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88 Cards in this Set
- Front
- Back
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Antenuptial Contracts (Defined)
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Contract between two people who are planning to get married and it can address any topic they wish. Customarily about money (economic and financial issues in the event that marriage fails)
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Validity of Antenuptial Contracts
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Subject to statute of limitations.
Have to give full economic disclosure PA treats them like ordinary contracts – so you’re protected under three major contract defenses: 1. Fraud (have you lied about your assets) 2. Duress – (limited to threat of physical force – time pressure, etc. doesn’t count) 3. Unconsionability – no inquiry into the fairness of terms, no obligation to disclose, but an agreement that leaves the other spouse destitute may be unconscionable) STRONG presumption of validity |
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Ceremonial Marriage
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You need:
1. Ceremonial License 2. Ceremony |
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Ceremonia License
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1. Enables the gov’t to review your capacity to marriage
2. In order to enter contract you have to have the capacity to marry 3. One person has to be a man and the other has to be a woman 4. Affirm that you are without venereal disease (no blood test) 5. Pay the clerk |
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Ceremony
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Solemnization
Three requirements for a valid ceremony 1. Officiant – anyone who looks important, e.g. clergyman or civil officer 2. Witness (Offficiant is a participant) 3. Exchange of promises |
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Common Law marriage
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If you're common law married in one state, recognized elsewhere
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Two Ways out of a Marriage
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Divorce
Annulment |
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Conceptual Difference between divorce and annulment
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1. An annulment is predicated on a ground that pre-dates the marriage, looks backwards in time and points to a pre-existing problem
2. A divorce looks to a ground that arises after the date of marriage – looks forward |
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Grounds for annulment (generally)
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The more serious grounds make the marriage VOID
The less serious grounds make the marriage VOIDABLE |
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Void v. Voidable – Marriage Status
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If your relationship is void – you are not married. You’re a single person. You don’t need an annulment. You can still get one if you choose, in fact, you might need it if you want to divvy up the property or the kids (advise a client that way). Also helpful for proving annulment.
If your marriage is voidable – you’re married unless you get the annulment. You are married unless and until you can get down to court |
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Void v. Voidable – Waiving the Status
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1. Grounds that have made a marriage void CANNOT be waived
2. Grounds that make the marriage voidable can be waived by the parties once they have full information |
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Three grounds that will make your marriage completely and utterly void
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1. Bigamy (in order to have capacity to be married you have to be single – what if a spouse is missing? See other card)
2. Incest – you and your prospective spouse can’t be too closely related. You can’t marry your ancestors, descendants, lineal relatives, first cousins (jurisdictions divided on this), sibligs – you may marry through one generational limit (legally permitted to marry your great aunt) |
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The problem of the missing spouse
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If your spouse has been gone for seven years there is a common law presumption of death
Less than seven years you have to get a decree of presumed death |
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Ways to make marriage voidable
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Separate cards for each. 1. Age
2. Mental Incapacity 3. Duress 4. Fraud 5. Incurable Physical Impotence |
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How to Waive Voidable Stuff
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You continue to co-habit after the impediment is removed.
Co-habit is a euphemism. It means you’re living under the same roof, and you’re having sex |
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Ways to make marriage voidable (Age)
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In P you have to be 18 to get married
You can be lawfully married if you are 16-17 and you have the consent of one parent Under 16 with judicial consent |
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Mental Incapacity
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In order to have the capacity to marry you have to know what you’re doing Drunk and stoned Serious Mental Disorder Intellectual disability (sliding scale) If impediment never goes away, not voidable |
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Ways to make marriage voidable (Duress)
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E.g. Shotgun wedding
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Ways to make marriage voidable (fraud)
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Any misrepresentation or concealment by one party prior to the marriage of information at goes to an essential aspect of the marriage
Not every lie and every secret is grounds for an annulment, it’s got to be important Three subject matters where there actually is some precendent 1. Lying about religion – what religion you follow or how religious you are 2. Incapacity to have children if you are of a child-bearing age (mirepresentation about paternity) 3. Sexual history e.g. if your wife is prostitute, or say you’re gonna have normal sex but you’re into some kinky sex BUT – misrepresentation or concealment concerning money, job, property, social status is not okay – common law assumes that people don’t rely on this to enter marriage |
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Ways to make marriage voidable (Incurable Physical Impotence)
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Presumes that you didn't have sex until your wedding night Only about the ability to have sex, has nothing to do with ability to procreate |
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Annulment (Economic Remedies)
