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Flashcards in Family Law Deck (51)
1

What is the general rule for whether a person has a claim for premarital gifts to be returned?

Can’t get gift back unless gift was conditional on future marriage, such as engagement ring.

2

 

H & W enter prenup and get married and then divorced and now wants to challenge prenup. What are the grounds for setting aside a prenuptial agreement?

 

Prenuptial agreement is valid unless

  1. SoF: Not in writing signed by both parties
  2. Involutarily executed;
  3. Unconscionable when executed; or 
  4. wealthier party didn’t disclose all assets and poorer party didn’t waive disclosure

Other than RI, may be granted also if financial terms will leave one party in unforeseen extreme hardship (no recourse but public assistance, high bar) determined by factors such as: 

  • Did both have lawyers?
  • What was level of business experience?
  • Understanding of rights being forfeited?

 

3

Does RI recognize common law marriage?

Yes, it requires

  1. clear and convincing proof that the parties considered themselves married; and 
  2. conduct giving rise to a general reputation among friends and relatives that they were married.

4

 

What are the requirements for a marriage to valid?

 

 

1. Neither party has an incapacity that would make marriage void.

2. License

3. Ceremony

 

5

What type of ceremony is required for a valid marriage?

1. Officiant: member of clergy or anyone entitled to administer an oath. 2. Witness (one will suffice in some states; two in RI) 3. Parties must exchange " solemn promises"

6

May one spouse sue another spouse?

 

In RI, interspousal immunity has been totally abolished. Therefore, one spouse may sue the other.

In other states, only highly private activity cannot give rise to a claim of one spouse against the other, such as private activity (marital priviliges and consensual acts) and simple domestic negligence.

7

Is one spouse liable for the contracts of the other?

 

No, unless it's for necessaries (food, clothing, and medical care) or there's an agency relationship.

8

 

What are the two ways to end a marriage and what are the differences between them?

 

 

Annulment and divorce. (It's questionable whether there's annulment in RI.)

Annulment is based on grounds that predates the marriage (usually a capacity ground) while divorce is based on what happens after the marriage.

 

9

What are the two general categories of grounds for annulment?

Void (grounds not waiveable and people are aren't married) and voidable (grounds waivable).

10

 

If a marriage is annulled as void and state won't let parties remain married, why would anyone seek a declaration of annulment?

 

 

1. clarify public records to establish that not married

or

2. to resolve collateral matters related to finances

 

11

What are the two grounds for a annulment as a void marriage?

Bigamy Consanguinity (incest): ancestors, descendants, and lineal relatives up or down one generation (aunt, niece); cousins okay

12

What are the main grounds for annulment as voidable?

 

 

1. Spouse too young (18 y/o; 16-17 w/ consent of parents)

2. Mental incapacity (annulment pursued by guardian): illness, developmental disability; under influence of drugs

3. Incurable physical impotence (no intimacy before wedding night required)

4. Duress: must marry out of own free will (no shotgun weddings)

5. Fraud (most likely as test question): “prior to marriage one party misrepresents or conceals information going to an essential aspect of marriage”

 

13

 

How may a marriage that could be annulled as voidable continue nevertheless?

 

 

If the spouse with the annulment cause of action waives the grounds for the annulment by continuing to cohabit after the impediment is removed.

 

14

 

What are some of the grounds for a voidable annulment based upon fraud?

 

 

A material misrepresentation or concealment of information related to an essential aspect of marriage such as:

a. Religion: Lying about religion and degree of religiosity

b. Sex: worked as prostitute; proclivities or agenda (said would be intimate before marriage and isn’t)

c. Procreation: unable to have children (but not if old) or only with great risk to self or children

Money, property, social status is not material and not grounds for annulment (e.g., $400k but really only $40k per year)

 

15

What are the two types of divorces?

Fault and no fault

16

Are persons still married until they seek annulment?

If void, no; if voidable, yes.

17

Are persons still married during the separation period of a no fault divorce?

Yes.

18

 

What are the grounds for a no fault divorce and how are such grounds proven?

 

There's "irreconcialable differences" leading to an “irretrievable breakdown of the marriage”

Some states (not RI) require separating from spouse for specified period (cease cohabitation):

  • if both agree: 3-6 months
  • if only one wants: 1-2 years

RI also recognizes a three-year living "separate and apart" period (a finding within court discretion) as a no-fault grounds for divorce.

