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104 Cards in this Set
- Front
- Back
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Is a breach of a promise to marry legally actionable? |
* no, in most states
* breaking off an engagement is totally fine |
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what happens to gifts given during the relationship if you call off an engagement? |
* you usually cannot recover the gift unless the gift was conditioned on a subsequent marriage
* example: an engagement ring |
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What can you put in a pre-marital agreement / pre-nuptial agreement? |
* anything, pretty much
* who pays alimony, what the split of economic assets will be |
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What is required for a pre-nuptial agreement to be valid? |
* it must be in writing signed by the party to be charged
* only becomes effective if the two signors got married * it must not be a result of duress * the agreement must not be unconscionable |
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What is the defense of duress? |
* means literal physical coercion in some states
* in others, emotional manipulation counts * look out for whether or not both parties were represented by counsel |
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what makes a pre-nuptial agreement unconscionable? |
Inhalf of the states, there is an uniform act that spells out how you can make ashowing of unconscionability: 1. if oneparty, the richer party, failed to disclose his assets at the time theagreement was made and the other party did not waive disclosure, and there wasno independent knowledge of another person’s assets, then there can beunconscionability 2. if any alimony or support provision would leave the recipient in "unforeseen extreme hardship" |
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what counts as "extreme hardship" in regards to alimony in a pre-nuptial agreement? |
you're so poor you have to seek public assistance |
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what counts as "unforeseen" in regards to alimony in a pre-nuptial agreement? |
* runaway inflation
* injury / disease and the person cannot work |
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What are the requirements for a valid ceremonial marriage? |
* a license
* a ceremony |
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why do you need a license to wed? |
because it's how the state figures out if you have the legal capacity to marry |
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what are the legal capacity requirements to get married? |
* old enough
* sane * you definitely CAN be the same sex now. |
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what do you need at a marriage ceremony? |
* an officiant
* an exchange of promises ("solemn promises") |
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who can be an officiant? |
* member of clergy OR
* public officer who can administer an oath (judge, governor, mayor, marriage officers, temporarily certified officiants) |
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what happens if the officiant is not legit? |
if the spouse don't know that they're not an officiant, then that does not affect the validity of the marriage |
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what is common law marriage? |
* it's only allowed in 10 random states
* established by cohabitation and holding out to the public as married * all other states will recognize common law marriage if it was valid in the non-recognizing state |
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what are the general grounds on which you can base an annulment? |
* predicated on grounds that arose before the marriage that the parties were unaware of at the time of getting married
* usually always problems of capacity |
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what are grounds for a void marriage? |
* bigamy (non-waivable)
* consanguinity (non-waivable) |
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what is bigamy? |
* it's being already married and it affects your capacity to marry thereafter
* non-waivable because of public policy reasons |
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what is consanguinity? |
* incest;affects your capacity to marry
* Can’tmarry siblings, lineal relatives (up or down in the generations and to the sideso like aunts – usually a one generation limit), no marrying parents, kids * 50% of states allow you tomarry your first cousins |
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why would you go through an annulment for a void marriage even though it's legally superfluous (because it means you were never married at all)? |
* Clarityof the record because you actually got married and it’s on the recordeverywhere (state records, etc.)