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Parties to an annulment can get all the same economic remedies (property division and alimony) as are related to divorce
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Divorce Jurisdiction
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1. In order for the PA court to have the legal authority or power to grant a divorce, one party must be domiciled here and must have lived here for six months
2. In rem – the theory is that a marriage is an abstract thing where the marriage is physically located (However – if you want economic remedies – then you need jxn) |
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Divorce (PA Substance)
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PA is a hybrid jxn meaning it has retained all of the fault-based grounds
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Fault-Based Grounds
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1. Desertion
2. Adultery 3. Cruel and barbarous treatment 4. Bigamy 5. Imprisonment 6. Indignities |
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PA Fault-Based Grounds(Desertion)
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1. A willfull and malicious absence from the home without cause for a period - usually one year UNJUSTIFIABLE (if justifiable to leave - desertion) |
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PA Fault-Based Grounds (Adultery)
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A voluntary sexual intercourse by a married person with another person who is not the spouse
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PA Fault-Based Grounds (Physical Cruelty/Cruel and Barbarous Treatment)
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Physical cruelty, basically
Conduct that endangers life or health There used to be some ambiguity about whether or not a single act of domestic violence was sufficient to make out the grounds and justify divorce (now – a single episode is fine – very often a pre-cursor to more violence) |
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PA Fault-Based Grounds (Imprisonment - Convicted of a felony)
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If your spouse is locked up for two or more years
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PA Fault-Based Grounds (Indignities - Mental cruelty)
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Mental cruelty – requires a course of conduct (distinguishable from physical abuse)
Here a single act isn’t going to be enough Course of conduct must render the plaintiff spouse “life burdensome” E.g. 1. Constant verbal abuse 2. Ridicule 3. Harassment 4. Ridicule in front of third persons 5. Unwillingness to have sexual intercourse 6. Abandonment of hygiene |
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Affirmative Defenses to Fault Based Grounds
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Condonation
Connivance Recrimination Provocation Insanity Defense |
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Affirmative Defenses to Fault Based Grounds (Condonation)
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WAIVER Only used typically in connection with adultery claim, or at least overwhelmingly |
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Affirmative Defenses to Fault Based Grounds (Connivance)
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Divorce equivalent of entrapment – P spouse tricked defendant spouse into behaving like this (adultery is an easy example)
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Affirmative Defenses to Fault Based Grounds (Recrimination)
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Dirty hands – the idea is you can’t get a certain special remedy from court unless you’re free from fault
Defeats the divorce Many jurisdictions have abolished |
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Affirmative Defenses to Fault Based Grounds (Provocation)
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Sort of an expanded form of self defense
Solicited in response to something that spouse did – one spouse makes to strike another, other spouse pre-emptively hits back |
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Affirmative Defenses to Fault Based Grounds (Insanity)
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Whatever the bad behavior is, I’m not doing it to liberate myself from the marriage
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No-Fault Divorce (generally)
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Has become the pervasive divorce in all jxn’s
Misconception – this is not no ground divorce, it is not divorce on demand (at least theoretically) You have to show that your marriage is IRRETRIEVABLE, no hope of reconciliation |
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Proving Irretrievable Breakdown
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A stylized showing that depends on whether both spouses or one spouse agrees that marriage is broken
Both on separate cards – but DON’T FORGET TO MENTION THEM BOTH |
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Mutual Consent No-Fault – Spouses Agree
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One of them files a complaint and alleges that the marriage is broken.
The other admits the allegation Complaint must sit for 90 days File allegations and then get your divorce |
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No-Fault when the parties agree
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1. Unilateral no-fault divorce. In this case, the parties must separate and they must live separate and apart for a two year period
2. Complete cessation of any and all cohabitation whether living in same residence or not 3. Don’t have to move out of house but you do have to stop sexin’ 4. Can’t have sex with anyone else for two years either |
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Separation Agreements (Generally)
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A way to pre-empt property distribution
You can agree to this by contract There are no problems with separation agreements – they save judicial resources and their underlying validity is kind of analyzed like a pre-nup |
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Modification of Separation Agreements
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Generally cannot be modified after the fact unless the agreement provides otherwise
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Separation Agreement and Child Support
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Always subject to court oversight & modification
You can bind eachother but not your kids Waiver of child support obligation is VOID |
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Separate Property
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1. Anything owned by a spouse before the marriage is that the spouse’s separate property 5. Any appreciation is value on the separate property assets |
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Marital Property
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1. Everything acquired during the marriage and not immediately spent on consumption is marital property - doesn't matter who is on the title, etc.
