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65 Cards in this Set
- Front
- Back
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What is the Kentucky Rule for Gifts made in contemplation of marriage? General Rule? |
Most jurisdictions hold that engagement gifts are made incontemplation of marriage and are conditioned upon the subsequent ceremony taking place. If marriage does not occur, engagement gifts must be returned. |
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What is the effect of DOMA? (Defense of marriage act) |
Under DOMA,states are not required to give full faith and credit to same-sex marriages legally entered in other states. |
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VALID MARRIAGE REQUIREMENTS: |
BE 1.AGE 18+ 2.OPPOSITE SEX 3.NOT too RELATED(2nd cousins).
HAVING 4. MENTAL CAPACITY understand +vol. agree. 5. SEXUAL CAPACITY perfrom 6. NOT already be MARRIED
1. Person of appropriate Age (generally 18+) 2. People not to closely related by blood ("consanguinity") or adoption ("affinity")
to comprehend and voluntarily agree. essay statement:
"FOR PERSON TO ENTER INTO A VALID MARRIAGE IN KY, THE PERSON MUST BE of the APPROPRITATE AGE,and NOT TOO CLOSELY RELATED (2ND COUSINS). Persons must be of the Opposite sex (under KY law) having mental capacity to understand and comprehend the nature and quality of their actions, voluntarily agreeing to be bound in marriage,have capacity for sexual interecourse, and must not already be married.
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What are the procedural requirements for marriage? |
1. PRIOR: OBTAIN LICENSE. (county clerk (KY) 2. SOLEMNIZATION (clergy or judicial officer) 3. FILE LICENSE, to give NOTICE.
Essay statement:
" Law of most states, including KY, require persons intending to be married obtain marriage license from the County Clerk PRIOR to solemnization by a Ordained Clergy or judicial officer. Clergy/officer then completes licenses, which is in turn filed with county clerk to give public notice of the marriage"
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Application for Marriage License in KY: |
IN Kentucky, each party must provide "vital information:" to apply for marriage license:
1. Name and address 2. date of birth 3. number of previous marriages 4. occupation 5. social security number. |
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What mental capacity is required for a valid marriage? |
Party has the required mental capacity to be married so long as they understand 1. what it means to be married, and enter into the marriage voluntarily.
2.Mental capacity to marry is determined at the time of the marital ceremoney took place. |
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What is the rule for antenuptial contracts? |
Generally, antenuptial contracts, other than contracts agree to marry, are valid. The contracts usually pertain to property, and principles of contract construction apply. The purpose of such contracts is to provide for a distribution of assets upon divorce or death in a way that is different from what the law would ordinarily require. Consideration for the antenuptial contract is entry into marriage. Antenuptial contracts fall w/in the statute of frauds and must be in writing. |
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What is NOT permitted to be in an antenuptial contract in KY? |
The right of a child to parental support may not be adversely affected by the antenuptial agreement. Moreover, in Kentucky, child support, child custody, and visitation cannot even be addressed in antenuptial agreements. |
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How may an antenuptial agreement be amended? |
After marriage, a premarital/antenuptial agreement may be amended only by written agreement signed by the parties. The amended agreement is enforceable without additional consideration. |
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What factors does a court consider in determining whether an antenuptial contract was made in good faith and without undue influence? |
1. Voluntariness
2. Full and Fair Disclosure 3. Fair provision 4. Independent counsel. 5. absence of fraud, duress, mistake, misrepresentation, and unconscionability 6. changed circumstances. |
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What happens when there is doubt or ambiguity in an antenuptial contract? |
In Kentucky, if any doubt or ambiguity exists with respect to an antenuptial agreement, it must be construed in the light most favorable to the wife.
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Is an antenuptial agreement enforceable where a marriage is void? |
Where a marriage is void, an agreement that would otherwise be a premarital agreement is enforceable only to the extent necessary to avoid an inequitable result.
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What is the national trend with respect to legal disabilities imposed on married women?
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The national trend is to eliminate the legal disabilities once imposed upon married women and their property in such areas as torts, contracts, entitlement to wages, and criminal liability. The emerging concept of privacy has also led to restrictions on one spouse's control over the other spouse's decision to undergo sterilization or abortion.
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What are the rights of a spouse to property? |
Each spouse owns and controls her own proeprty both before and during the marriage. However, the principles of agency and, as to real property, the conecpt of tenancy b the entirety come into play
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What is the spousal support obligation?