* Mayneed help adjudicating collateral issues * Besure to state this as part of helpful advice in the essay |
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what is a voidable marriage? |
* it's a marriage in which you are still lawfully married until you get an annulment
* it is waivable because it's about equity between the parties, not public policy |
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what are the grounds for a voidable marriage? |
* parties are underage
* mental incapacity * incurable physical impotence * duress * fraud |
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what is the legal effect of a marriage betwen parties that are underage? |
Thisground is waivable if you continue to cohabit after the impediment isremoved (aka when you turn 18) |
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what are the types of mental incapacity that make a marriage voidable? |
* disease of the mind
* developmental disability * capacity during the ceremony |
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how is an annulment affected when one of the parties has a disease of the mind? |
*
this ground can be waived only when you can be cured or when you regain lucidity * annulment may be pursued by a legal guardianbecause you can’t litigate on your own behalf * common fact pattern: person with Alzheimer’s and kids try to be herguardian |
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how is an annulment affected by a developmental disability of one of the parties? |
*
example: one party has the intellectual capacity of a child * Cannever be waived because it is permanent condition * Annulmentmay be pursued by a legal guardian because you can’t litigate on your ownbehalf |
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when is an annulment available for lack of capacity during the ceremony? |
you waive the ground by staying in the marriage once you sober up |
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what is incurable physical impotence? |
* “inabilityto consummate the marriage”
* Presupposesthat the couple has refrained from sex before marriage * strictlyabout ability to have sex, not make babies * Mustbe incurable ability to have sex (not just too much to drink, etc.) * Thereis no “cuddle” defense |
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how does duress affect an annulment? |
* fact pattern: shotgun wedding
* it is waivable if you continue to cohabit after the gun threat has been removed |
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what is the definition of fraud for annulment purposes? |
a misrepresentation or concealment of information by one party prior to the dateof marriage where the information goes to an essential aspect of themarriage |
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how does fraud affect an annulment? |
* it is waivable
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what are specific things that will constitute fraud? |
* lying about which religion you follow or how serious your beliefs are
* lie about your ability to have children (in opposite sex cases) * if you lie about your ability to have kids without risking your own health or your kid's health * if you lie about who the father of your child is * if you lie about past sexual history that is significant (such as if the woman used to be a prostitute) * whatever your expectations are sexually |
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what will NEVER constitute fraud for an annulment? |
* Lyingabout money, property, career, social status
* NOT grounds for annulment(fictional assumption that no one marries for status) |
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are there any extra remedies that are available when you get an annulment? |
* you might be able to get alimony depending on the state
* you will likely get property division |
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what are the general grounds for a divorce? |
* some ground that arose after the marriage was completed
* you can get a "no fault" divorce in every state |
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what are the specific grounds for divorce?
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* no fault
* adultery * desertion * physical cruelty * mental cruelty |
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what is a no fault divorce? |
when the marriage has "irretrievably broken down" |
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what proof do you need of a no fault divorce? |
* one ofthe spouses moves out and lives separate and apart with no “cohabitation” (sex)for a specified period of time (usually shorter if both spouses agree; the timevaries)
* Youalso cannot have sex with other people because that’s adultery |
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what is desertion? |
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a fault based grounds for divorce * an unjustified departure from the marital home with no intent to return * Nointent to return: usually a year infers that you have no intent to return * Unjustified:if you are a victimized person, that is justified |
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what is physical cruelty? |
* a grounds for divorce
* usually based on domestic violence - once is enough |
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what is mental cruelty? |
* a grounds for divorce
* Usuallyinvolves repeated pattern of conduct * Flexiblegrounds of divorce, usually; discretionary * Examples:1. Perpetualverbal abuse 2. Coldand aloof – refusing communication 3. Refusingto have sex permanently 4. Refrainingfrom personal hygiene 5. Habitual;voluntary drunkenness or drug use (usually has to be for a specified period oftime) |
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can you get a divorce for insanity? |
yes, but insanity usually must be litigated |
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what are the affirmative defenses to fault-based grounds for divorce? |
*
condonation * connivance * recrimination |
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what is condonation? |
when the party asking for the divorce
1. Knowledgeof the misconduct (by the innocent party) 2. Forgiveness(express or implied) 3. Aresumption of marital relations * once this happens, sorry, you're out of luck even if you change your mind on forgiveness * never find this when you have domestic violence, but it is okay for adultery |
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what is connivance? |
* basically entrapment
* Wherethe accused spouse proves that although the misconduct did take place, he orshe was lured into it * example: wife tricks husband into cheating on her |
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what is recrimination? |
* if youask for equitable relief, you must be free of misconduct
* Factpattern: offsetting claims of cheating, so you can’t get divorce * Sothen just do a no fault divorce |
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what should you always talk about in divorce questions? |
talk about howno fault is better because you don’t have to air your dirty laundry |
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what is a legal separation? |
Ajudicial proceeding in which a court will adjudicate economic issues – wherethe judge will enter an order that one party has to make payments to the other,but at the end of the proceeding, they will remain married. |
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what state has subject matter jurisdiction to enter a divorce? |
where at least one spouse is domiciled |
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what state has personal jurisdiction over a divorce? |
the state that has sufficient minimum contracts with the defendant |
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what happens if the state doesn't have one of either SMJ or PJ? |
* you can litigate the issues of economic and the actual divorce separately in different jurisdictions
* this is called a divisible divorce |
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when are out of state divorces given full faith and credit? |
out ofstate divorces are given full faith in credit provided one spouse was domiciledin the forum |
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must a court recognize a divorce from outside of the U.S?
