Study your flashcards anywhere!

Download the official Cram app for free >

  • Shuffle
    Toggle On
    Toggle Off
  • Alphabetize
    Toggle On
    Toggle Off
  • Front First
    Toggle On
    Toggle Off
  • Both Sides
    Toggle On
    Toggle Off
  • Read
    Toggle On
    Toggle Off
Reading...
Front

How to study your flashcards.

Right/Left arrow keys: Navigate between flashcards.right arrow keyleft arrow key

Up/Down arrow keys: Flip the card between the front and back.down keyup key

H key: Show hint (3rd side).h key

A key: Read text to speech.a key

image

Play button

image

Play button

image

Progress

1/79

Click to flip

79 Cards in this Set

  • Front
  • Back
  • 3rd side (hint)
GETTING MARRIED:

(1) Define an antenuptional ("prenuptial") agreement.

(2) When will such a contract be deemed invalid?
GETTING MARRIED:

(1) A contract entered into by people before they are married which sets forth how their property will be divided if, and when, they divorce.

(2) The contract will be invalid if one of the parties can show they did not sign the contract voluntarily or that the other party did not disclose all of his or her assets.
GETTING MARRIED: If one party to an antenuptial contract disputes its validity, who bears the burden of proof?
GETTING MARRIED: The party seeking to uphold the contract.
GETTING MARRIED:

TRUE OR FALSE: Whether an antenuptial agreement is unsconcionable is determined at the time of its performance, not the time of its making.
GETTING MARRIED:

TRUE.
GETTING MARRIED:

State when a woman has a cause of action against a man who breaches his promise to marry.
GETTING MARRIED:

The woman is pregnant.
GETTING MARRIED:

(1) How old must a person be to get married?

(2) Is the marriage valid if they marry before this age?

(3) State the grounds for annulment or divorce when married under the age of 18.
GETTING MARRIED:

(1)In most states, atleast 18.

(2) The marriage will be valid if someone under 18 is married with the permission of at least one parent or a certificate from a physician that the woman is pregnant or has given birth.

(3) non-age.
GETTING MARRIED:

(1) Can you marry your first cousin?

(2) Who can you NOT marry?
GETTING MARRIED:

(1) Yes.

(2) aunt, uncle, grandson or granddaughter, daughter, son, sister, or brother.
GETTING MARRIED:

(1) State the requirements for a valid common law marriage.

(2) State when these marriages are entitled to full faith and credit.
GETTING MARRIED:

(1)

(a) Consent between the parties.

(b) Cohabitation.

(c) Holding out as husband and wife.

(2) When they are valid in the jurisdiction where they are formed.
Co-co-ho.
BEING MARRIED:

Can a spouse sue another person if that person steals their spouse?
BEING MARRIED:

In most states, this cause of action does not exist.
BEING MARRIED:

(1) Define spousal immunity.

(2) State when the immunity does not apply.

(3) State when the privilege is held by the witness spouse. State when the privilege is held by the defendant spouse.
BEING MARRIED:

An evidentiary privilege that may be asserted in a criminal proceeding to legally refuse testifying against the defendant-spouse about anything, even if it occurred BEFORE the marriage.


(2) Parties have gotten divorced or annulled, or one of the spouses died.

(3) The privilege is held by the witness spouse in federal court. The privilege is held by the party-spouse in state court.
Criminal Proceedings.
BEING MARRIED:

(1) Define confidential marital communications.

(2) State when the immunity does apply.

(3) State when the immunity does not apply.

(4) State the holder of the immunity.
BEING MARRIED:

(1)Evidentiary privilege for confidences shared between married people during and after the time they were married.

(2) In civil and criminal proceedings.

(3) The privilege does not apply if the confidence was made in the presence of a third person, if the parties are opposing each other, or if one spouse commits a crime against the other spouse or their child.

(4) The party-spouse.
SEPARATION:

(1) Define a separation agreement.

(2) State the benefits.

(3) State the limits.
SEPARATION:

(1) An agreement entered into by two married parties who wish to live separate.

(2) Agreement allows for awarding child custody and alimony. If one party does not honor its terms, the other can sue for breach. After 1-2 years, in some jurisdictions, the court will (upon request) convert the separation agreement into a decree of absolute divorce.

