Family Law Flashcards
(151 cards)
1
Q
How can parties dissolve marriages that are invalid due to an impediment at the time of the marriage?
A
Marriages that are invalid due to an impediment at the time of marriage can be annulled
2
Q
What are the two ways that valid marriages can be dissolved?
A
Valid marriages can be dissolved by either a (1) fault-based or (2) no-fault divorce
3
Q
What does the court do with the couple’s property when a marriage is dissolved?
A
When a marriage is dissolved, the court will:
(1) divide the couple’s property, AND
(2) determine whether to award any form of spousal support
4
Q
Are property division orders typically final? What about spousal support awards?
A
Property division orders = Typically final
Spousal support awards = CAN be modified if there is a substantial change of circumstance
5
Q
If divorcing spouses have children, how will the court decide custody and visitation issues, generally?
A
If the spouses have children, the court will decide child custody and visitation issues based on the best interests of the child
6
Q
Can child support be modified if there is a substantial change of circumstances (like spousal support can)?
A
Yes! Child support, like spousal support, can be modified if there is a substantial change of circumstances
7
Q
What are the four requirements for two people to get married?
A
People are allowed to get married if:
(1) They are a both of a minimum age (18 unless otherwise indicated)
(2) They are not too closely related
(3) They both have capacity to consent
(4) Must not be in a current valid marriage
8
Q
What are the two procedural requirements for a marriage?
A
(1) License
(2) Solemnization
9
Q
What are the three requirements for a common law marriage?
A
(1) An exchange of consents between two people with capacity
(2) Cohabitation
(3) A holding out publicly of living together as spouses
10
Q
What are the four requirements for an enforceable premarital contract?
A
(1) The agreement must be entered into voluntarily
(2) Contract is in writing signed by party to be charged
(3) Both parties make a full and fair disclosure of their financial worth
(4) The economic provisions must be fair and reasonable
11
Q
What three grounds for annulment will make the marriage void automatically?
A
(1) Bigamy or polygamy
(2) Consanguinity
(3) Nonage, depending on state
12
Q
What 5 grounds for annulment make the marriage VOIDABLE, but not automatically void?
A
(1) Incurable physical impotence
(2) Mental incompetence
(3) Lack of assent
(4) Duress
(5) Fraud involving the essentials of marriage
As they say…The Impotent are in Duress and the Incompetent commit Fraud; yet both Lacked my assent
13
Q
What are two big kahuna grounds for no-fault divorce?
A
(1) The marriage is irretrievably broken (irreconcilable differences or incompatibility)
(2) The parties have ben living apart for a specified time
14
Q
What are the five main grounds for a fault divorce?
A
(1) Adultery
(2) Willful desertion for a specified time
(3) Extreme physical or mental cruelty
(4) Drug addiction or habitual drunkenness
(5) Mental illness
15
Q
What are 4 big traditional defenses to fault grounds for divorce?
A
(1) Collusion
(2) Connivance
(3) Condonation
(4) Recrimination
16
Q
What is collusion?
A
Collusion is an agreement between the spouses to simulate grounds for divorce or to forgo raising a valid defense.
17
Q
Is collusion a defense against a request for a fault divorce?
A
Yes - collusion is a traditional defense to fault grounds for divorce
18
Q
What is connivance?
A
Connivance is the willing consent by one spouse to the other spouse’s misconduct.
19
Q
Is connivance a defense against a request for a fault divorce?
A
Yes - Connivance is a traditional defense to fault grounds for divorce
20
Q
What is condonation?
A
Condonation is the forgiveness of marital offenses with full knowledge of their commission
21
Q
Is condonation a defense against a request for a fault divorce?
A
Yes - Condonation is a traditional defense to fault grounds for divorce
22
Q
What is recrimination?
A
Recrimination is when the party seeking the divorce is also guilty of misconduct for which a divorce may be granted
23
Q
Is recrimination a defense against a request for a fault divorce?
A
Yes - recrimination is a defense against a request for a fault divorce
24
Q
Where is jurisdiction for a divorce action proper?
A
Jurisdiction is proper in a state if the party is a bona fide resident of the state
25
What venue is proper for a divorce action?
Venue is in the county where the spouses usually reside
26
What is required for a decree to be valid in all states?
As long as one of the parties that domiciled in the state that granted the divorce, the decree is recognized as valid in all other states.
27
Will a divorce be valid in all states if neither party is domiciled in the state that granted the divorce?
