Essay Flashcards
Can gifts be made conditioned on a subsequent marraige?
Yes
If a marriage is called off, how does that affect a gift conditioned on marraige? Does the type of gift matter?
The gift becomes incomplete, but depends on the type of property given, conditions attached, and the intent of the donor
When will a waiver of alimony be held up?
when doing so will cause the disadvantaged spouse to become a public charge
Can a court be bound by provisions in premarital agreements regarding children?
No, the have discretion to act in the best interest of the child
When are premarital agreements valid?
Must be:
1) in writing
2) entered into voluntarily
3) full disclosure of asses OR proof that party had independent knowledge
Some courts will consider general fairness and whether the parties were represented by independent counsel
What are the requirements for a marriage license?
Some state require a medical certificate showing no disease
MOST states provide a 72-hour waiting period after the application before the ceremony can take place
Will a defect in the marriage license invalidate the marriage?
No
What are the requirements for marriage?
1) license
2) ceremony with authorized officiant
3) no legal impediments to marriage
4) capacity to consent
What are legal impediments to marriage?
When the parties are too closely related (1st cousins are permitted in some states)
Bigamy
When does someone has capacity to consent to marraige?
The mental ability to consent at the time of the ceremony
age of majority
Can someone under the age of 18 get married?
if 16-17, then with parental consent
if under 16, judicial consent is required
What are the three requirements to common law marriage?
1) Consent to marriage (not just to cohabitate)
2) cohabitation
3) holding yourself publicly as spouses (joint tax returns/joint health insurance)
What is the doctrine of necessities?
When, in the event of separation, one spouse is made liable to third parties for the other spouse’s purchases for necessary
expenses, such as food, clothing, and health care.
When is a marriage void?
When it fails to meet the essential requirements
Who can attack a void marriage?
One of the parties
OR
Collaterally by a third party (like an ins co)
When is a marriage voidable?
When an event or condition affects the adequacy of consent to marriage contract (like bigamy)
Can a void marriage be remedied by continued co habitation?
Can a voidable marriage?
Void marriage - in some states and under the Uniform Marriage and Divorce Act
Voidable Marriage - in some state only by the party who is seeking protection
What is the jurisdiction requirement for divorce?
One of the spouses must be domiciled in the state seeking to enter divorce
When is there a presumption of domicile for purposes of divorce?
If a spouse is a resident of the state for a minimum period of time (generally, 90 days - 6 mo)
What is the jurisdiction requirement for determining financial issues (property rights and support)?
The court must have personal jurisdiction over both parties
What are the two grounds for divorce?
No-fault
AND
Fault
When is a no fault divorce allowed?
Requires proof of:
1) irreconcilable differences
2) bilaterally living separate and apart for a continuous, specified time period
3) incompatiblility
Under what grounds will a fault based divorce be granted?
1) adultery
2) desertion for a specified period of time
3) cruelty
4) habitual drunkenness or abuse of drugs commencing AFTER marriage
5) insanity
What does desertion mean for purposes of a fault based divorce?
must be an unjustifiable departure from the marital home with no intent to return
Are there any defenses for a no fault divorce?
Generally no, but one spouse can claim reconciliation to restart the time clock for
living separate and apart.
What are the defenses for a fault based divorce?
1) collusion, where the parties agree to simulate the grounds for divorce
2) connivance, the plaintiff willingly consented to the other spouse’s misconduct
3) Condonation, plaintiff forgave the marital offense with full knowledge of it
4) recrimination, the plaintiff is also guilty of marital fault
What does condonation generally require for purposes of a fault based divorce?
sex after forgiveness
is legal separation permitted on the same grounds as divorce?
Often, yes
Can the court permanently divide marital property when legal separation is granted?
Yes, it MAY, and if so after acquired property is separate property
What are the three main approaches to divide property?
