Family Law

Question 1

Breach of promise to marry

Answer 1

It is the calling off of an engagement- not actionable in the state of MD

Question 2

What must a party show to have a pre-marital agreement upheld?

Answer 2

o Made a full disclosure of his financial worth or
o Independent knowledge of finances or
o Terms of the agreement are not unfairly disproportionate or
o No overreaching because the other party had legal counsel and understood the rights being waived- objective standard

Question 3

What defenses may a spouse challenging the validity of the pre-marital agreement use…

Answer 3

any contract defenses

Question 4

What are the two requirements of Marriage

Answer 4

o Marriage License (must have capacity)
• Intoxicated, mentally ill, too young (these come up in annulment circumstances)
o Marriage Ceremony
• Need an officiant ( any clergyman of any faith or denomination, and any civil official who may administer an oath, a judge in the tax court
• Need to exchange promises (vows)

Question 5

Does MD recognize Common Law Marriage?

Answer 5

No, however Common law marriage is portable.
Meaning that If they enter into common law marriage in a state that accepts it then MD will recognize it but MD does not have common law marriage laws.

Question 6

Two ways to end a marriage

Answer 6

• Annulment and

* Divorce

Question 7

Annulment

Answer 7

will be based on a ground that predates the marriage. When H and W got marriage there was a preexisting problem that neither of them knew or only one knew.

Question 8

Divorce

Answer 8

predicated on grounds that arise after the marriage- problem arises after marriage

Question 9

2 subgroups of grounds for annulment

Answer 9

1. Void Marriage

2. Voidable Marriage

Question 10

Void Marriage means

Answer 10

you are not married- you may walk away at any time

Question 11

Voidable Marriage means

Answer 11

You are married and may not walk away unless you go to court

Question 12

Grounds that render a marriage Void

Answer 12

•	Lack of mental capacity 
o	You must be of sound mind 
•	Bigamy 
•	Consanguinity- incest 
o	Ancestors, siblings, or descendants 
o	Lawful to marry first cousins

Question 13

Grounds that render a marriage voidable

Answer 13

• Non-age (too young)
o 16 or 17 may get married with consent of one parent
• pregnant or already had a baby you can get married if you have medical proof
o Waivable by continuing to co-habit after the impediment is removed
• Living together under the same roof and having sex
o Impediment is removed once person turns 18
• Drunk or under the influence at the time of ceremony
o Must be really drunk
o Waived by cohabitation
• Duress
o Waived by cohabitation after the threat of violence is eliminated
• Fraud
• Impotence
• Watered down incest

Question 14

Fraud

Answer 14

o One party prior to the marriage misrepresents or conceals from the other a fact that goes to an essential aspect in the marriage. (materiality requirement)

Question 15

What are some examples of fraud

Answer 15

 Lying or secrets about religion (big deal)

 Lying about sex or procreation

Question 16

What are examples of situations where it is not significant enough to claim fraud?

Answer 16

 Lying about money, property, or social status

Question 17

2 different types of divorces

Answer 17

o Absolute Divorce= real divorce and

o Limited Divorce= legal separation not a divorce

Question 18

Absolute Divorce (Fault Basis)

Answer 18

• Adultery
• Desertion– unjustified departure from the marriage for a continuous period of 12 or more months and
o Must be unjustified
o Must be consecutive
o Doing something inconsistent with the marriage
• Conviction of a crime
o If period of incarceration is 3 years or more then you may file for divorce when the incarcerated party has been in jail for at least one year
• Cruelty
o Any conduct that seriously impairs the health or destroys the happiness of the complaining spouse.
• Constantly degrading, belittling, etc.
• Excessively Vicious conduct
o Domestic Violence
• Mentally ill and has been institutionalized
o Can only get it when spouse has been in hospital for at least 3 years and
o Testimony from at least two psychiatrists that it is incurable

Question 19

If you are the Defendant in a fault based divorce you can raise a few affirmative defenses such as:

Answer 19

o Condonation

o Recrimination: Unclean hands

Question 20

No Fault Divorce Grounds

Answer 20

• Must separate and must live separate and apart for one full year
o Must live in separate houses and
o NO SEX

Question 21

Limited Divorce fault based grounds

Answer 21

 Cruelty
 Excessively Vicious Conduct
 Desertion
• Any period so long as it is suggestive of a permanent departure

Question 22

Limited Divorce no fault based grounds

Answer 22

 Voluntary and mutual separation

Question 23

What are the effects of a Limited Divorce?

Answer 23

 Legalizes separation
 Permits court to order alimony, child custody, and child support
 Does NOT permit remarriage
 Does NOT resolve all property claims

Question 24

What court should a person go to in MD for Divorce?

Answer 24

Family Division of the Circuit Court

Question 25

In order for a court to have jurisdiction to grant a divorce you need what?

Answer 25

one spouse domiciled in the state +(plus) o One year residents OR o The grounds arose in MD

Question 26

What does the concept of Divisible Divorce mean?

Answer 26

May pursue divorce in one state but must pursue economic remedies in another state. • In order to get economic remedies the other spouse must be located in MD (court must have personal jurisdiction)

Question 27

Where is Venue Proper?

Answer 27

o Appropriate in the county where the P or D live o County where D works • annulment-county where marriage was performed • Child- the county where child resides • No contingent fee in Divorce case o May not represent both people

Question 28

What are the three steps in Equitable distribution?

Answer 28

* Categorize the assets * Value the assets * Distribute the assets

Question 29

Categorize the Assets

Answer 29

Separate Property and Marital Property

Question 30

What is considered separate property?

Answer 30

• (1) Any assets owned by the spouse prior to the marriage • (2) Any gift or inheritance received after the marriage in the sole name of one spouse • (3) Passive appreciation in items in categories 1 and 2 above o Increase in value due merely to the passage of time and market forces alone • (4) Money received in Personal Injury litigation to compensate for injuries or pain and suffering

Question 31

What is considered marital property?

Answer 31

property acquired by a spouse during the marriage

Question 32

Value The Assets

Answer 32

 Net value as of the date of divorce not of separation

Question 33

Distribute the assets

Answer 33

 Normally a cash award

Question 34

What are the two exceptions to distribution in "kind"

Answer 34

o Principal residence may be given to one spouse | o Interest in a pension may be awarded in kind

Question 35

The court determines the amount and method of payment of a monetary award or the terms of a transfer of an interest after considering the following:

Answer 35

1. contributions, monetary and nonmonetary, of each party to the well-being of the family 2. value of all property interests of each party 3. economic circumstances and age of each party; 4. Duration of the marriage and the circumstances that contributed to the estrangement of the parties; 5. Physical and mental condition of each party 6. How and when specific marital property was acquired, including the effort expended by each party; 7. contribution by either party of nonmarital property used to acquire real property held by the parties as tenants by the entirety; 8. Any award of alimony and any award or other provision with respect to the family use personal property or the family home; and 9. Any other factor the court considers necessary or appropriate, such as dissipation of marital funds by one party.

Question 36

What are the tax consequences of equitable distributions?

Answer 36

Equitable distributions are not taxable as ordinary income