Ma Bar Essay - Domestic Relations

Front 1

When can someone recover a pre-marriage gift?

Back 1

- If two people are not married and one gives another a gift "in contemplation of marriage" (i.e. an engagement ring), they can get it back
-Any other presents are treated like regular gifts

Front 2

What is required for a pre-marital/pre-nuptial agreement to be valid?

Back 2

1. must be a subsequent marriage
2. Agreement must be in writing, signed by both parties
3. Two look rule -- (from Austin case in 2005)
First look: Must be valid at the time of execution; and
Second look: Fair and reasonable at the time of divorce

Front 3

How does a judge determine if a prenup was valid at the time of execution?

Back 3

1. fair & reasonable, measured by circumstances at time of execution for the economically weaker spouse (but fair and reasonable means simply that the other party not stripped of substantially all marital interests)
2. full disclosure of economic assets at time of entry into agreement
3. Any waiver of alimony is EXPLICIT (say giving up right to COURT-DETERMINED alimony & property distribution)

Front 4

How does a judge determine whether a prenup is valid at the time of divorce?

Back 4

enforced unless it would leave the contesting spouse indigent ("without sufficient property, maintenance or employment to support herself")

Front 5

Are cohabitation agreements enforceable?

Back 5

Yes, so long as there is some consideration other than sex

Front 6

What is required to get married in Mass?

Back 6

1. License (shows capacity; 3 day waiting period; good for 60 days; no blood test)
2. Ceremony (officiant, witness, exchange of promises)

Front 7

What happens if the officiant conducting a marriage lacks authority or if there is an irregularity in the license?

Back 7

Does not effect the validity of your marriage

Front 8

Are the benefits of same sex marriage retroactive?

Back 8

No; no loss of consortium claims, for instance, for injuries pre-Goodridge

Front 9

When can a couple seek an annulment?

Back 9

When the marriage was either VOID or VOIDABLE due to some impediment at the time of marriage

Front 10

Must a party seek an annulment to get out of a VOID marriage?

Back 10

No, a party can just leave because the marriage is a legal nothing; however, they could nonetheless secure an annulment for clarity of the record and collateral remedies

Front 11

Can an impediment making a marriage void be waived?

Back 11

No; void marriages are against public policy

Front 12

What are the primary examples of void marriages?

Back 12

bigamy and incest

Front 13

Can void marriages be attacked by 3rd parties?

Back 13

yes

Front 14

Can voidable marriages be attacked by 3rd parties?

Back 14

No

Front 15

Can an impediment making a marriage voidable be waived?

Back 15

yes; staying in the marriage after learning waives this

Front 16

What relatives cannot marry in Mass?

Back 16

Mass looks at both affinity and consanguinity. A person cannot marry:
► A parent or stepparent
► An aunt or uncle
► A grandparent or grandparent's spouse
► Your child or child's spouse
► Grand kids
► Nieces/nephew
► In-laws
► Stepkids
**Note that it is legit to marry a first cousin in Mass.

Front 17

What are the grounds for a voidable marriage?

Back 17

(1) Under age, have to be 18; but if you stay in marriage after age 18 = ratified
(2) Lack of mental capacity (includes SEVERE intoxication; can be waived once incapacity is removed)
(3) Duress. (But waived if you stay in marriage after threat is removed)
(4) Fraud. (must go to "an essential aspect of the marriage.")

Front 18

What are "essential aspects of the marriage" for purposes of finding fraud?

Back 18

Matters relating to religion, sex & procreation

NOT anything related to finances or status

Front 19

What are grounds for fault based divorce in MA?

Back 19

a) Adultery (proved by circumstantial evidence of opportunity and inclination);
b) Cruel and abusive treatment (physical or mental);
c) Desertion - departs for 1 yr without consent or justification d) Drug or alcohol dependency - "voluntary, gross and confirmed"
e) Imprisonment for a term of 5 or more years
f) Non-support - must be "gross and cruel"
g) Physical impotence that is incurable

Front 20

What are the defenses to fault based divorce?

Back 20

a) Condonation - knowledge of the marital misconduct, forgave it and that the parties have resumed "co-habitation" (but courts reluctant to find condonation where there is violence)
b) Collusion (largely obsolete) - fraud on the court
c) Connivance (largely obsolete) - essentially entrapment
d) Insanity

Front 21

what are the grounds for a no fault divorce?

Back 21

"irretrievable breakdown" of the marriage

Front 22

What is the process for an uncontested no-fault divorce?

Back 22

-parties prepare a separation agmt; hammer out economic issues
-File divorce petition & court schedules a hearing
-If court approves the substance of the separation agmt and finds that there is an irretrievable breakdown then it will enter a "judgment nisi" within 30 days after hearing
-Becomes a final divorce 90 days thereafter

Front 23

What is the process for a contested (unilateral) no-fault divorce?

Back 23

-no separation agreement bec. the parties don't agree
-Hearing cannot be held until at least six months after filing
-Hearing to see if irretrievably broken (but testimony of one party that its irretrievably broken is pretty strong evidence that it is)
-Court enters judgment nisi, becomes final 90 days later

Front 24

What court are divorce proceedings brought in?

