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MEE > Family Law > Flashcards

Family Law Flashcards

1
Q

Getting Married

Parties may not have a prior ___ marriage to a living spouse

A

Undissolved

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2
Q

Getting Married

What Are the Procedural Requirements for a Marriage?

A
  1. License
  2. Solemnization
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3
Q

Getting Married

What Are the Requirements for a Common Law Marriage?

3 Requirements

A
  1. Consent between two people with capacity
  2. Cohabitation (no specified time is required)
  3. Couple holds themselves out to the public as spouses

A valid common law marriage will be regarded as valid in those states that dont recognize them

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4
Q

Getting Married

What Are the Requirements for an Enforceable Premarital Contract?

4 reqs

A
  1. The agreement must be entered into voluntarily
  2. The contract must be in writing and signed by the party to be charged
  3. Both parties must make a full and fair disclosure of their financial worth
  4. The economic provisions must be fair and reasonable
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5
Q

Termination of Marriage

Bigamy renders a marriage:

A

Void

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6
Q

Termination of Marriage

Polygamy renders a marriage:

A

Void

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7
Q

Termination of Marriage

Mental incompetence renders a marriage:

A

Voidable

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8
Q

Termination of Marriage

Lack of assent renders a marriage

A

Voidable

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9
Q

Termination of Marriage

Duress renders a marriage:

A

Voidable

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10
Q

Termination of Marriage

Fraud involving the essential elements of marriage renders the marriage:

A

Voidable

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11
Q

Termination of Marriage

Adultery, willfull desertion, extreme physical and mental cruelty, drug/alcohol addiction, and mental illness are all examples of typical:

A

Fault grounds for divorce

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12
Q

Termination of Marriage

What are the 4 traditional defenses to fault grounds?

CCC,R

A
  1. Collusion
  2. Connivance (consent to misconduct)
  3. Condonation (forgiveness)
  4. Recrimination (both parties are guilty)
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13
Q

Termination of Marriage

Jurisdiction for a divorce action is proper where:

A

the party is a bona fide resident of that state

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14
Q

Termination of Marriage

Venue for a divorce action is proper:

A

In the county where the spouses usually reside

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15
Q

Termination of Marriage

As long as one party is domiciled in the state that granted a divorce, the divorce decree is:

A

Valid in all other states

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16
Q

Termination of Marriage

Provisions of the decree relating to property rights, spousal support, child support,etc., are given full faith and credit only if:

A

the court had personal jurisdiction over the defendant

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17
Q

Termination of Marriage

The ___ approach to dividing property provides that all property acquired during the marriage is deemed owned by ____ and all prop brought into the marriage by gift/bequest is ____

A

Community property

1/2 by each spouse

Separate property

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18
Q

Termination of Marriage

The ___ approach to dividing property provides that all property is owned by either spouse, whether acquired before or after the marriage.

A

Equitable division

not equal, but equitable

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19
Q

Termination of Marriage

The most common approach to dividing prop is:

A

equitable division of MARITAL property

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20
Q

Termination of Marriage

Marital property is all property acquired by either spouse during the marriage except:

A
  1. Property acquired through gift, bequest, devise, or descent

2 Property acquired in exchange for property that a spouse owned before the marriage or acquired through gift, bequest, devise, or descent

  1. The income from or appreciation of property that a spouse owned before the marriage or acquired through gift, bequest, devise, or descent, unless either spouse contributed to the property’s increase in value

Separate property is includes (mnemonic = “BIG”) property acquired Before the marriage,
an Inheritance, or a Gift to one party

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21
Q

Termination of Marriage

Separate property may become marital property if:

A
  1. it is inextricably mingled to the extent that it can no longer be traced (commingling) or
  2. is treated in a way that evidences an intention for the property to be marital property (transmutation)
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22
Q

Termination of Marriage

What 3 most important Factors will Court Consider in Awarding Spousal Support?

A

Almost all states require the trial court to consider:
1. the parties’ financial resources and needs,
2. marital contributions, and
3. marital duration

The trial court has substantial discretion in choosing to award alimony.