Community property - all property acquired during marriage owned by each spouse and property owned before is separate
Equitable division of all property owned by either spouse [min]
Equitable division of marital property [maj] - each spouse takes his separate property and the property acquired during marriage is divided equitably
What does separate property include?
All property owned by a spouse before marriage
Property acquired at any time by gift, bequest, devise, or descent
Property acquired in exchange for property acquired before marriage
income from and appreciation of separate property
pain and suffering awards/victim of crime compensation awards/future medical expenses/future lost wages
property acquired by spouse after an order of legal separation where the court has made a final disposition of property
WHat does marital property include?
All property acquired by either or both spouses during marriage up to the final divorce decree (some states use the date of separation or the date of filing for divorce)
Includes value of vested and unvested pension, vested and unvested stock option rights, retirement or other fringe benefit rights relating to employment that accrued during the period of the marriage.
actions for lost wages during the marriage
reimbursement for medical bills incurred and paid with marital property and property damage to marital property
When can separate property be considered marital property?
Commingling
transmutation of separate property
improvement of separate property
What is commingling for purposes of classifying marital property?
separate property can become marital if the property is inextricably intertwined
What is transmutation for purposes of classifying marital property?
separate property can become marital property based on the intent of the parties
What is improvement of separate property for purposes of classifying marital property?
When separate property is improved by the use of marital funds or the efforts of either spouse
UNLESS the inrease was due to market factors and not the contribution of either spouse
How has property acquired before marriage but paid for after marriage treated for purposes of classifying marital property?
[maj] - property should be apportioned between separate and marital estates in proportion to the contribution of separate and marital funds to pay for the property
[min] - asset remains separate property when title was transferred but the funds used to pay off the reimbursement exists for the non owning spouse for half of marital funds
How are pension dollars treated for purposes of classifying marital property?
they are considered marital property subject to division
Are professional licenses considered marital property subject to division?
No, but some courts will consider it when awarding alimony to avoid unfairness
Some states value the degree and then award more property or alimony to the other spouse based on the valuation
Is property division a taxable event?
No
What are the factors considered in making an equitable division?
1) Age, education, background, and earning capabilities of both
parties
2) Duration of the marriage
3) Present income of both parties, and their vocational skills and
employability
4) Health of parties
5) Provisions for the custody of minor children
6) Whether the distribution is in lieu of or in addition to alimony
7) Each party’s contribution to the acquisition of, or
enhancement of the existing marital assets
8) Whether each party has dissipated marital property
(economic fault).
What are the fours types of alimony?
1) permanent periodic support
2) lump sum support
3) rehabilitative support
4) reimbursement support
What type of alimony support is indefinite?
permanent periodic support
What type of alimony can be modified?
Permanent periodic support and rehabilitative support
UPON proof of substantial change of circumstances
When are lump sum alimony payments used?
in high acrimony cases or cases involving elders
When are rehabilitative support alimony payments used?
to allow a spouse to gain education or skills
When are reimbursement support alimony payments used?
as repayment for a supporting spouse’s contribution to the increased education provided to the other spouse
What are the factors considered when awarding alimony?
1) standard of living
2) duration of marraige
3) financial resources of each party
4) contribution to the marriage
5) time needed to obtain education or training
6) ability of payor spouse to meet needs and pay support
7) age and physical emotional conditions of both parties
NOTE: some courts consider marital fault
What are the two primary considerations when awarding alimony?
the need of the claimant spouse
AND
ability of the other spouse to pay
When is spousal support modifiable?
based on the substantial and continuing change of circumstance affecting the needs of the recipient spouse or the ability of the other spouse to pay
Will a voluntary reduction in income be sufficient to reduce the obligation (like leaving a job or incarceration)?
No
When do periodic payments terminate?
remarriage, death of wither spouse
In some jd, cohabitation with another person
Do lump sum awards survive death? are they modifiable?
Yes
No
Are spousal support payments income/deductible for purposes of tax liabilty?
