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55 Cards in this Set

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  • Back
How to Get Married: Five (5) things to remember to talk about?
1. Prenuptial Agreements

2. Capacity

3. Licenses

4. Ceremony

5. Common Law Marriage
Getting Out of Marriage: Civil Procedure of Divorce -
1) Who has SMJ?,

2) What is the IN statutory requirement for SMJ?, and

3) if the spouse wants to get property, maintenance, etc... what must the court have over the defendant spouse?
1. Domicile

2. 6 Month Residency Requirement

3. PJ
Getting Out of Marriage: Civil Procedure of Divorce - When is ADR allowed?
- When both parties agree to it in writing.
Getting Out of Marriage: If a court holds a hearing, and issues an order "just to maintain the status quo until the final order", what is this called?
- Temporary Orders.

- can be protective, custody, or property orders.
Getting Out of Marriage: What are the four (4) Grounds for Divorce?
1. Incurable Insanity lasting for two (2) or more years,

2. Felony Conviction,

3. Impotency (i.e., bedroom performance).

4. NO FAULT DIVORCE ("Irretrievable Breakdown").
Getting Out of Marriage: What is the earliest date a court will conduct a divorce hearing?
- 60 days after the papers are filed.

- "cooling off period" (to encourage reconciliation).
Getting Out of Marriage: When will courts allow a "summary dissolution"? (i.e., when will the courts waive the hearing requirement?).
1. When both parties agree, and

2. there are no contestable issues.
Prenuptial Agreements:

1) What is the uniform statute?, and

2) What are the two (2) requirements?
- UPMMA

Requirements:

1. it "all" needs to be in writing, and

2. the couple must have eventually gotten married.
Prenuptial Agreements: What (3) questions do you want to ask yourself when dealing with prenupts?
1. Did both spouses have counsel?

2. What is the spouses legal / business knowledge?

3. Did the spouse understand that she was giving up statutory rights?
Legal Separations: What are the two (2) elements of a "legal separation"?
1. circumstances make it intolerable for the spouses to live together, and

2. there are reasons why the marriage should be maintained (could be pragmatic or moral).
Property Division: What are the two (2) important questions to always answer in property division?
1. What assets are subject to division?, and

2. How do we divide them?
What assets are subject to division in Indiana?
- ALL OF THEM!!!

- The "One-Pot Theory"!!!
"What assets are subject to division?": Does the "One -Pot Theory" include premarital property?
YES.
- It includes Everything of economic value!

(lottery, inheritance, pensions, business goodwill, etc...)
"What assets are subject to division?": Are debts included in the "One-Pot"?
Yes.
Property Division: What are four (4) main Exemptions from the "One-Pot"?
1. contingent future payments,

2. personal injury judgments,

3. the value of a professional degree, and

4. anything acquired post-dissolution.
Dividing the Assets: What is the rebuttable presumption as to how to divide the property and assets.
- 50 / 50 Split!
What must a spouse prove to rebut the presumption of a 50/50 split?
- that is would not be equitable.
What must a court do if it does not use the 50/50 split?
- Put its decision in a written order (so it can be appealed).
What six (6) factors are used to rebut the presumption of a 50/50 split?
1. economic circumstances of parties (includes their earning capacity),

2. prior wealth before marriage,

3. gifts made to one spouse only (e.g., heirlooms),

4. Contribution to total wealth (takes homemaking into account),

5. length of marriage,

6. the "marital residence" (usually goes to custodial parent).
What are the three (3) ways to split the property?
1. In Kind

2. Lump Sum

3. Periodic Payments
Can you modify property distributions?

Is there an exception?
- NO.

- Fraud, before 6 year S.O.L. (like hiding assets)
Maintenance: What are the only three (3) ways to get maintenance?
1. spouse has disability,

2. can't work b/c of disabled child, and

3. "rehabilitative maintenance"
Maintenance: What is "rehabilitative maintenance"?

How long can you get it?
- support to pursue job training and skills.

- maximum 3 years.
Maintenance: What are the five (5) factors courts use for maintenance?
1. the property distribution,

2. age, health, and employment prospects of the spouses,

3. the need for further education and job training,

4. standard of living,

5. contribution of wealth to marriage.
Maintenance: How long does maintenance last?

How does maintenance terminate, (2) ways?
- it lasts however long the courts says it lasts.