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no, it's discretionary |
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how will a court divide property? |
* first, categorize the asset
* then distribute |
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what are the categories of assets? |
* spouse A's personal property
* spouse B's personal property * marital property |
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what is personal property? |
* Ownedprior to the marriage (including if you convert it for selling – unless it’sfor a joint purpose; also applies for gift, below)
* Giftor inheritance received after the date of the marriage by one spouse in thatparty’s sole name * Appreciationin the value of items (i) and (ii) |
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how is property distributed? |
* spouses keep their own separate property
* marital property is divided based upon equitable factors * may be divided in kind or as cash |
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what does it mean to divide the assets in kind? |
it's like you get the boat, you get the car, etc. |
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what does it mean to distribute the assets as cash? |
value up assets and have one spouse write a check to the other, for example |
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what are the equitable factors considered when dividing marital property? |
* Anythingthe court thinks is just, ultimately
* Lookat age and capability of spouses (do they have disability, etc.) * Earningpotential (professional vs. high school only) * Custodianof minor children? * Howlong married? * Wasone party wasteful of marital assets? * NEVERlook at fault |
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what is alimony called now? |
"spousal support" or "maintenance" |
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why is alimony a thing? |
you have a reciprocal duty to support you spouse |
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is alimony guarantee? |
* no; only allowed if necessary and justified
* discretionary |
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what are the types of alimony payments? |
* permanent periodic payments
* rehabilitative award * lump sum payment * reimbursement |
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what is a permanent periodic payment? |
* subject to being changed in the future (up or down)
* you'll have to prove a change of circumstances |
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what is a rehabilitative award? |
* For aspecified period of time (relatively short – designed to enable the recipient toobtain education and training)
* Theoreticallymodifiable, but less likely since the period is brief |
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what is a lump sum payment? |
* Court mightfavor if richer spouse is elderly or ill and the poorer spouse is much younger (soif rich spouse dies in two months, then it’s over in 2 months)
* These arenot modifiable |
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what is reimbursement? |
Repaymentfor monies expended in support when one spouse was married and going to school |
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when will periodic payments terminate? |
*
remarriage of the recipient * death of the paying former spouse |
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who owes children a duty of support? |
all biological parents |
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what are the state guidelines for child support? |
* usuallya percentage of income
* lastsuntil child’s minority ends; some allow it through bachelor’s degree; or ifthere is an agreement to extend * you cannot contract down from obligation of child support |
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when does your obligation for support terminate if your kid is disabled?
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never, until death; although there is a trend that support charged against the estate of the parent |
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what must you show to get a modification of child support? |
* a substantial change in circumstances
* loss of job; injury * child has new disability / medical things * but never self-induced change of income (like quitting a fancy job to be a hobo to avoid payments) |
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what are arrears? |
* past due child support payments
* they are never modifiable (considered debt) * purpose is to encourage seeking modification promptly |
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what are the remedies if a person is not making child support payments? |
* Seize property
* Wage-withholdingorder * taxrefund withholdings (also if you win the lottery) * Denialof driver’s license * Denialof license to practice profession * No recreationallicenses * Contemptof court |
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what happens if a non-paying parent moves out of state? |
* a uniform law providesfor direct enforceability of child support across state lines; so basicallythere are no boundaries
* can alsomail order in court of new state of residence |
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what are separation agreements? |
* agreements that handle alimony, economic, child payments, etc.