Support payments arising after 2019 are NOT
Support payments arising before 2019 ARE, unless the instrument is modified to comport with the new rule
What is required for separation agreements?
full and fair disclosure
AND
entered into voluntarily
What provisions of a separation can parties waive?
alimony & property division
They can agree on child custody, but the court is not bound by it
When does a separation agreement become merged into a divorce decree?
Can it be modified? Any contempt implications?
If the divorce decree includes the terms of the agreement or
expressly merges them, the provisions become part of the court
order.
It is modifiable by the court and subject to contempt.
When does a separation agreement not merge with a divorce decree and rendered nonmodifiable?
Is it enforceable?
If the parties do not submit the agreement to the court. In such case, it is rendered nonmodifiable
It is enforceable only by contract remedies
When are contracts to cohabitate invalid?
When sex is the only consideration
What are the duties owed by parents to support their children?
to support the kids based on the kid’s need and ability of the parent to pay
What approach is generally applied when determining child support? How does it work?
The income shares approach, which considers the number of children and the income of the parents to determine the base line of child support
Is child support paid independent of visitation?
yes
When does child support generally terminate?
age of majority
death of child
emancipation of child
termination of parental rights
Will child support ever continue past the age of majority?
Some states will do so if the child is still in high school or until they complete college
Most states wont extend child support to pay for college unless agreed on by the parties or provided by statute
What state has original jurisdiction over child support?
the jurisdiction in which the petition was filed
What jurisdiction can enforce a child support order?
the issuing court has issuing jd
When can a court other than the issuing court enforce child support?
Via direct enforcement, when the obligee mails the order to the obligor’s employer in another state and the employer withholds the obligor’s wages
via registration, when thec child support order is registered in another state and is then subject to enforcement in that state
Are state required to give full faith and credit to child support awards from other states?
Yes, under fed law and the UIFSA
When cant an issuing state modify a child support order? What happens?
when no parties reside in the issuing state or the parties consent to another state’s jd - a nonissuing state has jd to modify
What standard is applied when modifying child support orders?
there must be a substantial and continuing change of circumstances based on the needs of the child or the ability of the parents to pay
What court has jurisdiction for the initial award of child custody?
The home state
How is the home state determined?
EIther:
1) where the child has lived with a parent for at least 6 consecutive months
OR
2) the state that was the child’s home state within the last 6 mo and the child is absent from the state , but the parent continues to live in that state
What if there is no home state?
a court can assume jd if the child has a significant connection with the state and there is substantial evidence of the child’s well-being in the state
What if the the home state and the state w/ significant connections denies jd?
a state may exercise deferred jd
What if no other state exercises jd?
any state can exercise jd by default
When cant a court exercise jd for child custody?
1) a proper proceeding was already pending elsewhere when petition is filed, unless the other court defers
OR
2) the person seeking to invoke the ct jd has engaged in unjustifiable conduct
When can a court decline to exercise jd?
if it determines it is an inconvenient forum
What are the requirements for temporary emergency jd?
1) child physically present
AND
2) child has been abandoned OR it is necessary to protect child because child, sibling, or parent is subject to abuse
What is the hallmark consideration in any custody or visitation case?
Best interest of the child
What are the factors considered when determining child custody?
1) The wishes of the parents
2) the preference of the child
3) the relationship of the child with the parents and siblings and others involved with the parents
4) the child’s adjustment to home, school, and community
5) the mental and physical health of the parties
6) parent who was the primary caregiver
Does the trial court have discretion to determine custody and visitation?
yes, a great deal
What right regarding child custody is constitutionally protected?
The wishes of the parent
What are the standards for determining the preference of a child for purposes of child custody?
Children under the age of 8 get no consideration
Children over the age of 12 are given great consideration
What are the four types of custody and visitation awards?
1) joint custody
2) sole custody
3) custody to a nonparent
4) visitation
When will joint custody be awarded? When wont it be?
