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45 Cards in this Set
- Front
- Back
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Elements of Common Law Marriage (CHAIN)
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C-Cohabitation (no minimum)
H-Hold out to public as H & W A-Age (16) I-Intent (agreement to be married) N-No other impediments |
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Formal Marriage Requirements
(LIP DOC) |
L--License (parental consent needed if b/t 16 & 18--note however that a valid marriage could be accomplished if persons met the SC requirements for common law marriage)
I--No Impediment (consanguinity, mental capacity, bigamy, same sex) P--No Proxy Marriage D--No Duress or Fraud 0--Conducted by Official Authorized by law C--Consummation by cohabitation Note: Failure to meet formal marriage requirements may still be married under common law marriage |
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Rights w/in Marriage (CSPIN)
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C--Confidentiality
S--Support/maintenance I--Intestate Succession & Wills N--Necessaries |
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Best Interest of the Child
(NAPE) |
Primary guide to all matters involving children
N--Natural ties & affection A--Moral Atmosphere P--Pecuniary welfare E--Education |
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Name change of Child (TWO CORE PIE)
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T--Time w/ current name
W--Wishes of the parents O--Motive for the change C--Child's Wishes O--Community respect assoc. w/ surname R--Reason for the proposed changed E--Embarassment, harrassment, difficulty P--Possible lack of identity or cause of insecurity I--Identification as part of family unit E--Effect of change on relationships |
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Termination of Child Support upon Emancipation--emancipation presumed where:
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1) child turns 18 (unless enrolled in high school & making progress towards completion)
2) Cannot exceed 19 years of age 3) Child marries 4) Child becomes self-supporting 5) Graduation from high-school (if over 18 & less than 19) Exceptions to emancipation of child OVER 18: 1) Physical or mental disability 2) Preexisting K or Court order 3) Other exceptional circumstances |
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Grounds for Annulment (F FAD)
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F-failure to consumate by cohabitation
F-Fraud a. Fraudulent representation about sanity or insanity b. Known impotency—children are an integral part of the relationship c. Known sterility d. Inclination to have children in violation of agreement Examples held to be insufficient a. False representations regarding one’s character b. Social standing, or c. Fortune A-Affinity & consanguinity D-Duress |
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Effects of Annulment (No CLIP)
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No-No Alimony
C-Custody (just as in divorce) L-Legitimacy P-Property division (unclear probably eq. dist) Notes: i. Ct order is required to dissolve ii. Subsequent cohabitation/consummation will “ratify” the marriage; marriage can NOT then be invalidated (must get divorce) iii. Only ONE party to the marriage can seek annulment of voidable marriage |
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Defenses to Annulment (same as divorce) (CLR)
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C-Condonation
L-Laches R-Ratification |
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VOIDABLE Marriages
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1) Mental incapacity (not due to idiocy or lunacy)
2) Affinity & Consanguinity 3) Lack of consent 4) Not consumated by cohabitation 5) Fraud/duress (impotency/fertility) |
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VOID Marriages (NOT grounds for annulment)
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i. Minors underage (under 16)
ii. Lack of Capacity 1. VOID if due to idiocy or lunacy, otherwise it is VOIDABLE a. Ex: Entering a marriage while intoxication and therefore incapacitated is VOIDABLE iii. Bigamy/Polygamy iv. Same Sex Marriages Notes: i. No legal decree is needed to dissolve ii. Subsequent cohabitation will NOT ratify iii. Removal of impediment—after removal of impediment (like non-age) the marriage becomes voidable |
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Jurisdiction of Family Ct Includes:
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1. Divorce
2. Apportioning property INCIDENT to divorce, support & maintenance or other marial litigation 3. Annulment 4. Spousal & child support 5. Abuse 6. Custody 7. Grandparent visitation 8. Common-law marriage & 9. Interpretation of marital agreements Note: SMJ can be challenged at ANY time & may NOT be waived |
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Family Ct does NOT have jurisdction over:
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1. K disputes