* favored by the courts |
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what does a separation agreement need to be enforceable? |
*
must be based on full disclosure of assets * essentially fair |
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what level of a review is a separation agreement that deals with young kids subjected to? |
* de novo review
* you absolutely cannot consent to disadvantage the kids |
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what are the two types of child custody? |
* physical custody (where the kid will live ; may be shared between parents)
* legal custody (who gets to make decisions about the kid; can also be shared) |
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who has jurisdiction over child custody disputes when the parent who has legal custody and the child move around? |
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a uniform statute says that jurisdiction belongs to whatever state is the homes state of the child, or was within the last 6 months * home state: 6 months's residence with a parent prior to the proceedings * fallback provision: whicheverstate has the greatest connection to the child (so like, if the mom moves every4 months to a different state, and then the home state wasn’t a thing for thelast 6 months) |
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what is the standard for adjudicating the merits of a child custody dispute? |
whatever is in the best interest of the child |
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what are the factors in determining what is in the best interest of the child? |
* ageand health of two parents and also the kid
* emotionalissues – depression / anger issues of the parent * substanceabuse with respect to either parent * isthere a new relationship? * willthe siblings be split up? * Is onemore likely to accommodate visitation? The one who is, should get custody * Materialadvantage (like good school district / good neighborhood) * Anythingelse that seems relevant or important in the fact |
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can a non-parent have custody? |
* Presumptionthat best interest is served by being with the biological parent
* A non-parentpetitioner must show that the parent is unfit (not just worse school, housing, etc.) |
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what is parenting time? |
*
visitation * based on the equity of the circumstances * almost never denied * the right to visit is not contingent on child support * if the custodial parent bars the door, that will be contempt of court |
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what is necessary before a custodial parent can relocate? |
* Prior notice
* rightto judicial hearing * themove must be demonstrated to be bona fide (legitimatereason is up to discretion of the court) |
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do grandparents have visitation rights? |
SCOTUSjust said: you have to show there is an actual harm to the child in denyingaccess or visitation am |
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do children of unmarried women get any rights? |
* Yes, Discriminationagainst them is constitutional suspect
* You getall the same rights of inheritance, for example |
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who normally commences a paternity suit? |
the mother or the child acting through the guardian |
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what is the usual statute of limitations for a paternity suit? |
through the minority of the child |
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how is paternity usually determined? |
through DNA tests |
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who needs to consent to adoption? |
* biological parents (or there can be a termination of parental rights)
* the adoptee (if over the age of 12/14) * any other person who might have legal custody |
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how can parental rights be terminated? |
via clear and convincing evidence of: 1. Abuse 2. abandonment, 3. failureto communicate, failure to support, neglect, failure to provide, 4. failureto pay support, 5. severemental illness |
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what is the process for adoption? |
* getting consent of necessary parties
* investigation of adopted parents (also sometimes a trial placement of the kid in the home) * hearing to finalize adoption (looking to best interest of the child again - almost always granted if you make it to the hearing) |
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must a court divide marital assets equally? |
no |
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what is the purpose of spousal support? |
* to ensure an adequate income stream for the spouse whose economic dependency resulted from the marital relationship
* state this as part of the rule statement |
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what will the court consider regarding spousal support? |
1. the standard of living during the marriage;
2. the duration of the marriage; 3. the age and physical conditions of both parties; 4. the financial resources of each party 5. the contribution of each party to the marriage (including homemaking / child care) 6. the time needed to obtain education or training to allow that party to find appropriate employment; AND 7. the ability of the payor spouse to meet his needs while paying spousal support |
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when is permanent support awarded to a spouse? |
permanent support is awarded to a spouse with neither resources nor ability to be self-sustaining |
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what is considered for child support? |
* the child's monetary needs and the obligor's ability to pay
* most states dictate a formula based upon number of children, their ages, their special needs and the parents' income (court may always deviate) |
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may a spouse grant a divorce when it lacks jurisdiction over one spouse? |
yes, this an ex-parte divorce |
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may states set a minimum durational residency requirement before a divorce action may be filed? |
yes |
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what is the exception to the rule that a state cannot divide property in an ex parte divorce where only one spouse is a resident of the state? |
if the state has sufficient minimum contacts with the property and the defendant and the property is located within the state, the court can adjudicate the party's rights to that property |
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is both spouses' consent require for a divorce to be granted? |
* no, because no-fault divorces may be granted upon a showing that that the marriage is irretrievably broken and that the parties have been living separate and apart for a specified period of time
* the fact that one spouse thinks the marriage should be saved and does not agree is insufficient to prevent a divorce if the other spouse is not interested in continuing the marriage |
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what happens if property is purchased before the marriage, but continues to be paid for with marital funds? |
most courts will apportion the property between separate and marital interest in proportion to the contribution to separate and marital funds used to pay for the property |