Encouraged in most jd ad awarded if parents agree
Not awarded when parents are openly hostile or unable to communicate
When will sole custody be awarded?
When strong evidence demonstrates that it is in the best interest of the child in the best interest of the child
When wont a parent be entitled to visitation in a sole custody case?
when harm to the child will result
When will custody be given to a nonparent?
when the nonparent can show harm to the child or unfitness
ex// abondonment, neglect, abuse, surrendered custody
When will courts deny or restrict visitation?
if injury to the child may result
when will a court grant non parent visitation?
in extraordinary cases such as divorce, separation, or death
What was the holding of Troxel v. Granville
if a parent is fit, their wishes on non-parent visitation are constitutionally protected and must be given “special weight”
When will custody be modified?
when there is substantial and material change of circumstances affecting the child’s well-being
Is there a waiting period for modifying a child custody order?
Generally, state require a certain amount of time (1 to 2 years) to lapse since entry of the order UNLESS the child’s present environment is harmful to the child
How can biological relationships and issues of paternity be settled?
via parentage action
What happens when parentage is established?
the parent owes support and has rights of custody and visitation
When is parentage presumed?
The husband of the mother is presumed to be the father if:
1) the child is born during the marriage; OR
2) The child is born within 300 days of termination of the marriage; OR
3) The child is born during a void or voidable marriage
How can a presumption of parentage be rebutted?
Clear and convincing evidence
But such rebuttal can be overcome if in the best interest of the child
When will a child of an unwed father be considered his child?
- After the birth of the child, the father marries the mother.
- The father holds the child out as his biological child
- The father consents to his name on the birth certificate.
- The father acknowledges paternity (usually requires formality)
- There is a judgment decreeing paternity (see paternity suits below)
When will father be protected by the due process clause and have rights to custody to their child?
if they demonstrate parental responsibility
Will a father be entitled to tort recovery for the death of a child if he did not legally recognize the child?
no
Is testimonial and other medical evidence sufficient for a paternity suit?
yes
When can a state interefere with family decision making?
when the decision endangers the well-being of the child
Under what circumstances may a court terminate parental rights?
a. Infliction of serious physical harm on the child or other children in the household.
b. Abandonment
c. Neglect or deprivation
d. Failure to provide support for the child without cause for a specified time period (usually one year)
e. Mental health of the parent that results in inability to care for the child or
f. Parental unfitness
(can be physical or psychological).
Can parents seek to terminate the rights of the other parent?
No
What is the purpose of adoption?
to provide the children a suitable home until the parents get their shit together
What are the requirements of adoption?
1) termination
2) creation of new parent rights
When is the consent of biological parents not required for adoption?
their rights were already terminated
if unreasonably withheld against best interest of the child
When is the consent of an unmarried father required?
if he is actively involved in the child’s life - demonstration of parental resposnibility
When is the consent of an unmarried father not necessary?
if the parent has abandoned the child, failed to support for a certain length of time, or never attempted to establish a relationship
Must an adoptee (the child)
consent to adoption?
In some state yes, if the child is over a certain age (12 or 14)
Is payment of money prohbited in adoption?
yes, except for medical costs of preganacy
WHat are the consequences of adoption?
it severs all rights and obligation of biological parents to child and creates duties to adoptive parents and child
How is agency defined?
the fiduciary relation resulting from the manifestation of consent by one person to another that the other shall act on his behalf subject to his control, and consent by the other to so act
What is the requisite level of control for agency relationships?
generally when the principal has specified the task that the agent should perform
What parties to the agency need to have contractual capacity?
The principal NOT the agent
Does the equal dignities rule apply to agency relationships?
Yes
ex// agency relationships for the sale of land or for a period exceeding one year must be in writing
What duties does the agent owe to the principal?
The fiduciary duties of care and loyalty and obedience
What is the duty of care for agency relationships?
A duty to carry out the agency with reasonable care (kind of like negligence)
What is the duty of loyalty for agency relationships?