Court may also consider time needed for the party seeking support to obtain the training necessary to find appropriate employment, ability of the payor spouse to meet his needs while paying spousal support & Marital fault (only in some states)

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23
Q

Termination of Marriage

____ is paid regularly (e.g., monthly) to support a spouse who has neither the resources nor the ability to be self-sustaining

A

Permanent periodic spousal support

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24
Q

Termination of Marriage

____ is periodic payments for a limited time to enable a spouse to gain skills to become self-supporting

A

Rehabilitative spousal support

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25
Q

Termination of Marriage

___ is a nonmodifiable, fixed amount payable either all at once or broken down into a series of payments

A

Lump sum payment

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26
Q

Termination of Marriage

___ is awarded to a spouse who supported the other spouse while the latter obtained a professional license or degree

A

Reimbursement spousal support

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27
Q

Child Custody

The most important jurisdictional test is what state is the child’s:

The UCCJEA

A

Home state

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28
Q

Child Custody

A child’s home state is the state in which the child:

A

lived with a parent (or a person acting as a parent) for at least 6 consecutive months immediately before the commencement of the proceeding

(if the child is less than six months old, the home state is where the child has lived since birth)

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29
Q

Child Custody

A court has jurisdiction to initially enter or to modify a child custody or visitation order if the state is the child’s home state, or:

A

was the child’s home state within the past six months and the child is absent from the state, but a parent or person acting as a parent (e.g., guardian) continues to live in the state

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30
Q

Child Custody

The standard to be applied in awarding custody is:

A

Best interest of the child

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31
Q

Child Custody

T/F: Custody orders are never modifiable

A

False.
Custody orders are always modifiable if there is a substantial or material change in circumstances

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32
Q

Child Custody

It is a strong policy of the law to promote the relationship between the child and both parents by ensuring that both parents have:

A

reasonable visitation rights

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33
Q

Child Custody

A custodial parent may not withhold visitation from a noncustodial parent because of:

A

a failure to pay child support

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34
Q

Child Custody

Courts presume that a fit parent’s decision regarding ____ is in the child’s best interest, and this decision must be given deference

A

third-party visitation

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35
Q

Parentage

Most statutes provide that any child is the lawful child of his:

A

Mother

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36
Q

Parentage

A ____ may be brought by the child’s mother, the child, or by state agencies if the child is receiving support from the state

A

paternity suit

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37
Q

Parentage

Statutes often provide that a child is also the lawful child of his father if:

M,M,HO,C,AP,JD

A
  1. parents were married at time of birth
  2. parents were married shortly after childs birth
  3. father holds child out as bio child
  4. father consents to be named on the birth certificate
  5. father has acknowledged paternity
  6. there has been a judicial decree
38
Q

Parentage

The first step of adoption is:

A

termination of the bio parents rights

39
Q

Parentage

The second step of adoption is:

A

creation of a new legal parent-child relationship

40
Q

Terminating Bio Parents Rights

Consent of the bio parents is:

A

generally required

41
Q

Terminating Bio Parents Rights

Consent from bio parents not required if:

A

parental rights were terminated in another proceeding

42
Q

Terminating Bio Parents Rights

Consent from bio parents may be waived if the court determines:

A

it is being unreasonably withheld against the best interest of the child

43
Q

Terminating Bio Parents Rights

Consent of the father of a non-martial child may not be required if he:

A

has not established a relationship w/ the child

44
Q

Requirements of a valip premartial agreement under the UPAA

A
45
Q

Choice of Law for Premartial Agreements

A

State law of the state with most connections or where agreement was executed

46
Q

The failure to meet procedural requirements of a license (will/will not) invalidate the marriage

A

Will not

47
Q

At the time of the marriage ceremony, the parties must have:

A

Mental ability to consent

Age may be a consideration

Parties must understand their actions and voluntarily agree to them

48
Q

Putative Marriage (marriage by estoppel)

A
49
Q

Doctrine of necessaries

A
50
Q

Ex parte protective orders

A
51
Q

Claims against a 3rd party

Requirements of Alienation of Affection

A
  1. genuine love and affection between married spouses (valid marriage)
  2. love and affection was destroyed
  3. D’s actions caused the destruction of love and affection

Adultery not required.

