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101 Cards in this Set
- Front
- Back
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breach of promise to marry |
1. rare in most 2. tort damages (include actual + reputation and mental anguish) 3. punitive damages available |
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gift in contemplation of marriage |
1. null if marriage fails to take place 2. consider: type of preopty, conditions attached, intent of donor (gift/condition) |
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antenuptial agreements |
1. Uniform Premarital Agreement Act (UPAA) 2. can agree to disposition of: a. property b. alimony i. waiver upheld unless will = spouse public charge 3. can't = stuff regarding children |
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requirements for antenuptial agreement |
1. in writing + signed 2. voluntary (not fraud, duress, etc.) 3. full disclosure of assetts OR proof that party had independent knowledge: a. UPAA = court determines if unconscionable then considers disclosure 4. some = fairness + independent counsel 5. law = instrument or if not = a. state w/ most significant relationship + transaction OR b. law where agreemetn executed |
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marriage requirements |
1. license 2. ceremny w/ authorized officient 3. no legal impedemints 4. capacity to consent |
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marriage license |
1. some states require medical certificate of no disease 2. most have 72 hour wait period 3. failure to meet procedural requirements not = invalidate marriage |
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legal impediments to marriage |
1. too closely related a. not ascendants/descendants, siblings, aunt/uncle, niece/newphew (not matter if whole or 1/2 blood) b. many = not if related by marriage/step-relations/adoption c. first cousins permitted in some 2. can't be married to another at time (bigamy) |
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capaciy to consent to marriage |
1. mental ability to consent at time of ceremony (drunk) 2. age = age of majority: a. generally 18 b. parent consent = 16-17 c. judicial consent = under 16 |
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common law marriage |
1. consent to marriage a. needs capacity + no legal impediments 2. co-habitation 3. held out to public as husband/wife 4. full faith and credit = other states will recognize |
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marriage by estoppel/putative marriage |
1. equitable remedy 2. innocent party + act in good faith when enter marriage (bigamy and not know) 3. some states = gets all rights of legal spouse |
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marriage rights property |
1. property (title not dispositve) a. if real estate in joint names while married = presumed tenancy by entirities (one can't convey/encumber w/out other) |
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marriage support |
2. support (third party can reach innocent spouse if for necessaries) 3. spouses owe support to one another during marriage |
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spousal abuse orders |
1. victim entitled to protective order 2. can be granted ex parte 3. can last 1 mth - several years (depends on jurisidiction) |
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alienation of affection |
1. genuine love and affection 2. b/w spouses VALIDLY married 3. love and affection alienated/destroyed 4. D's acts caused loss of love/affection 5. not need adulter (can be vs/ inlaws) 6. proof of damage requires = subjective a. pumitive damages allowed in some |
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criminal conversation |
1. marriage 2. adultery b/w D and spouse during marriage 3. damages same as alienation |
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annulment |
1. declaration that marriage is invalid 2. ok for void/voidable marriage 3. consequences: a. set asie marriage (like never existed) b. children = remain legit and can get child support c. alimony in some states d. property = as if never married = put spouses in pre-marital state) |
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void marriage |
1. fail to meet essential requirements = utter nullity (bigamy/closely related) 2. can be attacked collaterally by third person 3. may/may not remedy by continued habitation after removal of impediment a. Uniform marriage/divorce act = permit marriage valid after removal of impediment |
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voidable marriage |
1. event/condition affect adequacy of consent to marry 2. valid until annulled 3. attacked only by party to marriage and in some = only party sought to be protected 4. marriage can be ratified by continued cohabitation after removal of infirmity 5. examples = drunk; nonage; impotent; duress; fraud (fraud must effect essential part of marriage (lie about pregnancy) |
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if multiple marriages, what is presumption |
1. presumption valid last marriage (most recent) 2. overcome by strong evidence that prior marriage is still there |
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divorce jurisidction |
1. one domiciled (resident + intent) in state seek divorce a. if resident for stat period (90 days to 6 mths) = presumption of domiciled 2. if jurisidiction over financial issues in divorce (property/support) = personal jurisidiction over both parties |