The agent must put the interest of the principal first
this includes:
1) accounting to principal any profits earned while carrying out principal’s instructions
2) acting solely for the benefit of the principal
3) refarain from dealing with his principal as an adverse party or from acting on behalf of an adverse party
4) to not compete
5) using principal’s property for anyone other than the principal
WHat are the remedies available for a breach of the duty of loyalty?
damages caused by the breach and disgorgement of any profits made by the agent
What is the duty of obedience?
an agent must obey all reasonable directions of the principal
What obligations do the principal have?
indemnify for any expenses or lossess suffered in the carrying out of the principal’s instructions
What are the two types of authority?
actual and apparant
what is actual authority?
when the principal’s words or conduct would lead a reasonable person in the agent’s position to believe that the agent has authority to act on the principal’s behalf
When will actual authority be terminated?
(1) after a specified time or event, or after
a reasonable time (if there is no specified time or event);
(2) by a change of circumstances (e.g., the subject matter of the
agency is destroyed);
(3) by a breach of the agent’s fiduciary
duty;
(4) by a unilateral act of either the principal or the agent;
or
(5) by death or incapacity of the principal or the agent.
WHat is apparant authority?
when the principal’s words or conduct would lead a reasonable person in the third party’s position to believe that the agent has authority to act on the principal’s behalf
Can apparant/actual authority be established through an agent’s title or position?
yes
Can apparant authority be established through mere representations of the agent?
No, there must be some action on behalf of the principal
What is ratification?
Even when authority does not exist, a principal will still be bound by the actions of the agent if the principal ratifies the actions
What are the requirements of ratification?
1) The principal must have knowledge of all material facts regarding the contract
2) the principal accepts the entire transaction (NOT a portion)
3) cannot be used to alter the rights of intervening parties
When is the agent liable on the transaction?
Agent is liable when the principal is undisclosed (3P has no notice of principal)
or
partially disclosed (3P has notice of principal, but they are not identified)
When is a master liable for torts committed by a servant?
When the servant is an EMPLOYEE was acting within the SCOPE of employment
What is the general test of determining whether someone is an employee or an independent contractor?
If a person is subject to the control of another as to the means used to acheive a particular result, then he is a servant
If person is subject to the control of another as to his results only, then he is an independent contractor
WHat are the factors used to determine the right to control?
- if the servant provided his own tools and facilities, then he is likely a k’er
- if the servant is paid by the job rather than regularly, then he is likely a k’er
- If the period of employment is longer or indefinite, then he is likely an employee
- if the servant was hired to further the business purpose of the principal then he is likley an employee
- if the servant has a business distinct from the master’s, then likley a k’er
- if great skill is required, then likley an employee
WHen is a master liable for intentional torts committed by an employee?
When the conduct is:
1) natural form the nature of the job
2) motivated to serve the employer
3) specifically authorized or ratified by the employer
If a servant commits a tort in a loaned role (borrowed servant to another principal), which principal is liable for torts committed by the servant?
The princiapl with the primary right of control
When is a partnership created?
As soon as two or more persons associate to carry on as co-owners in a business for profit
What’s the key for determining if a partnership was created? exprss agreement? filing
Neither, simply the intent of the parties
What are important factors in determining if a partnership is formed?
The sharing of profits
AND
a person’s right to participate in the control of the business
So then when is a person presumed to be a partner?
When they receive a share of the profit UNLESS received in payment of:
1) a debt
2) as wages or other compensation
3) as rent
4) as interest on a loan
How can a presumption of a partnership be rebutted?
evidence suggesting the lack of a co-ownership relationship (lack of control or no sharing of losses)
What is partnership by estoppel?
if no pship was formed in fact, parties can be estopped from denying pship to protect reasonable reliance by 3P
WHat are the default rules for voting in a pship?
unless otherwise agreed, all partners have equal rights in the management of the biz and equal votes
WHat are the default rules for voting requirements on decisions of the pship?
matters within the ordinary course of biz require majority vote
matters outside the ordinary course of biz require the consent of all parties
What are the default rules for compensation to partners?
