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66 Cards in this Set
- Front
- Back
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3 elements for breach of promise to marry?
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i. Contract " I promise to", ii. Breach =won't marry, iii. Damages =rent for hotel, videoguy
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What is consideration in promise to marry contract and what is not
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Never sex this is illegal but consideration is mutual promise to marry
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Difference between promise to marry and promise in consideration of marriage?
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Promise to marry can be oral but promise in consideration of marriage within SF (if i marry you i will give you car)
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2 ways for marriage
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Ceremonial and Common law
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Does IL recongize Common law?
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No but give FFC to it
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3 requirments for ceremonial marriage
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1, medical exam
2. capacity 3. soleminzation |
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Define capacity to marry
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1. single
2. no related 3) not same sex 4) 18 or 16 with consent 5) sane |
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Explain exception to medical exam
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Made good faith effort or did take test and find VD but waive
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Exception to solemizization
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good faith attempt so if minister out of church still works if did not know this
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4 requirments for common law marriage?
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1. Capacity (18 or 16 with consent) (Sane) (single) (Not related unless)
2. Both parties agree 3. Cohabitation 4. Holding out to 3rd persons |
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Explain Marriage Evasion act
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when leave state temoporarily to get marriage not recognized in home state then not in good faith and will not be recognized
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6 elements for valid premarital agreement
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1. Voluntarily entered into
2. K in writing and signed by person to be charged 3. Both parites made full and fair disclsoure of financial worth 4. Economic provisions must be fair and adeqaute 5. Cannot violate public policy (encourage divorce, leave W and kids with no $$) 6. No duress (plenty of time before to review not sprung on last minute before wedding) |
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2 limitatations on premarital agreements
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1. cannot leave wife with nothing if she would be on welfare
2) cannot agree to child custody |
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6 fundamental rights and test used
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TEST=gvt has burden and must have compelling interest to take away
FR's: 1. Right to marry 2. Right to procreate (no law sterilizing anyone) 3. right to use or sell contraceptives (any age, and married or unmarried) 4. Right of related persons to live togeteher (not unrelated only MR) 5. Right of parents to educate their children at home (or at public or private at their choice) 6. Right to Post-fetal abotion (can be prohibited unless risk of health to mother) Pre-viability (undue burden test only) 7. Rights of parents to control children (concerning care and custody) (GP's have no custody/visitation rights) |
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6 nonfundamental rights and what test used
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TEST=Mere ratinonality and burden on P:
1. Filing fee for bankruptcy 2. Unrelated persons living toether 3. Sodomy 4. Housing by state given 5. Education of self 6. Status of welfare |
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Explain annulment
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Terminate marriage like never happened when impediment occurred before marriage and was not ratified
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3 impediments to automatically void marriage as annulled and need no court decree
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1. Bigamy(marriage w/o dissolution of prior marriage so married to 2 woman at once)
2. Consanguinity (marrying relative unless cousin) 3. Adjusicated insanity |
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5 grounds for annulement but can be ratified by not bringing action
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1. Nonage (Under 18 or 16 or 17 w/o consent) (ratifies after turning 18 and not brining action)
2. Incurable Physical impotence of man (inability to have sex no children) 3. Fraud going to essentials of marriage (lie about sterile, about religion, about being pregnant) (Lie about wealth is not voidable annulment) 4. Intoxication 5. Duress |
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When can 3rd parties challenge marriage as annuled?
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Only on automatic void grounds not voidable grounds
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Defenses to voidable marriage?4 of them
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Defenses to voidable marriage (laches, estoppel, unclean hands, ratification)
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2 types of divorces in IL , what is difference
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Fault and no fault
Fault get divirce right away and no fault must wait 6 months whie living separate and apart but fault no play in distribution and maintrnance |
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2 defenses to no fault divroce
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1. did not live separate and apart for 6 months
2) reconciliation is possible |
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10 grounds for fault divorce
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1. Adultry
2. Bigamy 3. Physical Cruetly (hitting), Mental Cruetly (not having sex) 4. Attempted Murder 5. Desertiom w/o consent or cause for statutory period (1 yr) 6. Drug addiciton pattern for statutory period of 2 yrs (booze or drugs) 7. Insanity after marriage (not in IL!) 8. Felony imprisonment 9. Impotency/sterile 10. VD |
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Defenses to fault (6 of them)
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1. Insanity
2. Collusion by both H and W to lie 3. Connivance (active enticement by W by hiring hooker) 4. Condonation (expressed forgiveness or implied by 1 act of having sex) 5. Recrimination (Both parties guility of 1 fault=H drug addict and W has VD) 6. Provocation |
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When is spouse liable for debts of other spouse?
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When necessities but not when non necessities in just 1 spouse's name
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Are separation agreements valid?
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Yes but must be in writing and must be absent of fraud
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Is fault considered in division of property? Is anything considered?
