Mee Family Law And Nm Community Property

Front 1

Marriage Defined

Back 1

Creation of Legal Status of Husband and Wife

Front 2

Marriage Controversies

Back 2

Breach of Promise to Marry & Gifts in Contemplation of Marriage

Front 3

Heart and Balm Statutes

Back 3

Have been abolished. No claims based on broken heart or promise

Front 4

Gifts in Contemplation of Marriage Must

Back 4

Be given back if the marriage does not occur

Front 5

Marriage Limitations (5)

Back 5

Under Age
Too Closely Related
The Same Sex
Mental or Physical Capacity
Bigamy or Polygamy

Front 6

Marriage Mental Capacity

Back 6

Each party must posses the ability to comprehend and voluntarily agree

Front 7

Marriage Physical Capacity

Back 7

Must be able to consummate the marriage

Front 8

Marriage Procedural Requirements

Back 8

License and Ceremony

Front 9

Marriage Ceremony

Back 9

Ceremony must be performed by either priest or judicial officer

Front 10

Marriage State of Mind Reqs.

Back 10

Capacity to Consent to actions and agree to them

Intent to enter into the marriage relationship

Front 11

Common Law Marriage

Back 11

Consent
Capacity
Holding out publicly as husband and wife.
CL marriage not recognized in NM

Front 12

Putative Marriage

Back 12

This doctrine enables a court to provide equitable relief to a party who acted in good in entering a marriage that was subsequently declared invalid.

Front 13

Putative Spouses Rights

Back 13

May acquire the rights of a legal spouse, including rights to alimony and property however, however court must use equity in apportioning rights since putative spouses right may not supersede the rights of a legal spouse.

Front 14

Application of Full Faith and Credit Clause to Common Law Marriages

Back 14

Marriages valid where celebrated are recognized as valid in other states even if the state does not recognize common law marriages.

Front 15

Premarital Contracts are (3):

Back 15

1. Valid
2. Provide for the distribution of property upon divorce or death in a way that diff from what the law would normally require
3. Are enforceable

Front 16

Limitations to what parties may contract to under a pre-nup

Back 16

Right of child to parental support may not be adversely affected

Front 17

Amendment or Revocation of a Pre-Nup

Back 17

After marriage premarital contract may be amended or revoked only by written agreement signed by the parties. No additional consideration required.

Front 18

A Pre-Nup Must be:

Back 18

Conscionable
in Writing
Signed by Both Parties

Front 19

Court will scrutinize and consider a pre-nup for good faith and lack of undue influence using the following factors: (6)

Back 19

Full and Fair Disclosure
Capacity
No Duress
No Fraud
No Overreaching
**Independent Counsel may be a factor

Front 20

Pre-Nup Property Rights vs. Spousal Support

Back 20

Some courts are less likely to enforce provisions that would eliminate or severely limit spousal support especially if spouse would be left a pauper. Void against public policy.

Front 21

Will pre-nup be enforced if marriage found void?

Back 21

Only to the extent necessary to avoid an inequitable result.

Front 22

What factors do court look at when reviewing a fair provision in a pre-nup?

Back 22

Age of the parties
Whether they have been married before

Front 23

When a fair and reasonable provision has not been made for the claiming spouse the pre-nup is:

Back 23

Presumed to be the product of overreaching.

Front 24

To over come the presumption of overreaching in a pre-nup the other spouse must show (2)

Back 24

Full and Fair Disclosure

Opportunity to Consult w/ Indpnt. Counsel

Front 25

Risk of finding Overreaching will be lessened if

Back 25

Both parities are represented by independent counsel.

Front 26

What are the marriage relationship responsibilities? (3)

Back 26

1. Fiduciary duty to the community
2.Support of each other
3.Payment of the other spouses obligations (principles of agency apply)

Front 27

What's are the rights of spouses? (6)

Back 27

1. Keep his/ her last name
2. Procreate, Use Contraception, Abort
3. Sue the other spouse
4. Refuse to testify
5. Refuse to disclose communications
6. Sue a Third Party for Tortious Interference with the marital relationship

Front 28

To succeed on a tortious interference with a marriage cause of action the plaintiff must show: (4)

Back 28

1. love and affection of the other spouse for the plaintiff
2. overt acts, conduct, or enticement on the part of the defendant causing those affections to depart
3. actual damages (i.e. mental distress)
4. causal connection between the conduct and the loss of affection

Front 29

The Family's Right to Privacy Includes: (3)

Back 29

1. Right to live together if related
2. Educate their children outside public schools
3. Determine the appropriate care, custody, and control of children

Front 30

Incidences of Rape or Abuse between spouses are covered by:

Back 30

Family Violence Protection Act.

