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84 Cards in this Set
- Front
- Back
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breach of promise to marry |
(1) rare today (2) provides for tort damages including actual damages, loss to reputation, mental anguish, and punitive damages |
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gifts in contemplation of marriage |
gifts made conditioned on the subsequent marriage are null if the marriage fails to take place (ex. engagement rings) |
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antenuptial (premarital) agreements -- generally |
(1) many states have adopted the Uniform Premarital Agreements Act (UPAA) (2) premarital agreements address rights of the parties in the event of death or divorce (3) parties can agree to the disposition of property at divorce and to alimony; generally, waiver of alimony will be upheld unless doing so will cause the disadvantaged spouse to become a public charge (4) courts cannot be bound by provisions in the agreement regarding children |
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antenuptial (premarital) agreements -- validity/enforceability requirements |
(1) must be in writing and signed (2) entered into voluntarily (w/o fraud, duress, or overreaching) (3) full disclosure of assets OR proof that party had independent knowledge (4) economic provisions are fair and reasonable |
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antenuptial (premarital) agreements -- Uniform Premarital Agreements Act (UPAA) |
a premarital agreement is unenforceable if the agreement was unconscionable when executed and there was not fair disclosure of assets, waiver, or independent knowledge |
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marriage -- procedural requirements |
(1) license (most states provide for a 72 hr waiting period before issuance) (2) solemnization (i.e., a ceremony w/ an authorized officiant) (3) no legal impediments -- too closely related -- married to someone else (bigamy) -- capacity to consent -- min age (usu. 18 or younger w/ parental or judicial consent) |
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common law marriage -- requirements |
(1) consent to marriage (capacity and no legal impediments) (2) cohabitation (3) holding yourself out publicly living together as spouses |
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marriage by estoppel or putative marriage |
an equitable remedy that may be given by some courts to the innocent party who acted in good faith when entering an invalid marriage in some states, the putative spouse can acquire all the rights of a legal spouse |
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rights and responsibilities among spouses -- property |
(1) each spouse owns and controls his or her own property but in the event of divorce, title will not be dispositive in the equitable distribution of property (2) generally, if spouses take title to real estate in their joint names, a tenancy by the entirety is presume and one spouse cannot convey or encumber property w/o consent of the other |
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rights and responsibilities among spouses -- support |
(1) during marriage, spouses owe support to one another (2) the doctrine of necessaries can be used to make one spouse liable to third parties for the other spouse's purchases for necessary expenses, such as food, clothing, and health care |
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rights and responsibilities among spouse -- spousal abuse and protective orders |
the victim is entitled to a protective order against the other spouse which can be granted ex parte and can last for one month to several years depending on the jurisdiction |
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tortious interference w/ marriage -- alienation of affection |
(1) genuine love and affection between spouses who are validly married (2) love and affection was alienated and destroyed (3) defendant's acts caused the loss of love and affection (4) proof of damages (highly subjective) * adultery is not required |
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tortious interference with marriage -- criminal conversation |
(1) marriage of the spouses (2) adultery between the defendant and the spouse during the marriage (3) proof of damages |
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annulment -- generally |
(1) a declaration that a marriage is invalid (2) available for defective marriages that are legally void or voidable |
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annulment -- void marriage |
(1) fail to meet essential requirements, so invalid ("utter nullity") (2) can be attacked by one of the parties or collaterally by a third party (3) may or may not be remedied by continued habitation after removal of impediment * grounds: bigamy, polygamy, consanguinity * Uniform Marriage and Divorce Act (UMDA) and some states permit marriage to be valid after removal of the impediment |
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annulment -- voidable marriage |
(1) event or condition affecting adequacy of consent (2) treated as valid until annulled (3) can be attacked only by or on behalf one of the parties (4) marriage can be ratified by continued cohabitation after removal of infirmity * grounds: nonage, incurable physical impotence, lack of capacity, duress, and fraud (must affect essential element to the marriage) |
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annulment -- presumption of validity of last marriage |
