Dom Rel Flashcards
(81 cards)
1
Q
Breach of Promise to Marry - TN
A
- 1 yr statute of limitations
- promise must be in writing OR proved by 2 disinterested witnesses
- not widely used today but still on the books
- party may seek redress for injury to reputation as well as reliance damages
2
Q
Defenses to Breach of Promise to Marry
A
A. Ill health of P
B. Previous unchastity of P if D didn’t know
C. Existing marriage of either party at time of promise if P knew about previous marriage
D. Insanity, duress, etc.
3
Q
Damages for Breach of Promise to Marry
A
- Compensation for financial loss
- Loss of reputation
- Mental suffering
- Punitive (if jury finds acts of D “willful and oppressive”)
- If D is over sixty, damages limited to P’s financial loss
4
Q
Strict Scrutiny
A
Where gov. must show that the challenged classification serves a compelling state interest and the the classification is necessary to serve that interest, and that the statute is narrowly drawn to accomplish that end
Suspect classifications:
1. Race
2. National origin
3. Religion (either under Equal Protection or Establishment)
5
Q
Middle-Tier Scrutiny
A
Gov. must show that the challenged classification serves an important state interest that the classification is at least substantially related to serving that interest.
Quasi-suspect classifications:
1. Gender
2. Illegitimacy
6
Q
Minimum Scrutiny (rational basis test)
A
Gov. need only show that the challenged classification is rationally related to serving a legitimate state interest
7
Q
Griswold v. Connecticut
A
Landmark case for idea of Right to privacy
- 1st Amend. freedom of association
- 3rd Amend. prohibiting quartering troops in a private home
- 4th Amend. protection against unreasonable searches and seizures
- 5th Amend. self incrimination, privacy of home against gov. intrusion
- 9th Amend. people have rights other than those in Constitution
8
Q
2 Types of Marriage Requirements
A
- Mandatory
2. Directory
9
Q
Mandatory Requirements
A
- Without following these, the ceremonial marriage is VOID ab initio
10
Q
Directory Requirements
A
- Without following these, marriage is VOIDABLE
11
Q
Void ab initio
A
- Bigamy
- Incest
- Interested parties can attack the validity of the marriage
- Validity may be attacked after death of a party
12
Q
2 Steps
A
- Declare void or voidable
2. Declare valid/invalid
13
Q
Incest
A
- Lineal ancestor or descendant
- Lineal ancestor of either parent
- Lineal descendant of husband or wife
- Lineal descendant of husband or wife of parent (stepparents, stepchildren, step siblings, daughter/son in law)
- Probably covers adopted children
Marriage is INVALID due to lack of capacity
14
Q
Bigamy
A
in TN there is a strong but rebuttable by CLEAR and CONVINCING presumption in favor of last marriage
15
Q
Marriage by Estoppel
A
- An equitable remedy where a court may, where there is a) and invalid marriage for whatever reason, but b) to declare that marriage invalid would result in unjust/inequitable result unless party receives relief
- avoids unfair result
- Cannot apply if both parties know about impediment
16
Q
Enoch Arden
A
- If a party disappears for two years and is thought to be dead, and the other party remarries, the returning party insist on restoration of conjugal rights or dissolution of the marriage
- Must be filed within one year of return
17
Q
Common Law Marriage
A
- 2 people must agree they are married
- Live together
- Present themselves as husband and wife
- Assumption of marital duties and obligations
- Permanent and exclusive of all others
- Recognized in only 9 states
18
Q
Mensa et thoro
A
- Legal separation
- Grounds are the same as divorce
- Unless other party objects, a legal separation shall be granted
- Should plead in the alternative to divorce
- Court may award spousal support, visitation of children
- May even permanently divide marital property, making after acquired property separate property
- STILL married, adultery may create grounds for divorce
- If parties fail to reconcile after two years, Court may grant divorce
19
Q
No fault divorce pros and cons
A
- Lessens fraud
- Lessens animosity
- Encourages cooperation
- Makes divorce easier and quicker
- Increased divorce rate
20
Q
Irreconcilable differences
A
- Parties must reach agreement that court accepts on all issues
- Service and answer may be waived so long as matter is resolved within 180 days of signature on waiver
21
Q
Grounds for divorce
A
- Legal separation 2 yrs
- Impotency
- Bigamy
- Adultery
- Desertion
- Felony conviction with confinement in pen
- Infamous crime conviction
- Attempt to kill spouse
- Refusal by one spouse to move to TN for 2 yrs