52
Q

Claims against a 3rd party

Requirements of Criminal Conversation

A
  1. valid marriage
  2. adultery between D and spouse
53
Q

Annulment declares a marriage invalid because of:

A

an impediment that existed at the time of the marriage that renders it legally void or voidable

54
Q

Void marriage exists where the parties fail to:

A

meet an essential requirement of marriage

55
Q

An annulment decree treats the parties as:

A

though they were never married

56
Q

Removing the impediment

A
57
Q

Define voidable marriage

A
58
Q

Issues that can make a marriage voidable

A
59
Q

Ratification

A
60
Q

To prove adultery, the filing spouse must present circumstanital evidence of:

A
  1. opportunity
  2. inclination
61
Q

The only defense to a no-fault divorce is to:

A

deny the existence of the traditional grounds for no fault divorce

62
Q

legal separation

A
63
Q

two step process in property division

A
64
Q

separate property includes:

A

pain and suffering award
personal damages
etc etc .add the rest

65
Q

Martial prop includes

material prop is all other prop acquired during the marriage

A
  1. pop acquired during marriage
  2. earnings
  3. employment benefits, pensions, stock option
66
Q

The portion of a pension earned ___ is marital proprty subject to distribtuion

A

During the marriage

67
Q

Professional licenses or degrees are not considered marital property unless:

A

1 spouse put the other spouse through school and that spouse will be awarded through alimony

68
Q

T/F: Property divison is not considered a taxable event

A

True

69
Q

Marital fault doesnt affect prop distribtuion but it may affect:

A

Alimony

70
Q

Marital fault may affect prop distribution when:

A
  1. cheating spouse is buying gifts for their mistress
  2. spouse has gambling issues
71
Q

When does periodic spousal support terminate?

A
  1. Upon the remarriage of the recipient spouse or
  2. the death of either spouse
72
Q

Most jxs will terminate spousal support if:

A

the recipient spouse is cohabitating with someone in a marriage-like relationship

73
Q

These two types of spousal support are not modifiable and survive the death of either spouse

A
  1. lump sum
  2. reimbursement support
74
Q

T/F: Spousal support is not a taxable event

A

True

75
Q

For spousal support payments exeucted before 2019, payments are deductible by the ___ and income to the ___ unless the instument is modified to reflect the current nontaxable rule

A

payor

recipient

76
Q

What are the 4 types of alimony?

A
  1. lump sum
    2.
77
Q

Periodic spousal support may be modified if there is a

A

substantial change in circumstances regarding needs of recipient or ability of payor to pay

This is the only one that can be modified

78
Q

The two main considerations when awarding alimony are:

A
  1. the needs of the claimant
  2. ability of the other spouse to pay
79
Q

The purpose of spousal support/alimony is to ensure that the dependent spouse has:

A

an adequate income stream to meet their needs

not necessarily to keep their same lifestyle

80
Q

Some factors to consider when awarding spousal support are:

A
  • standard of living established during marriage
  • duration of the marriage
  • age
81
Q

The court has great discretion in awarding as much spousal support as necessary for the maintenance of the requesting spouse

A

Just remember this

82
Q

To determine the type of support on an exam, a ___ is specified as a total amount

A

lump sum support

83
Q

To determine the type of support on an exam, a ___ is set out in periodic payments with no grand total

2 types

A

periodic support
rehabilitative support

84
Q

Child support cannot be modified ___, only ____

A

retroactively
prospectively

85
Q

Child support is modifiable based on a:

A

substantial change in circumstances

86
Q

Under the Full Faith and Credit for Child Support Order Act full faith and credit must be given to another court’s child support order if:

3 req

A
  1. the court had jurisdiction over the matter and
  2. the parties and the parties had reasonable notice and
  3. an opportunity to be heard.
87
Q

A state can enforce another states order even if they dont have jurisdiction over the parent under the:

A

Uniform Interstate Family Support Act

Under UIFSA, a state without jurisdiction can serve as an intitiaing tribunal to request the court that does have jurisdiction to enforce or modify the order issued in that state.

88
Q

Removal of a child from the jurisdiction is a substantial, material change of circumstances warranting:

A

Modification of a custody order

89
Q

Under the UCCJEA, the court that makes the intital custody determination has continuing, exclusive, jurisdiction over the matter until the court determines that:

A
  1. neither the child not the parents continue to reside in the state or
  2. the child no longer has a significant connection with the state and
  3. substantial evidence relating to the child’s care, protection, training, and personal relationships is no longer available in the state
90
Q

Which court may dissolve a marriage?

A

The court does not need jurisdiction over both spouses to terminate a marriage. If the plaintiff spouse is domiciled in the forum state or if the state has some other equivalent long-term connection between at least one of the parties to the marriage, then that court has jurisdiction to dissolve the plaintiff’s marriage.

91
Q

Which court may issue a property division order?

A

unless the court has jurisdiction over the defendant spouse, it may not issue a binding property division or support order.

MEE (6 decks)

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