states generally presume that the most recent marriage is valid and a party must overcome the presumption by strong evidence that the prior marriage subsists |
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annulment -- effect of annulment |
(1) marriage is set aside (2) children remain legitimate (3) child support can be awarded (4) spousal support may be awarded (but not in all states) (5) property generally treated as if never married |
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divorce and separation -- jurisdiction |
(1) one of the spouses must be domiciled (resident + intent to stay) in the state seeking to enter the divorce (i.e., a bona fide resident) (2) presumption of domicile if spouse is a resident of the state for a minimum period of time (90 days to 6 months) (3) to determine financial issues, court must have personal jurisdiction over both parties (cannot be an ex parte divorce) - exception: for marital property located w/in the state, court can adjudicate if state has sufficient minimum contacts w/ defendant and property |
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divorce and separation -- no-fault divorce |
most states allow for dissolution of marriage w/o regard to marital fault may be granted upon a showing that marriage is irretrievably broken and parties have been living separate and apart for a specified period of time - generally can be allowed on proof of: (1) irreconcilable differences (2) living separate and apart for a specified period of time (3) incompatibility * the fact that one spouse thinks the marriage should be saved and does not agree it has broken down is insufficient to prevent a divorce if the other spouse believes the marriage cannot be saved and is not interested in continuing the marriage |
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divorce and separation -- fault-based divorce |
(1) adultery (often proven by circumstantial evidence of opportunity and inclination; corroboration often required) (2) desertion/abandonment for a specified time (unjustifiable departure from the marital home for a specified period w/o intent to return) (3) cruelty (physical or mental) (4) habitual drunkenness/drug abuse after commencement of marriage (5) insanity |
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divorce and separation -- defenses to divorce |
for no-fault divorces: traditional defenses are generally unavailable; but one spouse can claim reconciliation to restart time clock for living separate and apart fault-based grounds include: (1) collusion (2) connivance (3) condonation (4) recrimination |
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divorce and separation -- defenses: collusion |
parties agreed to simulate grounds for divorce |
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divorce and separation -- defenses: connivance |
P willingly consented to other spouse's misconduct |
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divorce and separation -- defenses: condonation |
P forgave marital offense w/ full knowledge of the offense (generally requires sex after forgiveness) |
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divorce and separation -- defenses: recrimination |
P is also guilty of marital fault (unclean hands) |
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divorce and separation -- legal separation |
often permitted for same grounds as divorce effect of legal separation: (1) parties still married (2) parties can seek to have rights re property, spousal support, child custody, and child support decided (3) court may permanently divide marital property when legal separation granted; if so, after acquired property is separate property; if no final property division at that time, property will be divided when (and if) divorce is granted |
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property division -- approaches to dividing property |
(1) community property: all property acquired during marriage is owned one-half by each spouse and property owned before is separate (2) equitable division of all property owned by either spouse (3) [majority rule] equitable division of marital property: each spouse takes his separate property and property acquired during marriage is divided equitably |
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property division -- approaches to dividing property |
property distribution decrees are not modifiable (compare to support awards) |
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property division -- two-step process |
(1) classification: determine what is marital property and what is separate property (2) division: make an equitable division of the marital estate, no matter how the property is titled; remember, equitable division does not necessarily mean equal |
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property division -- two-step process: classification - separate property |
separate property includes: (1) all real and personal property owned before marriage, including retirement accounts (2) property acquired by gift, bequest, devise, or descent (ex. inheritance) (3) property acquired in exchange for property acquired before marriage (4) income from and appreciation of separate property (5) pain and suffering awards, crime victim compensation awards, future medical expenses, future lost wages; and (6) property acquired after an order of legal separation where the court has made a final disposition of property |
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property division -- two-step process: classification - marital property |
