Family Law Flashcards
(43 cards)
What is the purpose of spousal support?
To ensure an adequate income stream for a spouse whose economic dependency resulted from the marital relationship.
Can fault impact determination of alimony?
No.
What is the general rule re: marital property and its division?
Property acquired during marriage is marital property unless acquired through gift, bequest, devise, or descent.
How does one determine whether a gift is marital property?
Can look at donor intent when gift is given to both parties. Wedding gifts are classified as marital property.
What are the factors that a court will consider in determining alimony/
- Standard of living during marriage
- Duration of marriagge
- Age and physical/emotional conditions of both parties
- Financial resources of each party (including how marital property was apportioned)
- Contribution of each party to the marriage (including homemaking, child care, education, career building)
- Time needed to obtain education or training to enable either party to find appropriate employment
- Ability of payor spouse to meet their needs
When will permanent alimony be awarded?
Neither resources nor ability to be self-sustaining.
What is child support based on?
Child’s monetary need and obligor’s ability to pay. Most states have guidelines, that dictate a formula based on the number of children, their ages, special needs, and parental income.
The court may deviate from the guidelines but must make findings of fact justifying the deviation.
May a court divide marital property if it does not have jurisdiction over both spouses?
Generally, a court cannot determine property rights or rights to support unless it has jdn over both parties.
Thus, in an ex parte divorce, the court can grant the divorce, but cannot award spousal support or divide property.
Limited exception: marital property located within the state. If the state has sufficient minimum contacts with the D and property, it can adjudicate parties’ rights to that marital property.
How is property divided, if it was acquired for before the marriage, but paid for after the marriage with marital funds?
Most courts will apportion the property between separate and marital interests in proportion to the contribution of separate and marital funds used to pay for the property.
What are the formal requirements for a premarital agreement?
In writing, voluntary, based on full and fair disclosure of financial worth.
Entry into marriage is deemed sufficient consideration.
What is required for a premarital agreement to be enforced?
Agreement must contain fair and reasonable economic provisions
Unconscionability is determined at the time the agreement was formed.
Against public policy to enforce a waiver of spousal support if the spouse would be dependent on the state
Courts are never bound by waivers of child support provisions
What are the factors a court looks to in awarding custody
Court decides based on best interest of the children
Factors:
- whether they agree on joint custody
- ability to communicate and cooperate
- preference of children
- level of involvement in children’s lives
- proximity of parents’ homes
- effect on children’s psychological development
- DV
- age/health of parents and child
- other siblings
- new partner
- material advantages
if joint custody
- parent’s ability to cooperate
- geographic proximity
courts pay consider which parent was the primary careiver.
what is child support based on
monetary need and ability to pay. parents have an equal duty to support their children.
Lasts through entirety of child’s minority (most states age 18, can also be extended through BA if child can go to college and parent has resources). Parent can self-obligate to pay past 18 by agreement.
Duty terminates with death of parent. Recent trend imposes charge against estate of parent.
Is a breach of a promise to marry legally actionable?
No long since abolished
Can you recover a gift conditioned on a subsequent marriage that doesn’t happen?
YES (engagement ring)
Otherwise, you can’t recover gifts.
What can be adjudicated within a premarital agreemetn?
Anything but courts ignore custody shit.
What are the Statute of Frauds requirements for prenuptial agreements?
- Must be in writing (oral not enforceable)
- Signed by both parties
Only effective if the couple actually got married
What are the defenses to a premarital agreement?
Subject to the usual contract defenses. The most common ones are duress and coercion.
Duress: state split whether physical required, or whether emotional/psychological will suffice.
When will a premarital agreement be declared unconscionable?
UMPAA, which spells out:
- If party defending agreement kept finances a secret, AND
- The other party did not contractually waive disclosure, AND
- No independent knowledge of other party’s assets
- THEN will be found unconscionable if any alimony/support provision would leave recipient in “unforeseen, extreme hardship” (extreme = seek public assistance; unforeseen = new circumstance, like crazy inflation even)
Facts to be aware of:
- both parties represented by counsel?
- business or economic sophistication of the individuals?
- poorer party understood the rights they were giving up?
what are the requirements to enter into a marriage
- license to marry (purpose: to ascertain legal capacity)
- officiant (religious clergy or public officer capable of performing oath; if officiant wasn’t qualified but spouses didn’t know that, it doesn’t affect validity of marriage)
- exchange of promises (solemn promises)
What is a common law marriage?
10 states recognize.
Private promises. Evidenced by circumstantial evidence (co-habitation, sexually intimate, holding themselves out as married couple).
If enter into CL marriage in a state that recognizes it and then move to a state that doesn’t, state recognizes you as marriage.
What is an annulment?
Predicated on grounds that predate the marriage, backwards-looking.
Grounds are almost always problem of capacity.
Either void or voidable.
What are grounds for annulment that void the marriage?
Note: legal nullity; don’t need an annulment (though you can get one - recommended for clarity of record and adjudicating collateral issues). These are not waivable; can’t stay married even if they want to b/c the grounds offend public policy.
- Bigamy
- Consanguinity (even if you didn’t know) (state by state: core relationship includes ancestors, descendants, siblings, lineal relatives; majority: can marry first cousin)
What are grounds for annulment that are voidable?
Note: married unless and until you receive an annulment from the court. Grounds are waivable. Considered waived if they continue to cohabitate.
- Parties underage
- majority: 18; minority 16-17 with parental consent
- waivable by continuing to cohabitate after reach age - Mental incapacity
- Disease of the mind - waived if/when cured, regain lucidity, continue to be married
- Developmental disability (of intellectual functioning) - can never waive
- Under influence of drugs/alcohol - waive by staying in marriage once you sober up - Incurable physical impotence
- must be truly incurable by medicine - Duress
- gun to head, must be obvious - Fraud
- Misrepresentation or concealment of information by one party prior to the marriage, where the information goes to an essential aspect of the marriage
- YES: your religion, fertility, genetic diseases, the baby i’m pregnant with is yours, significant lie about past sexual history or sexual proclivities
- NO: lying about money, property, career, social status