No - At least one party must be domiciled in the state that grants the divorce in order for it to be valid in all states
28
Are provisions of the decree relating to property rights, spousal support, or child support, etc. given full faith and credit if the court does not have personal jurisdiction over the defendant?
NO - Provisions of the decree relating to property rights, spousal support, child support, etc. are given full faith and credit only if the court has personal jurisdiction
29
What are the three approaches to dividing property upon divorce?
(1) Community property
(2) Equitable division of ALL property owned by either spouse, acquired before or after the marriage
(3) Equitable division of marital property
30
What is the most common approach to dividing property upon divorce?
Equitable division of marital property is the most common approach to dividing property upon divorce
31
Is property acquired through gift, bequest, devise, or descent ever marital property?
No! Property acquired by gift or inheritance is not marital property.
32
Is property acquired in exchange for a property that a spouse owned before the marriage marital property?
NO - property acquired in exchange for a property that a spouse owned before the marriage is NOT marital property
33
If you own a house in your own name and then get married and sell that house, are those proceeds are yours alone, or does your spouse have a right to those proceeds?
Those are your proceeds - tell him to get his bread up
34
Is property acquired in exchange for property that the spouse acquired through gift or inheritance marital property?
NO - Property acquired in exchange for property that the spouse acquired through gift or inheritance is NOT marital property
34
35
Is the income from or appreciation of property that a spouse owned before the marriage or acquired through gift or inheritance usually marital property?
NO - income from and appreciation of separate property is usually not marital property, unless either spouse contributed to the property's increase in value
36
When is the income from or appreciation of property that a spouse owned before the marriage or through gift marital property?
Income or appreciation of a property that a spouse owned before the marriage or through gift is marital property ONLY when either spouse contributes to the property's increase in value
37
In what two situations does separate property become marital property?
Separate property may become marital property if:
(1) It is inextricably mingled to the extent that it can no longer be traced
(2) It is treated in a way that evidences an intention for the property to be marital property
38
Will the court ever consider the age, education, or background of the parties when dividing property?
Yes - Age, education, and background are factors that the court considers in dividing property
39
When dividing property, will the court ever consider the earning capacities, incomes, vocational skills, employability of the partners, or the standard of living during the marriage?
YES - the court will consider how much financial worth and potential each party has when dividing property
40
When dividing property, will the court ever consider the assets/debts/liabilities of the parties? Or their opportunity to acquire future income and assets?
Yes! The court will consider the assets, debts, and liabilities of each parties and their future likelihood of acquiring more of those when dividing property
41
When dividing property, will the court consider the source of money used to purchase the property? The amount that each party contributes to the existing marital assets?
Yes! The court will consider both the source of money used to purchase the property AND each party's contribution to the acquisition of, or enhancement of the value of, the existing marital asset.
42
When dividing property, will the court ever consider the health or needs of the parties?
Yes! The court will consider both the health and the needs of the parties when dividing property
43
When dividing property, will courts factor in the child custody provision of the divorce decree?
Yes, the court will consider the child custody provisions when dividing property
44
When dividing property, will courts consider the duration of the marriage, and whether there were any prior marriages?
Yes! The court will consider both the duration of the marriage and whether there were any prior marriages when dividing property.
45
When dividing property, will the courts consider whether the distribution is in addition to, or in lieu of, spousal support?
Yes! When dividing property, the courts will consider whether the distribution is in addition to, or in lieu of, spousal support.
46
When dividing property, will the courts consider each party's contribution as a homemaker to the family unit?
Yes! When dividing property, the court will consider each party's contribution as a homemaker to the family unit!
47
When dividing property, will the courts consider whether either party has dissipated marital property?
Yes! Whatever the fuck that means
48
What does it mean for a spouse has dissipated marital property?
49
What are factors the court considers BOTH when awarding spousal support and dividing property?
(1) Duration and standard of living of the marriage
(2) Age/physical and emotional condition of parties
(3) Financial resources and contribution to the marriage
50
When awarding spousal support, will the court consider the time needed for the party seeking support to obtain the training necessary to find appropriate employment?
Yes! The court will weigh how long it'll take the party who needs support to get a job
51
When awarding spousal support, will the court consider the ability of the payor spouse to meet their needs while paying spousal support?
Yes! The court will ask whether the the payor spouse is too big a brokie to support the remains of their fractured home
52
Will courts consider marital fault when awarding spousal support?
Only in some states will courts consider martial fault when awarding spousal support
53
What is permanent periodic spousal support?