marital property includes: (1) all property acquired by either or both spouses during the marriage up to the final divorce decree (unless acquired through gift, bequest, devise, or descent) (2) value of pensions, stock option rights, retirement or other fringe benefit rights relating to employment that accrued during the marriage (3) recovery in personal injury, worker's comp, SSD, wages lost during marriage, reimbursement for medical bills incurred and paid w/ marital property, and property damage to marital property |
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property division -- two-step process: classification - special issues |
(1) commingling (2) transmutation of separate property (3) improvement of separate property (4) property acquired before marriage but paid for after marriage (5) pensions (6) professional license or degree (7) tax consequences |
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property division
-- two-step process: classification - commingling |
separate property can become marital if the property is inextricably intertwined; courts will attempt to trace property |
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property division -- two-step process: classification - transmutation of separate property |
separate property can become marital property based on the intent of the parties |
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property division -- two-step process: classification - improvement of separate property |
when separate property is improved by the use of marital status OR efforts of the non-owning spouse, courts in most jurisdictions will grant the marital estate or non-owning spouse reimbursement for the value added * but if neither spouse ever visited the property and the property increased in value because an interstate exit was planned nearby, the increase in value would remain separate because due to market forces, not contribution |
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property division -- two-step process: classification - property acquired before marriage but paid for after marriage |
courts are split; [majority view] property should be apportioned between separate and marital estates in proportion to the contribution of separate and marital funds to pay for property |
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property division -- two-step process: classification - pensions |
considered to be marital property subject to division even if the non-working spouse did not contribute |
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property division -- two-step process: classification - professional license or degree |
not considered marital property subject to division; to avoid unfairness, some jurisdictions consider it when awarding alimony; a minority of jurisdictions value the degree then award more property or alimony to the other spouse based on the valuation |
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property division -- two-step process: classification - tax consequences |
property division is not a taxable event (compare to alimony) |
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property division -- two-step process: equitable division |
once the court identifies and values the marital property, it will make an equitable (not necessarily equal) division, not subject to modification once the divorce is final factors to consider: (a) age, education, background, earning capabilities, (b) duration of marriage and prior marriages, (c) standard of living during marriage, (d) present income of parties, vocational skills, and employability, (e) source of money used to purchase property, (f) health, (g) assets, debts, and liabilities, (h) needs of each party, (i) provisions for custody of minor children, (j) whether distribution is in lieu of or in addition to alimony, (k) each party's opportunity to acquire future income and assets, (l) each parties contribution to the acquisition of, or enhancement of, the existing marital assets, (m) each party's contribution as homemaker to the family unit, and (n) whether each party has dissipated marital property (economic fault) |
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alimony -- generally |
alimony is paid to the economically dependent spouse - issue is whether claimant's economic dependency resulted from the marital relationship; trend to award less money in past; trial court has great discretion four types (and courts can award more than one type): (1) permanent, periodic support (modifiable) (2) lump sump support (not modifiable) (3) rehabilitative support (designed to restore earning capacity so no longer economically disadvantaged) (modifiable) (4) reimbursement support (not modifiable) *permanent support is awarded to a spouse with neither resources nor ability to be self-sustaining |
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alimony -- factors considered in awards |
two primary considerations: (1) needs of claimant spouse and (2) ability of other spouse to pay other factors: (1) standard of living established during marriage (2) duration of marriage (3) age and physical and emotional conditions of both parties (4) financial resources of each party (including how marital property was apportioned) (5) contribution of each party to the marriage (including homemaking, childcare, education, and career building of other party) (6) time needed to obtain education or training to enable either party to find appropriate employment, where applicable (7) ability of payor spouse to meet his needs and support (8) in some jurisdictions, marital fault |
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alimony -- modifications |
