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Fam law Flashcards

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1
Q

What is the normal conflict of laws question in family law?

A

Orders of one state should be upheld and valid in a new state unless it violates a strong public policy of another state which has a more significant relationship to the parties.

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2
Q

What are the types of marriage?

A

Ceremonial and common law marriage

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3
Q

What are the requirements of ceremonial marriage?

A
  1. Minimum age restrictions
  2. Waiting period
  3. Premarital medical testing (minority)
  4. Expiration date
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4
Q

When will a marriage license not be issued?

A

Married to someone else
Parties are too closely related
Enter into marriage as a sham
Parties are incapable of understanding the nature of the act
One or both under the influence of alcohol, drugs or another substance rendering them incapable of lack of consent due to duress or fraud

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5
Q

Most states require solemnization in front of two witnesses for marriage.

A
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6
Q

When is there a valid common law marriage?

A

When two parties
1. Agree they are married
2. Cohabit as married and
3. Hold themselves out in public as married

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7
Q

TIP: watch out for common law marriage not being dissolved before remarriage. Common law marriage just like ceremonial marriage must be dissolved through divorce.

A
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8
Q

**most states no longer recognize common law marriage but will uphold under the full faith and credit clause

A
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9
Q

What is a heart balm action?

A

Award of alimony even if not really married.

Minority

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10
Q

How can a marriage be dissolved?? Both ceremonial and common law.

A

Annulment
Divorce or
Death

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11
Q

What is annulment?

A

Voids a marriage and declares it as having never been valid.

2 types void and voidable

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12
Q

What would be considered void under an annulment?

A

Void: treated as never happened. Does NOT have to be judicially dissolved and will NOT be legally recognized for any purpose.

  1. Prior existing marriage
  2. Incest: people too closely related by a degree of kinship
  3. Mental incapacity
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13
Q

What is voidable under and annulment?

A

Marriage is valid until one spouse seeks to legally void the marriage. Must be a judicial decree to dissolve.

Grounds for voidable:
Age
Impotence
Intoxication
Fraud
Duress

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14
Q

Under an annulment a party may still be awarded child support, property division and spousal support

A
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15
Q

What are some defenses to an annulment?

A

Deny existence of impediment.

Remove impediment.

Defense of unclean hands, laches, estoppel

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16
Q

What is the puntatuve marriage doctrine?

A

Protects a party who is unaware of an impediment to the marriage either making it void or voidable and allows a party who gets married and believe in good faith that the marriage is valid may use divorce provisions (minority)

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17
Q

What is the definition of divorce?

A

The legal dissolution of a marriage.

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18
Q

What is the PJ (residency) requirement for divorce?

A

Most states required one of the parties be a resident today the state.

SMJ and PJ over one party

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19
Q

What are the two grounds for divorce?

A

Fault and no fault

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20
Q

What is the No fault ground for divorce?

A

A party may allege that the marriage is irretrievably broken and there is no prospect of reconciliation.

Half states require separation for sometime

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21
Q

What are some fault bases for divorce?

A
  1. Adultery
  2. Cruelty
  3. Desertion
  4. Habitual Drunkenness
  5. Bigamy
  6. Imprisonment
  7. Indignity
  8. Institutionalization

ACD HBIII

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22
Q

Under the cruelty fault ground for divorce what must a party show?

A

P must demonstrate a course of conduct by the other party that is harmful to the P’s physical or mental health and that makes the continued cohabitation unsafe or improper.

NOT one isolated incident

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23
Q

What is Bigamy?

A

One of the parties enters into the marriage knowing of a prior legal and existing marriage before the current one.

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24
Q

What are some defenses to fault based divorce?

