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34 Cards in this Set
- Front
- Back
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Recovery of Premarital Gifts once Relationship Ends
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In general gifts are not recoverable unless, they were conditioned upon marriage
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Challenging a Premarital Agreement
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Under the Uniform Pre-Marital Agreements Act:
1. Pre-nup must be in writing and signed by both parties 2. May be challenged on contract grounds: unconscionability, fraud or duress |
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Unconscionability of Premarital Agreements
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Usually found if the wealthier spouse did not disclose assets and other spouse neither waived disclosure nor had notice of spouse's assets.
Or if the result of the premarital agreement would leave one spouse with an unforeseen degradation of standard of living (would put her on public assistance) Factors Considered: 1. Representation by Attorneys 2. Business experience of the parties 3. The challenging spouse's knowledge of what she gave up |
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Requirements for Marriage
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1. Must have capacity (same as contract capacity)
2. Ceremonial marriage - Must have a license (state determination of capacity) - Must go through a valid ceremony: officiant, witness, exchange of promises |
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Common Law Marriage
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1. Must have capacity
2. Must exchange promises in private with the other person. It must be a present declaration to be married Presumption of Common Law Marriage arises if: 1. The parties are cohabitating (living together and having sex) 2. The parties hold out as a married couple If a couple enters into a valid common law marriage in a state that recognizes it and then moves, the new state must recognize the marriage even if it doesn't otherwise recognize them |
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Annulment
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It is backwards looking in time from the marriage
Grounds: 1.Void Marriage 2. Marriage is Voidable |
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Annulment Grounds for Void Marriage
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These grounds are not waivable and can be collaterally attacked by a third party.
A void relationship is a legal nullity and therefore the parties do not even have to go to court to have the marriage dissolved (but can for clarity of the record and to resolve property/custody issues) Grounds: 1. Bigamy 2. Consanguinity |
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Annulment Grounds that Make Marriage Voidable
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1. Non-Age; 18 yrs old or 16/17 yrs old with parental or judicial consent. This ground is waived if you continue to cohabitate after spouse turns 18
2. Mental Incapacity; mental illness, developmental disability, under the influence of drugs/alcohol 3. Incurable Physical Impotence; waivable if spouse stays married to them after discovery 4. Duress; shotgun weddings 5. Fraud; if, prior to the marriage, one fiance lies about or conceals a matter that goes to an essential aspect of the marriage (religion, sex/procreation) |
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Alimony after Annulment
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May not be awarded. However, other economic remedies are available
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No Fault Divorce
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The marriage is irretrievably broken
Parties must be separated: if they have ceased cohabitating and have lived separate and apart for a statutory period, a conclusive presumption of separation arises |
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Fault Based Divorce
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1. Adultery
2. Desertion: departure from the marital home for a statutory period with no intent to return 3. Cruelty: physical cruelty = domestic violence at least once; mental cruelty = ongoing course of conduct such as, harassment, humiliation, silent treatment, cessation of sex, etc. 4. Voluntary Drug Addiction or Habitual Drunkeness: it is usually required to be proved for a period of time 5. Insanity: for a statutory time period; some states require institutionalization |
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Defenses to Fault Grounds of Divorce
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1. Condonation: form of waiver; P spouse knew of the misconduct, forgave, and resumed having sex
2. Connivance: P spouse encouraged the D spouse to engage in the misconduct 3. Collusion: fraud on the court 4. Recrimination: dirty hands doctrine These defenses are usually not allowed in a DV case |
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Legal Separation
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Judicial permission to the parties to live separate and apart but marriage is left intact
Economic rights are adjudicated The grounds are the same as that for divorce |
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Subject Matter Jurisdiction over Marriage/Divorce/Annulment
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One spouse is domiciled in the state
In order to enter collateral orders (economic remedies) the court must get personal jurisdiction over the other spouse |
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Equitable Distribution of Property
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1. Categorize all assets owned by the couple
- Husband's separate property - Wife's separate property - Marital Property 2. Assign separate property to spouse who owns it 3. Divide martial property taking into consideration: - Age and Health of Spouses - Education/Job Skills - Duration of Marriage - Custodian of Kids - Dissipation of Marital Assets by One Party Property award settlements are not subject to modification Assets can be distributed in-kind (assigned to each spouse) or through cash payments |
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Spousal Support (Maintenance)
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Maintenance awards are within the discretion of the judge considering certain factors (same as property division)
