Reading...
Play button
Play button
Use LEFT and RIGHT arrow keys to navigate between flashcards;
Use UP and DOWN arrow keys to flip the card;
H to show hint;
A reads text to speech;
46 Cards in this Set
- Front
- Back
- 3rd side (hint)
|
Matters precede marriage
|
Get ring back?
Pre-Nups Non-Married Co-Habitant Contracts |
|
|
|
Contemplation of Marriage
|
May get it back if gift is in "contemplation of marriage" - engagement ring
Other gifts are "gifts," meant to be permanent |
|
|
|
Pre-Marital Agreement
|
Pre-nuptial agreement
Validity - party defending agreement has to show: 1) agreement was valid when executed; AND 2) Agreement must be fair and reasonable as of the time of divorce |
|
|
|
Pre-Nup Validity - "Valid"
|
- Observe all rules of K
- Fair and reasonable provisions - Party making agreement must had made FULL DISCLOSURE of all assets; OR demonstrate other party knew of all assets - Waiver of right to have Court determination of alimony/property division |
|
|
|
Non-Married Co-Habitant Contracts
|
Any contract in the Commonwealth will be valid provided that the sole consideration of the contract is not sex
|
|
|
|
How to get out of a marriage
|
Annulment (condition arose before marriage)
Divorce (condition arose during marriage) |
|
|
|
Annulment types
|
Make marriage void - no legal status, don't need affirmative step save clarity of record or adjudicate issues; raised by 3rd in collateral attack
Make marriage voidable - valid until court, may be waived, raised only by husband/wife |
|
|
|
Voidable Annulment Grounds
|
- Too young "Nonage" - waive by co-habitat after 18
- Mental incapacity - inhibit understanding of actions; drugs/alcohol; waive only after recover capacities - Duress - married under threat of physical coercion; waive if continue to co-habit - Fraud - misrepresentation/concealment prior to marriage goes to essential aspect of marriage |
Fraud examples:
- lying/secrets about religion - procreation incapabilities - sex (prostitution) |
|
|
Voiding Annulment Grounds
|
Bigamy - disappearing spouse fact pattern
Incest - may not be too closely related to your spouse |
7 year absence presumption, or provide evidence in court to enter order of presumed death
|
|
|
7 Fault-based Divorce Grounds
|
1. Adultery
2. Cruel and Abusive Treatment 3. Desertion 4. Physical impotency 5. Drug/Alcohol dependency 6. Nonsupport 7. Imprisonment for a period of 5 or more years |
Justified desertion - escape abuse, in armed forces
|
|
|
Divorce on Adultery Grounds
|
Often proved by circumstantial evidence - proof of opportunity and disposition
|
|
|
|
Divorce on Cruel and Abusive treatment grounds
|
Umbrella encompasses physical and mental cruelty
|
|
|
|
Divorce on Desertion grounds
|
Unjustified departure from marriage without consent for a period of at least one year
Justified - escape abuse, in armed forces Constructive desertion - no more co-habit, unjustified |
|
|
|
Divorce on Physical impotency grounds
|
Nothing to do with procreation, simply uncurable inability to engage in conjugal union
|
|
|
|
Divorce on Drug/Alcohol dependency grounds
|
Problem must be voluntary, gross, and confirmed
Incurable |
|
|
|
Defenses to Fault-based Divorce
|
Condonation
Collusion - moot because of no-fault divorce Connivance - entrapment Insanity No comparative negligence-like defense |
|
|
|
Condonation
|
Equivalent to idea of waiver
Knowledge Forgiveness Cohabitate |
Arises when D proves the P spouse knew of the misconduct, forgave it, and resumed cohabitation
|
|
|
No-Fault Divorce
|
Irretrivable breakdown of the marriage
Prove ground through series of prescribed steps set out by statutes - uncontested or contested |
|
|
|
Uncontested No-Fault Divorce
|
Both parties agree marriage is broken - 4 month period
Steps: - Prepare separation agreement that spells out marriage is irretrievably broken and both agree - File separation agreement with court, court schedules hearing - Court will enter Judgment Nici within 30 days of hearing, becomes final 90 days later |
|
|
|
Contested No-Fault Divorce
|
9 month period
Steps - Petitioner files allegation of breakdown - Court schedules hearing 6 months later - After hearing court enters Judgment Nici, final within 90 days |
|
|
|
Judgment Nici
|
Temporary judgment final unless change in circumstances
During 90 day Nici |
|
|
|
Divorce Jurisdiction in Mass
|
- Litigated in probate court
Divorce decree: - One party must have lived in MAss prior to year of the commencement of action; OR - Grounds occurred in Mass Need PJ to get alimony/property division |
|
|
|
Out-of-State Divorces
|
Bi-lateral: full faith and credit
Ex parte: full faith and credit if moving party was domiciled in forum state |
|
|
|
Non-US divorces
|
bi-lateral - recognized under Comity, case-by-case
Ex parte - not recognized |