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There is an obligation for spouses to support one another. A spouse who is not receiving support may petition the court for alimony and child support pursuant to a legal separation or pending divorce action, and in some stats may seek such payments at any time w/out seeking any other relief. The extent of support is determined by the circumstances of the parties: the need of one spouse for the fund and the ability of the other spouse to pay. |
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What is the Kentucky law on marital rape?
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Although many states have amended their criminal laws to remove the marital exception from rape laws, Kentucky has a limited marital exception. Under Kentucky law, lack of consent is an element of the rape offenses, and persons who are under the age of 16 or mentally retarded do not have the capacity to consent to a sexual act. The exception provides that a person is not guilty of raping a spouse solely due to the spouse's legal incapacity to consent because she is under the age of 16 or mentally retarded.
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What is the common law doctrine of family privacy?
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Under common law, the internal affairs of a family cannot be regulated by the courts. Families have the right to expect privacy for actions w/in their homes and freedom from governmental interference in their domestic affairs.
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What is the family's right to privacy under the US Constitution? |
Under the United States Constitution, the right of privacy is not mentioned, but has been recognized by the US Supreme Court as implicit in the concept of "liberty" w/in the protection of the Due process Clause. Privacy is considered a fundmental right; therfore, any regulation of it is invalid unless it is found to be necessary to a compelling interest (except for abortion).
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Is the right to privacy under Kentucky's Constitution broader than the Federal counterpart? |
Under Commonwealth v. Wasson, the Kentucky Supreme Court has held that a right to privacy is implicit in the Kentucky BIll of Rights and that Kentucky's right of privacy is broader than its federal counterpart.
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Is the right to marry a fundamental right? |
The right ot marry is a fundamental right. Thus, a law prohibiting a class of adults from marrying will likely be found invalid unless the goverment can demonstrate that the law is narrowly tailored to promote a compelling government interest.
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What is an individual's right to procreate? |
The right to procreate is a fundamental right protected by the Constitution. A law prohibitign a class of adults from marrying is likely to be found invalid unless the government can demonstrate that the law is narrowly tailored to promoe a compelling government interest.
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What is an annulment? |
An annulment is a declaration that a marriage is invalid; ie, that due to an impediment at the time of the marriage, no marriage ever occurred.
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What is the difference between a void and voidable marriage? |
A void marriage is one that never existed for any purpose; it is a complete nullity. If a marriage is void, no subsequent act can ratify the marriage, and the marriage is subject to collateral attack. Parties can walk away from void marriages without court order, but may bring an action for annulment to have the court determine property distriubtion and child custody issues.
A voidable marriage may be ratified upon removal of the impediment to the marriage, and is not subject to collateral attack. |
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What is Kentucky Law on annulments?
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A KY statute expressly limits the persons who can bring an annulment action nd the time in which such an action must be commenced. An annulment action based on lack of physical capacity to consummate the marriage, lack of mental capacity to consent, fraud, force, or duress can only be brought by an offended party or the legal representative of a party who lacked capcity to consent, and the action must be commenced w/in 90 days after the petitioner learned of the condition. If the marriage is prohibited by law, an annulment action may be commenced by either party w/in one year of learning that the marriage is prohibited.
Annulment actions can be brought after the death of one of the parties only where the party lacked capacity to consent or was induced to enter into the marriage by fraud, force, or duress. |
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What types of marriages are void? |
Bigamy/Polygamy -- Void
consanguinity -- In KY, marriages between persons more closely related than 2nd cousins, whether by whole or half blood are void. Non-age-- voidable. Incurable physical impotence-- voidable. Lack of Capacity, duress, fraud : generally voidable. In Kentucky, a marriage by a person that has been adjudged mentally disabled by a court of competent jxd is void. |
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When is fraud a ground for an annulment?
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Fraud is a ground for annulment when the misrepresentation goes to the essentials of marriage. Misrepresentation as to ability or willingness to engage in sexual relations or bear children is considered to go to the essentials of marriage.
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What is a marriage not properly solemnized in Kentucky? |
In Kentucky, a marriage that was not solemnized before an authorized person is void unless one or both of the parties believe at the time of the ceremony that the person was authorized and that the parties were lawfully married.
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Is maintenance awarded in an annulled marriage in Kentucky?