2. Any asset after the date of marriage is marital 3. Salary is marital property |
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How to choose which assets go to which party (equitable distribution)
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Discretionary
1. Look at the length of the marriage (some tendency to take the view that in marriages of longer duration the assets should be spilt) 2. Look to the age and the health of the parties (one party that is significantly older is not likely to accumulate new wealth – maybe they should get more) 3. Look at the income and the job skills (the employability of the two parties) 4. Look at how much separate property they had before 5. Standard of living established during the marriage (courts look to abrupt change in circumstances – if the standard of living was a high standard of living and the only way to retain it is to give some kind of property – give some of property) 6. Look to custodian of minor children (also might keep you from working) 7. Tax ramifications on the distribution |
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Equitable Distribution (Appeal)
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Almost never disturbed on appeal
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Equitable Distribution (Modification)
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Never subject to modification
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Equitable Distribution (Tax Consequences)
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Property distribution does not trigger any immediate tax consequences. Instead – if there is a new name on the property agreement – carryover basis
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Alimony (Basics)
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A continuation after divorce of the obligation that the spouses have to support each other after the marriage
Not automatic – can be awarded only when the court finds that it is necessary Trend across the country – fewer alimony awards (need for alimony has generally decreates) |
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Two types of Alimony
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Pendente Lite
Permanent Alimony |
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Pendente Lite
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Alimony while the lawsuit is pending
Temporary alimony Proper cases – usually those where one spouse cannot be self-supportive when the ligitaiton is pending Primarily designed to allow someone to litigate and not worry about support (preserve the status quo) |
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Permanent Alimony (Generally)
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Usual and traditional notion of an obligation to make periodic payments
Can be for a limited period of time or can be open-ended |
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Permanent alimony (how to determine amount)
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In the discretion of the court and influenced by another list of factors
Lists 17 factors – it appears that consideration of all 17 is mandatory, because it says the court “shall” but we only talked about a few 1. Earning capacity 2. Educational attainment 3. Health 4. Amount of property you have All factors in deciding whether you have alimony and how much alimony to grant |
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Alimony v. Property Distribution Considerations
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Court may consider marital misconduct in alimony but NOT in property division
Expectancy of inheritance is NOT an asset in alimony – examiner’s analysis suggest that inheritance is not an asset |
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Alimony (Modification)
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Have to show a substantial change in circumstances – almost anything could count
Most common substantial change in circumstance – usually deals with increase and decrease in income Prospective only – you are still obligated to pay your alimony on time. If you want it changed you have to ask Alimony in arrears is liquidated alimony |
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Alimony (Termination)
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Will terminate according to terms, but also will terminate automatically upon
1. Death of Either party 2. Re-Marriage of Recipient 3. If recipient cohabits with someone |
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Penalties for Non-Payment of Alimony
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1. Wage reduction order out of your pay envelope (up to a max of 50% of your income)
We can take your assets – liquid assets first and then personal and real property to sell at an auction Can also be contempt of court – we will lock you up and put you in jail |
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Alimony (Tax Consequences)
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Deductible by the payor, treated as income by the recipient
Different tax treatment of alimony – creates a negotiating preference The wealthier spouse would much more likely want the transfer of money characterized as alimony |
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Determining Paternity– Child of a Married Woman
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If they are married, marital presumption is that husband is the biological father
If the family is intact – marital presumption is nearly irrebutable IF the wife and husband have separated – presumption is somewhat more rebuttable 1. By lack of access 2. Lack of physical ability If father has treated the kid as a child and the kid relied on it, then he’s estopped from denying parenting |
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Determining Paternity – Unmarried Couple
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A man can STEP UP and say that it’s his kid
If nobody steps up PATERNITY LITIGATION: Once upon a time we relied on circumstantial evidence NOW – we do DNA – PA has adopted uniform statute Chief reason to do this is to establish a duty to pay economic support |
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Every Parent Owes…
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A biological duty of support
1. Duty extends until a child turns 18 2. If the child has a disability that would make it difficult for the child to support himself – then the obligation to support would continue indefinitely 3. The obligation to support a child living with you is satisfied every time you pay for something, or bring home groceries. 4. Court generally doesn’t get involved until the parent is not living with the child (after divorce or when one child is living with nonmarital mom) 5. There is ALWAYS a support duty – only question is amount |
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Support Guidelines
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Always a function of parental income and income is interpreted broadly.
How to determine in PA: 1. Aggregate support from the two 2. Take a percentage – if the non-custodial makes 60% of parental income he pays for 60% of the obligation 3. Court can depart from the guidelines if it makes specific guidelines to justify the departure |
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Departure from Guidelines
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Must make specific obligations to provide health insurance at REASONABLE cost Can't voluntarily lower your income |
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Child support (Termination)
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Support duty terminates if a parent dies in PA (not in some states)
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Forcing Satisfaction
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If you see non-payment of support, you should feel somewhat comfortable with taking a critical stance Go after tangible personal property File documents to taxing authorities You can file with the state lottery commission in case they hit the lottery Suspend driver's license, professional license |
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What if parent is no longer in state that issued support order?