2. Adjudicating property interest b/t people living together but not married 4. Litigating claim for waste 5. Hearing actions for collection of debt 6. Award $ damages |
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Divorce waiting period
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i. No reference (hearing) b4 2 months after filing of complaint
ii. No final decree b4 3 months after such filing iii. Exceptions 1. When Π seeks a divorce on the a. Grounds of desertion OR b. Separation for one year Notes 1. If file on fault grounds – have waiting period 2. If file on no fault grounds – NO waiting period |
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Residency Requirement for Divorce
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i. Duration
1. Π resided in SC at least 1 year prior to commencement of action 2. Π is nonresident, Δ resided in state at least 1 year 3. Both parties are residents, then 3 months residency prior to filing ii. Test 1. Resident need NOT by physically w/in SC for the entire time 2. Residency = domicile (place where a person has true, fixed and permanent home w/ genuine intent to remain for unlimited period) a. Look for reason of absence (Job related? Army related?) b. Ex: Navy person living in Cal. who’s designated residence is SC even though never stepped foot in SC. SC WILL recognize SC residency. |
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Grounds for Divorce (AAAAA)
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1. Abuse (physical cruelty)
1. Element a. Actual personal physical violence and i. Mental cruelty is NOT a ground for divorce in SC b. Renders cohabitation unsafe 2. Addiction (habitual drunk/drug) 1. Elements a. Fixed habit of frequently getting drunk b. Does not necessarily imply continual drunkenness and c. Use or abuse of alcohol causes breakdown or normal marital relations and d. Drunkenness must exist at or near the time of lawsuit (did they get treatment?) 3. Adultery a. Must have evidence of extra-marital sexual activity (not necessarily intercourse) b. Can be proven by circumstantial evidence showing opportunity & disposition (however one ct held that lack of evidence of disposition was okay) 4. Apart 1 year (no fault) 1. Elements a. Parties must live in separate domiciles (ex: duplex) b. Separation must be continuous (can't stay w/each other AT ALL--if do, have to wait another yr) c. Must be intentional (involuntary separation does NOT count—incarceration is probably intentional) and d. Period of separation must be at least one year immediately prior to the filing of the action 5. Abandonment (desertion) 1. Elements a. Ceasing cohabitation for 1 year b. Intent not to resume cohabitation by absenting c. Absence of consent; and d. Absence of justification for cessation Note: All the above are fault based except separation for 1 yr w/o cohabit (this means that it will NOT impact equitable distribution) |
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Defenses to Divorce (CCCIPRR)
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C--Collusion
1. secret agreement b/t 2 or more parties for a fraudulent, illegal, or deceitful purpose Ex: 2 people may be in a hurry to get divorced, and may lie about being separated for a year C--Condonation 1. forgiveness express or implied 2. it is CONDITIONAL (was there a promise not to do it again?) 3. must have FULL knowledge of the marital offense 4. Presumption—cohabitation, lapse of time or continuance of marital cohabitation with knowledge of offense raises presumption 5. Proof—presence or lack of sexual access is a pertinent factor in determining that requisite state of mind necessary for the existence of condonation 6. Revival of Condoned Conduct—if you do it against, can lose defense C--Connivance 1. this may occur when one spouse actively procures the other’s commission of adultery or other fault-basis for divorce I--Insanity (no fault separation, requires knowledge of adultry's wrongfulness) P--Provocation 1. something that incites or provokes; a means of arousing or stirring to action (must be proportional response) 2. often used as a defense to physcial cruelty R--Reconciliation 1. fresh start by both parties 2. forgiveness or at least a willingness to ignore; it is UNCONDITIONAL 3. Elements a. Mutual intent b. Resumed married life c. Mutual agreement to reconcile followed by acts indicative of such intent d. Parties intend to live together as H & W R--Recrimination |
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Alimony vs. Separate Support Maintenance
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Alimony
i. support payments made by one former spouse to another former spouse. ii. NOT a debt; iii. NOT a punishment device. iv. IS TAXABLE Separate Support Maintenance i. support payments made by one spouse to another; ii. this is PRE-DIVORCE. iii. Almost NEVER TAXABLE |
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Effect of fault on alimony & separate support
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a. Fault may be considered when setting alimony or separate maintenance amt
