FAMILY LAW Flashcards

Question

How are retirement benefits and personal injury claims treated in marital property distributions?

Answer 1

Retirement or pension benefits are considered marital property to the extent that they accrued during the marriage. Personal injury claims are treated differently depending on the timing and nature of the award: compensation for pain and suffering is typically the injured spouse's separate property, while lost wages are considered marital property.

Answer 2

A premarital agreement is generally enforceable if there has been full disclosure, the agreement is fair and reasonable, and it is voluntary. it must also be in writing and signed by the party to be charged.

Answer 3

Under the UPAA, the party against whom enforcement is sought, must prove either (1) involuntariness of the agreement, or (2) both unconscionability, at the time of execution and lack of adequate disclosure, or knowledge of the parties, assets and obligations.

Answer 4

1. One of the parties is married to someone else 2. The parties are too closely related 3. The marriage is a sham 4. The parties are incapable of understanding the nature of the act ## Footnote Most jurisdictions refuse to issue a license when one or both parties is under the influence of drugs or alcohol when the license is sought

Answer 5

Words in the present tense are preferred, but a court may accept cohabitation or reputation as evidence. Cohabitation alone is insufficient and words of intent to marry in the future do not reflect a present intent to be married.

Answer 6

A property division award is not modifiable because it is based on the parties' assets at the time of divorce. Changes in the parties' circumstances after divorce are not be considered once the award has been entered.

Answer 7

Annulment, divorce, or death

Answer 8

Consent is a defense to desertion or adultery.

Answer 9

1) Age 2) Impotence 3) Intoxication 4) Fraud, misrepresentation, duress, coercion, or force 5) Lack of intent

Answer 10

Equitable defenses of: 1) Unclean hands 2) Laches 3) Estoppel

Answer 11

1. Agree they are married 2. Cohabit as married 3. Hold themselves out in public as married

Answer 12

In most states, all property acquired during the marriage is marital property. Exceptions: 1) Property acquired before the marriage 2) Property excluded by a valid agreement between the parties 3) Property acquired by gift or inheritance 4) Property a party has sold, granted, or conveyed in good faith and for value prior to final separation 5) Property to the extent it has been mortgaged or otherwise encumbered in good faith and for value prior to separation 6) An award or settlement payment received for any cause of action or claim that accrued prior to marriage

Answer 13

Rehabilitative alimony, which is awarded for a limited period of time

Answer 14

1) Adultery 2) Cruelty 3) Desertion 4) Habitual drunkenness 5) Bigamy 6) Imprisonment 7) Indignity 8) Institutionalization

Answer 15

Community property

Answer 16

In most states, the fact that a divorce is granted on a fault ground is not a factor. However, dissipation of marital property may be considered.

Answer 17

Condonation is when a spouse forgives marital misconduct. There must be knowledge of the misconduct, and the party must resume relations with the guilty party.

Answer 18

1. Meet the minimum age restrictions 2. Fulfill the waiting period 3. Complete premarital medical testing (only in some states) 4. Marry before the expiration date

Answer 19

Bigamy, incest, and mental incapacity

Answer 20

A limited divorce does not sever the marital ties but permits the parties to live apart. The court will determine support and property division in limited divorce actions. Note: Limited divorce is known in some states as "divorce from bed and board."

Answer 21

The only way to defend against annulment of a void marriage is to deny the existence of the impediment that voided the marriage. Note: Removing the impediment merely makes the marriage voidable; it will not necessarily prevent annulment.

Answer 22

This represents the period of time between when a divorce is initially granted and when it is finalized. During this time, neither spouse may remarry.

Answer 23

A neutral, court-approved mediator assists both parties with spousal- and child-support issues, as well as custody and visitation rights.

Answer 24

1) Financial resources 2) Standard of living 3) Time for spouse to find employment or training 4) Length of the marriage 5) Contributions to the marriage 6) Age and health of the parties 7) Marital misconduct

Answer 25

Marital misconduct may be considered in many states when determining spousal support. The weight depends on the jurisdiction, with some jurisdictions considering it merely a factor and others giving it preclusive effect.

Answer 26

1) Lump sum 2) Permanent 3) Limited duration 4) Rehabilitative 5) Reimbursement 6) Palimony (available in only a few states)

Answer 27

Palimony. This is only available when the parties have lived together in a stable, long-term relationship.

Answer 28

Permanent alimony is an award for the remainder of the dependent spouse's life, unless certain circumstances occur. The purpose is to compensate the dependent spouse for either the lost earning capacity or benefit conferred to the other spouse during marriage. This is typically awarded only when the marriage was one of long duration.

Answer 29

Generally, spousal support is modifiable even when deemed permanent. The party seeking modification generally has the burden of establishing a significant and continuing change in circumstances in the needs of the dependent spouse or financial abilities of the obligor.

Answer 30

If the receiving spouse cohabits with someone who is not family, then spousal support may be modified if the cohabitation results in a reduced need.

