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140 Cards in this Set
- Front
- Back
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Which court has exclusive jurisdiction for all family law matters except adoptions
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District Court
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Which court has jurisdiction over adoptions
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Superior Court
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If there is a breach of contract to marry, can you recover punitive damages
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No
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Breach of contract to marry...
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mutual promise to marry + one party refuses to marry + doesn't have justification
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Defenses for breach of contract to marry
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one party was already married when promise made and the other party knew it OR there was illegal consideration that was the basis of the promise OR the plaintiff misrepresented essential matters to the marriage
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Examples of matters essential to the marriage...
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sterility, impotency, sexually transmitted disease
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What three heart balm actions are still recognized in NC
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breach of promise to marry
alienation of affection criminal conversation |
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What is the SOL for the heart balm actions
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3 years
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What happens when a gift is given in consideration of the marriage and the marriage doesn't take place
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the donor may be able to get the gift back
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What may cause a donor not to get their engagement ring back if the marriage does not take place
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If the donor is the one who caused the cancellation of the marriage
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A premarital contract is....
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a contract that is made btw the parties to get married before they get married
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What can be contained in a pre-marital agreement
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rights of the other in the case of death of one of the spouses; alimony and property division if there is a divorce
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North Carolina is one a few states that recognizes what act that relates to premarital agreements
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The Uniform Premarital Agreement Act
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What is the Uniform Premarital Agreement Act pertaining to...
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agreements btw prospective spouses as they contemplate marriage which is effective at marriage
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When is a premarital agreement effective
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when the marriage takes place
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What agreements are not covered by the Uniform Premarital Agreement Act
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those btw people who are living together, but have no plans to marry ; postnuptial agreements; oral agreements
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Since a premarital agreement is a contract...
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it has to meet the requirements of a contract but don't have to have consideration
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A valid premarital agreement requires...
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to be in writing and signed by both parties
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What can not be covered in a premarital agreement
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anything that adversely affects the rights of a child to getting support or related to child custody
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What conditions will make a premarital agreement unenforceable
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when a party didn't enter into it voluntarily OR was unconscionable when executed
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What makes a premarital agreement unconscionable
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when the party isn't give fair and reasonable disclosure of the property or finances of the other ; didn't voluntarily and expressly waive the right to that disclosure ; didn't have knowledge of the property or financial obligations of the other party
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What happens if the agreement will force one spouse to be dependent on public assistance
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the court may bypass that section and force the spouse with financial resources to care for the other spouse
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What is required before the court will decide that the financially able spouse pays for the support of the other spouse
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One spouse must be dependent and the other supporting ; there has to be grounds for alimony or PSS
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Does the fact that the premarital agreement was signed on the day of the wedding along with a threat impact its enforceability
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Not necessarily. Won't automatically be seen as involuntary execution
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Who has the burden of proof when challenging a premarital agreement
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the one who is seeking to invalidate the agreement
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If there is no proof of involuntary execution, what has to be shown about a premarital agreement
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unconscionable + disclosure requirements not met
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Who decides unconsionability of a premarital agreement
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The court because it is an issue of law
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What does the NC version of the Uniform Premarital Agreement Act require when a spouse would be forced to receive public assistance
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That spouse would have to prove that they are entitled to alimony
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What does the North Carolina Family Law Arbitration act require
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before getting married the parties have to say in writing that any controversy except related to child support/ custody or divorce, will be submitted to arbitration
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Can agreements by unmarried couples related to finances and property be enforced
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Yes, as long as there is consideration other than sexual services
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What is marriage
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Civil status or relationship created by legal union of two persons as husband and wife
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Is marriage a fundamental right
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Yes, and is protected by due process
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What is necessary in NC for a valid marriage
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marriage license + ceremony
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What are the procedureal requirements of a marriage in NC
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male and female + consent + expressly plainly + in each other's presence + in presence of ordained minister or magistrate + 2 witnesses
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where do people get marriage licenses
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at the county register of deeds where the marriage is taking place
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How long do you have to wait btw filing the application for the marriage license and getting the license
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You don't
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What happens if there is an irregularity or omission in the licensing process
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the marriage isn't invalid ; the performing official may be subject to a fine
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What does it mean to solemnize a marriage
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Must be officiated by a licensed minister or magistrate
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Suppose you get married by a mail order minister
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the marriage will be invalid
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Can you get married in NC over the phone, by correspondence or proxy
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No, you both must be physically present
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What is a common law marriage
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when there is no licensing requirement completed or no ceremony
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A common law marriage exists when....