spousal support is modifiable based on a substantial and material change in circumstance affecting the needs of the recipient spouse or ability of other spouse to pay; generally, voluntary reduction in income is insufficient to reduce the obligation |
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alimony -- terminations |
(1) periodic payments generally terminate upon remarriage of recipient or death of spouse (2) lump sum awards survive death and are not modifiable |
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alimony -- tax consequences |
spousal support is includable in the income of the recipient and deductible by the payor, unless otherwise provided by agreement |
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separation agreements |
(1) entered into after marriage and enforceable if supported by consideration (2) must be full and fair disclosure and voluntary entry (3) can waive alimony or property division, and can agree on custody and child support but court is not bound (4) modifications: (a) if divorce includes terms of agreement and expressly merges them, provisions become part of court order, modifiable by court and subject to contempt; (b) if parties do not submit the agreement to the court, it is nonmodifiable and enforceable only by contract remedies |
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contracts between unmarried cohabitants |
(1) contracts are valid unless sexual relations is the only consideration (2) express contracts regarding earnings and property rights will generally be enforced (3) implied contracts (partnership or constructive trust) may be used to award property |
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child support -- generally |
(1) both parents share equally the duty to support their children based on the child's need and the ability of the parent to pay; an agreement that does not meet the needs of the child will not be enforced by a court (2) courts have less discretion because of state child support guidelines, but can deviate if in best interest of the child - ct must state findings of facts justifying deviation; most states follow the income shares approach (formula based on number of children, their ages, their special needs, and the parents' income) (3) child support is paid independent of visitation |
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child support -- duration |
(1) generally, age of majority (usu. 18) (2) death of child OR (3) emancipation of child OR (4) termination of parental rights (5) some states allow child support to continue past 18 if child is in high school until some age or completion of education (6) support may continue for some longer period if the child is disabled |
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child support -- Uniform Interstate Family Support Act (UIFSA) - original jurisdiction |
*UIFSA adopted by all 50 states and D.C. (1) jurisdiction is proper where the first petition under UIFSA is filed (2) another state can only exercise jurisdiction if: (i) the second petition is filed before time to answer the first has expired, (ii) the petitioner objected to jurisdiction in the first action, and (iii) the second state is the child's home state |
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child support -- Uniform Interstate Family Support Act (UIFSA) - jurisdiction to enforce |
(1) issuing court has continuing jurisdiction to enforce (2) another state can enforce by: (i) direct enforcement (obligee mails order to obligor's employer to withhold wages), or (ii) registration (child support order registered in another state and subject to enforcement there) |
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child support -- Uniform Interstate Family Support Act (UIFSA) - jurisdiction to modify |
once the court enters a valid child support order, it maintains continuing exclusive jurisdiction during the life of the parties unless no parties reside in the issuing state or parties consent to another state's jurisdiction |
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child support -- modification of orders |
child support is modifiable based on a substantial change of circumstances affecting the needs of the child or the ability of the parents to pay; a voluntary reduction in income will not be ground for modification and past due child support cannot be modified and is not a basis for prospective modification |
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child support -- tax consequences |
child support payments are not income and not deductible |
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child support -- enforcement of support awards |
child support can be enforced through traditional civil and criminal contempt proceedings; as a result of federal legislation, parties may seize property, use wage withholding, intercept tax refunds, or revoke licenses to enforce payments |
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child custody -- Uniform Custody Jurisdiction Enforcement Act (UCCJEA) |
UCCJEA applies to interstate custody disputes |
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child custody -- Uniform Custody Jurisdiction Enforcement Act (UCCJEA) - initial award of custody |
(1) primary test: home state (either where child has lived w/ parent for at least 6 consecutive months or state that was child's home state w/in the last 6 months and child is absent but a parent continues to live there) (2) if no home state, court can assume jurisdiction if the child has a significant connection with the state and there is substantial evidence of the child's well-being in the state (3) if the state with Home State or significant connection jurisdiction decline, a state can assume deferred jurisdiction (4) if no other state exercises jurisdiction, any state can by default |
