Family Law - Indiana Bar Exam

Front 1

How to Get Married: Five (5) things to remember to talk about?

Back 1

1. Prenuptial Agreements

2. Capacity

3. Licenses

4. Ceremony

5. Common Law Marriage

Front 2

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?

Back 2

1. Domicile

2. 6 Month Residency Requirement

3. PJ

Front 3

Getting Out of Marriage: Civil Procedure of Divorce - When is ADR allowed?

Back 3

- When both parties agree to it in writing.

Front 4

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?

Back 4

- Temporary Orders.

- can be protective, custody, or property orders.

Front 5

Getting Out of Marriage: What are the four (4) Grounds for Divorce?

Back 5

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").

Front 6

Getting Out of Marriage: What is the earliest date a court will conduct a divorce hearing?

Back 6

- 60 days after the papers are filed.

- "cooling off period" (to encourage reconciliation).

Front 7

Getting Out of Marriage: When will courts allow a "summary dissolution"? (i.e., when will the courts waive the hearing requirement?).

Back 7

1. When both parties agree, and

2. there are no contestable issues.

Front 8

Prenuptial Agreements:

1) What is the uniform statute?, and

2) What are the two (2) requirements?

Back 8

- UPMMA

Requirements:

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

2. the couple must have eventually gotten married.

Front 9

Prenuptial Agreements: What (3) questions do you want to ask yourself when dealing with prenupts?

Back 9

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?

Front 10

Legal Separations: What are the two (2) elements of a "legal separation"?

Back 10

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).

Front 11

Property Division: What are the two (2) important questions to always answer in property division?

Back 11

1. What assets are subject to division?, and

2. How do we divide them?

Front 12

What assets are subject to division in Indiana?

Back 12

- ALL OF THEM!!!

- The "One-Pot Theory"!!!

Front 13

"What assets are subject to division?": Does the "One -Pot Theory" include premarital property?

Back 13

YES.
- It includes Everything of economic value!

(lottery, inheritance, pensions, business goodwill, etc...)

Front 14

"What assets are subject to division?": Are debts included in the "One-Pot"?

Back 14

Yes.

Front 15

Property Division: What are four (4) main Exemptions from the "One-Pot"?

Back 15

1. contingent future payments,

2. personal injury judgments,

3. the value of a professional degree, and

4. anything acquired post-dissolution.

Front 16

Dividing the Assets: What is the rebuttable presumption as to how to divide the property and assets.

Back 16

- 50 / 50 Split!

Front 17

What must a spouse prove to rebut the presumption of a 50/50 split?

Back 17

- that is would not be equitable.

Front 18

What must a court do if it does not use the 50/50 split?

Back 18

- Put its decision in a written order (so it can be appealed).

Front 19

What six (6) factors are used to rebut the presumption of a 50/50 split?

Back 19

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).

Front 20

What are the three (3) ways to split the property?

Back 20

1. In Kind

2. Lump Sum

3. Periodic Payments

Front 21

Can you modify property distributions?

Is there an exception?

Back 21

- NO.

- Fraud, before 6 year S.O.L. (like hiding assets)

Front 22

Maintenance: What are the only three (3) ways to get maintenance?

Back 22

1. spouse has disability,

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

3. "rehabilitative maintenance"

Front 23

Maintenance: What is "rehabilitative maintenance"?

How long can you get it?

Back 23

- support to pursue job training and skills.

- maximum 3 years.

Front 24

Maintenance: What are the five (5) factors courts use for maintenance?

Back 24

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.

Front 25

Maintenance: How long does maintenance last?

How does maintenance terminate, (2) ways?

Back 25

- it lasts however long the courts says it lasts.

- death or remarriage of the recipient.

Front 26

Child Support: How long does child support last?

Back 26

- Until the child is 21 (unless the child is disabled).

Front 27

Child Support: What are the (3) things to remember about child support expenses?