- Pregnancy upon marriage by another w/o knowledge of H
- Addict post-marriage
- Cruel/inhuman treatment
- Indignities
- Abandonment or kick out other with no support
- Separate residence
- Irreconcilable differences
22
Q
Cruel and inhuman treatment
A
- the willful, persistent causing of unnecessary suffering, whether by realization or apprehension, whether of the mind or body, in such a way as to render cohabitation unsafe unendurable
- false accusations of adultery
- false charges of sexual abuse
- abnormal sex
- browbeating and bullying
- attentions to persons of the opposite sex
- swearing at your spouse
- failure to provide suitable home and clothing
- holding a gun to spouse
- notice to merchants not to extend credit to spouse
- Making threatening phone calls
23
Q
No fault grounds for divorce
A
- Separation for more than 2 years
- if parties live apart and no minor children or
- even if minor children, if one of the general grounds for divorce exist and the parties remain separated 2 yrs after decree of legal separation - Irreconcilable differences
- must execute marital dissolution agreement
-
24
Q
Defenses to adultery
A
- Recrimination, plaintiff is also guilty of adultery
- Condonation - Plaintiff learned of D’s adultery and continued relationship
- Connivance - plaintiff hired wife out for prostitution
25
Residence requirements
A divorce may be granted for any of the causes referenced in 36-4-101 if the acts complained of were committed while the plaintiff was a bona fide resident of this state or if the acts complained of were committed out of this state and the plaintiff resided out of the state at the time, if the plaintiff or the defendant has resided in this state 6 months next preceding the filing of the complaint
26
Venue
Suit may be filed
1) where D resides
2) where parties resided at time of separation, or
3) if D is non-resident, county of P's residence
- Parties may agree to waive venue but court can veto that agreement
27
Automatic temporary injunctions
- Automatic injunction is in effect upon filing of a regular grounds divorce
- Injunction remains in effect until resolution of case or until suit is dissolved
- Parties restrained from:
1) Harassing/assaulting/threatening/abusing
2) making disparaging remarks to children or employers
3) relocating children more than 50 miles from marital home or outside state (unless moving party has well-founded fear of physical abuse)
28
Grandparent Rights
- Troxel
- Grandparents generally have no rights over the parent
- State may step in (parens patriae) to determine when health of child is in jeopardy
- Constitutional right to raise children free from overly invasive gov. interference
29
UCCJEA
- Uniform Child Custody Jurisdiction and Enforcement Act
- Home State Jurisdiction- Priority to child's home state or home state at some time in last 6 months
- Significant Contact Jurisdiction - child has no home state, another state may exercise jurisdiction if child has sufficient ties to that state
- Forum Non-Conveniens - when home state and significant connection state decline jurisdiction in favor of more appropriate state
- Vacuum jurisdiction - no appropriate jurisdiction, alternative court may exercise jurisdiction
- Emergency jurisdiction - temporary for when child has been abandoned or because child/sibling/parent has been threatened
30
Temporary order of enforcement
A court without jurisdiction may issue temporary order enforcing
1) visitation schedule made by court of another state or
2) visitation provisions of child custody determination of another state that does not provide for specific visitation schedule
31
Registration of foreign decrees
Child custody determination issued by court of another state may be registered in this state with or without a simultaneous request for enforcement, by sending to the appropriate court in this state
32
Enforcement
After court receives request to register the court shall:
1) file order as foreign judgment
2) serve notice on persons affected to allow them to contest registration
3) Notice must state that order is enforceable as an order from this state from day of registration
4) hearing must be requested if affected persons want to contest registration within 20 days
5) If no complaint within 20 days, order will be confirmed and preclude further contest
33
Bases for contesting order
1) court lacks jurisdiction
2) Custody determination has been vacated, stayed, or modified by a court with jurisdiction
3) person contesting registration was not given proper notice
If no contest, order is confirmed and everyone is notified, and complainants waive any of the issues they could have raised
.