Back 24

Probate

Front 25

What is necessary for personal jurisdiction over a divorce?

Back 25

To have personal jurisdiction, one party must be domiciled here and either:
1. Resident for 1 year
2. Or grounds for divorce arose here

Front 26

Does the court need personal jurisdiction to issue a divorce?

Back 26

No; if you only want to have marriage dissolved, you just need subject matter jurisdiction
But if you want any other remedies (property distribution, etc.), you need to have personal jurisdiction over both parties

Front 27

What kind of service of process is required for a divorce?

Back 27

Required to make service -- personal service preferred where possible

Front 28

Does MA recognize an out-of-state bilateral divorce?

Back 28

Always; full faith and credit

Front 29

Does MA recognize a unilateral out of state divorce?

Back 29

Yes, Mass will give full faith & credit IF the party who procured it was domiciled in the forum

Front 30

Does MA recognize an out-of-country bilateral divorce?

Back 30

case by case recognition; depends on the equities

Front 31

Does MA recognize an out-of-country unilateral divorce?

Back 31

Never

Front 32

Is alimony automatic in MA? What is considered?

Back 32

Not automatic; nor forfeited by marital misconduct.
Court looks at:
-length of marriage
-conduct during marriage
-age/health/station in life
-amount and sources of income for each
-vocational skills/employability
-estate of each party
-liabilities and needs of each
-opportunities for future assets/income for each

Front 33

Who may marry in MA?

Back 33

Anyone with:
-sufficient mental capacity
-sufficient age
-lack of incestuous relationship
-not currently married
-gender not a bar

Front 34

Is there common law marriage in MA?

Back 34

No

Front 35

how is marriage defined in MA?

Back 35

voluntary union of two persons as spouses, to the exclusion of all others

Front 36

What are the defenses to a voidable marriage?

Back 36

-impediment doesn't exist
-ratification
-laches
-estoppel

Front 37

Can alimony be awarded as compensation for one spouse's contribution to the other's business during marriage?

Back 37

No

Front 38

When can alimony awards be modified?

Back 38

always modifiable while both are alive; requires "material change in the circumstances"
-remarriage does not terminate
-bankruptcy does not discharge

Front 39

What property does MA look to for property distribution?

Back 39

ALL property to which the parties hold title, whenever and however acquired ("one pot" method)

Front 40

What do MA courts consider in property division?

Back 40

Same factors as for alimony
-length of marriage
-conduct during marriage
-age/health/station in life
-amount and sources of income for each
-vocational skills/employability
-estate of each party
-liabilities and needs of each
-opportunities for future assets/income for each
PLUS
-MUST consider present & future needs of dependent kids
-MAY consider the contribution of each to the acquisition, preservation and appreciation of marital property
-MAY consider the contribution of a party as a homemaker

Front 41

What property is subject to property division?

Back 41

Pretty much anything, including intangible assets such as stock options, vested rights in pension plans, 401k, 457b etc. as well as $ from lottery, workers comp, personal injury awards, inheritance received
(But it does NOT include VA disability payments)

Front 42

What kind of review does the court do of a separation agreement?

Back 42

-agreement subject to court approval (if "fair and reasonable")
-court has power to modify agreement if it is not fair, reasonable and free from fraud

Front 43

When can a settlement agreement be changed subsequent to divorce?

Back 43

-anything re: kids ALWAYS subject to modification/judicial oversight
-property division NOT modifiable
-other provisions depend on whether the agreement was "merged" or "incorporated"
1) if merged, it is as if the court has transcribed the words into the court's decree; thus always modifiable
-if INCORPORATED, the contract survives as an independent legal document; modification "requires something more than a material change in circumstances"

Front 44

Is a self-induced reduction in income sufficient to reduce alimony?

Back 44

No

Front 45

What is separate support?

Back 45

procedure whereby a party to a marriage obtains court protection without dissolving the marriage; does not require physical separation.
Grounds are desertion, living apart for justifiable cause, and failure to support

Front 46

What is the standard for determining custody of minor children?

Back 46

Best interests of the child

Front 47

what is the marital child presumption and how can it be defeated?

Back 47

Child born a married woman, presumption is that husband is the father.

If another person wants to prove he's father, or if husband wants to prove he is not the father, requires "clear and convincing evidence"

Front 48

How long does the obligation to support a child last?

Back 48

-continues at least until age 18
-can continue through age 21 if kid continuing to live at home & dependent on parent
-can be extended to age 23 if in school or until kid earns a bachelor's degree
-If child has a disability preventing him/her from being self-supporting, then the support obligation continues for the kid's life

Front 49

Does child support end at the parent's death?

Back 49

No;can be enforced against the estate

Front 50

What are the types of custody?

Back 50

Physical custody - where the kid actually lives
Legal custody - who makes the decisions about the kid

Either type can be exclusive to one parent or shared by both

Front 51

How is the amount of child support determined?