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grounds for divorce |
1. no fault = a. irreconcilable differences (may require agreement) b. seperated for stat period (if spouses agree = shorter period, if unlat no-fault = longer) c. incompatibility 2. fault based a. adultery b. desertion c. cruelty d. habitual drunk/drugs started after marriage e. insanity (may require institutionalized) |
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fault based: adultery |
1. proven by circumstantial evidence: a. opportunity + inclination b. many times need corroboration |
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fault based: desertion |
1. specified time 2. unjustified departure from home + no intent to return |
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fault based: creulty |
1. physical = one time enough 2. mental = look to pattern/common practice |
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defenses to divorce: no fault |
1. traditional D's not available 2. can claim reconciliation to restart clock for living apart |
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Defenses to divorce: fault |
1 collusion (party created to get divroce) 2. coneyvance (P willing consent to misconduct) 3. condonation = P forgave offense + full knowledge of offense (usually needs sex to forgive) 4. re-crimination (unclean hands) |
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legal separation |
1. same grouns as divorce 2. aka = divroce from bed and board 3. effect a. parties still married b. can seek adjudication: property, alimony, child custody/support c. court MAY divide martial property = after acquired = seperate |
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community property division |
1. acquired during marriage = 1/2 each 2. owned before marriage = seperate |
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equitable division of property |
1. property owned by either spouse (seperate or maritable) = equittable divide |
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equitable division of marital property |
1. each spouse takes seperate property 2. property acquired during marriage = divided equitably 3. most popular 4. equittable not necessarily = equal |
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property division decree |
1. most not modifiable 2. two step process: a. classify: marital/seperate property b. division: equitablle division (not matter title) |
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seperate property |
1. real/personal property before marriage (including retirement accounts) 2. acquired any time by: gift, bequest, devise/descent 3. proceeds from prperty acquired before marriage 4. income from appreciation of separate property 5. pain and suffering: victim of crime award; future medical expenses/future lost wages 6. property after order of legal seperation w/ final disposition of property |
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marital property |
1. property acquired by either during marriage until divorce decree (some use date of seperation) 2. includes value of vested/unvested pension a. vested/unvested stock b. retirement/fringe benefit relating to employment during marriage 3. PI, workers' comp, social sec. disability etc., for loss during marriage, medical bills paid w/ marital property + property damage to marital property |
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commingling property |
1. seperate become marital if inextricably interwined 2. courts attempt to trace property |
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transmutation of seperate property |
1. seperate become marital if: intent of parties (use seperate money for downpayment of home + title in both names) |
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improvement of sepearate property |
1. if improved by marital funds OR 2. efforts of non-owning spouse = improvement = 3. grant marital estate/non-owning spouse reimbursement for value added 4. BUT: if increase in value due to market factors and not contribution by either spouse = remains seperate |
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property acquired before marriage but paid after marriage |
1. courts split 2. majority = property apportined b/w seperate/marital in proportion to contribution of separate/marital funds to pay |
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divide property: pensions |
1. considered = marital (even if non-working not contribute) 2. courts use different formulas to calaculate share each owed (ie worker = 40 K and nonworker = 8K in divided = 48/2 = 24 k each) |
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professional license or degree property divide |
1. not considered marital property 2. some jurisidictions consider it when award alimony 3. minority = value degree then award more property/alimony to other |
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divide property: tax consequences |
1. property division ont taxable |
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factors in making equitable division (not memorize just familiar) |
1. age, education, background, earning capabilities 2. duration of marriage (prior marriages) 3. standard of living during marriage 4. present income of both (skills/education) 5. source of money used to purchase property 6. health of parties 7. assets/debts/liabilities of parties 8. needs of each of parties 9. provisions for custody of minor kdis 10. distribution in lieu of or addition to alimony 11. opportunity to acquire future income/assets 12. contribution to acquisition of/enahncement of existing marital assets 13. contribution as homeaker to family unit 14. if party dissipated marital property (economic fault) 15. marital fault = not a consideration but is for alimony |
