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45 Cards in this Set
- Front
- Back
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Marriage |
Legal union of two individuals, with the accompanying obligations & liabilities |
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Breach of Promise to Marry |
* Quasi-tort, quasi-K * Abolished in most states Recovery may be allowed for actual damages (spent in preparation of marriage) as well as loss of reputation, mental anguish, injury to health, & punitive damages |
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Gifts in Contemplation of Marriage |
Engagement gifts must be returned if gift was contingent on a subsequent marriage * Engagement ring |
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Limitations on who may marry |
1. Minimum age (usually 18 or younger w/ parental or judicial approval) 2. Not too closely related 3. Capacity to consent (ability to comprehend & voluntarily agree) 4. No prior, undissolved marriage to a living spouse |
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Procedural Requirements of Marriage |
1. License (most states require intent to obtain a license; some states require certification free from communicable diseases and/or waiting period 72 hrs) 2. Solemnization (ceremony performed by judicial officer or member of a clergy; must exchange promises) |
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State of Mind (Marriage) |
Understand actions & voluntarily agree * Drunk or on drugs may lack mental capacity * Fraud, duress, coercion or force makes marriage subject to attack |
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Premarital Agreement |
Usually pertain to distribution of property upon divorce or death but can contain anything * Effectively waiving a right to court determined support at a later date [SEE PG 2 CMR] |
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Enforcement of Premarital Agreement |
Uniform Premarital Agreement Act ("UPAA") Statute of Frauds requires it to be in writing Agreement only effective if they got married Can be void for duress Can be void for unconscionability (no disclosure, no waiver, no knowledge of other Ps assets; unforeseen, extreme hardship) [SEE PG 2 CMR] |
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Solemn Promises |
Must exchange solemn promises during the marital ceremony (they can be whatever you want, but you have to exchange promises) |
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Common Law Marriage |
1. Exchange of consents between 2 parties w/ capacity; 2. Cohabitation; AND 3. Holding out publicly living together as spouses * No solemnisation; Circumstantial evidence determines validity * Only in 10 states ( if you move new state treats you as married) * Portable (so recognised in states w/o if formed in state w/ |
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Annulment |
Issues that arise before the marriage challenging its validity (usually based on capacity) Void: not married; don't need an annulment (can get optional annulment to clarify the record & resolve collateral issues) Voidable: married; need an annulment |
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Divorce (No-Fault) |
Used to require marital misconduct, but now almost all states have no fault divorce * Still a ground have to prove it but it is not one of fault: Marriage is irretrievably broken (move out, live separate & apart, no physical contact for a specified period; shorter where both consent & longer in unilateral/contested; still married during that period; theory its a statutorily imposed period of celibacy) |
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Void Marriage (Annulment) |
Bigamy Consanguinity (incest) |
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Voidable Marriage (Annulment) |
- Underage (Nonage) - Incapacity (annulment must be brought by guardian if still lacking capacity) (1) Mental incapacity, (2) Duress, (3) Fraud involving essential aspect of the marriage (misrepresentation/concealment of information) - Incurable impotence (copulation NOT PROCREATION) |
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Fraud for Voidable Marriage (Annulment) |
Misrepresentation or concealment of information pertaining to essential aspect of the marriage: - Religion - Procreation & sex * Income & financial status are never grounds |
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Divorce (Fault) |
30 States still retain old fault based grounds: (1) Adultery (w/i calendar yr); 2. Desertion (unjustified departure from marital home w/ no intent to return; absence of intent to return inferred from 1yr absence); (3) Physical Cruelty (1 episode is now enough); (4) Mental Cruelty (repeated conduct of mental abuse, emotional/physical aloofness, or abstain from personal hygiene); (5) Habitual & voluntary drunkenness/drug addiction; (6) Insanity (requiring hospitalisation for 3yrs) |
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Affirmative defences to Fault-based divorce |
Condonation (waiver): 1. Knowledge; 2. Forgiveness: 3. Resumption of marital relations (implied that other P will refrain from conduct) (not for dom. viol.) Connivance: Set up by other P Recrimination: Ineligible for equitable remedies, offsetting claims of cheating * Advise on both fault and no-fault options in answer, as well as legal separation |
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Legal Separation |
Economics adjudicated Live separately from each other * Benefits: still file joint taxes, still keep spousal insurance, SS benefits * Religious reasons * Grounds identical to grounds for divorce |
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Divorce Jurisdiction |
Any state where 1 spouse is domiciled can adjudicate a divorce (subject matter jurisdiction) * Most states add a minimum residency req. * Don't need personal jurisdiction over defendant spouse, bc marriage is considered a physical thing located physically in state of domicile * To get economic remedies you need personal jurisdiction over other party |
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Divisible Divorce |
Permissible: Substantive divorce in State A Economic remedies in State B |
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Out of State Divorces |
Full faith and credit in all other 50 states provided that at least 1 spouse was domiciled in the state * Dispute over legitimacy of the domicile can be re-litigated |
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Divorces Outside the US |
Case by case discretion as to whether they will honour it |
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Property Division (Divorce) |
40 States use equitable distribution |
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Division of Assets (Categorise & Divide) |