Back 51

Look to the child support guidelines formula; but does not apply if noncustodial parent income greater than 100k or combined parental income greater than 135k a year (court applies equitable discretion) or if child support agreement which is "fair and reasonable"; if parents share or spit physical custody; or if guidelines would be unfair or inappropriate

Front 52

When can child support be modified?

Back 52

Like alimony, can be modified where substantial change in circumstances & in best interests of the child, e.g.special, enhanced needs of the child or non-custodial parent gets MORE money.

Front 53

How are child support orders enforced if noncustodial parent doesn't pay?

Back 53

Three most common methods:
1. Asset seizure -- bank account seizure, car, etc.
2. Wage attachment -- "wage reduction order" directed to the employer of the nonpaying parent
3. Contempt - can hold the parent in contempt of court, can put in jail
**note that Uniform Interstate Family Support Act (UIFSA) - provides for direct interstate enforceability of these orders

Front 54

What court has jurisdiction over child support orders & modification?

Back 54

for FIRST custody determination, state must either be home state of the child or it was the home state of the child within the last six months and a parent still lives there

Under Uniform Interstate Family Support Act (UIFSA), the first court issuing the order has "continuing exclusive jurisdiction" so long as the kid lives there. Order is enforceable interstate.

Front 55

What kind of factors might a court look at to make a custody determination?

Back 55

Completely discretionary, anything that could be relevant to the best interests of the child. Examples:
-Wishes of the parties (parents, kids particularly over age 12)
-Age & health of the parties, including mental health
-History of domestic violence (reversible error to fail to put in findings about DV)
-Parent in a new relationship and who that person is
-Substance abuse probs
-One placement would allow siblings to be together
-If considering shared/joint custody, do the parents cooperate? Do they live near each other?

Front 56

When can a non-biological parent get custody or visitation?

Back 56

generally need to be a "de facto parent"
1)participated in the childs life
2)with whom the kid has resided with the consent & encouragement of the bio parent
3) who has performed the functions of a parent
**Though it is generally presumed that the best interests of the child support placement with a bio parent (thumb on the scale), thus non-bio parent has a higher burden (bio parent has to be nearly unfit)

Front 57

When can grandparents get visitation over the objections of a fit parent?

Back 57

must rebut the presumption that the parent's decision is legally valid with a preponderance of the evidence that denial of visitation will cause "significant harm" to the child

Front 58

Can a grandparent seek visitation if a kid has been adopted by another family?

Back 58

No.

Front 59

When can the state intervene re: medical treatment for a child?

Back 59

where parents refuse to consent to potentially lifesaving treatment for the kid

Front 60

Can a parent take a kid from another parent prior to a custody proceeding?

Back 60

Not a crime under the Mass. parental kidnapping act -- makes it a crime to take a kid under 18 without legal authority to do so.

Front 61

What consent is necessary to effectuate an adoption in MA?

Back 61

-If adoptee is a minor, need consent of the biological mother and father (unless parent's rights involuntarily terminated by state)
-If adoptee is over age 12, need consent from the adoptee
-Dept. of Social Services, but nonconsent can be overruled by the court

Front 62

Who can adopt whom in MA?

Back 62

anyone of majority can adopt a person of younger age except a spouse, sibling, aunt or uncle

Front 63

When is parental consent not necessary for an adoption?

Back 63

-parental rights involuntarily terminated by state (court finds by clear & convincing evidence that bio parents are unfit)
-or court decides it is in best interests of child to not require

Front 64

When can parental rights be terminated?

Back 64

1. emancipation
2. surrender to an authorized adoption agency
3. judicial termination
a) Abandonment - failure to have any contact & failure to pay support
b) Abuse - physical, sexual, could be mental, violence
c) Neglect - failure to provide food, clothing & medical care to a child

Front 65

How is abuse defined by the abuse prevention statute?

Back 65

attempting to cause or causing physical harm, placing another in fear of imminent serious physical harm, or causing another to involuntarily engage in sexual relations by force, threat or duress

Front 66

Who can seek protection via the abuse prevention statute?

Back 66

any person who suffers abuse whether from family/household member, or another party with whom the abused has a significant relationship

Front 67

What remedies are available under the abuse prevention statute?

Back 67

order to:
1) refrain from abusing P
2) refrain from contacting P
3) vacate & remain away from household
4) surrender custody of kids
5) pay temporary support to P and/or kids
6) refrain from abusing P's child
7)pay monetary compensation to P
**can also order suspension of firearms license

Front 68

When can the court issue a temporary order without notice under the abuse prevention statute?

Back 68

where necessary to protect P from abuse, but must schedule hearing not later than 10 court business days after entered

Front 69

How long may a protection order last?

Back 69

for the fixed period stated; not longer than 1 year

Front 70

How can protection orders be modified?

Back 70

any time after a hearing on a motion by either party

Front 71

How does MA define stalking?

Back 71

- willfully & maliciously engaging in a knowing pattern of conduct directed at a specific person
-that seriously alarms or annoys that person and would cause a reason. person to suffer subst. emotional distress
-and makes a threat with the intent to place the person in immediate fear of death or bodily injury