Unless otherwise agreed, partners get no compenation
Is amending the pship agreement outside the ordinary course of biz?
yes
When is a partnership liable for tort committed by partners?
When the tort is committed within the ordinary course of biz
OR
with authority of the pship
Filing of a statement of pship authority granting authority to a partner charges 3P with constructive knowledge of such authority. When are 3P charged with restrictions on authority?
When it is a restriction on the authority to transfer real property and is recorded in the county where the property is located
What is statutory apparant authority?
a partner is an agent of the pship and has apparante authority to bind the pship to transaction in the ordinary course of biz UNLESS the 3P is aware that the partner lacks actual authority
Can statutory apparant authority be contracted around?
No
Are partners liable for obligations of the pship?
Yes, they are held jointly and severally liable
WHen can plaintiffs collect from partners?
Only after they first exhaust pship resources (partners are essentially guarantors)
Can partners limit liability to third parties? (ex// agreeing that one out the three partners will be liable)
no
Are newly admitted partners liable for debts incurred by pship before his admittance?
No
What duties are owed by partners?
duties of loyalty, care, and disclosure
what is the duty of loyalty in pships?
each partner must put the pship and fellow partners first and treat them fairly
like:
1) accounting to the pship any benefit derived by the partner in conducting the pship biz/using pship property
2) refraining from being adverse to the pship or acting as such
3) refrain from competing with the pship
What is the duty of care in the pship?
refrain from acting grossly negligent or reckless conduct, intentional misconduct, or a knowing violation of law
What is the duty of disclosure?
requires the pship to furnish to a partner:
- without demand, any info concerning the pship biz and affairs reasonably required for the proper exercise of the partner’s rights and duties
- with reasonable and proper demand, any other info concerning pship biz
WHat duties can be eliminated by the pship agreement?
Duty of disclosure NOT the duty of loyalty or care
WHen is property considered pship property?
If acquired in the pship name or in a partner’s name where it is apparant from the document that she is acting for the pship
WHen is property presumed to belong to the pship? to a partner?
pship - pship funds are used
partner - acquired in partner name without pship funds and there is no sign she is acting for the pship
Do partners have an interest in pship property?
No
WHat is a partner’s ownership interest in the pship?
1) management rights
2) financial rights
Can a partner unilaterally transfer their management interest?
No, only their financial interest (unless otherwise agreed)
Is admitting a new partner a matter outside the course of ordinary biz?
yes
What is dissociation?
when one partner withdraws from the pship
What are some events of dissociation?
1) partner giving notice to the pship of his desire to withdraw
2) partner’s expulsion, death, or bnki
3) an agreed upon event
4) the appointment of a receiver for a partner
When is a dissociation wrongful?
when the partner is in breach of an express term in the pship agreement
What are the liabilities of a partner who wrongfully dissociates?
He’ll be liable for any damages caused by the dissociation
What is a term pship?
where the partners agree explicitly or implicitly to remain partners for a definite term or until the completion of a particular undertaking
what is the default form of a pship?
an at will pship - where there is no agreed to definite expiration
WHat are the two consequences of a dissociation?
dissolution and buyout
When is dissolution required?
WHen a partner dissociates by express wil in an at-will pship
If in a term pship, one partner dissociates wrongfully or dissociation occurs b/c of death or bnki, then dissolution required iff, w/in 90 days after dissociation, one half of the remaining partners agree to wind up
When can a buyout occur?
if dissociation does not cause dissolution, then that dissociating partner is entitled to recieve a buyout of their pship interest
What if the dissociation is wrongful? how does that impact a buyout?
damages caused by the dissociation will be offset against the dissociating partner’s interest
A partner is generally liable for pre dissociation debts (unless released by creditor), can he liable for post dissociation debts?