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Uniform Interstate Family Support Act So long as parent or child continues to live in initial state, no other state can exercise jurisdiction |
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Child Support (Taxation)
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Not deductible, not income to parent
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Child Custody – Two Types
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Physical Custody (where is the kid going to live?)
Legal custody (which parent is going to be responsible) Either type can be physical, or shared |
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Determining Custody
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Court uses the best interest of the child standard
There are sixteen BIC factors 1. The wishes of the parties (if one parent doesn’t want the kids – probably not the best interest of the kid to put the kid with that dad) 2. The health of the childe (both physical and emotional) 3. Parents physical and mental fitness (parent struggling with depression? Substance abuse problems?) 4. Criminal history 5. Has parent perpetrated domestic violence 6. Factors implicating physical safety 7. Does either parent have plans to leave the state? 8. Special PA Provision – “No custody shall be awarded to a parent who has been convicted of the first degree murder of the other parent unless the child is of a suitable age and consented” |
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Some BIC qualifications
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1. Courts must make explicit its decision on the record
2. If a party has previously committed domestic violence is granted any time with the kid – the court must include safety considerations in the order 3. If the parties are separated and still living under the same roof – no custody order will be affected until one of them moves out |
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Shared Custody
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1. There is no presumption of shared custody
2. If you’re talking about shared custody under BIC – talk about whether parents get along and talk about whether they’re geographically close to one another |
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Visitation
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Non-custodial parent is almost never denied visitation
Visitation prerogatives are not contingent on your child support parent If a custodial parent interferes with visitation – that is contempt of court (when you have the child – you get to make micro decisions) |
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Non-Parent Petitioning for Custody
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First Establish Standing
Then ask for custody under BIC Standard |
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Non-Parent Petitioning for Custody (Standing)
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1. Either point to a statute that gives you standing (e.g. grandparent after 12 months or
2. Child has been living with you with permission of biological parent (in loco parentis situation – e.g. mom lives kid with friend when she’s in trouble) |
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Non-Parent Petitioning for Custody (BIC Standard)
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There is a presumption that best interests will be served by keeping the kid with a biological parent
Have to prove evidence of a clear and convincing nature that the child would benefit from being placed with that petitioner |
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Petitioning for Visitiation
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1. Must establish standing
2. Then look to establish that there would be detriment to the child if the child were not allowed in contact with them Most common scenario is grandparents or in-laws that the person never liked |
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Child Custody Modification
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Requires a substantial change in circumstances (has to be a change in circumstances that affects best interest of child)
Court will weight stability of child’s arrangement IF a change in custody petition is filed while one parent is away on military deployment – custody may only be changed on a temporary basis (nothing permanent until that person comes back) |
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Uniform Child Custody Jurisdiction and Enforcement Act
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Under the uniform law – a state has jurisdiction to grant an initial custody order if it is currently the home state of the child or it was the home state within the last six months
HOME STATE defined as the state where the kid has lived with a parent for at least six consecutive months prior to the filing of the custody proceeding In other words – state of stay behind parent has jxn for six months but then it moves to the moving parent POLICY: Avoids inconsistent orders |
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Termination of parental rights
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1. A patent can voluntarily relinquish their children (physically place the child with an adoption agency)
2. Also possible that statue can take child away from you (involuntary termination of parental rights) WHOLE POINT is to free child up for adoption |
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Involuntary Termination of Parental Rights
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Can be filed by parents, state adoption agency, any other party with custody
Termination grounds 1. Abandonment 2. Neglect (failure to provide food, clothing or shelter) 3. Abuse (physical abuse, sexual abuse) 4. Child is product of rape or incest 5. We don’t know your identity 6. Child has been temporarily taken away from you in hope that you fix the problem and you didn’t fix the problem |
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Adoption (Key Issue)
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Who do you need to get consent from?
1. Fist you need consent of biological parents 2. Consent of adoptee 3. If adoptee is stepchild – need consent of other parent 4. If adoptee is incapacitated – need consent of their legal guardian 5. If adoptee is minor and child is in legal custody of custodian other than parent consent of custodian |
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Adoption - What comes after consent?
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An investigation.
It is thorough. 1. Criminal Background checks 2. Psychological Profiling 3. Home Visit |
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How to finalized the adoption?
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Best interest of the child standard
1. Sometimes in open court 2. Sometimes in chambers From that moment – parent and child for every aspect that the law recognizes |
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What state court has jurisdiction?
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If you want collateral remedies...(collateral remedies etc.)
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Must have personal jurisdiction over other person |
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Divorce in two different jxn's
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Divisible divorce |
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Conflict of Laws |
Any jxn will give full faith and credit provided that the issuing state had one spouse domiciled |
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Divorce Decrees from other Countries |
Honored (if both spouses participate) |