Answer 31

In all jurisdictions, both parents, regardless of marital status, are required to support their minor children until the child reaches the age of majority or is emancipated. Some jurisdictions continue the obligation through college. Additionally, it can be continued indefinitely for a child incapable of self-support due to a disability. In most jurisdictions, the obligation may also terminate if the child marries, parental rights are terminated, the child commences active duty military service, or the parent or child dies.

Answer 32

1. There is a representation by the husband that he would provide for the child; 2. The wife relied on his representation; and 3. The wife suffered an economic detriment as a result of the reliance

Answer 33

The Uniform Interstate Family Support Act (UIFSA), which has been adopted by every state.

Answer 34

1. Blood tests 2. Prior statements regarding paternity by deceased family members 3. Medical testimony on the probability or improbability of conception 4. The defendant's acknowledgment of paternity 5. In some states, the resemblance of the child to the defendant

Answer 35

Awards are typically based on income from any source and include wages, interest and dividends, rental income, and other income received, including retirement benefits, capital gains, and Social Security income.

Answer 36

Separation agreements are made between spouses planning for divorce. They are generally merged into the final judgment for divorce, as long as they are based on full and fair disclosure.

Answer 37

1. Full disclosure 2. Fair and reasonable 3. Voluntary 4. In writing 5. Signed by the party to be charged

Answer 38

Deviations are permitted as the circumstances warrant. The court must set forth specific findings explaining and supporting the deviation, including the amount that would have been awarded under the guidelines.

Answer 39

Generally, modifications are permissible when there is a substantial change in circumstances regarding the child's needs or the parents' financial situation, and that change is expected to be continuing, rather than temporary. Actual statutory language varies by jurisdiction. The respective obligations of child support are also adjusted as the possession of a child changes between parents.

Answer 40

To be emancipated, a minor child must be self-supporting and beyond the sphere of influence of his parents or independent of parental control.

Answer 41

A state court with continuing jurisdiction may modify an existing order. Another state court may not modify an order rendered by a court of continuing jurisdiction in another state unless the parties, including the child, no longer reside in that state or the parties expressly agree to permit another state to exercise jurisdiction.

Answer 42

Full disclosure. Absent full disclosure, a court will generally refuse to enforce it. The current trend is for courts to enforce marital agreements that may not be fair as long as there has been full disclosure.

Answer 43

The best interests and welfare of the child

Answer 44

Support orders are typically enforced through civil contempt, income withholding, or withholding of tax refunds.

Answer 45

oint physical custody is preferred, but it does not necessarily require a 50-50 time-sharing arrangement.

Answer 46

The majority of jurisdictions apply a change-in-circumstances standard, requiring some substantial and unforeseen change since the issuance of the prior order. Some jurisdictions have also applied time barriers before an application for modification can be filed absent consent or endangerment. The purpose of these considerations is to promote stability in the child's life. 43 of 55

Answer 47

The Parental Kidnapping Prevention Act (PKPA)

Answer 48

A party seeking enforcement can request assistance through the courts. The court can impose a variety of sanctions, including compensatory visitation, attorney's fees, court costs, fines, and jail time. Tort damages may also be awarded to a parent for the period of time that the child is wrongfully out of the parent's custody.

Answer 49

Clauses relating to child custody and support in a premarital agreement are unenforceable.

Answer 50

The significant relationship test. Most states apply the law of the state with the most significant relationship to the agreement and the subsequent marriage. Some states apply the law of the state where the agreement was executed.

Answer 51

A court that makes the initial ruling in a custody case has exclusive continuing jurisdiction over the matter until: 1. The parties no longer reside in the state, or 2. The child no longer has a significant connection to the state

Answer 52

A fit parent has a fundamental right to the care, custody, and control of his children. State courts must give special weight to a fit parent's decision to deny nonparent visitation.

Answer 53

If its result winds up leaving one spouse woefully impoverished to the extent that he or she becomes dependent on the state

Answer 54

A court has **subject-matter jurisdiction** to preside over custody hearings if the state: 1. Is **the child's home state **(the state in which the child has lived for at least 6 consecutive months immediately prior to hearing, or since birth if the child is less than 6 months), OR 2. Was the **child's home state in the past 6 months**, and the child is absent from the state, but **one of the parents/guardians continues to live in the state.**

Answer 55

A court will generally provide equitable distribution based on a resulting trust, constructive trust, or quantum meruit theory to avoid unjust enrichment.

Answer 56

The right to object may be denied if the father does not demonstrate commitment to the responsibilities of parenthood. The right to object cannot be denied if such a commitment has been made.

Answer 57

1. Involuntariness; or 2. The agreement was unconscionable when executed, the party did not receive fair and reasonable disclosure, and the party did not have adequate knowledge of the other's assets and obligations

Answer 58

Some jurisdictions have created adoption registries for the purpose of determining the identity and location of putative fathers and providing notice in the event of an adoption. A putative father's failure to register within the prescribed period of time constitutes a waiver of his right to notice of the adoption and irrevocably implies his consent to the adoption.

FAMILY LAW Flashcards

(84 cards)