A
  1. Recrimination and unclean hands (both spouses committed a marital wrongdoing of like conduct)
  2. Connivance: participating in the marital wrong
  3. Condonation (forgiveness)
  4. Collusion (conspiring to fabricate grounds for divorce)
  5. Provocation
  6. Insanity
  7. Consent
  8. Justification (left home bc of the others misconduct)
  9. Religion (will FAIL in all jxn)
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25
What is limited divorce?
Divorce from bed and board recognized in most jxn but rarely used.
26
What are the two methods of division of property?
Community property and equitable distribution
27
How is property divided under community property states?
Distribute all marital assets evenly between the spouses as the marriage is a partnership.
28
How is property divided in an equitable distribution state?
Fair distribution of all marital property, taking into consideration all of the circumstances between the parties. Not necessarily equal.
29
What is marital property?
Property acquired during the marriage minus gifts or inheritance. Majority is until divorce Minority is until separation Note some states are hotchpot and throw it all in.
30
Some states took at co-mingling to determine if the property is marital property.
31
What are some factors considered in the distribution of marital property?
Length of marriage Prior marriages Age Health Earning potential Liabilities Needs of both parties Contribution to education Needs for future acquisitions Income Medical Standard of living ****fault does not matter
32
How is a professional license usually treated under divorce?
Separate property
33
How is a retirement and pension usually treated under divorce?
Acquired during marriage is marital
34
How is a personal injury claim usually treated under divorce?
Marital if cause of action during marriage Separate and marital allocation depending on ex if some was for pain and suffering, lost wages etc.
35
How is goodwill usually treated under divorce?
Reputation and clients is considered marital is some jxn.
36
How are sick and vacation days usually treated under divorce?
Courts split
37
How is a social security usually treated under divorce?
Separate property
38
How is a stock option usually treated under divorce?
Marital if acquired during marriage
39
When is a modification of a property award allowed?
NEVER. Not modifiable because it is based on the parties assets and circumstances at the time of divorce.
40
What jurisdiction does a court need to award a property settlement?
A court may not exercise jxn over the D unless the D has minimum contacts with the state such that exercise of jxn would be fair and reasonable.
41
When is spousal maintenance awarded?
Usually awarded when one spouse cannot provide for their own needs with employment. Factors to consider; 1. Financial resources 2. Standard of living 3. Time it will take spouse to find employment or complete education or training for a job 4. Length of marriage 5. Contributions to marriage 6. Age and health 7. Marital misconduct
42
When can an award of spousal support be modified?
Must show a significance and continuing change in the circumstances of the needs or the dependent spouse or the financial abilities of the obligations that warrants modification. Courts consider if the change was expected and whether made in good faith.
43
How long does spousal support last?
Usually until death, remarriage, cohabitation or retirement
44
Note: a court may have SMJ for a divorce but not for property division, Child Support etc.
45
Who has a right to child support?
A child until the age of 18 or emancipation. Some through college or life if disabled or in apple of self support.
46
Once paternity is established, a father has custody rights and duty to support the child.
47
What is the marital presumption?
If a child is born to a married woman then the child is of that woman and her husband.
48
How would a nonbiological father have to pay child support under a theory of equitable estoppel?
1. There is a representation by the husband that he would provide for the child 2. The wife relied on the representation and 3. The wife will suffer an economic detriment as a result of the reliance
49
Under the UIFSA Uniform Interstate Family Support Act (adopted in all states) a court can obtain PJ by:
Personal service of the parent Consent of the parent Past residency of the child in the state Past residency of the child in the state as a result of act or directives of parent The parent engages in sexual intercourse in the state and the child may have been conceived by the act The parent asserted parentage in the putative father registry maintained by the state Anything else allowed the the fed or state constitutions
50
What is the amount of child support usually based on?
The income: including wages, interest and dividends, rental income, and other income received including retirement, capital gains or SS income.
51
When can a court deviate from the child support guidelines?
There is a rebuttable presumption that the amount calculated pursuant tot he CS guidelines are correct however deviations may be allowed if circumstances warrant and the court must set forth specific findings.
52
When is child support modifiable?
If there has been a substantial change in the circumstances regarding the child’s needs or the parents financial situation and the changes are expected to be continuing rather than temporary.
53
***a voluntary reduction in the obligors pay will NOT allow for a reduction
54
Which court can modify a CS order?
Only the original court who entered the order as they have continuing exclusive jurisdiction. Unless the parties including the child no longer reside in the state or the parties expressly agree to permit another state to exercise jxn.
55
How are child support orders and spousal support orders enforced?
Through civil contempt orders. Every state can enforce a CS order under UIFSA. Once registered in another state, it is enforceable in the same manner and to the same extent as a child support order issued in the original state.
56
What is the most tested subject in family law?
Child support!!!!!
57
What are the two types of child custody you can have?
Legal custody Physical custody
58
What is the UCCJEA
Uniform Child Custody Jurisdiction and Enforcement Act. Determines Jxn for child support
59
What order will courts looks at jxn for child custody?
Home state jurisdiction Significant Connection Jurisdiction Default Jurisdiction Always Emergency Jxn
60
What is home state Jxn for child support?
A child’s home state is the state in which the child has lived with a parent for at least 6 consecutive months prior to custody proceedings or since birth if the child is less than 6 months old or was the child’s home state in the past 6 months and the child is absent from the state but one of the parents continue to live in the state.
61
What is significant connection Jxn?
If no other state has or accepts home state Jxn then can accept if The child and at least one parent have a significant connection with the state and there is substantial evidence in the state concerning the child’s care, protection, training and personal relationships.
62
When can a court decline Jxn?
If the party wrongfully removed the child from another state OR when considering all the circumstances finds the forum inconvenient
63
What is default Jxn?
If no state has home state or substantial connection then a court a court that has appropriate connection to the child has Jxn.
64
Who has Jxn over a child custody case once decided?
The court that enters the initial ruling will have exclusive Jxn over the matter until the court determines: 1. The child no longer resides in the state or 2. The child no longer has a significant connect to the state and any substantial evidence connected to the child’s condition is no longer available in the state.
65
What is temporary emergency Jxn?
Any court can exercise jxn through temporary emergency Jxn, when the child is in danger and requires immediate protection.
66
How to enforce orders under the UCCJEA in any state?
Register order Allows any law enforcement official to take any lawful action to enforce a child custody order or obtain the return of a child if: 1. The official believes the person holding the child has violated a state crime or 2. If requested to do so by a court of law
67
What law applies to kidnapping?
PKPA parental kidnapping prevention act. Discourages forum shopping and applies to kidnapping and civil interstate custody disputes which includes visitation rights.
68
What standard is used in determining child support orders?
Best interests and welfare of the child
69
Who is in the best position to care for a child?
A parent unless determined unfit
70
***nearly all Jxn consider DV in awarding custody.
71
Noncustodial parent is allowed reasonable visitation time
72
Can an unwed biological father have visitation rights with his child?
Yes they have a substantive due process right under the constitution to have contact with their child ONLY IF the father demonstrates a commitment to the responsibilities of parenthood.
73
What must be shown if a parent is wanting to relocate their child?
The custodial parent seeking to relocate has the burden of demonstrating that the relocation is for a legitimate and reasonable purpose as opposed to restricting the noncustodial parents visitation.
74
What is the consideration given for a premarital agreement?
A valid marriage
75
Premarital agreements and separation agreements are ok
76
What provisions of a separation agreement may be modified by the court?
Child support and custody if they are not in the best interests of the child.
77
What is needed for a valid separation agreement?
1. Full disclosure of all financial assets 2. Fair and Reasonable: no fraud, duress, undue influence 3. Voluntary Voluntary courts look at time pressure, parties previous business experience, and opportunity to be represented by independent counsel.
78
When can a marital agreement be set aside?
Leave one party impoverished to the point of becoming a dependent on the state.

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