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NO but dissipation of marital assets while married is considered then wife will get more
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Difference between community property and equitable division of marital propery?
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Community=all propery acquired during marriage subject to division and divided 1/2 and 1/2
Equitable division =takes into factors and not divided 1/2 and 1/2 (IL and majority) |
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What is separate propery that cannot be divised at termination of marriage
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1. property obtained before marriage that stayed separate
2. any property obtained by gift/inheritance during marriage 3) uneanred appreciation in separate property |
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easiest way for separate property to become marital property
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gift to marriage, co-mingle with marital funds, improve with marital funds
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Is professional degee marital property ever?
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NO separate but can be considered in reimbursement or division if wife helped pay for but gets nothing on value of degree is majority
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What is considered marital property?
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tort recoveries, pension $ earned during marriage, stock options
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7 factors ct looks at when doing equitabnle distribution of property
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a. Age, education, background, and earning capacities of parties
b. Duration of marriage c. Standard of living during marriage d. Health of parties (get more $ if sick) e. Income of parties f. Debts of parties g. Contribution as homemaker |
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3 types of maintenance for wife
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1. Permanent (need continuing)
Modifiable with substantial change in circumstances of H of W (make more or less) 2. Rehabilitatice (temporary until W gets work skills to get job) Non-modificable 3. Lump sum (definiate amount over so many months then ends) Non-modifiable |
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4 factors ct will consider when awarding maintenance
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a. standard of living
b. other resources c. misconduct of spouse d. educaitonal support of spouse while other was in school |
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When does fault play a part in distribtuon
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Maintenance
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How long is child entitled to support
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Until 18 unless emancipated
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Exceptions where child gets support past 18
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1. capacity and desire for bachelor degree or 2) incapnble of work because retarded
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When is child not entitled to bachelor degree paid for
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Hardship on parents
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Is child support modificable?
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YES if substantial changes in circumsrances of making more or less money
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is permanent maintenance modifiab;e
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yes if substantial change in circumstances
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What happens if death of parent to child support
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terminated by death
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Under USACACA whaty is presumption when married woman has child
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That it is her husband's
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When is presumption irrebutable that married woman's child is husband's
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Signed in writing
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5 ways to determine paterity if woman unmarried and had child
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i. acknowledged by father
ii. admission by father iii. Medical testimony by dr iv. DNA v. View of child in court by jury |
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What are constitutional protections on illegitimate children
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Intermediate scruinty protetion and burden on gvt, they must have important gvt interest
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When is child support not modifiable
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If self induced to make lower like taking demotion
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Can GP's ever have rights to visit grandkids
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NEVER this is unconstituional because parents have fundamental right to control kids
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What state determine jurisdiciton for determing custofy of child
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Home state of child
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Other alternatives to figure out jurisdiciton over child custody
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b. Where child and 1 parent have significant connection (even though home state Il, child always goes to IN to visit)
c. Abandoned d. No other state wants *Court that makes initial determinations has exclusive and continuing jurisdiction until neither child nor parent has significant connection with it so no forum shopping |
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When parents are in dispute for custody of child what std is used by courtS
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Best interests of child
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5 factors in best interests of child (CHIPS)
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a. Child's preference (older child more weight) *when parents both fit more weight to choice
b. Health of parties (better health gets) c. Involvement of parties with child d. Proximity of relatives e. School and church activities |
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what are 2 types of custody?
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physical and legal which are severable
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What must first happen for biological parent to adopt
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1) voluntary extingusih rights or 2) involuntary extniguish rights because abusing
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When does putative father get due process on his rights being extingusihed?
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Must have acknowledged paternity in writing or be involed with child
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Can parents inherit from adoptive child and vice versa?
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YES butchild cannot inherit from natrual parents and vice versa unless biological mom''s new husband adopts child
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If wife wants to use hypenated name what must she do
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get court order
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What is status of intraspousal immunity
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abolished
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Explain alienation of affection and criminal conversation
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Sue 3rd for enticing away wife from marriag
sue 3rd for having sex with wife |
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Are cohabitiation agreements enforceable
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yes if expressed but not implied
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elements for cohabitiation agreement 4 requirmenets
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i. Benefit conferred ii. Expectation, iii, unjust to retain
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what must be proved to increase or decrease child support payments?
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substantial change in circumstances affecting the needs of the chil or ability of parents to pay
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Can past due support be retroactively modified?
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NO!!!
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3 requirments for foreign court to give FFC to family law judgment?
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fina;, on merits, jurisdiction was proper
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exception for foreign state to give FFC to modiifbale judgment not final
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FFC Child Support act says will give FFC if 1) ct had jurisdiction over parties and matters, and 2) parties had reasonbabe notice and opportunuity to be heard
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When can new state have jurisdiction over established child support or maintenance forum?
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1) al parties no lonher reside in forum or 2) all parties agree in writing that foreign court may asset jurisdiction to modify order
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