimination
2. Condonation
3. Connivance

Front 17

Division of Property

Back 17

1. crt determines marital v. separate property
2. court makes an equitable division of the marital estate
before determining spousal support
and
without regard to marital fault

***"Equitable division does not necessarily mean equal"***

Front 18

separate property

Back 18

Separate property is that property which was brought to the marriage, or which was acquired by gift, descent, or devise.
-includes assets in INDIVIDUAL RETIREMENT ACCOUNTS
-income from and appreciation of separate property
This property will not be divided.

Front 19

marital property

Back 19

Marital property is all other property, including
-increases in value to separate property which occurred during the marriage, if each party CONTRIBUTED to its PRESERVATION and APPRECIATION.
-Contribution can be in the form of a wage earner, homemaker, financial planner or child care provider. Marital property will be divided equitably by the court.
ALSO:
-value of stock option rights, pensions, retirement or other fringe benefits relating to employment that accrued during the period of the marriage.
-includes personal injury, worker's comp, social sec. disability actions and other similar actions for wages lost during marriage, reimbursement for medical bills.

Equitably does not necessarily mean equally.

Front 20

Doctrine of Transmutation

Back 20

1. separate property becomes marital property or vice-versa based on INTENT of parties
-wife uses joint check to buy car for husband--personal
-husband uses separate check to buy property and titles in both names

2. Statutory transmutation:
occurs regardless of parties' intent, as to income from and any increase in value during marriage of separate property if EACH PARTY SUBSTANTIALLY CONTRIBUTED to its PRESERVATION & APPRECIATION

substantial contribution includes direct or indirect contribution of a spouse as homemaker, wage earner, parent, or family financial manager, together with other facts the court may determine.

Front 21

Commingling of property

Back 21

separate property can become marital if it becomes inextricably intertwined
-courts will attempt to trace the property

Front 22

Equitable division

Back 22

-once the court identifies and values the marital property, it will make an equitable division.
-court's division of property is not subject to modification once the divorce is final

Factors include, among others:
-duration of marriage
-age, physical, mental health, vocation skills, employability, earning capacity
-value of separate property
-contribution of each party
-any other such factors necessary to consider the EQUITIES of the parties.

Front 23

Alimony

Back 23

after the equitable division of proerty, alimony is considered

Generally courts consider the need of one party and the ability of the other to pay the DISADVANTAGED spouse.

An award of alimony may be made in one of four ways in Tennessee.

These are:
1. rehabilitative alimony,--most favored; designed to put spouse in economically self-sufficient position (modifiable upon showing of substantial and material change)
2. alimony in futuro, --periodic or permanent can be modified; until death or remarriage (unless agreed otherwise)
3.alimony in solido--lump sum (or installments); neither deductible by payor nor taxable to recipient; high-income choice
and
4.transitional alimony.

In awarding alimony, the courts consider the earning capacity of the parties, education and training, duration of the marriage, age, assets, property division and any other factors the court deems necessary.

The court may consider the fault of the parties when determining whether to award alimony and how much to award.

Front 24

If a suit for divorce is tiled in another state, may one also be filed in Tennessee?

Back 24

Yes. The fact that a suit is pending in another state is not a bar to suit in Tennessee. The court that comes to judgment first will control.

Front 25

Can alimony be validly waived in a prenuptial agreement?

Back 25

In Tennessee, prenuptial agreements are permitted if they are free from fraud.

Alimony can be waived as long as the dependent spouse at the time of the divorce will not become a public charge.

-prospective spouse can also waive:
elective share, homestead and exempt property,
BUT
custody provisions ARE UNENFORCEABLE

-IF the agreement does not resolve all property issues, court may divide those not addressed in the agreement.

Front 26

What is required for a valid prenuptial agreement?

Back 26

Prenuptial agreements are subject to the usual contract principles and must be in writing.

There must be full disclosure of assets, liabilities and the values of each party's property.