Back 27

1. if parents can afford it,

2. must be asked for before age 21, and

3. does not cover graduate school.

Front 28

Child Support: In what three (3) instances does the child support obligation terminate prior to the age of 21?

Back 28

1. child marries,

2. joins military, and

3. 18 - out on own and employed.

Front 29

Child Support: The AMOUNT of child support - what are the three (3) things to remember?

Back 29

1. it is a mathematical calculation,

2. support = income/number of kids,

3. cannot escape obligation by taking a low paying job.

Front 30

Child Support: How can you get a discount on child support in Indiana?

How much?

Back 30

- by visiting often

- 10%

Front 31

Child Support: Do gifts count as child support?

Back 31

NO.

Front 32

Child Support: PRE-AWARD - What are the three (3) factors that go into a departure from the mathematical calculation of child support?

Back 32

1. physical/mental condition of child,

2. standard of living, and

3. financial resources of parties.

Front 33

Child Support: POST-AWARD - When is the only time that a court will modify a child support award?

Back 33

"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.

Front 34

Child Support: What law governs the rules when a "non-custodial parent" moves out of state?

Back 34

- UIFSA

Front 35

UIFSA: What are the three (2) main thrusts of the UIFSA statute?

Back 35

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).

Front 36

Child Support: What are the three (3) federal statutes that govern child support?

Back 36

1. intercept tax return,

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

3. Child Support Recovery Act

Front 37

Best Interests of the Child: What are the seven (7) factors?

Back 37

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.

Front 38

Joint Custody: What are the two (2) main factors?

Back 38

1. relationship of the parents, and

2. geography

Front 39

What are the four (4) things to remember about "Moving the kids out of State"? (not including "best interests").

Back 39

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.

Front 40

What are the (3) things to remember about "Modification of Child Custody"? (not including "best interests").

Back 40

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).

Front 41

Visitation: What are the five (5) things to remember about visitation?

Back 41

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"!

Front 42

Visitation: What is the uniform statute on visitation, and what does it do?

Back 42

- UCCJEA

- Tries to eliminate "parental-kidnapping" and "forum shopping" by requiring deference to custody/visitation orders of child's home state.

Front 43

Who can be adopted?

Back 43

- anyone, if they consent.

Front 44

Adoption: Whose consent is required?

Back 44

Adults, Biological Parents, Government, Child > 14yrs old, and Spouses.

Front 45

Adoption: What are the (3) exceptions to the Consent Requirement?

Back 45

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.

Front 46

Adoption: What is the two (2) step procedure of adoption?

Back 46

1. Investigation of Parents(questionnaire, home visit, interview), and

2. "Best Interests" Hearing.

Front 47

Adoption: When is visitation with the biological parents allowed?

Back 47

- after 2nd birthday, with parental consent, and "best interests".

Front 48

Indiana Child Support Guidelines: Is there a rebuttable presumption that the calculations are correct?

Back 48

YES.

Front 49

Indiana Child Support Guidelines: If the court deviates from the guidelines, what must they do?

Back 49

Issue a written order

Front 50

Contempt of Court: What are the (4) four sanctions for failure to pay maintenance?

Back 50

1. judgment against non-conforming party,

2. seizure of real estate,

3. attachment of wages,

4. attorney's fees.

Front 51

What presumption must you remember for paternity suits?

Back 51

- "presumption of marital child"

Front 52

If Paternity is established what are the four (4) main benefits to the child?

Back 52

1. inheritance,

2. child support,

3. government benefits,

4. wrongful death actions,

Front 53

Who can bring a paternity suit?

(5)

Back 53

1. child,

2. child's mother,

3. child's father,

4. FSSA, or

5. Prosecutor

Front 54

Paternity Suit: S.O.L.?

Back 54

- 2 years after the child's birth.

- Child can bring it till 20.

Front 55

How long does a child have to establish paternity after the alleged parent dies?

Back 55

5 months