(3) The agreement does not allow the parties to remarry or distribute their property.
SEPARATION:

State when a separation agreement will not be enforceable.
SEPARATION:

(1) If either party was not forthright in disclosing his assets.

(2) Makes provisions for the children not in their best interests.

(3) Consent was not voluntary.
Three circumstances.
SEPARATION:

If the parties separate pursuant to a separation agreement and the agreement is merged into the final divorce judgment, how can the separation agreement be enforced?
SEPARATION:

The only way is by a contempt of court action.
Only one way.
SEPARATION:

If the parties agree to separate pursuant to a separation agreement but that agreement is NOT merged into the final divorce judgment, how can this agreement be enforced?
SEPARATION:

By the court through its contempt powers or as a breach of contract action.
Two ways.
DIVORCE:

(1) State whether a court can grant divorce if it does not have personal jurisdiction over the defendant.

(2) State what the court may NOT do with pj over the defendant.
DIVORCE:

(1) The court can grant a divorce if it has pj over the plaintiff.

(2) The court cannot decide issues regarding the property that is jointly owned -- needs pj over both parties.
DIVORCE:

State the fault grounds on which a divorce may be granted.
DIVORCE:

(1) Adultery
(2) Desertion
(3) Habitual Drunkness and Voluntary Drug Addiction
(3) Insanity
(4) Cruel Treatment
ADDICT
DIVORCE:

State the elements each of the fault grounds and who has the burden of proof.
DIVORCE:

(1) Adultery - (1) opportunity to committ adultery; (2) the disposition to do so. Spouse alleging adultery.

(2)Desertion - (1) deliberate departure of the marital home with the intent of ending the relationship for atleast 12 months; or (2) when one spouse jeopardizes the health, safety, and self-respect of the other spouse. The plaintiff spouse.

(3) Habitual Drunkeness et al. - substantial period of time, ongoing when plaintiff moves for divorce. The plaintiff.

(4) Insanity - (1) one of the parties resident of the state for atleast two years prior to divorce; (2)institutionalzied for more than three years; and (3) two doctors testimony that insanity is incurable. The plaintiff.

(4) Cruel Treatment - (1) "severe psychological abuse" on the complaining spouse; (2) no reasonable expectation of reconciliation; and (3) if grounds are constructive desertion, then more than a single incident. The plaintiff.
DIVORCE:

State two "no-fault" grounds on which an absolute divorce may be granted.
DIVORCE:

(1) Parties live apart for a set period of time and mutually agree to live apart with no intention of resuming marriage because it is hopelessly broken.

(2) The parties are incompatible.
DIVORCE:

Articulate the four defenses to divorce actions and articulate the meaning of each one.
DIVORCE:

(1) Collusion - either spouse similuates grounds for divorce or deliberately conceals evidence of a defense to it.

(2) Condonation - The spouse that was cheated on learns of the other spouse's unfaithfulness, forgives them, and resumes sexual relations with them. (Right to divorce revived if offending spouse repeats infidelity).

(3) ReCrimination - Plaintiff spouse engages in some kind fo improper behavior which could serve as grounds for divorce.

(4)ReConciliation - parties offer or attempt to resume marital relations AFTER they have agreed to separate.
4 C's
ANNULMENT:

(1) Define an annulment.

(2) State how the parties are treated.
ANNULMENT:

(1) A judicial decree that states that the marriage of the parties is voided.

(2) The parties are treated as though they were never married to each other.
ANNULMENT:

(1) State the general grounds on which an annulment may be granted.

(2) State the specific grounds on which an anulment may be granted.
ANNULMENT:

(1) The marriage is void or voidable.

(2) The marriage is void if: (i) the parties were already married; (ii) either lacked mental capacity; (iii) parties were too closely related.

(2b) The marriage is voidable if (i) either party was 15 years old w/o parent permission or physician's form; (ii) either party was less than 15 years old; (iii) either party was age 16 or 17 and did not have the consent of one parent or a certificate from a physician; (iv) either party was under the influence of alcohol or drugs; (v) there was duress, coercision, or fraud.
DIVORCE/ANNULMENT:

State the essential difference between an anulment and a divorce.
DIVORCE/ANNULMENT:

A divorce is the termination of a marriage. An annulment is a decree that the parties were never married.
ANNULMENT

Hypo: Millie and Al were married in 1989. Al died in 1999. Millie comes to you now seeking to have the marriage annulled. Can she do this?
If the marriage was void, Millie can obtain annulment anytime.