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child custody -- Uniform Custody Jurisdiction Enforcement Act (UCCJEA) - modification of an existing decree |
the issuing state exercises continuing exclusive jurisdiction ... unless no child or parent continues to reside in the state OR child no longer has a significant connection w/ the state and there is no substantial evidence in the state |
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child custody -- Uniform Custody Jurisdiction Enforcement Act (UCCJEA) - declining jurisdiction |
(1) a court may not exercise jurisdiction if: (i) a proper proceeding was already pending elsewhere when petition is filed, unless other court defers OR (ii) the person seeking to invoke the court's jurisdiction has engaged in unjustifiable conduct (2) a court may decline to exercise jurisdiction if it determines it is an inconvenient forum |
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child custody -- Uniform Custody Jurisdiction Enforcement Act (UCCJEA) - temporary emergency jurisdiction |
requirements: (1) child is physically present in the state, and (2) child has been abandoned OR (3) it is necessary to protect child because child, sibling, or parent is subject to abuse |
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child custody -- generally |
custody includes legal custody (rights to make decisions re child) and physical custody (possession and control of child) |
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child custody -- factors courts consider |
(1) in any custody or visitation case, the hallmark consideration is the best interest of the child (2) other factors include: (a) wishes of the parents, (b) preference of the child (under 8, not considered; over 12, considered), (c) relationship of child w/ parents and siblings and others involved w/ parents, (d) child's adjustment to home, school, and community, (e) mental and physical health of parties, and (f) parent who was the primary caregiver (3) trial court has a great deal of discretion to determine custody and visitation |
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child custody -- types of custody |
(1) joint custody - preferred, but will not be granted if parents are openly hostile or unable to communicate (2) sole custody - requires strong evidence in best interest of child; other parent will be entitled to reasonable visitation unless harm to the child will result) (3) custody to a nonparent - standard is not simply the best interest of child because of constitutional concerns; parent is entitled to custody unless nonparent can show (i) harm to the child OR (ii) unfitness (abandonment, neglect, abuse, surrendered custody) |
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child custody -- types of visitation |
(1) parental visitation - absolute denial is rare; courts may deny and will restrict visitation if injury to the child may result (2) nonparent visitation - every state allows third parties to seek visitation; however, if a parent is fit, his or her wishes on nonparent visitation are constitutionally protected and must be given special weight |
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child custody -- modification of custody |
(1) party seeking the modification bears the burden of proof (2) standard: whether custody or visitation issue, modification requires a substantial and material change of circumstance affect the child's well-being since prior determination of custody (3) overriding concern: best interest of the child |
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child custody -- relocation |
statutes generally require notice to the other parent and a court hearing to determine whether relocation is permitted; courts will determine whether relocation is (1) in the child's best interest (2) motivate by a benefit to the family, and (3) not intended to thwart the relationship w/ the other parent |
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child custody -- enforcement of custody awards |
(1) violations of custody and visitation can be enforced through civil contempt proceedings (2) state habeas corpus proceedings (limited to physical custody of the child) (3) suits in equity (request for court to enjoin conduct in violation of custody order) (4) out of state decrees (allowing enforcement of order in the state) (5) in the case of child kidnapping: (i) if a child is removed from the state, parent must file the custody order in the new jurisdiction and seek enforcement or obtain a writ of habeas corpus from the new jurisdiction; (ii) the Federal Parental Kidnapping Prevention Act (PKPA) mandates that states give full faith and credit to another state's child custody determination, if jurisdiction is proper; (ii) the International Parental Kidnapping Prevention Act (IPKCA) and Hague Convention on Child Abduction provide international relief |
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nonmarital children -- generally |
(1) intermediate scrutiny applies in an equal protection analysis (substantial relationship to an important governmental interest) to children born out of wedlock (2) a parental action can be brought to establish a biological relationship and settle issues of paternity |
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nonmarital children -- presumption of parentage |