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agreement to be husband/ wife + cohabit + represent to world that are husband/wife + are legally able to enter into relationship
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How are common law marriages handled in NC
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You can not get a common law marriage in NC
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What happens if you have a common law marriage in another state and move to NC
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If the marriage was recognized in that state, it will be recognized in NC
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Will NC recognize a marriage performed in another state
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As long as it is not against public policy
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Will NC recognize polygamous or same sex marriages if they were recognized in another state
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No because against public policy
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What are some impediments to a valid marriage
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age, consanguinity, mental incapacity, already married to someone else
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Is it possible for males and females under the age of 18 to get married
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Generally, no
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When can a female btw 12 and 18 get married
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when they are pregnant or have given birth + she and the father agree to marry + written consent by the parent the female lives with
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what happens when a young person under 16 gets married
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The marriage is voidable
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How can a young person btw 16 and 18 get married
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written consent by parent they live with OR someone having legal custody
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Suppose an emancipated minor wants to get married
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They can
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Consanguinity is...
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when two people who are nearer kin than 1st cousins or double first cousins want to marry
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What happens if someone has mental incapacity or infirmity and they consent to get married
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the marriage is invalid and voidable
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How can someone who may be considered with diminished mental incapacity get married
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If they understand the nature of the marriage contract
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If someone is under conservatorship, will they be able to marry
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It's possible even though they can't manage their own property
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What happens if people who are physically impotent get married
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The marriage is voidable
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How can someone who has already been married get married
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Their first spouse must be dead or they got a divorce or annulment
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What impact does a bigamous marriage have
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It will be null and void and doesn't need a decree of divorce
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What is the only void marriage in NC
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bigamous
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What happens if a couple gets married because the female said she was pregnant, but they separate w/in 45 days, no child is born in 10 lunar months and they are separated for a year
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The marriage is voidable
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What are fraud grounds for an annulment in NC
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when the female says she is pregnant and she isn't or no child is born w/in 10 lunar months
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What happens in NC if there is a misrepresentation of paternity
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Can't use as grounds for annulment
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When can a marriage be annulled
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when the marriage is void or voidable
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Who can institute an action for an annulment
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Either party
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A void marriage...
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is like no marriage ever took place; there is no legal effect
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Can a person with a void marriage remarry
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Yes, and they don't have to be concerned about bigamy
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What is a declarative annulment
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It is a judicial determination that the marriage was void ab initio
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When there is a void marriage...
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can be collaterally attacked by anyone + can be attacked at any time, even after death + can't ratify
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What happens to incestrous marriages in NC
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they are voidable
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When presented with multiple marriages, which one is going to be considered valid
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The most recent marriage
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What is the Enoch Arden doctrine
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presumption that a spouse who has been absent w/out explanation for 7 years = dead
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How can the Enoch Arden doctrine timetable be shortened
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If there is an event that makes it more likley that the person died sooner than 7 years
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What happens under the Enoch Arden doctrine if the missing spouse reappears and the remaining spouse remarried
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The new marriage is invalid
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What can "fix" a voidable marriage
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confirmation or ratification or one of the parties dies
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If there is a voidable marriage and an annulment action is brought
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the marriage will no longer be valid and the party can remarry
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Who can attack a voidable marriage
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only one of the parties unless the parents of a child btw 16 - 18 and they married w/out parental consent
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How can an annulment of a voidable marriage be prevented
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Ratification can take place by the parties
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Ratification happens when...
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impediment removed + parties live together as husband and wife
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What are the voidable marriages in NC
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under 18 w/out parental permission; incurable impotence when married ; mental incapacity of one of the parties ; incest
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How can an underaged party ratify their marriage
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when they reach the age of majority and stay with their spouse
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How can someone who has incurable impotence at the time of the marriage avoid an annulment
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if the other person knew pror to the marriage
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When do you determine the mental incapacity of a party who married
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On the day of the marriage
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How does NC handle marriages btw first cousins
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They are allowed
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Are there any marital restrictions based on affinity relationships
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No
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Affinity relationships are
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btw non blood relatives
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What type of marriages are considered felonies in NC
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grandparent + grandchild; parents + children/step; brother + sister/half; parents + legally adopted children
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What type of fraud is sufficient for annulment purposes
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must go to the essence of the marriage relationship
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A fraud goes to the essence of the marriage relationship when it...