If the marriage was voidable, Millie cannot obtain annulment after Al died.
DIVORCE & ANNULMENT:

State how property is divided in equitable distribution.
DIVORCE & ANNULMENT:

Each spouse takes his or her separate property out of marriage.

Separate property is brought into the marriage by each spouse and acquired by gift, bequest, or descent.

The court then decides how to equitably distribute property that was acquired by the parties during their marriage based on the contribution each party during the marriage and the circumstances at the time of divorce.
DIVORCE & ANNULMENT:

State the factors a court considers when awarding property in "equitable distribution" jurisdiction re fault and custody?
DIVORCE & ANNULMENT:

Don't consider fault, do consider custody.
8 factors.
DIVORCE & ANNULMENT (MARITAL PROPERTY):

State how property is divided in a community property jurisdiction.
DIVORCE & ANNULMENT (MARITAL PROPERTY):

Each spouse walks away with the property they had prior to the marriage and half the property acquired during the marriage.

Except for gifts received from a third party to one spouse or property acquired by bequest or descent.
DIVORCE & ANNULMENT (MARITAL PROPERTY):

(1) State how personal injury awards are distributed.

(2) Does it matter whether the injury occurred before or during the marriage.
DIVORCE & ANNULMENT (MARITAL PROPERTY):

(1)Based on the reason.


(i) If for pain and suffering, then it is separate property.

(ii) If for medical expenses or loss of consortium, then it is marital property.

(2) Does not matter whether the injury occurred before or during the marriage.
DIVORCE & ANNULMENT (MARITAL PROPERTY):

TRUE OR FALSE: A pension acquired before a marriage is marital property.
DIVORCE & ANNULMENT (MARITAL PROPERTY):

False. Only in an equitable distribution jurisdiction, a portion of a pension earned DURING the marriage is marital property.
DIVORCE & ANNULMENT (MARITAL PROPERTY):

TRUE OR FALSE: A professional license is marital property if it was earned while the parties were married.
DIVORCE & ANNULMENT (MARITAL PROPERTY):

False. A professional license is not marital property, irrespective of when it was earned.
DIVORCE & ANNULMENT (MARITAL PROPERTY):

TRUE OR FALSE: The goodwill of a business or professional practice is marital property.
DIVORCE & ANNULMENT (MARITAL PROPERTY): True. The goodwill MUST have some value apart from the professional individual's reputation.
DIVORCE & ANNULMENT (MARITAL PROPERTY):

TRUE OR FALSE: Social security benefits are not marital property.
DIVORCE & ANNULMENT (MARITAL PROPERTY):

True. Social security benefits are not marital property.
DIVORCE & ANNULMENT (MARITAL PROPERTY):

TRUE OR FALSE: Lottery winnings are marital property even if the couple has already separated.
DIVORCE & ANNULMENT (MARITAL PROPERTY):

False. The winning spouse does not have to share the lottery winnings with a separated spouse. If the parties had been married and not separated when ticket was bought, then the entire jackpot is marital property.
DIVORCE & ANNULMENT (MARITAL PROPERTY):

At what point in time is the value of marital property determined?
DIVORCE & ANNULMENT (MARITAL PROPERTY):

On the date the divorce is granted.
DIVORCE & ANNULMENT (MARITAL PROPERTY):

(1) When will separate property have to be considered marital property?

(2) State what happens when marital funds are used to improve separate property.
DIVORCE & ANNULMENT (MARITAL PROPERTY)

(1)

(i) If it is commingled with marital property is property belonging to the other spouse.

(ii) Transmutation (parites treat separate property in such a way that it evidences their intent that it become marital property).

(2) Property still considered seprate, but the contribution of the non-owning spouse will be reimbursed.
Two situations.
DIVORCE & ANNULMENT (MARITAL PROPERTY):

If one spouse signifigantly increases the valuation of separate property belonging to the other spouse through his labor. Will this make the separate property turn into marital property?
DIVORCE & ANNULMENT (MARITAL PROPERTY): No, but the spouse will be compensated in most jurisdictions for his or her efforts.
DIVORCE & ANNULMENT (MARITAL PROPERTY):

Can a court order transfer of pensions or other retirement benefits from one spouse to another?
DIVORCE & ANNULMENT (MARITAL PROPERTY):

Yes, but only in an equitable distribution jurisdiction and then only the part of the pension earned when the parties were married.
DIVORCE (MARITAL PROPERTY):

(1) When two parties divorce, who gets the family home and family use personal property if there are children?