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equitable division and court |
1. great discretion 2. can divide in kind or by contribution |
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alimony |
1. trial court has great discretion 2. types: a. permanente periodic support b. lump sum c. rehabilitiative d. reimbursement |
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alimony: premanent periodic |
1. set amount per period until death remarriage 2. duration: indefinitie until death/remarriage 3. modification: increased/decreased/terminated if: a. substantical change of circumstances |
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lump sum support |
1. set sum (can have periodic payments of it) 2. duration: specified time period/can be payable in installment 3. modification: none (like K = binding on payor's estate) |
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rehabilitative support |
1. $ to get education/income 2. duration: specified time unless modified by court 3. modification: increase/decrease/terminated on : substantial change of circumstances 4. designed to restore disadvantaged spouse's earning capacity to point that no longer econ disadvanatage relative to other |
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reimbursement support |
1. repayment fo rsupport in increase education to other spouse 2. duration: specified period or lump sum 3. modification: none (can be given even if support spouse not otherwise eligible for spousal support) |
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factors for alimony |
1. standard of living during marriage 2. duration of marraige 3. age/physical + emotional conditions 4. financial resources of each (child support) 5. contribution of each to marriage (homaker, childcare, education, career, etc.) 6. time needed to get education/training 7. ability of payor to pay bills 8. some = marital fault |
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two primary consideration when award alimony |
1. needs of claimant 2. ability of other to pay |
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modification of spousal support |
1. substantial + material change of circumstances a. either receiver or payor 2. voluntary reduction in income not sufficient (leave job/incarceration) 3. some consider new legal obligations to another spouse/kids |
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termination of spousal support |
1. periodic = remarriage/death a. some = cohabitation 2. lump sum = not terminate even follow to grave |
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tax consequences of spousal support |
1. income of recipient 2. deductible by payor 3. unless otherwise in agreement |
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seperation agreements |
1. enforceable if supported by consideration 2. full + fair disclosure of assetts 3. voluntary 4. can waive: alimony/property division 5. can agree on custody/child support: a. court not bound by parties' K regarding kids |
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seperation agreements: modification |
1. merged into divorce decree = if divorce includes terms of agreement or expressly merges = provision part of court order a. modifiable by court + subject to contempt 2. non merger = not submit agreement to court = a. K is nonmodifiable + enforceable only by K remedy 3. child = always modify if best interest of child |
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K's b/w cohabitants |
1. K are valid unless: a. sex only consideration (ok to take care of home/give up career) 2. express K of earning/property rights = generally enforced 3. implied K (partnership/constructive trust) = may be used to award property |
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child support |
1. court has less discretion b/c child support guidelines 2. majority = income shares approach: a. number of kids + income of parents to determine base line of child support b. discretion to add for health insurance + other extraordinary educational expenses c. discretion to deviate if in best interest of child 3. ie = mom = 2k dad = 3k = gross income = 5k (mom 40% of amount dad = 60%) 4. pay goes to custodial parent 5. independent of vistation |
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duration of child support |
1. age of majority OR a. some allow continue if kid in high school until compelte b. most not extend to pay for college unless prior agreement/statute c. can be longer if kid is disabled 2. death of kid OR 3. emancipation of kid OR 4. termination of parental rights |
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jurisidiction over child support |
1. Unifrom interstate family support act (UIFSA) a. original = first petition under UIFSA filed b. another only has jurisidiction if: i. 2nd petition filed before time to answer first expired ii. P objected to jurisidiction in 1st iii. 2nd in kids home state |
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jurisidiction to enforce child support |
1. issuing court = continuing jurisidiction to enforce a. another state can enforce by: i. direct enforcement (mail order to employer in another state and employer garnish wages) ii. registration = order registered in another state = subject to enforcement in state |