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While many states have enacted statutes that allow courts to award permanent maintenance in annulment suits the same as in divorce cases, in KY, maintenance is not awarded in annulment suits.
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Is maintenance that was terminated due to a remarriage that is later annulled reinstated upon the annulment?
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Although an annulment legally declares that a marriage never existed, Kentucky law does not permit the reinstatement of maintenance based on anullment of the marriage that terminated the maintenance obligation.
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Which court has jxd in annulment actions?
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In Kentucky, the circuit court has jxd to annul a marriage. In states without statutes conferring jxd in annulment actions, annulment actions are heard by equity courts.
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what is the rule for divisibility of professional licenses?
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A clear majority of jxds hold that just as a spouse's earning capacity is not distributable property,neither is a professional license or educational degree on which the increased earning capacity is based
Kentucky follows this rule. However, the Kentucky courts consider a professional deggree an asset of the marriage that must be considered in awarding maintenance, dividing marital property, and allocating responsibility for marital debts. |
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Is marital property division a taxable event?
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Property division in a divorce s not considered a taxable event. thus, any payments made as part of a property settlement are not income to the recipient spouse and may not be used as a deduction by the payor spouse. Payments between spouses that do not meet the criteria for maintenance treatment are either child support or a type of property settlement.
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What is the purpose of a maintenance award?
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The purpose of maintenance is to ensure an adquate income stream for persons whose economic dependency has resulted, at least in part, from the marital relationship. It is not a punitive device. There is a trend to award less maintenance in the past.
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When will a KY court award maintenance?
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A Kentucky Court may award maintenance only if it finds that the spouse seeking maintenance 1. lacks sufficient property, including marital property apportioned to him, to provide for his reasonable needs (based on the standard of living during the marriage) and 2. is unable to support himself through appropriate employment or is the custodian of a child whose condition or circumstances make it appropriate that the custodian not be required to seek employment outside the home
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What will a court consider in determining maintenance?
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The court has wide discretion in awarding as much maintenance as is necessary for the maintenace of the party requesting it. The court may consider:
1. Standard of living during the marriage. 2. The duration of marriage 3. Age and physical condition of the parties. 4. The financial resorces of each party 5. The contribution of each party to themarriage 6. The time needed to obtain education or training to enable either party to find appropriate employment, and 7. the ability of the spouse from whom maintenance is sought to meet his needs while also paying maintenance. |
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What is the effect of marital fault on maintenance awards?
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While a few states still require that a spouse be without marital fault in order to claim maintenance, marital fault is generally not a factor in deciding whether maintenance should be awarded. In Ky, fault cannot be considered in determining whether a spouse is entitled to maintenance, but it may be taken into account when determining the amount of maintenance to be awarded.
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How is periodic maintenance terminated?
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Periodic maintenance generally terminates upon the death of either spouse, or the remarriage of the recipient spouse. Some states permit a termination of maintenance payments when the spouse is cohabiting w/ a member of the opposite sex. In Kentucky, cohabitation is viewed as a factor in determining whether there has been a change in circumstances that would justify modifying the support amount.
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When is lump sum maintenance modifiable in Kentucky?
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In most states, lump sum maintenance is not modifiable; the award is final and survives the death of either spouse. however, in Kentucky, lump sum maintenance awards payable in installments terminate upon the death of either party or the remarriage of the party receiving maintenance, unless otherwise agreed in writing or expressly provided in the decree. Also, KY courts may modify lump sum installment maintenance awards, but only to prevent manifest inequity.
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Who has a duty to pay child support? |
The general rule is that both parents equally share a duty to support their children.
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What guidelines are applied to determine the amount of child support?
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The award of support to one party for the benefit of the children is generally based on monetary need and ability to pay. Kentucky child support guidelines set child support amounts based on the combined monthly gross income of the parents and the number of children.
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when may a court deviate from child support guidelines?
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Although the guidelines create a rebuttable presumption for the establishment of the amt of child support, KY courts may deviate from the guidelines by making a specified finding that application of the guidelines would be unjust or innapropriate, due to 1. child;s extraordinary medical, dental, or educational need 2. parent's extraordinary needs, such as medical expenses; 3. child's independent financial resources 4. agreement of parents 5. Gross income of both parents exceed the KY child support guidelines.
