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Practical Family Law Sp2022 > 1 > Flashcards

1 Flashcards

1
Q

What does Hattaway v. Coulter (2021) say?

A

Engagement ring is a conditional gift, conditional on the marriage.

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2
Q

What is the result of a marriage where one party lacks capacity?

A

Lack of capacity creates a voidable marriage.

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3
Q

What is the minimum age for capacity to marry?

A

A person must be at least 16 years of age to marry. If a person is less than 18, but at least 16, a parent’s consent is generally required.

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4
Q

What is the procedure for a valid marriage in Alabama?

A

Execution of affidavits to age and unmarried, recorded within 30 days of execution.

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5
Q

Where a party is currently married and attempts to marry another, what is the result?

A

The second marriage is void. Annulment is the proper remedy.

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6
Q

Where is the proper place to file for divorce?

A

Divorce can be filed in the defendant’s county (circuit), or the county where parties resided at separation. If the defendant is a non-resident, divorce can be filed in the county of the other party.
Note- Venue may be waived by both parties, as long as AL courts have jurisdiction

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7
Q

How long after divorce until a party can remarry?

A

Under 30-2-10, parties can not remarry for 6 months following divorce, unless to each other.

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8
Q

What creates jurisdiction over divorces in Alabama?

A

The plaintiff must live in the state, otherwise there is no personal jurisdiction. If the defendant is a non-resident, the plaintiff must have resided in Alabama 6 months prior.

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9
Q

What makes “residency” for jurisdiction?

A

Domicile is residency; 1) physical presence in chosen place of residence AND 2) accompanying intent to remain permanently or indefinitely.

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10
Q

Who can issue a summons for a divorce complaint?

A

Only the clerk of the circuit court may issue a summons.

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11
Q

What is the time limit to serve the defendant?

A

Service should be made within 120 days. If not, the court generally gives 14 days notice.

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12
Q

What makes service proper?

A

Service must be within Ala. R. Civ. P. 4(c)(1). Service can be by certified mail or publication under certain circumstances.

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13
Q

What circumstances allow for service by publication?

A

Service by publication is allowed when the identity or residence is unknown, or a resident defendant has been absent more than 30 days, AND
the defendant avoids service.
Service by publication requires affidavit to the above.

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14
Q

What are the no fault grounds for divorce?

A

Incompatibility of Temperament
AND
Irretrievable Breakdown

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15
Q

What are the at fault grounds for divorce?

A 
Incurably incapacitated;
Adultery;
Voluntary abandonment;
Imprisonment;
Crimes against nature;
Habitual drunkenness;
Mental confinement;
Existing pregnancy;
Violence;
Lived apart and separate.
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16
Q

How is adultery proven?

A

Adultery can be proven by circumstantial evidence, when it leads the guarded discretion of a reasonable person to the conclusion of adultery.

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17
Q

When can adultery occur?

A

Recent AL decision is that adultery even after the filing of divorce proceedings is ground for at fault judgment.

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18
Q

What constitutes voluntary abandonment?

A

A voluntary and intentional abandonment for 1 year prior. The occasional night’s stay does not negate voluntary abandonment.

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19
Q

When is imprisonment a ground for divorce?

A

Imprisonment for 2 or more years in the penitentiary, and the sentence is 7 or more years total.

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20
Q

What is required for habitual drunkenness grounds?

A

The drunkenness must have begun after the marriage. Pre-existing drunkenness removes the fault.

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21
Q

What must be filed or testified to for incompatibility of temperament?

A

An affidavit that satisfies the court of deep conflicts and impossible to continue a normal marriage.

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22
Q

What is Judge Williams’s incompatibility song?

A

We Just Disagree by Dave Mason

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23
Q

What must be shown for divorce due to confinement to mental institution?

A

Five successive years confinement and adjudged incurably insane.

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24
Q

When further attempts at reconciliation are futile, what divorce ground is being considered?

A

Irretrievable breakdown. Generally some event precipitated the breakdown and the marriage is no longer in the best interest of the parties or the family.

