Reading...
Play button
Play button
Use LEFT and RIGHT arrow keys to navigate between flashcards;
Use UP and DOWN arrow keys to flip the card;
H to show hint;
A reads text to speech;
62 Cards in this Set
- Front
- Back
|
Most tested issues |
Common law marriage
Marital property distribution Divorce UCCJEA - uniform child custody and jurisdiction enforcement act |
|
|
Family Court Jurisdiction
|
Divorce, annulment, spousal and child support, abuse, custody, visitation, common law marriages, interpretation of marital agreements
Probate court has concrurent jurisdiction in estate, trust, and guardianship/conservatorship |
|
|
Marital agreements
|
antenuptial (premarital) agreements
agreements incident to divorce separation agreements alimony and child support agreements property agreements |
|
|
Marriage regulation
|
states may regulate so long as compelling interest and regulation uses least restrictive means
|
|
|
Common Law marriage
|
Recognized in South Carolina, marriage without a ceremony or documentation
Elements - cohabitation - at least 16 years old - hold out to public as husband and wife - intent - mutual agreement to live as husband and wife - no impediments - bigamy, consanguinity, age these elements must be met in SC and time spent in non-common law marriage jurisdiction does not count |
|
|
Statutory - Formal - marriage
|
License requirements:
- Consent (if 16-18 and living w parent, need parental affidavit) - Age 16+ - waiting period (24 hours between application and issuance) - capacity - consummation by cohabitation - Solemnization by authorized celebrant |
|
|
Impediments to marriage (void or voidable)
|
VOID: never existed
- Bigamy - same sex - permanent mental incompetency Voidable - consanguinity and affinity (1st cousins ok) - temporary mental competency |
|
|
Marital privilege
|
Common law privilege for communications DURING marriage
can be waived does not apply in child abuse cases |
|
|
Inheritance rights
|
intestate shares (whole or half)
Elective share - right to 1/3 estate no matter what Omitted spouse - receives same under intestacy unless INTENTIONALLY omitted or previously provided for |
|
|
Doctrine of Necessities
|
Spouses not liable for each other debts incurred before the marriage or during marital litigation
UNLESS - for necessities - goods necessary for needy spouse or minor children at home |
|
|
Property Rights
|
No tenancy by the entirety in SC > presumption of Tenants in Common unless there is a right of survivorship, then Joint Tenants
At divorce, joint tenants become tenants in common (SPAM - sale partition, and mortgage) |
|
|
Best interests test
|
For all decisions involving a child, the best interests of the child is the primary guide
- moral atmosphere - pecuniary welfare - education - ties of affection |
|
|
Duties and Rights of Parents
|
Medical care
- duty to provide/obtain - Right to make medical decisions > can be overridden by best interests Support - both parents have continuing duty - Ends at emancipation or turning 18 Right to access information Right to custody - neither parent may forcibly take child Right to make decisions - marriage, armed forces, providing support |
|
|
Liability for child acts
|
Parents liable for
- damage caused to lodging - negligence and intentional driving conduct - family purpose doctrine |
|
|
Abortion
|
Need consent from both parents if capable of giving
- no 3rd trimester abortions unless necessary for life/health - 2 doctors required - need competency on part of woman to give consent |
|
|
Domestic violence
|
protection order to victim, enjoins spouse from
- remaining in home, harassment of wife or kids, visiting, other actions Violation is auto-misdemeanor Min 6mo, not greater than 1 year |
|
|
Termination - Void/voidable marriages
|
Void - no legal purpose to marriage, invalidity good for anything - automatically never existed
Voidable - imperfection in the constitution of the marriage - can only be inquired to in an annulment proceeding - Once annulled - never existed |
|
|
Annulment - Voidable marraiges
|
PLAN PAL Grounds - must exist at time of entry into marriage
Polygamy/bigamy Lack of consent Affinity/consanguinity No intent to be bound Purpose was for citizenship Age Lack of capacity - incompetence Effects - no alimony awarded, temporary support allowed during pendency of proceeding |
|
|
Defenses to annulment
|
Recrimination
Condonation Unclean Hands Laches Ratification - subsequent consummation/cohabitation |
|
|
Void marriages
|
Never existed
permanent mental incapacity, age, same sex, bigamy later cohabitation will not ratify |
|
|
Voidable marriages
|
Later cohabitation ratifies
only a party can seek annulment Grounds - consanguinity - no consent for temporary insanity - marriage not consummated - fraud regarding sex/child bearing - void marriage impediments that were removed |
|
|
Divorce
|
SC does not recognize judicial separation - only complete divorce
both fault and no fault grounds in divorce |
|