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When do child support duties terminate? |
The duty to support a child geenrally ceases upon the child's death or emanicipation (usually age 18), or upon termination of parental rights. In Kentucky, unless otherwise agreed in writing or expressly provided in the decree, child support obligations generally end when the child reaches 18, unless the child is a high school student at 18-- then support will continue while the child is a high school student, but not beyond the completion of the school year during which the child reaches 19 years of age.
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When may a court modify a maintenance award?
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courts retain the authority to modify a maintenance award based upon a change in circumstances occurring after the maintenance order was entered. The grounds for modifying a maintenance award are a substantial and material change in circumstances affecting the needs of the reciient spouse or the ability to pay of the obligator spouse. In Kentucky, the changed circumstances must be so substantial and continuing as to make the terms unconscionable.
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When is child support modifiable?
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Child support is modifiable based upon a material change in circumstances that is substantial and continuing and affects the needs of the children or the ability of the parents to pay. In Kentucky, a rebuttable presumption of material change in circumstances arises when the circumstances of the parties at the time of filing of a motion to modify child support results in a 15% or greater change in the amount of support due under the child support guidelines.
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What is the Child Support Recovery Act? What does it do? |
The child support Recovery Act (CRSA) makes it a federal criminal offense to willfully fail to pay past-due child support to a child who reisdes in another state if the amount has been unpaid for more than one year or if the amount due is greater than $5,000. Venue under the CSRA is in any district in which a crime under the Act was begun, continued, or completed.
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What is the Uniform Family Support Act? What does it do?
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The UIFSA ha been adopted in all 50 states and by the district of columbia. The purpose of the Uniform Interstate Family support Act is to simplify collection of child support or maintenance where the original support Order was issued in one jxd but the obligor or obligee reside in another.
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How does the Uniform Interstate Family Support Act limit the ability of a non-issuing state to modify an original support Order?
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UIFSA limits the ability of another court to modify the original support Order. The role of the obligor's state is only to enforce the original order, unless:
1. the parties no longer reside in the issuing state; or 2. the parties consent in a record to the nonissuing court's assertion of jxd to modify the Order. |
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Page 20 DR outline
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Page 20 DR outline
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What is a separation agreement?
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A separation agreement is an agreement entered into during the marriage, prior to the issuance of a divorce decree, in which, in addtion to agreeing to remain separate and apart, the parties resolve economic issues and custody rights. In KY, these agreements must be in writing, but stipulated oral agreements on the court record satisfy this requirement. Separation agreements are governed by general K principles.
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What is the UCCJEA?
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The Uniform child Custody JXD and Enforcement Act controls the question of which state has jxd to hear a child custody case. The purposes of the Act are to avoid jurisdiction disputes w/ courts of other states in matters of child custody and visitation, to promote interstate cooperation, and to facilitate the interstate enforcement of custody and visitation orders.
The most important jurisdictional test under the Act is what is the child's home state. A child's home state is the state in which the child lived w/ a parent or custodian for at least 6 months prior to the commencement of the proceeding. |
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Under the UCCJEA, when does a court have jurisdiction initially enter or modify a child custody or visitation order? |
A court has jurisdiction to initially enter or modify a child custody or visitation order if the state is 1. the child's home state or 2. was the child's home state within the past 6 months and the child is absent from the state , but a parent or guardian continues to live in the state.
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What happens in a jurisdictional dispute under the UCCJEA when the "home state" rule does not apply? |
1. No home state -- A court has jxd to enter or modify a child custody or visitation Order if no other state has home state jurisdiction or a court of the home state has declined to exercise jxd on the inconvenient forum ground, and 1. the child and at least one parent have a significant connection with the state and 2. substantial evidence is available in the state concerning the child's care, protection, training, and personal relationships
2. if all other states w/ jxd under the "home state" and "significant connection test" decline jxd on the ground that the court of this state is a more appropriate forum. 3.if no other state has jxd under the other tests. |
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Page 23 |
Page 23 UCCJEA
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What is the rule for 3rd parties' visitation of a child? |
The supreme Court has held that, as long as a parent is fit, that parent's determination as to the appropriateness of 3rd party vistitaion must be given "special weight" and a judge may not override a fit parent's decision regarding 3rd party visitation.