- death or remarriage of the recipient.
Child Support: How long does child support last?
- Until the child is 21 (unless the child is disabled).
Child Support: What are the (3) things to remember about child support expenses?
1. if parents can afford it,

2. must be asked for before age 21, and

3. does not cover graduate school.
Child Support: In what three (3) instances does the child support obligation terminate prior to the age of 21?
1. child marries,

2. joins military, and

3. 18 - out on own and employed.
Child Support: The AMOUNT of child support - what are the three (3) things to remember?
1. it is a mathematical calculation,

2. support = income/number of kids,

3. cannot escape obligation by taking a low paying job.
Child Support: How can you get a discount on child support in Indiana?

How much?
- by visiting often

- 10%
Child Support: Do gifts count as child support?
NO.
Child Support: PRE-AWARD - What are the three (3) factors that go into a departure from the mathematical calculation of child support?
1. physical/mental condition of child,

2. standard of living, and

3. financial resources of parties.
Child Support: POST-AWARD - When is the only time that a court will modify a child support award?
"Substantial Change in Circumstances"

- makes the original order look unreasonable.

example: payor has become incapacitated or married into new family with kids he must support.
Child Support: What law governs the rules when a "non-custodial parent" moves out of state?
- UIFSA
UIFSA: What are the three (2) main thrusts of the UIFSA statute?
1. Defers all modification jurisdiction and choice of law to child's home state,

2. Direct Interstate Enforcement (can send attach wages to out of state employers, and can use compulsory process in out of state courts).
Child Support: What are the three (3) federal statutes that govern child support?
1. intercept tax return,

2. "full faith & credit" for child support orders act, and

3. Child Support Recovery Act
Best Interests of the Child: What are the seven (7) factors?
1. wishes of the parent,

2. wishes of the child,

3. child's health,

4. parent's health,

5. history of violence / abuse

6. ability to maintain contact with close family, and

7. if one spouse would interfere with the visitation of the other.
Joint Custody: What are the two (2) main factors?
1. relationship of the parents, and

2. geography
What are the four (4) things to remember about "Moving the kids out of State"? (not including "best interests").
1. duty to inform non-custodial parent and the court,

2. court will set a hearing,

3. is it in good faith?,

4. always a case-by-case basis.
What are the (3) things to remember about "Modification of Child Custody"? (not including "best interests").
1. either parent can petition,

2. # 1 factor is the stability of the child, and

3. "substantial change in circumstances" (like new creepy intimate partner of a spouse).
Visitation: What are the five (5) things to remember about visitation?
1. it is almost never denied,

2. unless it would threaten the "well-being" of the child,

3. interference = contempt

4. visitation survives adoption by step-parent, and

5. "Best Interests"!
Visitation: What is the uniform statute on visitation, and what does it do?
- UCCJEA

- Tries to eliminate "parental-kidnapping" and "forum shopping" by requiring deference to custody/visitation orders of child's home state.
Who can be adopted?
- anyone, if they consent.
Adoption: Whose consent is required?
Adults, Biological Parents, Government, Child > 14yrs old, and Spouses.
Adoption: What are the (3) exceptions to the Consent Requirement?
1. abandoned kid for over 6 months.

2. failed to pay child support for over a year, or

3. you are a biological parent via rape or incest.
Adoption: What is the two (2) step procedure of adoption?
1. Investigation of Parents(questionnaire, home visit, interview), and

2. "Best Interests" Hearing.
Adoption: When is visitation with the biological parents allowed?
- after 2nd birthday, with parental consent, and "best interests".
Indiana Child Support Guidelines: Is there a rebuttable presumption that the calculations are correct?
YES.
Indiana Child Support Guidelines: If the court deviates from the guidelines, what must they do?
Issue a written order
Contempt of Court: What are the (4) four sanctions for failure to pay maintenance?
1. judgment against non-conforming party,

2. seizure of real estate,

3. attachment of wages,

4. attorney's fees.
What presumption must you remember for paternity suits?
- "presumption of marital child"
If Paternity is established what are the four (4) main benefits to the child?
1. inheritance,

2. child support,

3. government benefits,

4. wrongful death actions,
Who can bring a paternity suit?

(5)
1. child,

2. child's mother,

3. child's father,

4. FSSA, or

5. Prosecutor
Paternity Suit: S.O.L.?
- 2 years after the child's birth.

- Child can bring it till 20.
How long does a child have to establish paternity after the alleged parent dies?
5 months