19

What are the main fault-based grounds for divorce?

i. Adultery: ii. Desertion: unjustified departure from marital home with no intent to return for a specified period (usually one year) iii. Cruelty: emotionally (pattern required) or physically abusive (no pattern required) iv. Habitual drug or alcohol addiction v. Insanity: not true fault based

20

How is a adultery as a fault-based ground for divorce proved?

Directly (caught in act) or circumstantially by a showing of: 1) opportunity (alone with another when could be intimate) and 2) inclination (e.g., flowers exchanged)

21

 

If I'm presented with a question on the exam in which I'm asked to advise a spouse about terminating a marriage what four options should I always offer and what factors might make one option better than another?

 

  1. annulment (if void or voidable grounds)
  2. fault-based divorce
  3. no-fault based divorce
  4. legal separation

Factors

  • how long do they want to wait:
    • fault-based divorced shorter because no waiting period
  • publicity through courts:
    • fault-based ground won't be private
  • expense
    • no-fault marriage can more easily be handled without the aid of a lawyer.
  • stigma or benefits of remaining married:
    • legal separation allows to still remain married for financial or religious reasons

 

22

 

What are the four main affirmative defenses to fault-based grounds for divorce?

 

  1. Recrimination (dirty hands): no relief if P guilty of conduct: “maybe I’m one but you are one too.”
  2. Condonation—waiver of grounds where:
    • spouse knew of misconduct
    • spouse forgives and
    • marital relations resume
  3. Connivance: P spouse induced conduct that is the fault grounds
  4. Collusion (fraud on court): parties agree to fake claim (usually adultery)

23

 

What is legal separation, its grounds, and reasons why one would seek it?

 

 

Request for a judicial order that allows spouses to leave apart w/o desertion to divide property but continue marriage

Reasons: to keep benefits of marriage such as health care, tax, moral or religious scruples

Grounds: same as divorce with addition of fail to support

 

24

 

When will a state have SMJ in the divorce?

 

What's the rule in RI?

 

  • State has SMJ if one spouse is domiciled in the jurisdiction where the action is brought for the durational requirement (shortest 6 weeks to 1 year).

 

P must have been domiciled and resided in RI a year immediately prior to filing the compliant; or

D has been domiciled and resided in RI for a year immediately prior to filing the compliant and is served with process. 

25

 

H & W separate in year 7 and W moves to MN and lives there for more than one year and files for divorce. H is still in IL. Can W get MN court to order a property division?

 

 

No, while MN has SMJ because W is domiciled in MN and lived there for more than 1 year, H is still in IL and MN court has no PJ for collateral remedies (alimony or property division).

This is called divisible divorce.

 

26

 

What are the two steps for an equitable distribution of property in a divorce?

 

1. Categorize the assets owned: H separate property, W separate property, or marital property.

2. Distribute the assets (valued at time of trial in RI) based on the relevant factors

27

 

How is separate and marital property defined?

 

Separate property:

  • property, together with the appreciation in value on such property, that's owned by one spouse prior to the marriage
  • gifts or inheritances received by one spouse in sole name during the marriage

 

Marital property: 

property that comes into the marriage (other than separate property) that’s not dissipated (or transmuted in RI); it doesn’t matter who earned $ to pay for it and whose name is on the title

28

 

What are the main relevant factors upon which a court orders the distribution of assets in a divorce?

 

1. Separate property goes to each spouse

2. M property factors (use only those factors that the facts bring up)—

a. Age and health of two spouse; give more to older and sicker

b. Education, salary and earning capacity; give more to less educated and lower capacity

c. Custodian of minor children; give more to custodian

d. Length of marriage; more equal longer married

e. Dissipation; spouse that dissipated gets less

Marital fault not a consideration

 

29

 

How does a court decide if and how much alimony to award?

 

court's discretion: based on

  1. Marital property division factors and
  2. Fault

 

30

 

What are the four main structures that an alimony award can take and which can be modified?

 

i. Permanent periodic payments—can be modified for change in circumstances

ii. Lump sum payment—not modifiable; given if payer is old or ill, because permanent periodic payments would illusory (may die)

iii. Rehabilitative award—payment for specified period, pegged to specified training program

iv. Reimbursement—pay back spouse that paid for schooling early in marriage

 

31

 

When does an alimony award end?

 

 

Except for lump sum award, automatically ends on

  • remarriage of recipient or
  • death of either party

 

32

 

How long does a child support award continue and when does it end?

 

 

  • In RI, continues until 90 days after graduate from HS or reach age of majority (18), but in no case greater than 19
  • In some states, through college.
  • Throughout adult years if doesn’t have ability support self because of disability
  • Ends with death of parent (except in RI where continues with estate), regardless of whether child hit majority

 

33

When may a child support award be modified?