Front 31

What are the three ways to terminate a marriage?

Back 31

1. Void
2. Declared Invalid (voidable)
3. Divorce

Front 32

A void marriage

Back 32

never existed because it was illegal b/c bigamy, incest or local statutes.

Declaration of invalidity can be sought any time prior to death

Front 33

A voidable marriage

Back 33

can be declared invalid withing certain statutory time limits because of an impediment existing at the time of the marriage.

Front 34

Impediments which can make a marriage voidable (6)

Back 34

1. Underage
2. Incurable physical impotence
3. Lack of understanding-mental capacity or under the influence of drugs or alcohol
4. Lack of mutual assent
5. Duress
6. Fraud as to the essential of the marriage i.e. ability or willingness to engage in sexual relation or bear children, failure to disclose pregnancy by another,concealment of venereal disease or drug addiction, no intent to fulfill duties of marriage, misrepresented religion

Front 35

A divorce is

Back 35

A decree of dissolution of marriage which terminates the marriage relationship.

There is no such thing as a common law divorce.

NM is a no-fault state.

Front 36

Children of a void or voidable marriage are

Back 36

recognized as marital children

Front 37

Spousal Support when a marriage is declared void and re-reinstatement of spousal support

Back 37

May, by statute, be awarded the same as in divorce cases

But re-in-statement of spousal support from a previous marriage is not permitted by most courts

Front 38

Division of Property when a marriage is declared void or voidable

Back 38

Most courts will attempt to place the parties in their pre-marriage position.

Front 39

What are grounds for divorce under the UMDA (2)

Back 39

1. Irretrievable breakdown of the marriage

2. Waiting period- 6 months

Front 40

What are the 4 grounds for divorce in NM

Back 40

Incompatibility
Adultery
Abandonment
Cruel and inhuman treatment

Front 41

Jurisdiction in an NM divorce proceeding (3)

Back 41

1. At least one party must be domiciled in the state

2. Must be domiciled in NM at least 6 months preceding the filing

3. Adequate notice of the proceeding= personal service, waiver of service, or notice by publication

Front 42

What also goes into effect once a service is accomplished when initiating a divorce proceeding and what does it do? (3)

Back 42

Temporary Domestic Order which provides:
1. Neither party may dispose , transfer, encumber or conceal marital property except in the usual course of business or for necessities

2. Neither party may harass or molest the other party

3. Neither party may remove the minor children from the state without the written permission of the other parent.

Front 43

When is the divorce completed? (2)

Back 43

1. Marital settlement agreement + parenting plan

2. Court hearing or Trial on the Merits

Front 44

Separation is different to divorce in what respects? (4)

Back 44

1. Marriage Not Terminated

2. Parties not free to remarry

3. Petition called "Verified
Petition for Legal Separation

4. Decree is called "Final Decree of Legal Separation"

Front 45

Reasons not to divorce but to separate? (2)

Back 45

1. Religious reasons

2. Spouse retains right to inheritance, insurance, pensions, tax benefits.

Front 46

Community Property Defined

Back 46

All property acquired subsequent to the date of marriage but prior to the divorce decree that is not: gifts, inheritance, and property acquired in exchange for a gift, inheritance or prior separate property.

Front 47

Separate Property Defined

Back 47

Everything acquired before the marriage, and everything acquired as a gift or inheritance before the and during the marriage and in exchange for a gift or inheritance or with prior separate funds/ or property.

Also includes all property acquired after the entry of decree of divorce, that which is declared so by order of the court, or agree upon in writing.

Front 48

What is transmutation?

Back 48

A transaction between spouses which changes the character of property from separate to community or from community to separate.

Front 49

How can transmutation occur?

Back 49

1. Gift to community
2. Quitclaiming or agreement
3. Commingling

Front 50

What is commingling?

Back 50

The process by which separate property funds or assets are combined with community funds or assets so that the original funds or assets cannot be traced by operation of law.

Front 51

What is tracing?

Back 51

An accounting method by whereby assets acquired with community and separate funds can be characterized and apportioned.

Front 52

Equitable Liens

Back 52

Occur when community property is invested in separate property (or vice versa) and the funds can be traced, and there is no transmutation.

The equitable lien may be for the amount of funds or an apportioned share of equity to reimburse the community or vice versa for its investment.

Front 53

Joint Tenancy brings with it:

Back 53

A rebuttable presumption of a gift to tha marriage.

Front 54

Title to property are:

Back 54

Not determinative of whether the property is community or separate.