|
Divorce - waiting period
|
No hearing before 2 Months after filing complaint
No final decree before 3 months after filing Exceptions (hearing and decree right away) - when plaintiff seeks a divorce on the grounds of: - desertion - separation for 1yr |
|
|
Divorce - residency requirements
|
Duration
- Plaintiff resident - must be in state at least 1 year before filing - Plaintiff nonresident - defendant must have resided in state for 1 year - Both residents - reside in state 3 months prior to filing Residency = domiciled - true, fixed, and permanent home with the intent to remain |
|
|
Divorce - out-of-state defendant
|
Must establish personal jurisdiction
- physical presence - property in state - minimum contacts - consent |
|
|
Miscellaneous requirements for divorce in SC
|
Judge must attempt to reconcile
all grounds must be corroborated unless collusion not a possibility no legal separations fault can be a factor in equitable distribution and alimony |
|
|
Divorce - grounds - adultery
|
Fault based ground
- extramarital sexual activity (not necessarily intercourse) - clear preponderance of evidence - direct or indirect ok - must have opportunity and disposition to commit |
|
|
Divorce - grounds - physical cruelty
|
Fault based (no mental cruelty recognized)
- Actual personal violence or course of treatment endangering life, limb, or health - one act can be enough but must be serious - RENDER COHABITATION UNSAFE - Condonation of cruelty may be presumed from cohabitation, lapse of time, continuance of marital cohabitation with knowledge of the offense |
|
|
Divorce - grounds - habitual drunkenness
|
Fault based
- need not be continuous - habitual - can be drugs - at or near the time of divorce |
|
|
Divorce - grounds - desertion
|
Fault
- cessation from cohabitation for 1 year - intent not to resume cohabitation by absenting party - absence of consent and justification for cessation |
|
|
Divorce - grounds - separate for 1 year
|
NO fault- no cohabitation
Must show: - voluntariness - both parties conscious of separation - actual separation - cannot be same residence Once shown - no waiting period for hearing/decree required |
|
|
Divorce - defenses - Collusion
|
secret agreement to divorce for fraudulent, illegal, or deceitful purpose
Acts complained of was done with knowledge or assent of plaintiff and was done for purpose of obtaining divorce |
|
|
Divorce - defenses - condonation
|
Forgiveness, express or implied, for breach of marital duty - CONDITIONED on offenses not be repeated
- mutual intention to renew relationship - both parties have full knowledge of offense - condonation will be removed if offenses repeated |
|
|
Divorce - defenses - connivance
|
complainant's express or implied consent to misconduct alleged as grounds for divorce
CONSENT |
|
|
Divorce - defenses - insanity
|
unaware of acts
|
|
|
Divorce - defenses - Provocation
|
spouse would not have acted in certain manner but for misconduct of complaining spouse AND retaliatory cruelty complained of not out of proportion
|
|
|
Divorce - defenses - recrimination
|
Misconduct of plaintiff would give defendant their own grounds for divorce
- not a defense to separation ground |
|
|
Divorce - defenses - reconciliation
|
Total forgiveness - unconditional
resuming marital relationship, with cohabitation prior faults cannot be revived |
|
|
Uniform Divorce Recognition Act
|
SC couple cannot go to another state to get a quickie divorce
Divorce in another state is of "no force" in SC if both parties were domiciled in this state at time of other state proceedings Domiciled within - 12 months before filing and resuming residence within 18months of leaving other state or - at all time during absence, party maintained place of residence in SC |
|
|
Alimony
|
support obligation of one spouse to another - continuation of duty arising out of marriage
Not a punitive device |
|
|
Separate Support and Maintenance
|
Can be sought in a separate action
Continuing support obligation after divorce failure to obtain may act as a bar to alimony in divorce |
|
|
Alimony / Separate support and maintenance factors
|
COMPLETED REEF
Custody of children Obligations to support Marital/non-marital property Physical and emotional condition Living standards established Educational background Tax consequences Earnings Duration of marriage Relevant other factors Earnings potential Expenses Fault |
|
|
Types of alimony
|
Periodic / Lump
Reimbursement / Rehabilitation |
|
|
Property division - equitable distribution
|
Four step process
- Determine the marital / non-marital assets and debts - Determine value - Determine the portion each is entitled to - Divide Property is 'acquired' on date of filing for divorce |
|
|
Determining marital debts and assets
|
Marital property - all real and personal property
- acquired during the marriage - owned as of the date of filing or commencement of litigation - Regardless of how title is held Acquired or incurred by either spouse Enhancements or appreciations Interspousal gifts Vested and nonvested benefits/funds |