PPSS is support paid regularly to support a spouse who has neither the resources nor the ability to be self-sustaining
54
What is rehabilitative spousal support?
RSS is periodic payments for a limited time to enable a spouse to gain skills to become self-supporting
55
What is lump sum payment spousal support?
Lump sum payment spousal support is a non-modifiable, fixed amount payable either all at once or broken down into a series of payments
56
What is reimbursement spousal support?
Reimbursement spousal support is awarded to a spouse who supported the other one while they obtained a professional license or degree
57
Are divorce courts authorized to make custody awards?
Yes! In all states, divorce courts are authorized to make custody awards.
58
What courts other than divorce courts are authorized to make custody awards?
Which courts are authorized to make custody awards is determined by state statute
59
What body of law controls in child custody cases as between two states?
The Uniform Child Custody Jurisdiction and Enforcement Act controls ("UCCJEA") (*pronounced like a sneeze*)
60
What is the most important jurisdictional test when determining which state gets custody of the child?
The most important jurisdictional test is what state is the child's "home state"
61
How do you determine what a child's home state is?
A child's home state is the state in which (1) the child lived (2) with a parent figure (3) for at least 6 consecutive months (4) immediately before the commencement of the proceeding
62
How do you determine what a child's home state is when they are younger than 6 months old?
If a child is less than six months old, the home state is where the child has lived since birth
63
How are temporary absences treated when determining whether the six-month test is met in child custody cases?
Temporary absences are disregarded in determining whether the six-month test is met
64
Does a court have jurisdiction to enter or modify a child custody or visitation order if the state was the child's home state in the last 6 months, and the parent figure still lives in the state, but the child is absent from the state?
Yes! The court has jurisdiction to enter or modify the custody agreement when the child is absent from their usual home state
65
What is the standard applied when awarding custody?
The standard to be applied in awarding custody is in the best interest of the child.
66
Are the wishes of the parents considered when the court is determining child custody?
Yes! The court will consider the wishes of the parents when determining child custody
67
Will the court consider the child's preferences when determining the custody of the child?
Yes! The court will consider the child's preferences when determining childhood custody, especially if the child is over age 12
68
When determining child custody, will the court consider the child's adjustment to home, school, and community?
Yes! The court will consider the child's adjustment to home, school, and community when determining child custody
69
When are custody orders always modifiable?
Custody orders are always modifiable if there is a substantial or material change in circumstances
70
Can you modify a custody order if there was a substantial or material change in the circumstances?
Yes! Custody orders are always modifiable if there is a substantial or material change in the circumstances
71
How common is absolute denial of visitation?
Absolute denial of visitation is RARE - it is a strong, built Ford tough policy of the law to promote the relationship between the child and both parents by ensuring reasonable visitation rights
72
Can a custodial parent withhold visitation from a noncustodial parent because the noncustodial parent failed to pay support?
No! You cannot without baby Johnny from your deadbeat co-parent just because they are too much of a brokie to pay support. Parental relationship beats poverty
73
Will the courts defer to a parent's decision regarding third party visitation?
Yes, if the parent is fit! Courts presume a fit parent's decisions re: third party visitation is in child's best interest and must give them deference
74
Does it violate the visitation provisions of the custody order to remove the child from the jurisdiction?
Yes possibly - removal of the child may be considered a violation of the visitation provisions of the custody order
75
How do most statutes decided that a child belongs to its mother?
Most statutes provide that any child is the lawful child of its mother
76
In what situations do statutes typically provide that a child belongs to its father?
(1) If the parents are married at the time of the child's birth or after the child's birth
(2) Dad holds out as biological father or has acknowledged paternity
(3) Dad consents to be named on birth certificate or there's a judicial decree establishing paternity
77
Who may bring a paternity suit?
(1) The child's mother
(2) The child
(3) State agencies if the child gets support from the state
78
What is step 1 of an adoption?
The first step of an adoption is termination of the biological parents' rights
79
Is consent of a child's biological parent required to terminate their parental rights?
Uh, generally yeah, you have to ask the kids parents for consent before taking away their parental rights
80
Is consent of a child's biological parent required to terminate their parental rights when they are neglecting or abusing the child?
Obviously no - if Parent is beating the shit out of little Johnny at the end of a long day, we're not gonna ask Parent if they'd prefer to keep their child punching bag
81
When may the consent requirement for an adoption be waived?
The consent requirement may be waived if the court determines that it is being unreasonably withheld against the best interest of the child
E.g.: If the child has been abandoned so the parent is not around to give consent
82
In an adoption, is the consent of the father always required if the child is nonmarital?
