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Flashcards in Family Law Deck (51)
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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.



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?



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.



What are the requirements for a marriage to valid?



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

2. License

3. Ceremony



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"


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.


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.



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.



What are the two general categories of grounds for annulment?

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



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


2. to resolve collateral matters related to finances



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


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”




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.




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)



What are the two types of divorces?

Fault and no fault


Are persons still married until they seek annulment?

If void, no; if voidable, yes.


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




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.


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


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)



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


  • 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




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)



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




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. 



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.




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



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



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




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




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