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68 Cards in this Set
- Front
- Back
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What limitation is placed on contracts between partners prior to marriage?
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non meretricious
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Can alimony be dealt with in Premarital Agreement?
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Yes - so long as party does not become charge of state
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Can ED be dealt with in Premarital Agreement?
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Yes
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Can Child Support be dealt with in a Premarital Agreement?
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yes - but no negative impact on child
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What are the formalities of a premarital agreement (3)
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- writing
- signed - acknowledged (real prop) |
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What happens to engagement ring at marriage?
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it is a gift in contemplation of marriage - is returned
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How is an engagement ring treated once married?
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separate property
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Two requirements for legal marriage in NC
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- license (directory rule)
- ceremony (mandatory rule) |
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Requirements for ceremony (3)
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- consent
- presence - solemnizing official |
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Substantive requirements for marriage? (4)
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- capacity
- age - kinship - gender |
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Age issues?
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- 18+ no consent
- 16-17 consent - 14-15 consent of judge |
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H & W were brother/sister and married in SC where legal. Effect on return to NC?
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NC will recognize
- never for DOMA |
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H & W are common law married in SC. Effect on moving to NC?
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married
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Alienation of Affections (3)
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- must be love
- love is destroyed - act of 3P was the cause |
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Criminal Conversation (2)
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- marriage
- sexual intercourse of 3P with spouse (note: may be pre- or post-separation) |
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Formalities of POST-marital contract (2)
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- writing
- signed and acknowledge for real property |
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Distinguish alimony waiver in premarital and separation agreements
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- premarital is fine
- separation agreement is void |
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People covered under civil domestic violence statute (5)
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- current and former spouses
- current or former household members - parent and child - persons with child in common - persons of opposite sex in or were in a dating relationship |
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H & W are married and H is charged with blackmail can W testify?
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- cannot be forced
- may do so voluntarily |
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W learned H was blackmailing politician in a confidential communication from H during their marriage because of trust in the relationship. May W testify?
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Never
(exceptions: child support, neglect, paternity) |
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Rights available to annulment?
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- temporary alimony
- atty's fees - legitimization of children (no alimony or ED) |
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Two bases for divorce in NC
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- 12 month separation
- incurable insanity |
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Length of residency in NC required to file for divorce
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6 mo
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What constitutes resuming the marital relationship (2)
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- holding out as H/W
- having the intent to resume |
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Effects of divorce
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divorce ends all rights arising from the marriage that are not pending at the time of divorce
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Voluntary Dismissal of Claim
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if a spouse takes a voluntary dismissal of an alimony or ED claim after divorce, rule 41(a) protects the right to re-file if the dismissal occurred BEFORE divorce
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Are divorce and custody in rem?
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yes
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When can a lawyer seek a contingency fee?
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only on ED in complex cases
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Does post-separation support require fault?
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no
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Requisite conclusions for alimony (3)
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- dependent spouse
- supporting spouse - equitable |
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Condonation
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excuses adultery, but if it occurs again, the excused adultery is revived
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How to end alimony (5)
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- date specified
- death - re-marriage of dependent spouse - cohabitation of dep. spouse - resumption of marital relations after divorce |
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Procedural requirement for ED?
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must be a pending claim before divorce
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Procedural issue of filing for ED/alimony when divorce issued without in personam jurisdiction
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6 months to fie
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Three types of property
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- marital
- separate - divisible |
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Divisible Property (4)
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- passive increases or decreases in the value of marital or divisible property
- property received after date of separation as a result of pre-separation labor - passive income from marital property - increases and decreases in marital debt |
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Source of Funds Rule (NC)
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to the extent a spouse can trace the source of an item of property to separate funds, to the extent it is separate property
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W owns land. After marriage conveys to H/W as TIE. Classify
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marital property
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Analytic Approach
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source of funds --- look at item being replaced
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What misconduct may affect the award of ED
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economic-based fault (waste)
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Incorporation & Integration
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- incorporation is making a separate agreement a part of a court order
- integration is providing that the provisions of the agreement for alimony and ED are reciprocal to each other |
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Is an Unincorporated Agreement a pure contract?
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yes
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Can alimony be modified in an Incorporated and Integrated agreement?
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No - because it is tied to other provision
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Is there an effect on modifiability child custody and support in an Incorporation?
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Never
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Effect of reconciliation on a fully executed agreement
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none
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If you transfer property in a separation agreement and later reconcile, what happens to the property?
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nothing - it remains transferred
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Relevant legal standard for child custody?
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best interest
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Petersen Presumption
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parent has a right to custody over a non-parent 3P unless the judge finds neglect or parent is unfit OR parent has exhibited other conduct inconsistent with the parent's protected status
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Evidentiary Requirements for Petersen Presumption
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clear and convincing
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Standing to seek custody (3)
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- parents
- grandparents who allege unfitness - relatives or non-relatives who have a relationship with the child like parent-child |
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Persons with standing to seek visitation in NC (3)
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- parents
- grandparents (best interest, no presumption) - former stepparents |
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Legal Custody
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authority to make major decisions in the child's life
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Elements for change in custody decrees (2)
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- substantial change of circumstances effecting the child
- change in custody would be child's best interest |
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Jurisdiction under UCCJEA
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For initial custody determination:
- home state - significant contacts - emergency |
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Home State
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where child has resided for 6 mos, or for life if less than 6 mos
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PKPA
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provides the bite of full-faith and credit to UCCJEA
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If a minor has a child, can the minor's parents be held liable for support?
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yes
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NC enters a custody order. Which state may modify?
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Non - unless either everybody has left NC or NC relinquishes jurisdiction
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Duration of obligation to pay child support (3)
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- 18 or emancipated
- ends on death of payor - 10 year SoL to go after back payments |
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When can child support go past the age of 18? (4)
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- still in primary or secondary school
- unless the child drops out or fails to make academic progress - until the child graduates or reaches age 20, BUT - judge has discretion to end the obligation when the child reaches 18 |
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Is lack of visitation a defense to non-support?
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No
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May a court modify past child support arrearages?
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no
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UIFSA
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Uniform Interstate Family Support Act provides for enforcement of child support order by registering order with state
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UIFSA modification of order
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only original state may modify (unless all parties leave) and the issuing state law controls
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How long do a mother have to relinquish adoption after child is removed?
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7 days
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Petition for Adoption (2)
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- filed within 30 days of placement
- notice to biological father |
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Factors used in determining if biological father need give consent to adoption
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- legitimization
- acknowledge paternity - written order of support - made payments - regular visitation |
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Equitable Adoption
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- child with foster parents
- natural parents give up rights - foster parents fail to adopt - court invokes equitable adoption to allow child to inherit under intestacy |