Elements—the fault must 1. Affect economic circumstances 2. Contribute to the break-up of marriage AND 3. Happen before the earlier of one of 2 events a. Formal signing of written property or marital settlement agreement OR b. Entry of permanent order of separate maintenance & support or perm order of property or marital settlement agreement |
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Factors to consider when awarding alimony or separate support maintenance (SEFF DANCE TIPS)
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i. Support obligations from prior marriage
ii. Equity iii. Fault or marital misconduct iv. Finances (anticipated expenses & needs) v. Duration of marriage vi. Age of H&W at time of marriage & time of divorce vii. Niño’s (Custody of children) viii. Contribution to Marriage (marital & nonmarital property) ix. Education (together with need for additional training) x. Tax consequences xi. Income (anticipated earnings/employment history & earning potential) xii. Physical/emotional condition xiii. Std of living Note: also can consider other relevant factors |
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Types of Alimony
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a. Periodic (preference standard in SC is periodic/permanent)
b. Lump Sum c. Rehabilitation d. Reimbursement e. Retroactive Alimony—Family ct has jurisdiction to order f. Separate Support maintenance—not really alimony g. Other forms (equity) h. Reinstatement of alimony upon annulment of subsequent marriage |
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Periodic form of alimony
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1. Preferred form
2. Based on a) duration of marriage b) overally financial situation of parties c) fault 3. Terminates at a) remarriage of supported spouse b) death c) continued cohabitation Note: Termination rules CAN be changed by agreement HOWEVER, termination at daeth is required by fed. law 4. Modifiable dut to change in circumstances |
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Lump sum form of alimony
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1. paid in one installment or over period of time
2. Must show special circumstances to award (necessity or agreement) 3. Terminates at death of supported spouse. Note: Termination rules CAN be changed by agreement HOWEVER, termination at daeth is required by fed. law 4. NOT modifiable |
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Rehabilitation form of alimony
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1. finite sum to be paid in one installment or periodically
2. must show special circumstances to award 3. Factors: a) time necessary for supported spouse to obtain training or skills b) likelihood that retraining will be successfully completed c) likelihood of success in the job market 4. Terminates at a) remarriage of supported spouse b) daeth c) occurrence of specified event d) continued cohabitation Note: Termination rules CAN be changed by agreement HOWEVER, termination at daeth is required by fed. law 5. Modifiable due to unforseen events whihc would make it difficult |
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Reimbursement form of alimony
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1. definite sum paid in one installment or periodically
2. Must show special circumstances to award 3. Factors: a) ct finds it necessary or desirable to reimburse supported spouse from future earnings of paying spouse for events that occurred during marriage 4. Terminates at: a) remarriage of supported spouse b) death c) continued cohabitation Note: Termination rules CAN be changed by agreement HOWEVER, termination at daeth is required by fed. law 5. NOT modifiable |
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Distribution of Property (4 step process--WHPV)
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W--What property to divide?
H--How to divide? P--Portion that each is entitled? (usually 50/50) V--Value of property? |
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Marital property
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i. Acquired during M
ii. Owned at filing of suit iii. Acquired by either spouse iv. Enhancement of nonmarital assets v. Interspousal gift vi. Vested/nonvested benefits |
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Non-marital property (ANVIL)
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A--Acquired prior to M
N--Non-interspousal gift, inheritance, devise, bequest V--Valid written agmt excludes I--Income derived from nonmarital assets L--Later than trigger (property acquired after triggering event effecting fault--in other words: after Formal signing of written property or marital settlement agreement OR after Entry of permanent order of separate maintenance & support or perm order of property or marital settlement agreement) |
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Transmutation (CUTIe)
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Property that is the separate property of a spouse may be transmuted into marital property.