Front 55

Quasi- Community Property (3)

Back 55

NM has adopted the quasi community property statute which provides that:

1. in a divorce
2. where spouses are domiciled in NM
3. property acquired in another state will be treated as community property if
4. it was acquired in the same manner that community property could be acquired in NM

Front 56

Special Assets That are Separate Property (4)

Back 56

1. Tort awards for pain and suffering
2. Personal Injury
3. Military Disability
4. Workers' Compensation

Front 57

Special Assets that are Community Property (4)

Back 57

1. Tort awards for reimbursement of community medical expenses or loss of community wages.
2. Disability Pay
3. Vested, Unvested, matured and Unmatured Pensions to the extent that they are acquired during a marriage with earnings.
4. goodwill of a business

Front 58

Property that cannot be divided or that is not considered property (3)

Back 58

1. Licenses
2. Earning Power
3. Individual Right to a Professional Practice.

Front 59

Life Insurance three things to know

Back 59

1. Character of policy is determined by the funds used to pay the premiums
2. Proceeds of life insurance policy belong to the community to the extent that the premiums are paid with comm. prop.
3. If spouse names beneficiary other than the spouse then he can designate only his half of the proceeds

Front 60

Ownership of Life Insurance Policy Term vs. Lump Sum

Back 60

If it is term policy paid with comm. funds the policy if comm. property.

If it is a whole life polciy with cash value, it may be apportioned between separate and community based upon a time rule or the proportion of the premiums paid with separate funds.

Front 61

Community Debts

Back 61

Acquired during the marriage.Are satisfied out of the community non-exempt property first.

Front 62

Separate Debts

Back 62

Must be satisfied out of the debtor's spouses separate property; not including joint tenancy; then out of the debtors spouses share of the community.

Front 63

Separate Torts Test

Back 63

Whether the tort was incurred doing an act for the benefit of the community.

Front 64

Distribution by Will

Back 64

Each party has the power to pass by will his one half share of the community property and all of his separate property.

Front 65

Intestate Distribution

Back 65

If there is no will the surviving spouse takes the deceased spouse's on half share of the community property and one-quarter of his separate property and the surviving children get the remainder.

Front 66

Purpose of Spousal Support

Back 66

To ensure an adequate income stream for persons whose economic dependency has resulted, at least in part, from the marital relationship.

Front 67

What are the two criteria to qualify for maintenance?

Back 67

1. Need- insufficient property to car for his/her reasonable needs

2. Ability- inability of one spouse to support self through appropriate employment and ability to

Front 68

Maintenance is determine on

Back 68

A case by case basis

Front 69

The elements an NM court considers in deciding whether a maintenance award is appropriate are (8)

Back 69

1. Age health and means of support of each spouse

2. Current and future earning and the earning capacity of each spouse

3. Good faith efforts of the spouses to maintain employment or to become self supporting

4. Need

5. Duration of marriage

6. Liquid and non-liquid assets

7. Debt

8. Premarital agreements

Front 70

Maintenance is terminated upon (2)

Back 70

Death or Re-marriage

Front 71

Transitional Maintenance is

Back 71

Interim Support: short term and helps with the adjustment from married to single

Front 72

Rehabilitative Maintenance

Back 72

Involves a specific and planned budget usually for educational purposes.

Front 73

What can custody mean (3)

Back 73

1. Legal custody- right to make legal decisions

2. Physical custody-actual possession and control

3. Joint Custody- which could mean either joint legal or physical or both

Front 74

What is the most important jurisdictional test in order for a court to be able to hear a child custody case?

Back 74

Child's Home State is the primary test.

Front 75

The parietal lobe contains:

Back 75

Primary sensory strip and left angular gyrus

Front 76

What is disregarded in determining the whether the six month term is met in regard to child custody

Back 76

Temporary absences from the state.

Front 77

A court has jurisdiction to enter, or modify a child visitation order if (2)

Back 77

1. It is the child's home state or

2. The child is absent from the state but, it was the child's home state w/in the past six months and p

Front 78

When does the home state rule not apply?

Back 78

1. Not other state has home state jurisdiction AND the child and at least one parent has a significant connection with the state and substantial evidence is available in the state

2. All other states with jurisdiction decline

Front 79

What does exclusive continuing jurisdiction mean?

Back 79

The court that made the initial child custody or visitation determination has exclusive continuing jurisdiction over the matter

Front 80

For the court to have Exclusive continuing Jurisdiction what must be true (2)

Back 80

1. either the child or the parent has a significant connection with the state AND substantial evidence relating to the matter is still available in the state.

2. the child and the child's parent continues to reside in the state

Front 81

When is joint physical custody appropriate? (9)

Back 81

1. Both parents are fit
2. Both parents agree
3. Communicate and Cooperate
4. The child prefers it
5. Both parents are actively in the child's life
6. Parent's home are close in proximity
7. Both home's are similar
8. Joint custody does not negatively affect the child's psychological development
9. Both parents are able to carry out the joint custody order.