(2) If there are no children?
DIVORCE (MARITAL PROPERTY):

(1) The parent that gets custody of the children.

(2) The house is liquidated and the proceeds are distributed to the spouses.

The manner of distribution depends on whether the jurisdiction is equitable distribution or community property.
DIVORCE (MARITAL PROPERTY):

(1) What is family use personal property?

(2) What is the exception?
DIVORCE (MARITAL PROPERTY):

(1) Personal property acquired during the marriage that is owned by one or both of the parties which is primarily used for family purposes.

(2) If the property was acquired by gift or inheritance, it cannot be family use personal property. It will be considered separate property.
DIVORCE (MARITAL PROPERTY):

State the criteria required for a residence to qualify as a family home.
DIVORCE (MARITAL PROPERTY):


(1) Primary residence
(2) Owned/leased by one of the parties at the time of the proceedings; and
(3) Custodial parent must use it as the primary residence.
DIVORCE (MARITAL PROPERTY):

(1) Can a court order the non-custodial parent to pay the entire mortgage on the family use home?

(2) What related expenses can the court order the non-custodial parent to pay?
DIVORCE (MARITAL PROPERTY):

(1)Yes.

(2)Insurance, taxes, and maintenence as well.
ALIMONY:

Define alimony.
ALIMONY:

Money paid by one spouse to another for support.
ALIMONY:

State and define three types of alimony.
ALIMONY:

(1)Permanent or indefinite -- Specific sum of money paid in lump sum or at regular intervals for an indefinite period of time.


(2)Alimony pendente lite - Paid by one spouse to another to maintain that spouse's standard of living pending final resolution of the divorce proceedings.


(3) Rehabilitative alimony - Paid over time by one spouse to another so that the spouse can develop skills to become self-sufficient.
ALIMONY:

State factors a court considers when making an award of alimony pendente lite.
ALIMONY:

Financial circumstances and financial ability of each party.
Two criteria.
ALIMONY:

State factors a court considers when making an award of permanent alimony re standard of living, self-sufficiency, and fault.
Considers standard of living, fault, and self-sufficiency.
ALIMONY:

Under what circumstance will a court award permanent alimony?
ALIMONY:

(1) Requesting spouse cannot become self-supporting due to age, illness or infirmity.

- OR -

(2) Standards of living will be unconscionably unequal after seeking spouse becomes self-sufficient.
Two circumstances.
ALIMONY:

TRUE OR FALSE: The burden of proving eligibility for permanent alimony is on the party seeking it.
ALIMONY:

True.
ALIMONY:

Hypo: Millie sues Al for divorce, but does not seek alimony. After the divorce is granted, Millie seeks alimony. Can she get it? Why?
ALIMONY:

No. Complaint must include prayer for alimony.
ALIMONY:

What must a party prove in order to MODIFY an award of alimony?
ALIMONY:

Unforeseen circumstances + failure to grant will result in a "harsh and unequitable" situation.
ALIMONY:

State when obligation to pay alimony terminates.
ALIMONY:

(1)Death of either party.

(2) Remarriage of the recipient.

(3) Necessary to avoid harsh result.

(4) Expiration of designated time period.
ALIMONY:

(1) TRUE OR FALSE: If a party sues for divorce + alimony, they are automatically entitled to attorney's fees.

(2) State exception.
ALIMONY:

(1) False.

(2)Absence of "substantial justification" for prosecuting or defending proceedings, it shall award to the other party the cost of prosecuting or defending.
CHILD SUPPORT:

(1) State when a child may not demand support from a divorced parent.

(2) State exception.
CHILD SUPPORT:

(1) After 18th bday.