In addition, the agreement must be fair, entered into in good faith and without duress or undue influence.

Front 27

What is the Uniform Child Custody Jurisdiction Act

Back 27

The UCCJA provides one court with continuing control to protect the child's best interests. The first jurisdiction that should be given control is the home state of the child at the time of the proceedings or within six months of the proceedings if one parent still lives there. The second jurisdiction is one in which it would be in the best interest of the child for the court to assume jurisdiction because the child and at least one parent have a significant connection with the state.

If the child has already been living with the adoptive family for at least 6 months, there is no wait for petition approval.

Front 28

What is the Federal Parental Kidnapping Prevention Act?

Back 28

Under the Federal Parental Kidnapping Prevention Act, Tennessee cannot exercise jurisdiction if, at the time a plaintiff files suite in Tennessee, a custody proceeding is pending in another state with proper jurisdiction, unless that state defers to Tennessee.

Front 29

Child Custody now "Parenting responsibilities"

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The best interests of the child controls.

The court will consider the love, affection and emotional ties existing between the parents and child; the dispositions o f the parents to care for the child, including which parent has been the primary caregiver; continuity; stability of the family unit; mental and physical health o f the parents; the home, school and community record ofthe child, the preference of a child 12 years old or older; any evidence ofphysical or emotional abuse by a parent to the child, the other parent, or any other person; the character and behavior of any other person who resides in or frequents the home of a parent; and the disposition o f a parent to encourage contact with the other parent.

Front 30

What should a biological father do to legitimate his child?

Back 30

He should first file with the putative father registry within 30 days of the birth of the child or he will have no parental rights. Then he must file a petition to legitimate. Even if not on the putative father registry, the natural father of a child can file a legitimization petition within 30 days of receiving notice that an adoption is pending.

Front 31

What are the legal requirements for adoption?

Back 31

-must live in TN for 6 months
---
-financially fit
-stable home
-able to provide good, loving, family environment.

Front 32

Maya spouse sue the other spouse for a tort or may a child sue a parent for a tort?

Back 32

Parent-child immunity is now limited to "conduct that constitutes tile exercise ofparental authority... [and] supervision, and fileprovision ofparental care and custody."

Front 33

What are the current guidelines for child support?

Back 33

The child support guidelines are based on the income shares model. The basic goal of this model is to have the parents contribute an amount of income sufficient to support the children at the same level as if the parents were living together.

To achieve this result, the parents' combined net income is ascertained and the support needs of the children are determined based on the Tennessee schedule o fbasic child support obligations.

Then the parents' shares of the support obligation are determined in proportion to their income.

Deviation in the shares is allowed by the guidelines, for items such as health care, time spent with children, private school expenses, and credit for other children.

Front 34

How would one parent prevent the other parent from removing a minor child from the court's jurisdiction during a pending divorce?

Back 34

By obtaining a court order prohibiting such action. If a divorce action is not pending, the court would have to find a substantial danger of harm to the child in order to justify state interference with parental rights.

Front 35

MDA

Back 35

marital dissolution agreement
-agreement resolving all issues in a divorce action and is incorporated into the court order.

-court can modify periodic alimony (upon showing of changed circumstances) provisions under the doctrine of merger b/c MDA is merged into divorce decree.

*if one spouse dies after signing MDA, then the other is NOT a "surviving spouse" notwithstanding the fact judge hasnt approved/signed it.

Front 36

mandatory status quo injunction

Back 36

granted immediately upon filing divorce or separation
both parties restrained from
-transferring or disposing of marital property
-harassing, assaulting or abusing each other
-making disparaging remarks in the presence of children or employers
-relocating children more than 100 miles from tn without court approval or approval unless
"well-founded fear" of physical abuse.

Front 37

parenting plan

Back 37

must include:
-residential schedule,
-establish rights and responsibilities of both parents,
-provide for child support
-provide process for ADR.