34
PKPA
Parental Kidnapping Prevention Act
- Home state jurisdiction trumps significant connection
- Significant connection trumps inconvenient forum
35
UCCJEA - petition to modify another state's custody determination
3-part threshold jurisdictional analysis
1) Court must decide whether the state that made the initial custody determination remains exclusive, continuing jurisdiction
2) court must decide whether it would have jurisdiction to make an initial custody determination under present circumstances. The court has SMJ to modify other state's child custody determination only if the other state has lost exclusive continuing jurisdiction or or declined to exercise it and the court of new state would have jurisdiction to make an initial custody determination under present circumstances
After first 2 steps,
3) determine whether it may or must decline to exercise its modification jurisdiction on one of the three grounds specified in UCCLEA
36
Losing exclusive continuing jurisdiction
1) if a court of that state determined that neither child nor at least one parent continues to have significant connection with state
2) if court of any state determines that any party do not presently reside in state
37
Typical income shares child support
1) parent-child relationship, parent has right/duty to control and support child until 18
2) Parent must support children past 18 if still in high school
3) Child support may continue beyond for disabled child
4) child support must be for specific amount but may not be based on percentage of obligor's income
5) Support order must contain basic info of both parties
6) Support obligation is separate from any orders granting visitation
38
Typical income shares child support continued
7) deviation from Dept. of human services regulations require written finding based on proof that application would be unjust/inappropriate
8) Income shares requires percentage be derived from incomes of both parents, agreement for less is void unless court gives approval
9) income may be imputed when no reliable evidence of income or voluntary unemployed/underemployed, non-income producing assets
10) income includes almost any income except employer contributions, retirement, health benefits, marital property
39
Modification
Only allowed when:
1) 15% or greater change in non-residential parent's gross income
2) change in number of children
3) child becomes disabled
4) Parents enter into agreed order to modify according to guidelines and submit worksheets
Modification may occur if current child support is at least $100 per month and proposed change is $15.00 per month or greater.
Accrued arrearages are not a defense to modification.
40
Civil coercive contempt
- defendant is able to purge the contempt remedy and avoid consequence by complying with court's order
41
Summary contempt
- immediate punishment for a threat to court's authority, such as speaking out of turn when having been previously admonished by the court to remain silent or face contempt
42
Criminal contempt
- to punish Defendant for past violation of an order with a fixes, determinate sentence and fines
- any penalty of incarceration for 6 months or longer requires full range of criminal protections including jury trial
43
UIFSA home state
Uniform Interstate Family Support Act
- Home state: state which child lived with parent at least 6 months immediately preceding time of filing petition or pleading
44
UIFSA bases for jurisdiction
In child support proceeding, a tribunal of this state may exercise personal jurisdiction over nonresident if:
1) individual is personally served in state
2) consents to jurisdiction
3) resided with child in state
4) resided in state and provided prenatal expenses or support
5) child resides in state as result of acts or directives of individual
6) engaged in sexual intercourse in state that could have conceived the child
7) individual asserted parentage in putative father registry in this state
8) any other basis consistent with the constitutions of this state
45
UIFSA contest of registration or enforcement
Party contesting has burden of proving one or more of the following:
1) issuing tribunal lacked PJ
2) order was obtained by fraud
3) order has been vacated, suspended or modified by later order
4) issuing tribunal has stayed the order pending appeal
5) defense under the law of this state to remedy sought
6) full or partial payment has been made
7) statute of limitation precludes enforcement
46
UIFSA modification of child support of another state
After child support has been registered in state, the responding tribunal may modify order only if:
1) child, individual obligee, and obligor do not reside in issuing state
2) petitioner who is nonresident of state seeks modification
