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45 Cards in this Set

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Elements of Common Law Marriage (CHAIN)
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
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
Rights w/in Marriage (CSPIN)
C--Confidentiality

S--Support/maintenance

I--Intestate Succession & Wills

N--Necessaries
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
Name change of Child (TWO CORE PIE)
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
Termination of Child Support upon Emancipation--emancipation presumed where:
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
Grounds for Annulment (F FAD)
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
Effects of Annulment (No CLIP)
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
Defenses to Annulment (same as divorce) (CLR)
C-Condonation
L-Laches
R-Ratification
VOIDABLE Marriages
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)
VOID Marriages (NOT grounds for annulment)
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
Jurisdiction of Family Ct Includes:
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
Family Ct does NOT have jurisdction over:
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
Divorce waiting period
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
Residency Requirement for Divorce
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.
Grounds for Divorce (AAAAA)
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)
Defenses to Divorce (CCCIPRR)
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
Alimony vs. Separate Support Maintenance
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
Effect of fault on alimony & separate support
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
Factors to consider when awarding alimony or separate support maintenance (SEFF DANCE TIPS)
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
Types of Alimony
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
Periodic form of alimony
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
Lump sum form of alimony
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
Rehabilitation form of alimony
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
Reimbursement form of alimony
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
Distribution of Property (4 step process--WHPV)
W--What property to divide?
H--How to divide?
P--Portion that each is entitled? (usually 50/50)
V--Value of property?
Marital property
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
Non-marital property (ANVIL)
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)
Transmutation (CUTIe)
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)
Equitable distribution factors (SEFF DANCE HIV TPC)
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)
Distribution of Certain Types of Property (BRANCHS)
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)
Custody Determination Factors (RAP WID TCC)
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
Factors NOT considered for custody
Factors NOT considered:
1) race
2) gender
3) tender years
Factors to consider in battle for custody b/t non-parent or guardian and parent (4 factors)
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
Pyschological Parents & 4 part test for visitation
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
Modification of custody b/t parents
Threshold:
1) must be in child's best interests AND
2) must show substantial change in the circumstances affecting the childs welfare
Support (ct deviation from guidelines amt) (REM MEANS FOCUS)
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
Court enforcement of child support & alimony (CICIC)
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
Marital Agreements (VoGuE) & types & defenses
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
Antenuptial Agreements (WAVE)
Presumptively Valid if
W--Writing
A--After full financial disclosure
V--Voluntary
E--Each has own atty
Post-Nuptial Agreements (SRS)
S--Settlement
R--Reconcilitation
S--Separation
Property agreements advantage & voluntariness test--(OPTS)
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
Adoption (need consent from FAM PALM)
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)
Final Hearing Regarding Adoption (BAD PLAN)
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
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