(2) Child is handicapped.
CHILD SUPPORT:

TRUE OR FALSE: Non-custodial parent must pay child support for step-children.
CHILD SUPPORT:

(1) False.
CHILD SUPPORT:

Non-custodial parent is capable of earning $200,000 per year, but intentionally earns only $25,000 to reduce or avoid child support payments. Will child support payments be assessed against the parent based on the amount earned or the amount that could be earned?
CHILD SUPPORT:

(1)The amount that could be earned.
CHILD SUPPORT:

(1) Under federal law, must one state recognize the child support award of another state?

(2) Under what condition?
CHILD SUPPORT:

(1) Yes.

(2) The paying spouse had an opportunity to be heard.
CHILD SUPPORT:

(1) State the general grounds on which a parent can seek modification of a child support order.

(2) State the applicable
standard.

(3) State results if no substantial justification for seeking modification.
CHILD SUPPORT:

(1) Good cause while child is a minor.

(2)A substantial and material change of conditions and circumstances of child or parent.

(3) Litigation costs shall be assessed against them.
CHILD SUPPORT:

(1) If a non-custodial parent does not comply with a child support order, how may the custodial parent enforce the order?

(2) What are other effects of failure to pay?
CHILD SUPPORT:

(i) Seek earnings witholding.

(ii) Lien on personal and real property.

(2)

(i) contempt of court

(ii) in most states, misdemeanor

(iii)Under Child Support Act, if separate states + failure to pay $5,000 or for more than a year, federal criminal liability.
CHILD SUPPORT:

(1) What does UIFSA stand for?

(2) When does it apply?

(3) What does it allow?
CHILD SUPPORT:

(1) Uniform Interstate Family Support Act.

(2) When the supporting and depending spouse/child live in different jurisdictions.

(3)

(i) custodial spouse to order employer of non-custodial spouse to withold wages + send them to the custodial spouse.

(ii) register with an agency that enforces support orders in the state of the non-custodial spouse.
Dameon's situation.
CHILD CUSTODY:


State factors a court will look at when deciding which parent should have custody of the child.
CHILD CUSTODY:

(1)fitness
(2) character
(3) presence of child
(4) preference of child
(5) material opportunities
(6) evidence of abuse
(7) if adultery, detrimental effect on child.
CHILD CUSTODY:

State difference between joint legal and joint physical custody.
CHILD CUSTODY:

(1) Joint legal means each parent has EQUAL SAY re long range decisions + matters of major signifigance.

(2) Joint physical means each parent has RIGHT AND DUTY to provide home for child and to make day-to-day decisions req'd during time the child is actually with them.
CHILD SUPPORT:

(1) State standard court will consider to decide whether parents should have joint physical or joint legal custody.

(2) State factors court will use.
CHILD SUPPORT:

(1) Best interest of the child.

(2)

(i) ability to communicate
(ii)ability @ jt-decisions
(ii)willingness to share
(iii) fitness of each
(iv) relationship w/ child
(v) preference of child
(vi) child's schedule
(vii) proximity of homes
(viii) demands of employment
(ix) siblings
(x) sincerity of parents
(x1) financial status of each
11 factors
CHILD CUSTODY:

State standard court will use to decide whether a parent should be granted visitation.
CHILD CUSTODY:

Best interest of the child.
CHILD CUSTODY:

(1) Lets say that cusodial parent denies the non-custodial parent vistiation with the child, despite a court order granting joint physical custody. May the non-custodial praent withold support payments as a result?

(2) How about vice versa (one doesn't pay, the other doesn't let them see the child)

(3) State remedy.
CHILD CUSTODY:

(1) No.

(2) No.

(3) Petition the court for an order to ensure compliance, on threat of contempt.
CHILD CUSTODY:

(1) State general grounds to modify of custody decree.

(2) State standard to modify.
CHILD CUSTODY:

(1) The best interests of the child.

(2) Circumstances of parent or child have changed so much to warrant modification.
CHILD CUSTODY:

(1) If two or more states have a sufficient basis to hear a case involving child custody, what authority guides which law should govern?

(2) What factors will court consider.
CHILD CUSTODY:


(1) Uniform Child Custody Jurisdication Act (UCCJA) or the Uniform Child Custody Jurisdiction & Enforcement Act (UCCJEA).

(2)

(i) Child & court in same state.


(i)Best interests of the child to hear case in state because parent is in state.