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25
Q

What is Judge Williams’s irretrievable song?

A

Sorry Seems to be the Hardest Word by Elton John

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26
Q

When is pregnancy at the time of marriage a ground for divorce?

A

When the wife is pregnant at the time of marriage and the husband has no knowledge and is not the father.

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27
Q

How is maternity established?

A

The mother is legally established by:
Giving birth,
Adjudication,
Adoption.

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28
Q

How is paternity established?

A

The father is legally established by an unrebutted presumption, when:
Birth within 300 days of marriage or apparent marriage;
Married mother after the birth and filed with court or vital stats, consensual on birth certificate, receives in home and holds out as own, court order;
Adjudication;
Adoption;
Legitimated.

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29
Q

What is the preferred term for visitation?

A

Per Judge Williams, “parenting time” is to be used instead of visitation.

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30
Q

When both parents have equal rights and responsibilities for major decisions…

A

Joint legal custody.

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31
Q

Assure child frequent and substantial contact with each parent.

A

Joint physical custody.

Joint physical custody does not necessarily mean equal parenting time.

32
Q

One parent has sole rights and responsibilities for major decisions.

A

Sole legal custody.

33
Q

One parent has primary custody, the other has rights of visiting provided or limited by the court.

A

Sole physical custody.

34
Q

What is the standard for determining child custody?

A

Best Interest of the Child is the standard when there is no previous custody order.

35
Q

What is the standard for modifying the custody of a child?

A

The McLendon standard, says that to change a previous determined custody, the movant must show it will Materially Promote Child’s Welfare.

36
Q

When one parent has previously given up custody but no court order, what is the standard to allow custody?

A

McLendon standard applies when one parent has given up custody.

37
Q

What is the common name (J. Williams) of the Alabama Parent-Child Relationship Act?

A

The Alabama Relocation Act.

This establishes responsibilities when one parent moves.

38
Q

Which parent must notify under the Alabama Relocation Act?

A

When either the custodial or parenting time parent moves under the the Alabama Relocation Act, it must notify the other.

39
Q

What is the threshold to trigger notice under the Alabama Relocation Act?

A

A move over 60 miles requires notice to the other parent.

A common question about this, is this 60 road miles or radius?

40
Q

How is notice allowed under the Alabama Relocation Act?

A

Notice must be by certified mail to the last known address, and on or more than 45 days prior to move.

41
Q

When must the notified party object to a move under the Alabama Relocation Act?

A

Any adversarial objection must be made within 30 days of receiving notice.

42
Q

What is the required for a TRO involving custody without notice (ex parte)?

A

Immediate danger and irreparable injury, loss, damage (harm) to the child.
[Ala. R. Civ. P. 65]

43
Q

Who has a “legal and moral obligation” to take care of a child?

A

Both parents have a legal and moral obligation to take care of a child.

44
Q

Who typically has to pay child support?

A

The non-custodial parent has to pay child support. In joint custody, both parents’ finances are evaluated and one may have to pay the other.

45
Q

What is the Rule for determining child support?

A

Rule 32 (Alabama Rules of Judicial Administration) establish the guidelines and calculations to determine appropriate child support.

46
Q

Can Rule 32 be waived?

A

Generally, varying from the Rule 32 guidelines is not allowed. A court may, but must establish substantial reasoning, to vary from Rule 32.

There is a rebuttable presumption that the numbers on the guideline is correct.

47
Q

How are percentages and decimals handled in Rule 32 calculations?

A

All Rule 32 numbers and percentages are rounded to the nearest whole.

48
Q

What is required to modify a child support order?

A

Rule 32(A)(3) allows modification of child support upon petition. A ‘substantial and continuing material change’ must be shown.

49
Q

What creates a rebuttable presumption of a substantial material change for child support modification?

A

Rule 32(A)(3)(c) says a 10% change is presumed substantial.

50
Q

How does child support impact income taxes of the parents?

A

Child support paid is not deductible and child support received is not taxable income.