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would prevent a party from entering a true marital relationship + prevents performance of normal marital duties
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What happens to a child that is born of a voidable or bigamous marriage
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They are considered the legitimate child of both parents, regardless of the annulment
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Are PSS and attorney fees allowed in annulments
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Yes, they are treated the same as divorce actions
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Can you get permanent alimony and ED in an annulment
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No but you may be able to get equitable remedies
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What is created when there is a conveyance by either spouse to both
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They be TBE
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What happens to a TBE when there is a divorce
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It becomes TIC
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Can husbands and wives transfer property btw themselves
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Yes
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What happens if there is a spousal transfer w/out consideration
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A rebuttable presumption that a gift
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Can husbands and wives contract with each other
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Just the same as with any other person
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What has to be included when husbands and wives contract with each other and it's related to their marital property
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has to be in writing + signed by both + deemed equitable
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Can a spouse be held liable for a contract the other spouse entered into before they got married
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No if incurred before the marriage
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Under CL, when would a husband be liable to 3rd parties for wife and children
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he hadn't already provided funds + items purchased were a necessity + the separation was the husband's fault
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What is the modern usage of the necessaries doctrine
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Normally when it relates to medical care
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The modern perspective of the necessaries doctrine says...
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applies to both spouses + spouse is liable for medical bills of the other
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Is a spouse responsible for costs or fines that come from criminal prosecution
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no
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What impact does the ability to contract out of support duties in a premarital contract have on 3rd party creditors
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It doesn't bind them
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How is PSS normally handled
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Thorugh a separation agreement OR order for PSS
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What ability does one spouse have to bind the other to a contract, just because they are the spouse
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None, there is no agency relationship just because they are married
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Does a woman automatically have to take the surname of her husband
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No
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Under common law, how is the surname of a child born in wedlock handled
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The child takes the father's surname unless the parents agree to something different
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What does it take to change the name of a minor child
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the consent of both parents unless a parent has abandoned the child
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What interspousal immunity exists for tort actions btw spouses
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none
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What types of tort actions may spouse bring against one another
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intentional tort actions
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Is it possible for current spouses to bring actions against one another for IIED
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No
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What are elements of a spouse's tort recovery
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medical expenses, loss of earning capacity, loss of consortium
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What evidentiary privileges exist btw husband and wife
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They don't have to share confidential communications made btw them; either spouse can claim privilege
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What relationships does the DV Act apply
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current/former spouses; opposite sex and living together or did live together; parents / children; current/former household members; opposite sex and dating
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When is the DV act triggered
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attempt to cause or does cause bodily injury or places in fear of imminent bodiliy injury using force, or sexual offenses against a minor child
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When is emergency relief for DV available
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when there is allegation of danger of serious harm - hearing follows in 5 days
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When is ex parte relief available for DV
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when it clearly appears that there is immediate danger - hearing follows w/in 10 days or 7 days after offender is notified
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When can there be ex parte order for custody before a hearing
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when the child is exposed to substantial risk of bodily injury or sexual abuse
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What type of orders are available in DV situations
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restraining; possession of residence; awarding temp custody of children; eviction from residence; helping aggrieved party return to residence
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What happens when someone knowingly violates a protective order
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guilty of misdemeanor
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Criminal Conversation is...
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a civil suit for adultery
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What do you have to prove for criminal conversation
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married parties + defendant has voluntary sexual intercourse w/ plaintiff's spouse
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What types of defenses are available for criminal conversation
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None
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What is the SOL for criminal conversation
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3 years
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When are punitive damages available in criminal conversation
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award of compensatory damages + elements of aggravation, willful and wanton misbehavior
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What are compensatory damages involved with criminal conversation
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loss of consortium, humiliation, mental anguish, loss of sexual relations
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What should be shown to prove adultery
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inclination + opportunity
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What are some examples of inclination
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public affection, holding hands, kissing, love notes
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what are some examples of opportunity
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entering and staying in hotel rooms, apartment, homes
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What happens when a spouse pleads the 5th when asked about adulter on the stand or in a deposition
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there is an inference of adultery that the jury can draw
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What happens to a spouse who is seeking alimony who pleads the 5th when asked about adultery
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They waive their claim to alimony
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What two heart balm actions normally are before a jury
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alienation of affection and criminal conversation
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Alienation of affection is...
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when spouse brings action against 3rd party for the loss of love and affection of spouse
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Elements of alienation of affection...
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married w/ some love and affection + wrongful and malicious acts of 3rd party destroyed the love and affection
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When will the law impute malice when there is alienation of affection
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when there is adultery
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What role does adultery have in alienation of affection claims
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None, it's not required
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When can you get punitives with alienation of affection
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when there is proof of adultery may get awarded, w/out - very unlikely
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What is need to get punitives w/ alienation of affection
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adultery + additional malice + aggravating circumstances showing willful and wanton disregard of plaintiff's rights
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What causes of action does a child have in alienation of affection situations
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none - no cause of action against 3rd party who breaks up parent's marriage
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