(ii) Child is present, but has been (1) abandoned or neglected; or (2) threatend with abuse.
Three factors.
CHILD CUSTODY:

(1) Is one state required to enforce another state's Order re custody or visitation?

(2) Under which laws?
CHILD CUSTODY:

(1) Yes.

(2) UCCJA and UCCJEA.
CHILD CUSTODY:

(1) What does PKPA stand for?

(2) What does it require?
CHILD CUSTODY:

(1) Parental Kidnapping Prevention Act.

(2) Child custody decrees are given full faith and credit, despite the fact that they are not final.
RIGHTS OF UNMARRIAGED COHABITANTS & THEIR CHILDREN:

When will contracts that govern the living arrangements between two consenting adults be invalid?
RIGHTS OF UNMARRIAGED COHABITANTS & THEIR CHILDREN:

Sex is the sole consideration for the contract.
RIGHTS OF UNMARRIAGED COHABITANTS & THEIR CHILDREN:

(1) What if two adults of the OPPOSITE sex live together for a substantial period fo time, but have no contract and do not marry. May they demand anything upon separation?

(2) What if common law marriage jurisdictions?

(3) If not common law marriage jurisdiction.
RIGHTS OF UNMARRIAGED COHABITANTS & THEIR CHILDREN:

(1) That depends on whether common law marriage jurisdiction or not.

(2) If common law marriage jurisdiction, may seek relief through traditional channels.

(3) If not, may still obtain quantum meruit or rights in property via constructive trust. Otherwise, nothing.
RIGHTS OF UNMARRIAGED COHABITANTS & THEIR CHILDREN:

(1) Is a child legit if it is born to a marriage that is void or voidable?

(2) What are they called?
RIGHTS OF UNMARRIAGED COHABITANTS & THEIR CHILDREN:

(1)Yes.

(2) Marital children.
RIGHTS OF UNMARRIAGED COHABITANTS & THEIR CHILDREN:

When may government discriminate the basis of legitimacy?
RIGHTS OF UNMARRIAGED COHABITANTS & THEIR CHILDREN:

Substantially related to an important government interest.
RIGHTS OF UNMARRIAGED COHABITANTS & THEIR CHILDREN:

What are the different ways a child can be legitimated?
RIGHTS OF UNMARRIAGED COHABITANTS & THEIR CHILDREN:

(1) Parents marry post-birth
(2) Father holds out
(3) Father consents to name on birth certificate
(4) Father acknowledges paternity in writing
(5) Judicial decree est. paternity.
RIGHTS OF UNMARRIAGED COHABITANTS & THEIR CHILDREN:

State evidence admissible to prove paternity.
RIGHTS OF UNMARRIAGED COHABITANTS & THEIR CHILDREN:

(1) Resemblance to father.
(2) Admission by father.
(3) Blood test.
PARENT, CHILD & STATE:

Can spouses sue each other?
PARENT, CHILD & STATE:

In most states, yes.
PARENT, CHILD & STATE:

(1) In most states, can a child sue his parents?

(2) In remaining states?
PARENT, CHILD & STATE:

(1) In most states, yes: parent-child immunity is abolished.

(2) In remaining states, may atleast sue for intentional torts.
PARENT, CHILD & STATE:

(1) Whose interest will a court consider when a third party is seeking custody of a child?

(2) Other factors.
PARENT, CHILD & STATE:

(1) Best interests of the child.

(2)Interests of parent losing custody + abuse, neglect, or abandonment of child.
ADOPTION:

Define adoption.
ADOPTION:

Process which severs the legal relationship betwen a child + his biological parents and a new legal relationship is established between the child and his adoptive parents.
ADOPTION:

(1) Generally, is consent from the biological parents a prereq to adoption?

(2) State exception.
ADOPTION:

(1) Yes.

(2) Is it not required if rights were previously terminated due to abuse, neglect, abandonment or if parent w/held consent unreasonably.
ADOPTION:

(1) Is it necessary to obtain the child's consent to adoption?

(2) On what condition?

(3) What is this condition in most states?
ADOPTION:

(1) Yes.

(2) If the child has reached a certain age.

(3) In most states, 12 years or higher.
ADOPTION:

Can a parent reverse his or her decision to give up a child for adoption?

On what condition?
ADOPTION:

Yes,if court is convinced that w/drawal is in the best interests of the child.