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What is the rule regarding third party child visitation in Kentucky? |
Kentucky court presume that a fit parent's decision regading visitation is in the child's best interest and that this decision must be given deference. However, the presumption that a fit parent has superior rights regarding visitation can be overcome by clear and convincing evidence that visitation with the grandparents is in the child's best interest. |
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What factors will be considered when determining whether joint custody (joint physical custody) is appropriate in a particular case? |
Court will AWARD CUSTODY BASED ON BEST INTEREST OF THE CHILD, in doing so, they will consider:
1. PARENTS WISHES 2. CHILDS WISHES 3. MENTAL HEALTH OF ALL PARTIES
4. CHILDS ADJUSTMENT HOME+SCHOOL +COMMUNITY.
5. CHILDS RELATIONSHIP/INVOLVEMENT PARENT
6. SIMILARITIES/DIFFERENCES btw each HOME
7.FITNESS OF EACH PARENT 8. EACH PARENTS ABILITY TO COMMUNICATE and COOPERATE
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How may custody and visitation orders be enforced?
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1. civil contempt proceedings -- fines, incarceration
2. State habeas corpus proceedings -- can be used only by a person who is claiming physical custody of the child. It cannot be used to enforce visitation rights. 3. Suits in equity asking the court to enjoin conduct in violation of the custody order. This is not as limited as habeas corpus and has virtually replaced it in state other than KY. |
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What does the Parental Kidnapping Prevention act do?
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As a general rule, full faith and credit must be given only to final orders entered by the courts of another state. Child custody orders do not meet the "final order" test because they are subject to modification. To address this concern, Congress in the PKPA has mandated that full faith and credit be given to the child custody or visitation determination of another state if the Act's jurisdictional standards are met. (same as the UCCJEA).
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What is the Hague convention on Civil Aspects of child abduction?
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Under the Hague Convention, adopted by the United States, if a person's rights of custody have been violated by either a wrongful removal or retention of a child in a foreign country, the return of the child to the parent w/ custody is required, and the wronged party may file suit. US courts differ as to whether this convention also applies to visitation rights.
It is a complete defense to the Convention if there is grave risk that returning the child would expose her to physical or psychological harm or place the child in an intolerable situation. |
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What is the International parental Kidnapping Crime Act?
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IPKCA -- Under this act, a parent is prohibited from removing a child from the United States or from retaining outside of the US a child who has been in the US, with the intent to obstruct the other parent's right to physical custody.
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How may a custody decree be modified?
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Custody Orders are ALWAYS modifiable. In Kentucky, a motion to modify generally cannot be made for the 1st 2 years after entry of a custody decree/order. However, the court may allow an earlier motion to modify if affidavits show that there is reason to believe that 1. the child's present environment may seriously endanger his physical, mental, moral, or emotional health; or 2. the custodian appointed under the prior decree has placed the child with a de facto custodian.
After 2 years, the test for modification of custody is 1. a change has occurred in the circumstances of the child or his custodian and 2. the modification is necessary to serve the best interests of the child. The court may only consider facts that have arisen since the prior decree or that were unknown ot the court at the time the prior decree was entered. |
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How are contracts between unmarried cohabitants enforced?
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Contracts between unmarried cohabitants are invalid only when sexual relations constitute the only consideration; where there is no express contract, courts may sometimes find an implied contract, implied agreement of partnership or joint venture, constructive trust, or resulting trust. Courts are less likely to enforce an implied contract than an express one. KY courts , contractual rights or obligations are not implied from cohabitation.
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What is the "presumption of a marital child?"
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The child of a married woman is rebuttably presumed to be the marital child of her husband. The presumption may be rebutted in many states by clear and convincing evidence, by a preponderance of the evidence, or by proof beyond a reasonable doubt in Kentucky that the husband is not the father.
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Can an unwed parent recover in tort for the death of their child?
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Unmarried mothers may recover in tort for the death of their children, but unmarried fathers may be precluded from doing so if they did not previously legally recognize their children. In KY, unmarried father can sue for wrongful death of the nonmarital children, and recovery is based on the amount of affection and companionship there was between the unmarried father and the child during the child's lifetime.
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What are an unwed father's due process rights?
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Unwed parents have rights to raise their own children. IF an unwed father of a nonmarital child is part of the "family unit" that includes the child, the relationship between the father and child will be protected by due process, so long as the unmarried father has demonstrated a full commitment to the responsibilities of parenthood by participating in the rearing of his child.
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