Separate Property: any item owned by the P prior to the date of the marriage; any gift/inheritance received by one spouse in the course of marriage in that spouse's sole name; any appreciation or conversion of those assets Marital Property: conversion of separate property to joint assets (gifted into marital estate); everything else (no matter whose name/source) |
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Factors in marital property division |
Anything the Ct deems just is the final factor * If one party will have less occasion to amass more assets after the divorce then they will probably get more (education, earning potential, disability, custodian of minor children, age) * Duration of marriage (longer together, more inclined to split evenly) * If one party was wasteful & other was frugal * DON'T LOOK AT FAULT |
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Distribution "in kind" |
Judge splits assets between parties (but assets themselves are retained) |
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Cash distribution |
Judge determines a cash amount one party is required to pay the other |
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Spousal Support or Maintenance (Alimony) |
Marriage comes w/ reciprocal duty to support your spouse that terminates at time of divorce * Designed to ease transition to sole actors * Necessary & can be justified * Modern trend fewer, shorter, lesser |
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Alimony Factors Test |
Same as division in marital property but Fault is now taken into account |
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Alimony Award Structure |
Permanent Period Alimony: no time limitation, subject to future modification, prove change of circumstances Rehabilitative Award: periodic payments for short term, designed to enable recipient to receive education/training, modifiable (less likely) Lump Sum Award: not modifiable (richer spouse elderly/ill & other spouse is younger) Reimbursement: Repayment for $ paid in the marriage (while other person was studying, etc.) |
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Termination of Alimony Payments |
Death of paying spouse Remarriage of recipient |
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Child Support |
After divorce, non-custodial parent pays Unmarried couple, non-custodial parent pays * Ct will determine amount by referencing state guidelines based on % of income * Continue up to 18 (maybe through bachelor's degree if kid/parent able) * Can bargain to care for them longer * Child disability obligation never terminates (full life of parent) * Norm. term. death, but trend impose support as charge against estate |
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Modification for Material Change of Circumstances (Child Support) |
Parent loses job or is injured Child incurs more costs (disability, etc.) * Self-induced reduction of income not allowed * Arrears are NEVER modifiable |
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Non-Payment of Child Support |
1. Seize property (bank account) 2. Wage withholding order (pay cheque) 3. Driver's license suspension 4. Professional license suspension 5. Denied recreational licenses (hunting, fishing) 6. Contempt of court (violation of child support order) * All states invoked Uniform Interstate Family Support Act for direct enforceability of child support orders across state lines |
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Separation Agreement |
Document negotiated at the time of divorce often dealing with spousal and child support but they can't collectively agree to disadvantage children * Must be based on full disclosure of assets * Light scrutiny, but must be essentially fair * Children provisions reviewed de novo |
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Allocation of Parental Responsibility (Child Custody) |
Uniform Child Custody Jurisdiction & Enforcement Physical Custody: where do they live Legal Custody: who gets to make decisions * These can be allocated separately & either can be shared between both Home State Jurisdiction: is now or was the "home state" w/i last 6 mo. (where child lived w/ parent) fall back provisions in event no state meets test so its a greatest connection test |
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Allocation of Parental Responsibility (Child Custody) (Merits) |
"Best interests of the child" standard * Do what is right for the kid! Age & health of the 2 parents & child; Drug habits; Domestic violence (disqualification); New companion (what kind of people are they?); Will all siblings stay together or split up Joint custody: parental cooperation & geographical practicality |
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Presumption that the Best Interest in Child is by reunion with Biological parent |
Non-parent petitioner has to effectively show that the biological parent is unfit * Must be a showing of unfitness, not just a better environment |
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Visitation Rights |
* Not contingent on child support * Almost never denied * If custodial parent, bars the door and doesn't allow visitation its contempt of Court |
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Parental Relocation (Custody) |
BC of potential to interfere w/ visitation: 1. Prior notice 2. Right to request judicial hearing 3. Demonstration that the move is bone fide (not merely for spite) |
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Grandparents Rights |
Best interests of the child until 2000 Troxell case: Parent has a due process right to raise their kids as they see fit * Now grandparents have to show there would be a detriment to the child in denying visitation (then there is a State interest in overriding the parent's wishes) |
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Children of Unwed Mothers |
Same rights as all other children Paternity: normally commenced by either the mother or child acting through guardian (State could also commence usually); statute of limitations is usually the entire minority of the child; DNA testing |
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Adoption |
Consents: generally, the custodian biological parents of that child (unless their rights have been terminated) or if the State (court may override) or child over 14 or adult they have to consent or someone else that has custody |
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Termination of Parental Rights |
Remedy of last resort by the State Standard: Clear & convincing evidence Grounds: Abuse (physical/sexual), abandonment, neglect, failure to pay support for a specified period of time, severe mental illness/drug abuse |
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State Adoption Agency Placement |
Long process of brokerage by the placement Home visits Maybe trial period Adoption hearing |