Front 38

Duration of Child support

Back 38

-generally 18
-past 18 if still in high school until graduates high school or until his class graduates i.e. his class graduates
-can continue until 21 if child is disabled or handicapped.

Front 39

Termination of parental rights
-not as important

Back 39

grounds must be proven by clear and convincing evidence of incompetence to adequately care for child.

Front 40

Termination of parental rights
-not as important

Grounds

Back 40

1. abandonment
(no payment of child support or willful failure to visit for 6 months)
2. substantial noncompliance with plan of care
3. Abuse
4. 10 yr prison sentence or 2 yrs if against child
5. incompetence
6. conviction or civil liability for death of partner or sibling.

Front 41

Waiting Periods:

Back 41

Complaint must be on file for 60 days before hearing if no minor children

90 days if minor children

Front 42

Legal Separation

*no effect on will**

Back 42

1. grounds same as divorce
2. may be filed as alternative to complaint for divorce
3. unless other party specifically objects, shall be granted
4. effect of legal separation is that parties still married and clock starts running on 2 years for no-fault

Front 43

Automatic Injunctions

effective against petitioner upon filing and upon respondent upon personal service or waiver/ acceptance

in effect until resolution

Back 43

Both parties restrained from:
1. transferring/ dissipating marital prop
2. changing status of insurance policy
3. harrassing, threatening, assaulting other
4. making disparaging remarks in presence of children or employers
5. relocating children out of TN

Front 44

Separate Property

Back 44

1. owned before marriage (including IRA)
2. acquired in exchange for prop acquired before marriage
3. income and appreciation of separate prop (if no transmutation)
4. property acquired by gift, bequest, devise, descent
5. P&S awards, future med expenses and future lost wages

Front 45

Marital Property

Back 45

1. acquired during marriage up to final divorce hearing
2. income from/ increase in value during marriage of sep property if ea party substnatially contributed to its appreciation and preservation (direct or indirect)
3.value of vested and unvested pension, stock options, etc. related to employment
4. includes recovery in PI, WC, SSD (wages lost during marriage)

Front 46

Equitable Division--not subject to modification, though alimony award is

Title is irrelevant

Back 46

Considerations:
1. age, physical health, vocational skills, earning capacity, financial needs/ liabilities of each
2. tangible/ intangible contirbution by one party to the education, training or increased earnign power of the other
3. duration of marriage (7+)
4. relative ability for future acquisition of capital
5. cotnribution of each party to acquisition, preservation, appreciation, depreciation, dissipatino of marital or separate prop
6. value of sep prop
7.estate of ea party at time of marriage
8. economic circumstances of each
9. tax consequences

Front 47

ALIMONY

considered after equitable division of property and paid to teh economically disadvantaged spouse

express legislative preference for rehabilitative alimony

Back 47

1. In Futuro
2. In Solido
3. Rehabilitative
4. Transitional

*fault not at issue for property division but IS for alimony*

Front 48

In Futuro

Back 48

"periodic" or "permanent"
indefinite duration and ends automatically upon remarriage or death of either party

Tax: deductible by payor, taxable to recipient

Front 49

In Solido

Back 49

pay up front or in installments NO MODIFICATION (high income choice)

for specified period
Tax: not deductible by payor nor taxable to receipient

Front 50

Rehabilitative

*court preferred; designed to restore disadvantaged spouse's earning capacity*

Back 50

specified time period
modifiable on showing of subst and mat change of circumstances
Tax: deductible by payor, taxable to recipient

Front 51

GROUNDS FOR DIVORCE:

CARDIAC-PHOBIC (+ no-fault and irreconcilable differences)