C--Commingled (cash) U--Utilized in support of M T--Titled jointly I--Intent to make marital (this is the KEY) |
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Equitable distribution factors (SEFF DANCE HIV TPC)
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S--Support being paid or received (prior M or C)
E--Equity F--Financial circumstances of parties F--Fault of either party D--Duration of M A--Alimony already awarded N--Nonmarital property of each spouse C--Contribution to M E--Education (additional training) H--Home (best interest of C, financial stable) I--Incumbrances (on marital & separate prop.) V--Vested benefits (retirement) T--Taxes P--Physical/Emotional Health C--Child Custody (MOST IMPORTANT) |
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Distribution of Certain Types of Property (BRANCHS)
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B--Business (FMV)
R--Retirement benefits (present value method) A--Damages Award (mechanics award) N--Not Professional degrees (not subj to equit.dis) C--Future Commissions (subj. to equit. distrib.) H--Marital Home (consider interests) S--SS Benefits (not subj. to equit. distribution) |
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Custody Determination Factors (RAP WID TCC)
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R--Religion
A--Agmt in writing P--Primary caretaker (historically) W--Welfare of child/best interest I--Immoral conduct detrimental to child welfare D--Domestic violence (physical & sexual) T--Totality of Circum unique to child (psycho, physical, envir, spirit, educ., med, etc.) C--Child’s reasonable preference C--Character, fitness, attitude, inclination of parents |
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Factors NOT considered for custody
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Factors NOT considered:
1) race 2) gender 3) tender years |
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Factors to consider in battle for custody b/t non-parent or guardian and parent (4 factors)
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1. Parent must be fit
2. Amt of contact b/t parent & child (financial or visits) 3. Circumstances causing parent to relinquish custody 4. Degree of attachment b/t child and temp guardian Note: Rebuttable presumption in favor of parent |
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Pyschological Parents & 4 part test for visitation
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Person who fills child’s psychological, emotion, financial needs on daily basis
Test: a. Parents consent/fostered relationship w/Chile b. Child lived in same house c. Assumed obligation of parenthood (care, educ., develop, $ w/o expect compensation) d. Length of time suffic. to est. bonded, parental relationship |
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Modification of custody b/t parents
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Threshold:
1) must be in child's best interests AND 2) must show substantial change in the circumstances affecting the childs welfare |
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Support (ct deviation from guidelines amt) (REM MEANS FOCUS)
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R--Rehab, Reimb, lump sum, ALIMONY
E--Educational expenses M--Monthly bills M--Mandatory deduction of retirement E--Equitable distribution of property A--Agreement b/t parties N--Non-court ordered child support S--Significant income of child F--Families 6+ O--Obligations (support other dependents) C--Consumer Debt U--Unreimbursed medical/dental expenses (must be extraordinary if for parent or child) S--Substantially different income of non-custody parent |
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Court enforcement of child support & alimony (CICIC)
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i. Central deposit
ii. Insurance as security iii. Income deduction / Wage garnishment iv. Criminal prosecution v. Contempt – criminal (punish) / civil ($1500 fine, 300 comm svc, 1 yr jail) UIFSA—allows action for support agnst out-of-state Δ |
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Marital Agreements (VoGuE) & types & defenses
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Must be:
V--Voluntary G--Good faith E--Equitable Types: a. Antenuptial (prenuptial agreements) b. Post-nuptial/Marital Agreements Incident to Divorce c. Separation Agreements d. Alimony & Child Support Agreements e. Property Agreements Defenses: i. Undue Influence (coercion) ii. Unconscionability (one-sided) iii. Other K defenses (facts have changed) iv. Can’t determinatively K over c/s support v. Can’t waive child support |
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Antenuptial Agreements (WAVE)
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Presumptively Valid if
W--Writing A--After full financial disclosure V--Voluntary E--Each has own atty |
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Post-Nuptial Agreements (SRS)
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S--Settlement
R--Reconcilitation S--Separation |
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Property agreements advantage & voluntariness test--(OPTS)
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Advantage--CANNOT BE MODIFIED BY COURT (key to whether its a final agreement is intent)
Voluntariness test: O--Opportunity to seek counsel P--Place of agreement T--Time of agreement S--Statements made during presentation of agreement |
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Adoption (need consent from FAM PALM)
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F--Father (unwed)
1. If C over 6 mos—must have F’s consent if he pays support & visits or regular communication 2. If C less than 6—must have F’s consent if F lived w/M for 6 mos or paid birth expenses A--Adult M--Mother (unwed) P--Parents A--Agency L--Legal Guardian M--Minor (if more than 14 yrs old) |
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Final Hearing Regarding Adoption (BAD PLAN)
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B--Best interest of the child
A--Adoptee in actual custody of petitioner (90 d) D--Disbursements made are reasonable P--Petitioner fit L--Law allowing non-resident adoption A--Appropriate notice N--Necessary Consent |
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Minors in state custody
--abused or neglected (NADA) --termination of parental rights (HARD PROOF) |
Abuse (phys/mental health harm/threat) N-A-D-A
i. Neglect ii. Abuse iii. Delinquency encouraged iv. Abandoned Termination of Parental Rights H-A-R-D P-R-O-O-F i. Harm ii. Abuse iii. suRrender / abandon iv. Diagnosed condition of P (addition) v. Presumed legal father not biological vi. Removed 6 mos P not changed vii. C Outside home 6 mos, no P contact viii. C Outside home, P no support ix. Foster care 15-22 mos |