|
|
Nonmartial assets/liabilities
|
Presumption of marital, otherwise
- Acquired before marriage - Noninterspousal gifts/bequests/devises to one - Income derived from nonmarital assets - Anything excluded by agreement - Property acquired after marriage ends |
|
|
Special equity interest
|
a spouse may get some benefit based on contribution to property
the equity built up remains non marital |
|
|
Equitable distribution factors
|
OVERFILLED DATE
Obligations to support Value of martial/nonmarital assets Earning potentials Relative contributions to assets Fault Income of both spouses Location of marital assets Liens and encumbrances on assets Existence of prior obligations to support Duration of marriage Desirability of remaining in marital home Alimony awarded Tax consequences Educations / education necessary to retrain |
|
|
Child Custody - Best interest test - additional factors |
BIT - baseline test for all custody, visitation, and support decisions
Attributes and resources of both parents Equal consideration for both parents Primary caretakers Immoral conduct Child preference - based on age, maturity, etc Domestic violence Religion Written statements of parties GAL investigation findings NOT considered - race, tender years, gender |
|
|
Guardian Ad Litems
|
Qualifications - can be attorney or lay person
- 25+ years old - HS diploma or equivalent - Attorney - 6 hours CLE in family law - Layperson - 17 hours CLE type education - Cannot be convicted of certain crimes - No DSS registered abuse/neglect Must - represent child, balanced investigation |
|
|
Child Support
|
DSS guidelines govern
Deviation permitted - when justified |
|
|
Paternity
|
By naturalization
Adjudication |
|
|
Adoption
|
who can be adopted
- any child present in SC when petition for adoption is filed - Any adult can adopt another with consent of adult or his guardian and adoptive parent spouse |
|
|
Who may adopt
|
Any SC resident, interstate adoption ok if:
- Child to be with relative - unusual or exceptional circumstances - adoptive parent is military stationed in SC - child is special needs - Child in foster care for 6 months and no SC resident has been identified as prospective adoptive home or - Best interest of child |
|
|
Who must consent to adoption
|
unless excused by court, ALL must consent
Unmarried father --if child 6+ months old - father must consent if he pays support and visits or has regular communication --if child less than 6 months - life with mother for 6 months preceeding placement or pays support Adult to be adopted and spouse of person adopting Legal guardian, agency, or legal custodian of child Mother Minor if more than 14 |
|
|
Withdrawal of consent
|
not permitted unless
- court order + notice and opportunity to be heard by all concerned - court finds withdrawal is in best interest and consent was not given voluntarily or obtained by duress or coercion |
|
|
Petition for Adoption
|
filed within 60 days child is placed with proposed adoptive parents
Includes: - consents/relinquishments - pre-placement report, background investigation report, statement of all adoption related payments made within past 5 years or to be made GAL is then appointed Hearing held at least 90 days after filing Anyone not consented must be given notice A post-placement investigative report before final hearing |
|
|
Final hearing of adoption findings
|
Findings include
- disbursements made and accounted for - adoptee in actual custody for 90 days - best interest is served - appropriate compliance with non-resident states - all necessary consents/relinquishments - notice given - peititoner is fit and proper |
|
|
child abuse mandatory reporting
|
Healthcare professionals, clergy, school teachers and officials, law enforcement, film processors, computer techs, judges, GALs
|
|
|
Grounds for terminating parental rights
|
child harmed because of severity or repetition - it is not likely home will be made safe within 12 months
presumptive legal father not bio father and child best served by terminating rights child was removed from home and not returned within 6mo's Child lived outside home of either parent for 6 months and parents did not visit Child in foster care 15 out of past 22 months Parents have diagnosable condition unlikely to change - alcoholics failing rehab twice = 'unlikely to change' Willful abandonment Abuse |
|
|
Termination requires and effect
|
Clear and convincing evidence + statutory grounds + best interests
Effect - child/parent relationship terminated, child may still inherit from parents but parents may not inherit from child |
|
|
Modification rules
|
Alimony and child support agreements
- substantial change in circumstances Separate support and maintenance - changed circumstances Property settlements - not modifiable Custody, visitation, etc - substantial change of circumstances affecting child welfare and best interests served |