Consent of the father of a nonmarital child MAY NOT be required if he has not established a relationship with the child
83
What is step 2 of an adoption?
The second step of an adoption is creating a new legal parent-child relationship
84
What are the remedies for breach of a promise to get married?
TRADITIONAL: Tort damages:
(1) Actual damages in money lost prepping
(2) Mental anguish
(3) Loss of reputation
85
Are punitive damages available as a remedy for breach of a promise to get married?
Yes, they are available, but they are RARE
86
Is the engagement ring considered a gift?
Yes, the engagement ring is considered a gift given on the condition that the marriage will be complete
87
Can parties agree in a pre-nup to waive spousal support?
Yes! An agreement to waive alimony is enforceable, unless the disadvantaged party will be rendered a public charge as a result
88
What does it mean for a disadvantaged party to be rendered a public charge? Is that allowed?
Rendered a public charge = Dependent on state or public support (welfare?)
Not allowed! Meaning agreements to waive alimony will not be enforced if they will cause the weaker party to need government support
89
Can courts be bound by provisions in a pre-nup regarding children?
No! When the court is deciding the custody of a child, they don't have to follow the rules in the pre-nup
90
What are the requirements for a valid prenup?
(1) Signed writing
(2)
91
Is an oral prenup allowed?
NO - premarital agreements MUST be in a signed writing
92
What's one situation where would you ask whether the marriage was valid or whether the spouse entered into the marriage under in duress?
"Aw babe, fuck the due diligence! Your lawyer doesn't need to look at the papers, let's get married tonight! C'est la vie - it's french for YOLO! Come on, babe, sign, it's romantic!"
93
What are the requirements for a valid premarital agreement?
(1) Signed writing
(2) Entered into voluntarily
(3) Full disclosure or independent knowledge of assets
94
What are the requirements for a valid marriage?
(1) License
(2) Ceremony with authorized officiant
(3) No legal impediment
(4) Capacity to consent at the time of the ceremony
95
Can a marriage be valid if there is a procedural defect in the marriage license?
Yes! A defect in the marriage license will not suffice to invalidate a marraige
96
Whare are legal impediments that prohibit a marriage?
(1) Incest - No Cersei/Jamie situations, cousinfuckers sometimes allowed
(2) Bigamy - No sister wives in real life :/
97
What is the putative marriage?
This is an equitable remedy for when a sleaze enters an invalid marriage, used to protect and provide benefits for the weaker spouse
98
What property rights do spouses have?
During the marriage = Each spouse owns marital property in their own name
99
Are a spouse’s rights in the marital property dispositive upon divorce?
NO - a spouse’s property rights are not dispositive upon divorce if the property is being divided equitably
100
Is title dispositive when in terms of ownership when it comes to dividing the property?
NO - title is not dispositive in terms of ownership when it comes to dividing the property.
101
What is the doctrine of necessaries?
The doctrine of necessaries is that a spouse can be liable to a third party for necessary purchases made by the other spouse
102
What is a claim for alienation of affection based on?
103
Do protective orders require notice to the abusive spouse?
No - protective orders can be granted ex parte, meaning they can be given without notice to the other spouse
104
Can a spouse sue the third party homewrecker with whom the cheating spouse fornicated?
Yes - If a third party diverts the affection of a spouse so that the other is deprived of a marital relationship, the deprived spouse may have a cause of action against the third party for alienation of affection
105
What are the three requirements for a claim of alienation of affection?
(1) Evidence of genuine love and affection between validly married spouses
(2) Evidence that the love and affection was alienated or destroyed
(3) Proof that defendant’s actions caused the loss of love and affection
106
Is adultery required for a claim of alienation of affection?
No! Adultery is not required for a claim of alienation
107
Who will parties try to sue for alienation of affection NOT based on adultery?
People may sue their in-laws for alienation of affection - this is allowed!
108
Is proof of damages required for a claim of alienation of affection?
Yes, proof of damages is required for a claim of alienation of affection
109
What is criminal conversation?
Criminal conversation is the the claim a spouse may have if the other spouse has sex with a third person (alone) (lol)
110
What two things need to be proven for claims of criminal conversation?
(1) The existence of a valid marriage
(2) The act of adultery
111
Is a claim of criminal conversation valid if the couple was living apart at the time of the freaky act?
Yes! The only two things that need to be proven for criminal conversion are (1) the existence of a valid marriage and (2) the act of adultery
112
Is there a right to privacy for families?