Judge can also consider martial fault when deciding maintenance but maintenance may not be punitive If no termination date is specified, then maintenance terminates upon the death of either party or the remarriage of the receiving spouse May be modified upon changed circumstances (recipient spouse is cohabitating) |
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Types of Maintenance
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1. Permanent Periodic Payments: spouse is ordered to pay other spouse certain payments for an indefinite period of time
2. Lump Sum Payment (not modifiable) 3. Rehabilitative Support Award: a series of periodic payments while the spouse gets education or job training 4. Reimbursement Award: if one spouse supported the other while the other was getting an education, the supporter can be reimbursed |
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Child Support
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Paid by non-custodial parent
Awarded according to child support guidelines (judge can deviate only for a specified reason on the record) Non-custodial parent has to support child until 18 or high school graduation but in no circumstances after 19 unless by agreement Support obligation terminates at the death of the paying parent |
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Failure to Pay Child Support
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May result in:
1. Attachment of wages 2. Garnishment of tax refunds 3. Interception of lottery winnings 4. Suspension of driver's license or any other type of license 5. Held in contempt of court |
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Uniform Interstate Family Support Act
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Provides for direct interstate enforcement
Custodial parent can send the order to out of state employer, court, etc it also prevents conflicting orders by providing that the 1st court has continuing exclusive jurisdiction over the case as long as one parent or the child live in the state |
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Separation Agreements
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These are generally enforced and may be challenged upon the same grounds as a premarital agreement
Th child related provisions are subject to judicial review and modification If the divorce decree merges the separation agreement into the decree than modification is allowed as any other decree If the agreement is not merged than it can be modified only if there is an express provision allowing modification |
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Jurisdiction over Custody Case
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If made during a divorce, the divorce court has jurisdiction
Otherwise the UCCJEA applies: 1. Home state of the child has jurisdiction; home state = state where child has lived with parent for 6 consecutive months prior to the proceeding 2. All other states must defer to the home state's order as long as the parent or child continues to live in the state |
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Best Interests of the Child Standard
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Factors considered in all orders affecting the child:
1. Wishes of the parents 2. Wishes of the child (14 yrs +) 3. Physical/Emotional health of all parties 4. New companion of either parent 5. Domestic violence 6. Siblings staying together 7. Cooperative parent in allowing the other to visit 8. If shared custody is an issue than also, whether the parents get along and live near each other The court cannot consider gender but can consider which parent is the primary caretaker |
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Non-Parent Petitioning for Custody
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1. Best interest test still applies but the presumption is that the child should be with their biological parent
2. Petitioner usually must show that the parent is unfit in order to get custody |
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Visitation Rights of Parents
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Non-Custodial parent gets visitation even if he doesn't pay child support
Custodial parent can be held in contempt for preventing visits between parent and child Visitation may only be denied for the safety of the child and even then, is usually just limited to supervised visitation |
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Grandparent Visitation
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There is a presumption that a fit parent acts in the best interests of their children
If the grandparent can prove a detriment to the child by denial of visitation, then there is a significant state interest and the state can grant visitation |
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Modification of Child Support/Custody Determinations
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Can be done by a change in circumstances that bears on the best interests of the child
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Non-marital children
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Must bring a lawsuit to establish paternity
Once paternity has been established, the father is required to support the child |
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Termination of Parental Rights
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Can be done voluntarily or involuntarily
Can be done involuntarily only is parent is unfit: 1. Abuse 2. Abandonment 3. Neglect 4. Failure to pay child support 5. Severe mental illness/drug addiction, etc. |
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Adoption
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Must be consented to by the biological parents unless parental rights have been terminated or given up
Also need the consent of the adoptee if they are 12 yrs or older and the consent of anyone with legal custody of the child Best interests standard applies |
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IL No Fault Divorce
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6 months separation for bilateral and 2 years for unilateral divorce
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IL Jursidiction
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90 day residency required
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IL Spousal Support
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Terminated upon cohabitation of recipient sopuse
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IL Child Support
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Child Support obligations continue after the death of a parent
A deviation from guideline support by 20% or more is grounds to modify However, custody orders are very rarely modified within the first two years of entry |