3) respondent is subject to personal jurisdiction of the tribunal of this state
or
47
UIFSA modification of child support of another state continued
A) a party is subject to PJ of the tribunal of this state and all parties have written consents in issuing tribunal for this state to modify
b) modification is subject to same requirements, procedures, defenses
c) tribunal of this state may not modify any aspect that may not be modified under the law of issuing state including duration of obligation of support
d) law of state that issued initial order governs duration of obligation
e) tribunal of this state becomes the tribunal having continuing exclusive jurisdiction
48
UIFSA petition to establish support order
(a) If support order has not been issued, a responding tribunal of this state may issue if:
1) individual seeking order resides in another state or
2) support enforcement agency seeking the order is located in another state
(b) tribunal may issue temporary order if:
1) respondent signed verified statement acknowledging parentage
2) respondent has been determined by or pursuant to law
3) other clear and convincing evidence of parentage
49
UIFSA enforcement and modification of support order
A tribunal of this state which lacks continuing, exclusive jurisdiction over a spousal support order may not serve as a responding tribunal to modify a spousal support order of another state
50
UIFSA Limited immunity of petitioner
- Participation by petitioner in a proceeding before a responding tribunal does not confer personal jurisdiction in another proceeding
- petitioner is not amenable to service of civil process while in the state to participate in proceeding
- immunity does not extend to unrelated civil litigation
51
Spousal maintenance factors
1) need of disadvantaged spouse and
| 2) obligor's ability to pay
52
Income withholding
- Court may withhold alimony from wages
| - May not exceed 50% of employee's income
53
Alimony in futuro
- periodic alimony
- payment of support and maintenance on a long-term basis or until death/remarriage of recipient
- can be made in addition to rehabilitative alimony or instead of
54
Cohabitation
In all cases where person is receiving alimony in futuro and recipient lives with third person, a rebuttable presumption is raised that:
- third person is contributing to the support of recipient and recipient does not need the same amount of support
55
Alimony in solido
- Lump sum alimony
- support whose amount is set on the date of divorce in a lump sum of cash, periodic payments or in property
- No provision states that this alimony will terminate upon cohabitation
- does NOT terminate upon death or remarriage
- cannot be modified except by agreement of the parties
56
Rehabilitative alimony
- designed to assist economically disadvantaged spouse in acquiring reasonable additional education or training to hopefully enable a comparable standard of living
- terminates upon death
- modification based on substantial and material change of circumstances
57
Transitional alimony
- short term alimony awarded when rehabilitative is not required but disadvantaged spouse needs assistance adjusting
- terminates on death
- cohabitation : rebuttable presumption that third person is contributing to support and court should suspend all or part of alimony
- no modification unless agreed to in writing by parties
58
Modification of alimony
- person wishing to modify has the burden of proving (by preponderance) that there has been a substantial and material change of circumstances
- followed by a showing that the requested modification is appraise under the circumstances
59
Non-marital / separate property
- any property owned by a party at the time of or prior to marriage
- any property obtained through gift, bequest or devise during or prior to marriage
- tort awards for pain, suffering, or future medical expenses or future lost wages
- victims of crime compensation awards
- disability insurance payments that replace lost future wages
- income from separate property
- appreciation in value of separate property unless property becomes marital under doctrine of transmutation
60
Marital property
- all real, personal, tangible or intangible property acquired by either or both of the spouses during the marriage, to the date of the final decree of divorce and
- owned by either or both at the time of filing the complaint, including any property to which a right was acquired up to the date of the final divorce hearing and valued as of a date as near as reasonably possible to the final divorce hearing date
61
Divisible marital property rights
- professional license: generally not marital property,
- net asset value of a professional practice IS marital property but earning capacity is NOT.