Front 82

What is the standard applied in awarding custody, visitation, and child support?

Back 82

Best Interest of the Child

Front 83

What factors does the court consider when determining what is in the best interest of the child? (W-I-S-H)

Back 83

1. Wishes of the child and the parents (wishes of child are persuasive at 14).

2. Interaction and Integration of child into home and community (who was the primary care giver)

3. Sharing- upbringing and decisions related to child

4. Health, Physical, Mental, of the parties

Front 84

What is the effect of primary care giver status?

Back 84

If the court is left to decide between two qualified parents the award will often go to the parent who has been the primary caregiver up to this point.

Front 85

What is gives someone primary care giver status and what is the justification of the result?

Back 85

A primary care giver is the parent most involved the day to life of the child. Giving the child to the person who has been the primary care giver is justified because it awards custody to the parent with whom the child has formed the closest emotional and physical ties. This also has the advantage of providing stability for the child.

Front 86

When sole custody is given to one parent what is granted to the other parent and what are the rules concerning it? (5)

Back 86

Visitation
- Parent need to set up a schedule for visitation. If cannot agree court in its discretion can impose one
-Parents cannot withhold visitation for non payment of child support
-The court can impose limitations for misconduct
-relocation must be in the best interest of the child
-Ask the court to hold the violating party in contempt

Front 87

Child Support Main Points (4)

Back 87

1. Both parents share a duty to support the child
2. Visitation cannot be terminated for non-payment of child support
3. Child support ends upon child's death or emancipation
4. Child support cannot be included as income or deducted from income for tax purposes.

Front 88

NM Child Support Guidelines (4)

Back 88

Formula is based on following factors:
1. Gross Income of Both Parties
2. Timesharing arrangement
3. Number of Children
4. Extraordinary Expenses

Front 89

Modification of Child Support Requires

Back 89

Substantial change in circumstances affecting the need of the child or the ability of the parents to pay.

Front 90

Unmarried Co-habitants Same Sex Couples

Back 90

Cannot marry in NM

Front 91

Unmarried Cohabitants Contracts (3)

Back 91

1. Are invalid when sexual relations constitute the only consideration
2. Express contracts generally enforceable
3. Implied contracts less likely to be enforced

Front 92

Unmarried Cohabitants Division of Property (2)

Back 92

1. There must be an express contract
2. If no express contract then equitable distribution based on constructive trust or quasi contract

Front 93

Unmarried Cohabitants Status, Rights, and Benefits

Back 93

1. No special status from living together (unless valid common law marriage).
2. Same constitutional rights and privacy rights as married persons
3. Not same tax benefits

Front 94

Not Married With Children (9)
P-A-T-E-R-N-I-T-Y

Back 94

1. Paternity must be established before there is child support obligations and right to visitations
2. Action may be brought but no later than child's 21st b-day
3. Tissue/DNA testing is often determinative
4. Effect of Non-paternity case must be dismissed
5. Rights of unwed father to relationship with new born (4)
6. No discrimination against non-marital children
7. Immigration preference to marital children permissible under federal law
8. Treatment of unwed mother vs. father
9. You movant have the burden of establishing paternity (2)

Front 95

R in P-A-T-E-R-N-I-T-Y (4)

Back 95

1. be willing to assume custody of the child

2. publicly acknowledge paternity

3. take steps to establish legal responsibility for child

4. demonstrate commitment to the child

Front 96

When does dad become lawful father? (4)

Back 96

1. Judicial Decree
2. Marries the child's mother after child's birth
3. Holds the child out as biological child
4. consents to be named on birth certificate

Front 97

Children May (5)

Back 97

1. Own property
2. Enter into and enforce contracts
3. Be liable for their own torts
4. Be liable for delinquency
5. Seek emancipation if married, not living w/ parents and self-supporting

Front 98

Children Cannot (3)

Back 98

1. Consent to medical care
2. Make valid wills
3. Sue someone who tortiously injures their parents

Front 99

Parents May (6)

Back 99

1. give permission for emergency medical treatment
2. decide where the child attends school
3. exercise broad discretion in parental authority and supervision
4. sue someone who tortiously injures the child
5. Sue for interference w/ custody
6. voluntarily terminate parental rights

Front 100

Parents Must (2)

Back 100

1. Support their children
2. Comply with state educational requirments

Front 101

Parents Cannot

Back 101

Abuse, Abandon, or Neglect the child = may result in termination of parental rights
-parents have right to counsel
-clear and convincing evidence is required for termination

Front 102

Adoptive Parents Have

Back 102

The same rights and duties as biological parents.