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jurisidiction to modify child support |
1. once court enters valid support order = continuing exclusive jurisidiction a. for life of order unless: i. no parties reside in issuing state OR ii. parties consent to another state's jurisidiction |
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modification of child support orders |
1. substantial change of circumstances 2. voluntary reductio in income not = modification 3. past due payment = can't modify + not basis for change of circusmtances |
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tax consequences of child support |
1. payments not income + not deductibel |
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enforcement of child support awards |
1. ganrshiment 2. enforced through civil/criminal contempt 3. fed leg = seize property/garnish wage/intercept tax refunds/revoke state licenses |
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child custody: interstate custody/jurisidiction |
1. uniform child custody jurisidiction and enforcement (UCCJEA) a. initial custody = childe's homestate: i. child lived w/ parent for at least 6 consequtive months ii. OR state where lived last 6 mths + child absent but parent still in state b. no homestate = place where significant connection + substantial evidence of kid's well being c. if none above = assume deferred jurisidiciton in state d. if no other state has jurisidiction = any state can by default |
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jurisidiction in modification of custody decree |
1. issuing state = continuing exclusive jurisidiciton unless: a. no child/parent continues to reside in state OR b. child no longer has significant connection w/ state + no substantial evidenc ein state |
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declining jurisidiction: child custody |
1. court can't exercise jurisidiction if: a. proper proceeding already pending elsewhere when petitino filed unless other court defers OR b. person seeking invoke jurisidiction done unjustificable conduct 2. can decline if inconveneint forum |
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temporary emergency jurisdiction |
1. child physically present + a. child abandoned OR b. necessary to protect child b/c child/sibling/parent subject to abuse |
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legal custody |
1. rights to make decisions regarding kid |
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physical custody |
1. possession and control of kid |
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custody main consideration: |
best interest of child |
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factors in deciding custody |
1. wishes of parents 2. preference of kid (under 8 = no; over 12 = great weight if reasonable reason) 3. relationship of kid w/ parents/siblings + others 4. adjustment to home/school/community 5. mental/physical health of parents 6. primary caregiver 7 = trial court = great deal discretion |
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joint custody |
1. joint legal/joint physical or both 2. encouraged in most (awarded if parents agree) 3. if openly hostile/unable to communicate = not award 4. look to factors + geographic proximity/ability to communicate/parents agreeance |
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sole custody |
1. one parent: strong evidence demonstrates in best interest of child 2. other parent = reasonable visituation (unless harm to child results) |
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custody to a nonparent |
1. parent entitled unless nonparent can show: a. harm to child OR unfitness (abandonment/abuse/surrendered custody) b. after harm/fitness then analysis of best interest of child |
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parental visitation |
1. absoluate denial = rare 2. will deny/restrict if injury to child results |
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nonparent visitation |
1. every state has stat that allows third parties to seek 2. extraordinary circumstances: a. divorce b. seperation c. death 3. if parent fit = wishes as to non parent visitation = special weight |
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modification of custody |
1. party seeking = burden of proof 2. substantial + material change of circumstances 3. best interst of child 4. most require 1/2 years from original order unless environment harmful to child |
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relocation |
1. stats adress relaction of primary residence of kid 2. require notice to other + court hearing 3. factors: a. best interest of child b. motivitated by benefit to family (or malice) c. not intended to thwart relationship w/ other parent |
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enforcement of custody awards |
1. civil contempt 2. state habeas corpus (limited to physical custody) 3. suit in equity (court enjoins conduct in violation of custody order) 4. out of state decrees: enforced if: a. certified copy filed w/ clerk b. not remove continuing exclusive jurisidiction i. does allow enforcement of order in state |
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child kidnapping |
1. child removed from state 2. custodial parent files order in new jurisidiction = seeks enforcement or gets writ of habeas corpus 3. usually state crime 4. PKPA (Federal Parental kidnap prevention act) a. mandates states give full faith and credit to another states custody order (if jurisidiction proper) |