Yes! Under the vast majority of circumstances, families have the right to privacy in their homes and freedom from governmental interference in their domestic affairs
113
Does anything ever take precedence over parental autonomy?
Yes! Certain state interests, like prevention of abuse and neglect, and compulsory education, take precedence over parental autonomy
114
Is privacy a fundamental right?
Yes haha (allegedly! Idk ask dobbs)
115
Is the right to marry a fundamental right?
Yes!
116
Is the right to procreate a fundamental right?
Yes
117
Yes the right to use or sell contraceptives a fundamental right?
Yes!
118
Do related people have a constitutional right to live together?
Yes!
119
Do parents have a constitutional right to educate their children outside of public schools?
Yes!
120
Is a parent’s right to decide issues concerning the care, custody, and control of their children constitutionally protected?
Yes!
121
Can child support be awarded in annulments?
Yes! Child support can be awarded in annulments
122
Can spousal support be awarded in annulments?
Yes, spousal support can be awarded in annulments but does not have to be and is prohibited in some places
123
How many spouses need to be domiciled in a state for there to be divorce jurisdiction?
Only one spouse needs to be domiciled in a state for there to be divorce jurisdiction
124
If one spouse wants to sue for property division or alimony, must the court have personal jurisdiction over the other spouse to adjudicate?
Yes! The court must have personal jurisdiction over both spouses to adjudicate on financial matters
125
What are the three main grounds for a no-fault divorce?
(1) Irreconcilable differences
(2) Living separate and apart for a specified time
(3) Incompatibility
126
What are the fault grounds for divorce?
(1) Adultery
(2) Desertion
/Abandonment
(3) Cruelty
(4) Habitual drunkenness or drug abuse
(5) Insanity
127
What is the two-pronged test for adultery?
The two prong test for adultery requires:
(1) Opportunity
(2) Inclination
128
What are examples of circumstantial evidence of opportunity to commit adultery?
Working late but not at the office, out to dinner instead of being where they said they’d be, affectionate photos with the alleged paramore
129
What is desertion/ abandonment ?
An unjustified departure from the marital home with no intent to return
130
When is habitual drunkenness NOT a fault ground for divorce?
Habitual drunkenness is not a fault ground for divorce if the spouse was also habitually drunk before they got married
131
What is the main defense to a no-fault divorce?
Reconciliation: If the parties divorce for non cohabitation, but then they move back in together, then still want to divorce, they would have to live apart for a new six months
132
Is a divorce of bed and board an absolute divorce?
No - divorce of bed and board = legal separation
133
Can the court permanently divide property once a legal separation has been granted?
Yes - the court can permanently divide property once a legal separation has been granted
134
How is property treated if it was acquired after the court permanently divided property due to legal separation?
Property acquired after the court permanently divided property in a legal separation is treated as separate property
135
Does equitable division of property mean equal division?
NO! Equitable division does NOT mean equal division
136
Are pain and suffering awards separate or community property?
Pain and suffering awards are separate property
137
Are personal damages community or separate property?
Personal damages are separate property
138
What happens if community funds are used to improve separate property?
If community funds are used to improve separate property, the court will grant reimbursement for the contributing spouse for the value added to the the separate property.
139
Are pensions marital property or separate property?
Pension dollars are marital property!!
140
Do lump sum support payments survive death?
Yes - lump sum support payments survive death
141
Are lump sum support payments modifiable?
No - lump sum support payments are NOT modifiable
142
Are spousal support payments taxable?
No! Spousal support payments are not taxable to the payor or the debtor spouse - They are non taxable events!
143
When are separation agreements entered into?
Separation agreements are entered into after marriage
144
When are separation agreements enforceable?
Separation agreements are enforceable when they are supported by consideration
145
Can spouses waive alimony in a separation agreement?
Yes! Spouses can waive alimony in a separation agreement
146
Can spouses waive the equitable distribution of property in a separation agreement?
Yes - spouses can waive equitable distribution of property in a separation agreement
147
Can spouses agree on custody and child support in a separation agreement?
Yes - spouses can agree on custody and child support in a separation agreement
148
Is a court bound to a couple’s agreements on custody and child support made during a separation agreement?
No! So couples better make em good
149
Will a court enforce contracts between cohabitating unmarried partners?
Yes - a court will enforce contracts between cohabitating unmarried partners, unless sex is the only consideration for the agreement
150
Can a parent be denied visitation if they are paying child support?
Yes! Parents can be denied visitation if they are paying child support