The custodial parent is entitled to any child tax credits.

51
Q

When is child support obligated?

A

Child support is not obligated until due each month. Anything over the obligation on any month is considered a gift and not a support prepayment.

52
Q

What is one factor during the division of assets and liabilities?

A

Fault can be considered in the division of assets.

53
Q

What is the purpose of a property settlement in a divorce?

A

Property settlement is for the division of fruits of the marriage.
Pre-marriage property and inheritance is not considered, unless used to benefit the marriage.

54
Q

What is the difference in alimony and property settlement?

A

Property settlements are sum-certain. It can be in installments but is for a set amount.
Alimony is periodic payments, not sum-certain.

55
Q

When can alimony be modified?

A

Alimony is modifiable upon a material change in economic circumstances.

56
Q

What is the purpose of alimony?

A

The purpose of alimony is to preserve so far as possible the economic status quo of the parties as it existed during the marriage.

57
Q

When does alimony cease?

A

Alimony ceases upon the death of either party, or upon the remarriage or cohabitation with opposite sex by the receiving party.

58
Q

How is alimony considered for tax purposes?

A

Alimony is tax deductible by the payor and taxable income on the payee.
In the event of bankruptcy, alimony is not dischargeable.

59
Q

What is the difference in Rehabilitative and Periodic alimony?

A

Rehabilitative alimony is intended to rehabilitate the spouse and allow for time to establish him/her self. Rehabilitative alimony has a 5-year time limit.
Periodic alimony is continual, purpose to maintain the economic status quo. Periodic alimony can not exceed the length of the marriage unless the marriage is over 20 years.

60
Q

Extraordinary costs of transportation for purposes of visitation borne substantially by ONE parent may justify ______________.

A

Deviating from child-support guidelines.

61
Q

A presumption of paternity may only be rebutted by what evidence?

A

Clear and Convincing evidence is required to rebut a presumption of paternity.

62
Q

A presumptive father holds WHAT against all others claiming paternity?

A

A presumptive shield.

63
Q

A divorce decree entered without jurisdiction over the parties is ___________

A

Void. A divorce decree enter without jurisdiction over the parties is void.

64
Q

What are the elements of prenuptial agreements?

A

1) Adequate consideration & entire agreement is just and reasonable
2) Freely and voluntarily entered with full knowledge of each estate and approximate value

65
Q

What if a party did not read a prenuptial agreement?

A

In the absence of fraud or misrepresentation, parties are bound by the terms of the agreement.

66
Q

How does Parol Evidence apply to prenuptial agreements?

A 
Unless fraud or ambiguity, parties are bound by the 4 corners of the agreement. 
Ambiguous terms (with 2 or more meanings) the court may look to surrounding circumstances.
67
Q

How does public policy impact prenuptial agreements?

A

Courts will consider public policy and sever terms against.

Ex. ‘agree not to file divorce’

68
Q

What are separation agreements called?

A

Postnuptial Agreements

69
Q

When may post-nuptial agreements be set aside?

A

Post-nuptial agreements may be set aside for fraud or duress.
Divorce is not duress.

70
Q

What is Rule nisi?

A

Rule nisi is how to enforce a violation of court order.

The paper contract is evidence of the agreement. It turns into a court order when entered by the court.

71
Q

What does a Court order have that an agreement (contract) does not?

A

A court order has contempt power.

72
Q

What is the difference for a motion for contempt and a petition for rule nisi?

A

A motion for contempt is during an ongoing case.

A petition for rule nisi is petition to enforce the court’s order (after case).

73
Q

What is an order pending a further order?

A

Pendente lite.

74
Q

How does the court hold oral agreements?

A

Oral agreements read into the record are binding on the parties.
Courts may reject an agreement.

75
Q

What happens to any claims or assets not addressed in an agreement?

A

The court presumes any claims or assets not addressed are intentionally not addressed.

76
Q

What is the result if parties remarry each other?

A

Prior agreements or orders are void.

Practical Family Law Sp2022 (1 decks)

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