May be modified for change of circumstances (loss of job, increase in wages); but not for a self-induced reduction (voluntary impoverishment). Past due payments won’t be modified (arrears)

34

 

What are the two types of custody?

 

 

i. Physical custody—where child will live

ii. Legal custody—decisions about how to raise

Either can be joint or exclusive

 

35

 

What is the uniform custody and visitation home state rule?

 

Avoids jurisdictional disputes with courts of other states by providing:

  • state can enter initial order if it’s either
    • currently the “home state” of child (child lived there for 6 months prior to order) or
    • was the child’s home state within last 6 months and parent still lives there.
  • after the initial order, all other states will defer to the initial order.

36

When may a court decline to exercise its jurisdiction under the Uniform Child Custody Act?

 

It determines either

  1. It's an inconvenient forum and another state is more convenient; or
  2. party seeking to invoke the court's jurisdiction has engaged in unjustifiable conduct (e.g., wrongfully removed child from a state).

37

 

What rule applies where the uniform custody and visitation home state rule can't apply because there is no home state?

 

Court may enter or modify order if (A) no other state has or accepts home state jurisdiction and (B)

  1. child and at least one "parent" have a significant connection with the state; and
  2. substantial evidence concerning the child is available in that state.

If no court has jurisdiction under this test, any court may enter the order.

38

What is the standard for how a court decides custody of a child?

The best interests of the child (BIC) standard.

39

 

What are the BIC factors?

 

 

1. Physical, mental health of parent

2. Acts of domestic violence

3. Child’s preference (>12)

4. New companion’s character

5. Splitting up siblings or extended relatives

6. Material advantages

Gender not a factor

 

40

 

What factors will a court consider on whether to award shared custody?

 

 

1. Cooperation of parents

2. Whether parents live close to each other

 

41

 

What showing must be made before a court will award custody to a non-parent?

 

 

Non-parent or government must overcome the presumption that BIC served by putting with biological parent by showing that

  • biological parent unfit (very difficult burden to overcome).
  • BIC is to place with non-parent.

 

42

When will a court grant a modification of custody order?

If BIC but only after considering stability in the child’s life in addition to BIC.

43

W is unwed and has a son. Father won't acknowledge that he's the father and won't provide support. What do you advise W?

Mother can file paternity suit so that can get child support. Child represented by GAL

44

 

What are the two methods of terminating parental rights?

 

 

1. voluntarily ("put up for adoption")

2. involuntarily (State terminates) 

45

 

What is the burden of proof that the state must overcome to involuntarily terminate parental rights and what factors will the state use to demonstrate that it has met that burden of proof?

 

 

Parent is unfit by clear and convincing evidence based upon:

1. Abandonment—doesn’t visit or communicate

2. Failure to pay child support over extended period of time

3. Neglect

4. Abuse

5. Mental illness or drug abuse

46

 

When can visitation rights be denied to a non custodial parent?

 

 

Only where there's a threat to health or safety.

  • Almost never denied.
  • Not denied for failure to pay child support.

 

47

 

When can visitation rights be denied to a grandparent?

 

 

If grandparent and parent friction leading to visitation issues, due process rights allow a custodial parent to keep kids away from grandparents unless grandparents can show a compelling reason that denying visitation would cause detriment to kids that overrides due process right.

 

48

 

What is the adoption process?

 

 

  1. Voluntary relinquishment or involuntary termination of parental rights
  2. Consent from anyone who has been awarded legal custody
  3. Consent of child older than 12 years (14 in RI).
  4. Investigate adoptive parents—interviews, home visits
  5. BIC hearing

 

49

Which RI court has jurisdiction over divorce, alimony, custody, etc?

Family court.

50

 

When does separate property become transmuted in RI?

 

 

  1. Actual intention
  2. objectively manifested by transfer of non-M assets to the other spouse,
  3. unless showing of clear and convincing evidence to the contrary.

51

What are the two spousal evidentiary privileges?

  1. Spousal immunity: while married, a person cannot be compelled to testify against his spouse in any criminal proceeding
    • Doesn't survive marriage
    • Can voluntarily testify
    • Criminal proceedings only
    • doesn't apply to crimes against spouse or children

  2. Spousal confidence: either spouse, whether or not a party, is privileged to refuse to disclose and to prevent the other from disclosing a confidedntial communication made between them while they were married.
    • survives marriage
    • can testify if other spouse blocks
    • civil also 
    • doesn't apply to crimes against spouse or children