Yes, if they incur within 2 years of dissociation UNLESS he notifies creditors directly of the dissociation OR files stmnt of dissociation (effective 90 days after filing)
Can dissociating partners participate in wind up?
Yes, if they have not wrongfully dissociated
DO partners have apparant authority after an event requiring dissociation? can it ever be cut off?
Yes
Yes, by notifying creditors of the dissolution or filing public stmnt of dissolution
WHat is a limited pship?
A pship with at least one general partner and one limited partner
How do you form a limited pship?
file a certificate with the SoS with the following info:
1) name of lp with the phrase limited pship or LP or L.P.
2) name and address of agent for service of process
3) the name and address of each general partner
As a general matter, who manages the LP?
The general partner (limited partners can manage if agreed to)
What are the default voting rules for limited partnerships?
Matters within the ordinary course of biz require majority of general partners
Matters outside ordinary course of biz require vote of ALL partners (limited and general)
How are distributions made in limited partnership?
pursuant to the contributions of the partners, unless otherwise agreed to
WHat are the liability rules in a limited pship?
General partners are laible for the obligations of the pships
Limited partners are not personally liable for an obligation of the lp solely by reason of being a limited partner (they can lose their investment tho)
Is a limited partner liable for torts they committed?
yes
Does a limited partner owe any fiduciary duties?
generally, no
what is an llp?
A general pship where all partners have limited liabilty
How do you form an llp?
Same as an lp: file stmt of qualification with SoS with:
1) name and address of pship (some iteration/abbreviation o registered limited liability pship pr limited liabilty pship),
2) statement electing to be an llp
3) deferred effective date if any
What is an llc?
hybrid of corp and pship where owners, or members, have limted liabilty and the benefits of pship tax treatment
How do you form an llc?
file articles/certificate of organization with SoS with:
1) name of llc (some indication that it is an llc)
2) address of llc registered office
3) name and address of its registrered agent
What are the default rules of management in an llc?
management is presumed to be by all the members, unless otherwise specified in operating agreement
How are profits and losses allocated in an llc?
unless otherwise agreed, based on the contributions of the members
WHat fiduciary duties are owed by members of an llc?
duty of care and loyalty
WHat is the duty of care for purposes of an llc?
members (or managers) must act with the care that a person in a like position would exercise under similar circumstances in a manner reaosnably beleived to be in the best interests of the llc
THe biz jmnt rule shields acts of negligence but not acts of gross negligence or higher
How can breach of the duty of loyalty be excepted in llc’s?
If there is evidence of disclosure of all material facts to all members/managers and they authorized/ratified a specific act that would otherwise violate the duty of loyalty
WHat are the dissociation rules in an llc?
a member can dissociate at any time, wrongfully or rightfully, by expressly withdrawing
Are the rules for triggering dissociation in a pship same for an llc?
yes
What triggers dissolution of an llc?
1) event or circumstance that the operating agreement states
2) consent of all members
3) passage of 90 consecutive days during which the llc has no members
When will a court grant judicial dissolution of an llc?
1) conduct of atleast substantially all of the LLC’s activities are unlawful
2) carrying on biz not reasonably practicable in conformity with the certificate of organization and operating agreement
3) managers/member-managers:
(i) are or will acting illegally or fraudulently; OR
(ii) are acting oppresively or directly harmful to the member applying for judicial dissolution
How are llc’s taxed?
on a pass through basis, meaning there is no entity level tax, biz income passess through to owners and reported on their individual tax returns
What are the requirements of a will?
T over 18 In writing T have testamentary intent Signed by T Two attesting witness
Can T acknowledge a previous attestation of witnesses or acknowledge will to witnesses?
yes
Under the UPC does a notarized will need to be signed by witnesses?
No
Under the UPC, will a court ever validate a defectively executed will?
yes if there is clear and convincing evidence that T intended the doc to be their will