the husband of the mother is presumed to be the father if: (1) the child is born during the marriage OR (2) child is born w/in 300 days of termination of the marriage OR (3) child is born during a void or voidable marriage * presumption can be rebutted but requires heightened proof (generally clear and convincing); many states prohibit disestablishment of paternity based on the best interest of the child, even if the husband is not biologically related to the child |
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nonmarital children -- unwed fathers |
(1) a child can be considered the child of an unwed father if: (a) marries mother after the birth (b) holds child out as his biological child (c) consents to his name on birth certificate (d) acknowledges paternity (e) there is a judgment decreeing paternity (2) unwed fathers will be protected by the DPC and can have rights to custody if they demonstrate parental responsibility (3) unwed fathers may be precluded from tort recovery for the death of a child he did not legally recognize |
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nonmarital children -- paternity suit |
(1) generally used by an unwed mother to obtain child support from father (2) once paternity is established, father can assert rights of custody and visitation (3) statute of limitation will last until at least the child reaches age 18 (4) blood or tissue sampling is the superior method for establishing paternity, but testimonial or other medical evidence has been sufficient |
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termination of parental rights -- voluntary termination |
parents may voluntarily relinquish all rights to their children |
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termination of parental rights -- involuntary termination |
(1) state may not interfere in family decisionmaking unless decision endangers the well-being of the child (2) state may seek to terminate parental rights for: (a) infliction of serious physical harm (abuse) (b) abandonment (failure to support) (c) neglect or deprivation (d) failure to provide support w/o cause for a specified time period (usu. 1 year) (e) mental health of parent results in inability to care for the child (f) parental unfitness (physical or psychological) *generally, parents cannot seek to terminate the rights of the other parent |
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adoption -- types |
(1) agency adoption (2) private adoption |
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adoption -- requirements |
(1) termination of biological parents' rights - consent required unless rights were already terminated or if unreasonably withheld against the best interests of the child; consent of unmarried father required if father is actively involved in child's life (2) creation of new parent rights - consent of adoptee (some states), home study (most states), and payment of money prohibited (except for medical costs of pregnancy) |
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adoption -- adoption records |
generally sealed unless biological parents consent to contact |
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adoption -- consequences of adoption |
severs all rights and obligations of biological parents to child and creates duties to adoptive parents and child; in some states, adoptive child still has the right to inherent from his or her biological parents |
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assisted reproduction -- Uniform Parentage Act (UPA) |
UPA contains provisions related to assisted conception, but has not been adopted by many jurisdictions |
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assisted reproduction -- Uniform Parentage Act (UPA) - maternity |
a mother-child relationship is established by: (1) birth of the child (unless valid gestational agreement) (2) adjudication of woman's maternity (3) adoption by the mother (4) adjudication confirming mother of child born to a gestational surrogate |
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assisted reproduction -- Uniform Parentage Act (UPA) - paternity |
a husband who is married to a woman who has a child through assisted conception is the child's father unless he proves his lack of consent w/in 2 years after the birth |
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assisted reproduction -- Uniform Parentage Act (UPA) - gamete donors |
(1) egg or sperm donors are not parents of a child conceived through assisted conception (2) some jurisdictions have allowed the sperm donor to have rights if agreed in writing by the donor and the woman |
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assisted reproduction -- Uniform Parentage Act (UPA) - posthumous conception |
if a gamete provider consented in writing that his or her gametes could be used after death to conceive a child, that child can be considered the child of a deceased parent |
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assisted reproduction -- Uniform Parentage Act (UPA) - gestational agreements |
(1) gestational mother, her husband (if married), and intended parents must enter into a written agreement (2) court must approve agreement if: (a) court has jurisdiction (b) child welfare agency has conducted a home study unless waived (c) agreement is found to be voluntary (d) provision has been made for health care costs until birth (agreement cannot limit rights of surrogate to make decisions re her health care or that of the fetus) (e) if surrogate is promised consideration, it is reasonable (3) if the agreement is unenforceable, the gestational mother is considered the mother of the child, regardless of biology (4) if the agreement is approved, intended parents must file notice of birth and court will issue an order of parentage |