- retirement: IS marital property
62
Tracing
If you can trace property from a time when that property was separate, you will be awarded the value of your separate property interest
63
Transmutation
Marital property may become separate property and vice versa based on intent of the parties
- gifts generally separate property
64
Statutory transmutation
where separate property receives income or increases in value during the marriage if each party substantially contributed to its preservation and appreciation
65
Substantial contribution
may include direct or indirect contribution of a spouse as homemaker, wage earner, parent or family financial manager
66
Commingling
Separate property may also become marital property when the separate property becomes inextricably mingled with marital property
67
Equitable division
- does NOT mean equal
| - in short term marriages, merely restore the parties to their pre-marital status
68
Debts
- individual will be held responsible for separate debts, typically those brought into marriage
- debts incurred during the marriage are generally marital debts
69
Who is responsible for marital debts
Courts consider:
1) the debts purpose
2) who incurred the debt
3) who benefitted from the debt
4) who is best able to repay the debt
70
Factors for division of property
1) duration of the marriage
2) age, physical and mental health, vocational skills, employability, earning capacity, estate, financial liabilities and financial needs of the parties
3) Tangible or intangible contribution by one party to the education, training, or increased earning party of the other party
4) relative ability of each party for future acquisitions of capital assets and income
5) (a) contribution of each party to acquisition, preservation, appreciation, depreciation or dissipation of martial or separate property if each party has fulfilled its role
71
Factors for division of property continued
6) value of separate property of each party
7) estate of each party at the time of the marriage
8) Economic circumstances of each party at the time the division of property is to become effective
9) Tax consequences to each party
10) Amount of social security benefits available to each spouse
11) other factors necessary to consider equities between parties
72
4 Horsemen of Property Division
I Can't Value Dancing
1) Identification (location)
2) Characterization
3) Valuation
4) Distribution
I Can't Value Dancing
73
Division of property fault
No regard to marital fault in proportions as the court deems just
74
The House
Court may award family home and household effects or the right to live therein for reasonable period but shall give special consideration to spouse having physical custody of children
75
Alimony vs. property division
Property division comes before alimony so that the division of assets can be considered in the alimony determination
76
Prenuptial / ante nuptial agreements
Fly Kites w/ Good Friends When Dogs Understand Iceland
- agreement entered into by spouses concerning property owned by either spouse before the marriage that is the subject of such agreement shall be binding upon any court having jurisdiction to have been entered into by such spouses
1) freely,
2) knowledgeably, and
3) in good faith and
4) without exertion of duress or undue influence
77
Proving enforceability
- spouse seeking to enforce agreement must prove by preponderance of the evidence that
1) a full and fair disclosure of the nature, extent, and value of his or her holdings was provided to the spouse seeking to avoid the agreement or
2) that disclosure was unnecessary because the spouse seeking to avoid the agreement had independent knowledge of the full nature, extent, and value of the proponent spouse's holdings
78
Full and fair disclosure
Factors:
1) relative sophistication of the parties
2) apparent fairness or unfairness of the substantive terms of the agreement
3) any other circumstance unique to the parties and their specific situation
Does not require each and every asset be revealed with complete exactness but does require each party be given clear idea of the nature, extent and value of the other party's property and resources
79
How to ensure enforceability
1) audio recordings
2) attached asset and debt schedules
3) separate counsel
80
Expunction of divorce records
Parties who have reconciled and dismissed cause of action may thereafter file an agreed sworn petition signed by both parties and notarized requesting expunction of divorce records
81
Best interests of the child standard for custody
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- BOP: Preponderance of the evidence
Factors:
1) child's preference
2) cohabitation
3) disability of parent
4) domestic violence
5) gender of parent (tender years)
6) natural parent
7) post separation sexual relationships
8) religion
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