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33 Cards in this Set
- Front
- Back
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Requirements for a PRE-MATERIAL agreement
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i. agreement must be fair and reasonable at the time of execution;
ii. the party contesting agreement was fully informed (or should have known) of other's party's worth before execution; iii. agreement includes waiver by contesting party must be in writing must be fair and reasonable at the time of divorce |
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Consideration for PRE-MATERIAL agreement
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Impending marriage constitutes consideration
If marriage does not occur --- parties discharged If marriage does occur --- agreement survives (even if marriage is later annulled) |
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Sufficient Mental Capacity
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parties must have sufficient mental capacity to marry
they must: i. understand the nature of their acts ii. significance of marriage iii. duties imposed by marriage iv. consent of parties capable in law of making contract |
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Sufficient Age for Marriage
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parties must be 18, unless court order of parental consent provided
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Lack of Incestuous Relationship & No Prior Marriage
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Incestuous - relation by blood, affinity - parties relationship must not be too close
party already married may not enter into another marriage, UNLESS - the previous marriage has been terminated by valid divorce or death of spouse - the former spouse has been missing for 7 years, w/ no indication of being alive |
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Procedural Requirements for Marriage
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1. License - mandatory - file intention to marry w/ town registrar/clerk, and provide documentary proof of age
2. Ceremony - solemnized by judicial officer or clergy - must occur w/in 60 days of filing for license, but must wait at least 3 days after filing to hold ceremony |
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Spousal Capacity
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- each party treated as individual without dependence on or imputation to other spouse
- spouses may sue each other re: contracts - MA does not have tort immunity between spouses |
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Spousal Duty of Support
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- spouses are jointly & severally liable for debts incurred by other spouse or children
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Desertion & Neglect
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- spouse, without just cause, deserts spouse/minor child w/out making reasonable provision for spouse/child's support
- subject to criminal liability |
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Remedy for Breach of Duty of Support
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- may seek relief in district court
- fault or misconduct on the part of the spouse seeking support may influence court when deciding whether to enforce right to support |
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Requirements for MARITAL agreement
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i. meaningful written waiver (did party have counsel? opportunity to review? understand the effect of the agreement?)
ii. full disclosure of each party's assets ii. no fraud or coercion iv. fair and reasonable terms at the time of execution and divorce - burden of proof is on spouse seeking to enforce the agreement |
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Annulment
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declaration that a marriage is invalid
- if annulment decree entered, parties will be treated as though they were never married |
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Void Marriage
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marriage that never existed for any purpose; no subsequent act can ratify the marriage
- parties do not need court order to terminate a void marriage - marriage subject to collateral attack even after death of a party |
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Voidable Marriage
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deemed valid unless one spouse seeks to have marriage annulled
only a spouse may bring annulment action - if the spouse with the cause of action RATIFIES the marriage, it can no longer be invalidated (continues relationship); same is true is spouse dies |
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Grounds for a Marriage to be Void
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1. Bigamy
2. Polygamy 3. Incest |
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Grounds for a Marriage to be Voidable
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1. mental incapacity
2. duress 3. fraud going to essence of marital agreement |
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Divorce
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Probate Court
- divorce can only be obtained if marriage was valid |
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Grounds for Divorce - Fault
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1. Adultery
2. Cruel & Abusive Treatment 3. Desertion 4. Impotency 5. Gross & Confirmed Intoxication 6. Nonsupport 7. Sentence to Confinement |
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Desertion
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voluntary departure
i. w/o justification ii. w/o consent of spouse iii. w/ intent of not returning |
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Affirmative Defenses - Fault Divorce
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1. Condonation
2. Collusion 3. Connivance 4. Insanity |
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No-Fault Divorce
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Irretrievable breakdown of marriage
- either or both spouses unable/unwilling to co-habit - no prospects for reconciliation |
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Effective Date of Divorce
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- 3 months after judgment is entered (unless revoked or stayed for cause)
- resumption of marital relations during 3 month period - may be used to attack judgment - death of spouse during 3 month period - terminates judgment, and it does not become final |
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Rights during Pendency of Divorce
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- temporary orders for custody, support, and use of the marital home and property
- automatic restraint from selling, transferring, encumbering, or otherwise disposing of assets |
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Alimony - Factors considered by Court
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i. length of marriage
ii. conduct of parties during marriage iii. age, health, station in life, occupation of parties iv. amount and sources of income available to each party v. vocational skills/employability of each party vi. estate of each party vii. liabilities and needs of each party viii. opportunities for future acquisition of capital assets and income - there is no alimony when there has been annulment |
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Modifications to Alimony
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1. Remarriage
- does not automatically terminate alimony; does make PFC for material change in circumstances 2. Bankruptcy - does not discharge duty to pay alimony 3. Career Change or Retirement - good faith, voluntary career change resulting in lover income MAY warrant reduction in alimony |
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Division of Property
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court will consider same factors as they do for alimony
MAY ALSO CONSIDER i. contribution of each party in acquisition, preservation, or appreciation in value of respective estates ii. each party's contribution as a homemaker in family unit - estate valuation determined at date of divorce trial - marital property is assignable to SPOUSES ONLY, not their children |
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Property Subject to Equitable Distribution
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i. choices in action
ii. attorney spouse's interest in a contingent fee for pending lawsuit iii. personal injury awards compensation for loss of earning capacity & medical expenses iv. beneficial interests in real estate that include right to reside on the property v. most pension benefits & other retirement benefits vi. spouse's interest in partnership that produces consistent profits and disburses those profits to the spouse over a period long enough the appraise the present value of the partnership interest fairly - an expectancy of inheritance is not subject to division, but may be considered by court. - inheritance actually received is subject to division |
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Separate Support
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procedure allowing party to marriage to obtain court protection without dissolving the marriage
does not require physical separation of spouses |
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Grounds for Separate Support
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1. Desertion
2. Living apart for justifiable cause 3. failure to support |
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Nature of Judgment for Separate Support
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i. award of child custody and maintenance of the minor child based on best interest of the child
ii. award of support based on needs, financial resources, standard of living of spouse and minor children iii. assets held in the name of one party may be used for benefit of the other iv. offending spouse precluded from an intestate share, election to waive will v. judgment is not modifiable |
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Jurisdictional Basis for Child Custody Judgments
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i. MA is home state of child
ii. MA has been child's home state w/in 6 months of the proceeding and a parent continues to reside in MA iii. appears no other state has jurisdiction and is in best interest of the child for MA court to assume jurisdiction iv. necessary to protect the child from abandonment, abuse, or neglect |
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Duration of Child Support Obligation
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- until child reaches 18, or still attending high school
- obligation may be extended if child resides at home and is principally dependent on parents for maintenance - obligation extended for support of adult child who is so physically/mentally impaired as to be incapable of supporting himself |
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Modification of Child Support
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i. existing order is at least 3 years old
ii. health insurance becomes available at a reasonable cost iii. reasonably priced health insurance becomes unavailable iv. material change in circumstances |