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PKPA jurisidiction |
1. same as UCCJEA 2. emergency jurisidciton ont temporary |
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INternational kidnapping |
1. IPKPA 2. hague convention on child abduction 3. = international relief when kid taken to foreign |
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non-martial children standard |
1. intermediate scrutiny (equal protection) |
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prsumption of parentage: married |
1. father presumed if: a. born during marriage OR b. born w/in 300 days of end marriage(death also) c. child born during void/voidable marraige 2. overcome = clear and convincing evidence |
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disestablishment of paternity |
1. husband finds out not his kid 2. most not allow if not in best interest of child |
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unwed father: presumption of parentage |
1. presumed if: a. father marries mother after b. father holds kid out as biological c. father consent to name on birth cert. d. father acknowledges paternity (usually formality) e. judgment decreeing paternity |
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unwed fathers rights |
1. protected by due process 2. have rights to kid if show parental responsibility 3. may be precluded from tort recovery for death if not recognize kid before |
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paternity suit |
1. unwed mother sue to get child support a. father then can get custody/visitation rights 2. statute of limitations tolled during minority of child (lasts until kid reaches 18 at least) 3. level of proof varies = C&C or preponderance 4. blood/tissue best method but a. testimonial/medical evidence enough |
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termination of parental rights |
1. voluntary = parents can do this 2. involuntary = state can't interfere w/ flia unless engaers well being child: a. infliction of serious physical harm (on child or other houshold child) b. abnadonment c. neglect/deprivation d. failure to provide (w/out cause) for specified time e. mental health of parent = inability to care for kid f. parental unfitness (physical/pyschological) 2. can't seek to terminate rights of other parent |
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adoption |
1. agency (licensed adoption agency) 2. priavte (private person act as intermediaries) |
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adoption requirements: consent of bio parents |
1. termate parental rights of bios a. consent of bio required unless: i. rights already terminated ii. unreasonably witheld against best interest of kid b. consent of unmarried father: i. if father actively involved = required ii. if abandoned/failed to support for time/never attempted to start relationship = no |
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adoption requirements |
1. termination of bio parents rights (consent?) 2. creation of new parent rights 3. adoption records = generally sealed unless bio parents consent to contact |
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consent of new parent right |
1. consent of adoptee (some if older than 12/14) 2. home study (most require - waived for relative adoptions 3. payment of money prohibited (unless medical costs of preganancy) |
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consequences of adoption |
1. severs all rights/obligations of bio parents to kid 2. creates duties to adoptive parents 3. some state = still ahs right to inherit from bio parents |
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maternity presumption |
1. birth of child (unless valid gestational agreement) 2. adjudication of woman's maternity 3. adoption by mother 4. adjudication confirming mom of child born to gestational surrogate |
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surrogacy and paternity |
1. husband to woman who has child through assisted consception = father's kid unless: a. he proves lack of consent w/in 2 years after birth |
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gamete donors |
1. egg/sperm donors 2. not parents of kid conceived through assisted conception 3. some allow sperm donor rights if: a. agree in writing by donor and the woman |
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postumous conception |
1. gamete provided consented in writing to allow use after death to conceive = a. kid is child of deceased parent |
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gestational agreements |
1. some failed to do this b/c see it as sale of kid 2. gestational mom = surrogate a. gestational mother/husband/ + intended parents must enter into written agreement 3. court must approve if: a. jurisidiction b. child welfare conducted home study (unless waived) c. agreement found to be voluntary d. provision made for health care costs until birth (can't limit rights of surrogate to make decisions regarding health care/or that of fetus) e. if promised consideration, ok if reasonable |
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uneforceable gestational agreement consequences |
1. gestational mother considered mother of child, regardelss of bio |
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gestational agreement approved |
1. intended parents need fil notice of birth 2. court issue order of parentage |
