Family Flashcards
(68 cards)
1
Q
Breach of Promise to Marry
A
rare in most states
tort damages:
- actual damages
- loss of reputation
- mental anguish
- punitive damages*
2
Q
Gifts in Contemplation of Marriage
A
gifts conditioned on marriage (i.e., rings) must be returned if marriage doesn’t occur
factors:
- type of property
- conditions attached
- intent of donor
3
Q
Prenuptial Agreements
A
can agree to disposition of property and alimony upon divorce
courts cannot be bound by provisions regarding children
requirements:
- written and signed
- entered into voluntarily
- full disclosure of assets or proof of independent knowledge
- UPAA - determine agreement was unconscionable first
- some courts consider fairness and whether independent counsel
4
Q
Marriage
A
requirements:
- license
- officiated ceremony
- no legal impediments to marriage
* too closely related or bigamy - capacity to consent
* alcohol, drugs, handicap, age
5
Q
Common Law Marriage
A
requirements:
- consent and capacity
- cohabitation
- holding yourselves out as spouses
note: most states do not permit common law marriage
6
Q
Marriage by Estoppel
A
equitable remedy for innocent spouse who acted in good faith when entering an invalid marriage
7
Q
Rights to Property
A
each spouse owns and controls his or her own property
for equitable division on divorce, title is not dispositive
if take title in their joint names, tenancy by entireties is presumed
- one spouse cannot convey or encumber w/o consent of the other
8
Q
Support During Marriage
A
spouses owe support to one another during marriage
9
Q
Spousal Abuse Orders
A
laws in every state to protect domestic abuse victims
protective order can be granted ex parte; can last 1 month to several years
10
Q
Alienation of Affection
A
requirements:
- genuine love and affection between validly married spouses
- l&e was alienated and destroyed
- causation
- adultery is not required
- proof of damage is required
- this tort is abandoned in most states
11
Q
Criminal Conversation
A
requirements:
- marriage
- adultery
- damages
12
Q
Annulment
A
declaration that marriage is invalid
available for defective marriages that are legally void or voidable
effect:
- marriage is set aside as if it never existed
- children are legitimate
- child support can be awarded
- spousal support can be awarded in some states
- property is treated as if never married
13
Q
Void Marriage
A
void if fail to meet the essential requirements of marriage
- i.e., too closely related or bigamy
- can be attacked by a party or a third-person
some states permit marriage to be valid after removal of impediment by continued habitation
14
Q
Voidable Marriage
A
occurs if event or condition affected adequacy of consent
- treated as valid until annulled
- can be attacked only by a party
- can be ratified by continued cohabitation after removal of infirmity
15
Q
Jurisdiction over Divorce
A
one spouse must be domiciled in state seeking to enter the divorce decree
16
Q
No-Fault Divorce
A
allows for dissolution without regard to marital fault
generally:
- irreconcilable differences
- living separate and apart
- incompatibility
17
Q
Fault-Based Divorce
A
generally:
- adultery (opportunity, inclination, and corroboration)
- desertion (unjustifiable departure with no intent to return)
- cruelty
- alcoholism or drug addiction
- insanity (may require institutionalization)
18
Q
Defenses to Divorce
A
no-fault = generally, no defense but may be able to restart the clock
fault-based:
- collusion - parties faked grounds
- connivance - consented to misconduct
- condonation - forgave with full knowledge
- recrimination - unclean hands
19
Q
Legal Separation
A
permitted for same grounds as divorce
effect:
- parties remain married
- parties can decide property division and support rights
if court permanently divides marital property, anything acquired after separation date is separate property (Dirty John)
20
Q
Approaches to Property Division
A
- community property
- equitable division of all property
- equitable division of marital property (most common)
- decree is generally not modifiable
- not a taxable event
- two-step process:
- classification - marital vs. separate
- division - equitable division of asset
21
Q
Separate Property
A
- real and personal property owned before marriage
- property acquired by gift/bequest/devise/descent at any time
- property acquired in exchange for other separate property
- income from appreciation of separate property
- judgments personal to the individual
- property acquired after a legal separation
22
Q
Marital Property
A
- all property acquired by either spouse during the marriage up to the final divorce decree or legal separation date
- vested and unvested employment benefits
- judgment awards for the household (lost wages, past hospital bills, etc.)