|
|
|
Economic Issues Surrounding Marital Dissolution
|
Alimony
Property Division Self-Dealing to avoid courts |
|
|
|
Alimony
|
- Award based on need, not automatic
- Marital misconduct not a bar - May be lump sum or continuous - Subject to subsequent judicial modifications required by material changes in circumstance (job loss, remarriage) - Terminates when court determines or death of either party |
|
|
|
Alimony Factors
|
NONEXCLUSIVE:
- Age/Health of parties - Professional considerations - Duration of marriage - Amount of property each party will take away from marriage - One party custodial of minor children - Consider fault, not disqualifying |
|
|
|
Property Division
|
One-Pot Theory: EVERYTHING in, except Armed forces disabilities
|
|
|
|
Property division Factors
|
Similar to alimony, plus:
- how much property each brought to the pot - By statute, court MUST consider present future needs of dependent children - May consider contribution each made to marital property |
|
|
|
Self-Dealing to avoid courts in divorce
|
Economic agreement in contemplation of separation or divorce - not final until court approval, may modify
|
|
|
|
Economic Agreement in Contemplation of Separation/Divorce Modification
|
If divorce decree uses word "merge" - may modify
If NOT merged, no modification except provisions relating to children |
|
|
|
Child Issues
|
1. Who are the Parents?
2. Support 3. Custody 4. Adoption |
|
|
|
Who are the Parents
|
Married woman - Presumption husband is father; if third party asserts establish by clear/convincing evidence
Paternity suit at any time up to 18, blood tests/DNA nearly conclusive |
Litigate to determine who the father is
|
|
|
Support duty
|
Each parent owes duty to support until 18, may be extended to 21 (home/dependent), 23 (school/BA), and life (disabled)
If child lives at home, fulfilled daily Court involved when parent is non-custodial (sole custody, non-marital child) |
|
|
|
Court Support cases
|
Quantity of Support - Federal Guidelines; unless wealthy ($135k combined)
Parents can negotiate agmt if court finds it fair may trump Amount of support may be altered with material change of circumstances |
|
|
|
Failure to Pay Support
|
Wage Reduction Order - straight from employer
Seize Assets Seize Personal Property Hold in Contempt of Court - outright defiance of court order; jail time |
|
|
|
UFISA
|
Uniform Interstate Family Support Act - out of state deadbeat
Provides for direct interstate enforcement of support, adopted by all states. Prevents conflicting orders - continuing exclusive juridiction so long as custodial parent or child live in the original jurisdiction |
|
|
|
Custody Types
|
Physical - where child lives
Legal - who gets to make decisions May mix and match, exclusive or shared |
|
|
|
Custody Arrangement Standards
|
Best Interests of Child - BIC
Factors: - Anything - Wishes of the parties (i.e. lack of interest) - 12 or over, wishes of child - Age, Physical and mental health of both parents, and if relevant of the child - History of domestic violence? - Parents have new sig figs, unsavory people? - Can parents accommodate all children vs. a few (BIC keep siblings together) - Inducing to maintain extended family relationship - Parents criminal/unsavory |
|
|
|
Shared Custody Additional Facts
|
Do parents cooperate
Geographic proximity |
|
|
|
Visitation rights
|
Non-custodial parent has visitation rights
- almost never denied - not conditional on support - If custodial parent interferes, custodial parent can be held for contempt of court Grandparents - permission only unless denial of visitation would cause child significant harm |
|
|
|
Non-Parental Custody
|
De Facto Parent - i.e. stepmother
- If petitions, as if parent is petitioning Third Party Not De Facto, Must show extraordinary circumstances - presumption that BIC is with parent |
|
|
|
Jurisdiction to Adjudicate Custody
|
Typically Divorce proceedings
Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) - jurisdiction if home state of child has continuing exclusie jurisdiction |
Where child lived for 6 consecutive months, if younger than 6 months then from birth
|
|
|
Adoption signatures
|
- If minor, need consent from Biological parents unless involuntarily terminated in judicial proceeding commenced by state
- Over 12, adoptee consent - If other legal guardian, need guardian's consent - Need agency consent unless unreasonable |
|
|
|
Unholy Trinity of Grounds for involuntary termination of parenthood
|
Abandonment - no contact and no child support
Abuse - physical or sexual Neglect - failure to provide Not immediate, efforts to reunify |
|
|
|
Adoption Investigation
|
After necessary signatures;
First - questionnaire, background checks, home investigation Second - hearing; almost always mere formality |
|