Back 51

1. Convicted of infamous crime
2. Adultery (mention poss of cruelty as well)
3. Refusal to move to TN with spouse for 2 yrs
4. Desertion (1 entire yr, no cause)
5. Impotence/ inability to procreate
6. Attempted to take life of spouse
7. Conviction of felony + jail time
8. Pregnant at time of marriage, by another man, without H's knowledge.
9. Habitual drunkenness or abuse of narcotic drugs COMMENCING AFTER MARRIAGE
10. Out of the house (abandonment) and refusal to provide for the spouse
11. Bigamy
12. Indignities to spouse's person as to render spouse's position intolerable
13. Cruel and inhuman trtmt ("inappropriate marital conduct")


**No Fault = living in sep residences for 2 years (no minor children). If minor children, still may get no fault divorce if can prove one of grounds and remain separated 2 years

ID = "divorce by agreement"

Front 52

Waiting Period:

Back 52

Complaint must be on file for 60 days before hearing if no minor children
90 days if there are minor children

Front 53

Irreconcilable Differences

(parties agree on all issues and judge approves)

Back 53

MDA (equitable division of property/ debts, support provisions, agreed parenting plan)

Front 54

Inappropriate Marital Conduct (Cruel and Inhuman treatment)

Back 54

often pled as alternative ground to irreconcilable differences

Front 55

Adultery

Back 55

Must plead with specificity and prove by C&C that adulterer had inclination/ disposition and opportunity

Front 56

DEFENSES to GROUNDS FOR DIVORCE:

Back 56

Adultery: (1) Recrimination (P also guilty of adultery, (2) condonation (P had sex with D after learning of adultery), (3) connivance (swinger situation)

Cruel & Inhuman: P's "ill conduct" creates a justifiable cause for D's misconduct

Front 57

Always include I.D. as a potential alternate ground in essays (and mention necessity of MDA)

Back 57

benefit: P will not have to present corroborating proof of other grounds

Front 58

Courts have recognized insanity as a defense in cruelty cases

Back 58

D must prove that a mental disease caused lack of capacity to control her actions (depression). This is (obvi) a reach.

Front 59

Investment Assets: what had prior to marriage remains separate, but if invest wages earned during marriage = marital property

BUT, if increase in value of stocks is due solely to market factors, may remain sep property

Back 59

transmutation because "each party substantially contributed to its preservation and appreciation" (direct or indirect, i.e, one as "financial manager" and other as a working spouse or homemaker)

Front 60

TERMINOLOGY:

Back 60

"primary residential parent"

Front 61

transmutation can be based on intent of parties (titling in both names, car as a gift....)

Back 61

or can be statutory ('if each party subst contributed to its preservation and appreciation")

Front 62

Termination of Parental Rights

Back 62

standing to bring: prospective adoptive parents, licensed child-placing agency w/ custody, GAL, court-appointed special advocate (CASA), DCS

**biological parent does NOT have standing to term other parent's rights**

Front 63

TERMINOLOGY:

Back 63

"parenting responsibilities" and "parenting plan" (rather than "custody")
"residential schedule"

Front 64

temp parenting plan required during pendency of action

Back 64

parties can agree, which requires no writing or, if cannot, request court to order dispute resolution

Front 65

perm parenting plan must include:

(in addition to residential schedule)

**also, each paretn must attend a parent educational seminar soon after filing of complaint**

Back 65

provide for child's changing needs, establish authority/ resp of each parent, minimize exposure to parental conflict, provide for a process for dispute resolution, allocate decisionmaking authority, provide that each parent may make the day-to-day decisions while the child is residing with him/ her, good faith effort for mutual decisionmaking, obligation to annually report income

Front 66

UCCJEA application:

first identify child's "home state" (state in which child lived with parent for 6 consecutive months preceding commencement of proceedings)

Back 66

jurisdiction of home state continues as long a it has j as a matter of state law and remains residence of child or either parent

*no other state may modify custody determ unless home state no longer has j (or declines to exercise it)

Front 67

LIMITED EXCEPTION to "home state" jurisdiction in relation to custody disputes:

Back 67

UCCJEA allows state in which child is physically present to exercise j in emergency (suspected mistreatment or abuse)