23
Q
Commingling
A
separate property can become marital property if it’s inextricably intertwined
- court will try to trace
24
Q
Transmutation
A
separate property can become marital property based on intent of the parties
- ex: using separate property for down payment on marital home
25
Improvement
separate property improved by use of **marital funds** or the **efforts of either spouse**
* marital estate or non-owning spouse may receive reimbursement
* no reimbursement if increase in value due to _market factors_
26
Property Acquired Pre-Marriage but Paid for Post-Marriage
**majority** = apportion property between separate and marital in proportion to how separate/marital funds were used
27
Pensions
marital property
courts will add up the value of the pensions, then split
some spouses accept different assets in _replacement_ of pension value
28
Professional Licenses and Degrees
_not_ marital property
**minority** = consider the value of degree when awarding alimony or property
29
Equitable Division Factors
1. age/education/background/earning capabilities of the parties
2. duration of marriage
3. standard of living during marriage
4. present income and employability of parties
5. source of money used
6. health of parties
7. assets/debts/liabilities of parties
8. needs
9. custody of children
10. alimony
11. opportunity to acquire future income/assets
12. contribution to existing assets
13. contribution as homemaker
14. economic fault
30
Alimony
paid to _economically dependent_ spouse
courts have great discretion -- tend to award less than in the past
_four types_:
1. permanent periodic support
2. lump sum support
3. rehabilitative support
4. reimbursement support
31
Permanent Periodic Support
permanent and indefinite
increased, decreased, terminated on substantial change in circumstances
32
Lump Sum Support
specified sum for specified period
payable in installments or in a lump sum
nonmodifiable
33
Rehabilitative Support
designed to restore dependent spouse's earning capacity
for a specified time period
increased, decreased, terminated on substantial change in circumstances
34
Reimbursement Support
usually, as repayment for contribution from the dependent spouse for the other spouse's increased education, etc.
for specified time
can be paid in installments or lump sum
nonmodifiable
35
Factors to Consider in Awarding Alimony
**primary considerations** = needs of claimant spouse and the ability of the other spouse to pay
_other factors_:
1. standard of living
2. duration
3. age, physical and emotional conditions
4. financial resources
5. contribution
6. time needed to obtain education or training
7. ability of the payor to pay and meet his needs
8. some jurisdictions = marital fault
36
Modification of Spousal Support
modifications based on **substantial and continuing change of circumstance**
* voluntary reduction is _not_ sufficient
37
Termination of Spousal Support
periodic terminate on _remarriage_ or _death_
* some jx = cohabitation
lump sum and reimbursement _survive death_ - treated like a contract
38
Tax Consequences of Spousal Support
_Pre-2019_: support payments were deductible to payor and income to recipient
_Post-2019_: neither income to recipient _nor_ deductible for payor
39
Separation Agreements
entered after marriage and enforceable if supported by consideration
* must have full and fair disclosure
* must be entered into voluntarily
* court _not_ bound by agreements over children
_mergers_:
if divorce decree includes terms of the agreement = merges and is modifiable by the court
if not submitted to the court = nonmodifiable
40
Contracts between Co-habitants
valid unless sex is the only consideration
express contracts = generally enforced
implied contracts = may be used to award property
41
Child Support
parents equally owe a duty to support their children
**considerations** = child's needs _and_ the parent's ability to pay
* most use the _income shares approach_
biggest concern = **_best interest of the child_**
not taxable to recipient; not deductible by payor
42
Income Shares Approach
determines base line by considering:
1. number of children
2. income of the parents
43
Duration of Child Support
1. age of majority OR
2. death of child OR
3. emancipation of child OR
4. termination of parental rights
sometimes longer if child is disabled
won't extend for college, but may extend if 18 and still in high school
44
Jurisdiction over Child Support
_types_:
1. original jurisdiction
2. jurisdiction to enforce
3. jurisdiction to modify
45
Original Jurisdiction over Child Support
proper where 1st petition is filed
another state can only exercise if:
* 2nd petition filed before time to answer the 1st has expired
* petitioner objected to jurisdiction in 1st acion AND
* 2nd state is child's home state
46
Jurisdiction to Enforce Child Support
issuing court has _continuing jurisdiction_
another state can enforce by:
* direct enforcement OR
* registration
47
Jurisdiction to Modify Child Support
court entering the order has _continuing exclusive jurisdiction_ unless no parties reside in the issuing state or the parties consent to another jx
* modification not allowed without continuing exclusive jx
48
Modification of Child Support
modifiable based on _substantial and continuing change of circumstance_
voluntary reduction is not sufficient
49
Enforcement of Child Support
can be enforced through:
* traditional civil/criminal contempt
* seizure of property
* garnishment of wages
* intercepting tax refunds
* revoking licenses
50
Jurisdiction over Initial Award of Child Custody
**home state test** = primary test
* state where child has lived with parent for at least 6 months OR
* state that was child's home state within the last 6 months and a parent continues to live in the state
if no home state, court can assume jx if:
* significant connection to state and substantial evidence of child's well-being in the state
deferred jurisdiction if neither of the above
if no state exercise jx, any state can by default
51
Jurisdiction over Modification of Existing Custody Decrees
issuing state = _continuing exclusive jx_ unless:
* no kid or parent resides in state OR
* child no longer has significant connection to state
52
Declining Jurisdiction over Child Custody
court cannot exercise jx if:
* proper proceeding pending elsewhere OR
* unjustifiable conduct by party
court _may_ decline if it is an _inconvenient forum_
53
Temporary Emergency Jurisdiction over Child Custody
_requirements_:
1. physically present AND
2. child has been abandoned OR
3. necessary to protect child from abuse
54
Child Custody
includes legal and physical custody
main consideration = best interest of the child
_other factors_:
1. wishes of parents
2. preference of child (12+ given great weight; under 8 no weight)
3. relationship of child with parents/siblings
4. adjustment to home/school/community
5. health of parties
6. primary caregiver
55
Joint Custody
promotes involvement of both parents
encouraged in most jx unless parents are openly hositle
56
Sole Custody
awarded when strong evidence demonstrates BIOC
reasonable visitation for other parent unless substantial harm would result
57
Custody to Nonparent
parent gets custody unless nonparent can show:
1. harm to child OR
2. unfitness (abandon, neglect, etc.)
58
Visitation
_parental_ = may deny or restrict if injury to child may result
_nonparent_ = applies in extraordinary circumstances and may be unconstitutional
* if parent is _fit_, preference is constitutionally protected and given special weight
59
Modification
party seeking motion bears the burden
requires _substantial change of circumstances_
concern = best interest of the child
voluntarily giving up custody lessens a parent's constitutional rights
60
Relocation
statutes address and usually require **notice** and **court hearing**
factors:
1. BIOC
2. motivated by benefit to family AND
3. not intended to thwart relationship with other parent
61
Enforcement of Custody Awards
1. civil contempt proceedings
2. habeas corpus proceedings
3. suit in equity
4. out-of-state decrees
5. child kidnapping
* full faith and credit to another state's child custody determination if jx is proper
62
Nonmarital Children
intermediate scrutiny in equal protection analysis
parentage actions = brought to establish biological relationship
63
Presumption of Parentage
husband is presumed the father if:
1. born during marriage
2. born within 300 days of end of marriage
3. born during void or voidable marriage
64
Unwed Fathers
can be considered child of unwed father if the father:
1. marries mother after child's birth
2. holds child out as his own
3. consents to his name on birth certificate
4. formally acknowledges paternity
5. paternity judgment
protected under DPC if demonstrate parental responsibility
65
Paternity Suit
generally filed by mother to obtain _child support_
when paternity is established, can assert custody and visitation rights
SOL tolled during minority - C&C or preponderance standard
66
Termination of Parental Rights
**voluntary** = can always be done voluntarily
**involuntary** = state cannot interfere unless child's well-being is _endangered_
* serious physical harm
* abandonment
* neglect or deprivation
* failure to provide support
* mental health of parent
* unfitness
67
Adoption
_consequences_: severs all rights and obligations of bio parents and creates duties for adoptive parents
_requirements_:
1. termination of biological parents' rights
* consent of biological parents
* consent of unmarried father if actively involved in child's life
2. creation of new parent rights
* consent of adoptee (if 12 or 14+)
* home study
* payment is prohibited
68
Types of Adoption
