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Flashcards in Family Law Deck (29)
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1
Q

Requirements for Who Can Marry

A

(1) 18 y/o unless parental or judicial approval; (2) not be too closely related (no direct ancestors/descendants, no nieces/aunts); (3) capacity to consent, and; (4) no prior undissolved marriage to a living spouse

2
Q

Common Law Marriage

A

(1) exchange of consents between two ppl with capacity; (2) cohabitation, and; (3) holding out publicly of living together as spouses (no solemnization)

3
Q

Premarital Agreement (Contents)

A

Rights and obligations in property, right to buy/sell property, disposition of property upon separation, modification or elimination of spousal support, making of a will, trust, or other arrangement to carry out the provisions of the agreement, choice of law governing agreement. NOT child custody or child support provisions (always subj to review).

4
Q

Premarital Agreement (Requirements)

A

(1) Agreement was entered into voluntarily; (2) K was in writing and signed by party to be charged; (3) Parties made full and fair disclosure of financial worth, and; (4) Economic provisions were fair and reasonable [UPAA] [look for unconscionability]

5
Q

Marital Property

A

Most property acquired during the marriage (incl. pensions, damage awards in tort suits, stock options. NOT professional degrees)

6
Q

Void v. Voidable Marriage

A

Void: Complete nullity; nothing can ratify it; you can walk away without even getting an annulment (but might want one to divide property) (nonwaivable)
Voidable: Valid, but because of an impediment that existed at time of marriage, one spouse can have it declared invalid (waivable)

7
Q

Annulment - Grounds (Voids Marriage)

A

Bigamy or Polygamy; Incest; Underage (some states)

8
Q

Annulment - Grounds (Makes Marriage Voidable)

A

Underage (most states); Incurable Physical Impotence; Lack of Capacity (mental condition, no mutual assent, duress, fraud about essential aspect of marriage)

9
Q

Waiving Voidable Grounds

A

You waive if you continue to cohabitate after the impediment has been removed [Note: only way to waive void grounds is to insist the impediment doesnt exist]

10
Q

Divorce - No Fault

A

Marriage is irretrievably broken (irreconcilable diffs) AND/OR parties hae been living apart for a specified time [to defend, must deny one of the above]

11
Q

Divorce - Fault Grounds

A

(1) adultery, (2) willful desertion for specified time; (3) extreme physical or mental cruelty; (4) voluntary drug addiction / habitual drunkenness; (5) mental illness; (6) conviction of a felony requiring jail time

12
Q

Divorce - Defenses to Fault Grounds

A

(1) Collusion (couple created the grounds as a sham); (2) Connivance / Entrapment (consent by one spouse to the other spouse’s misconduct); (3) Condonation (forgiveness and resumption of sex); (4) Recrimination (unclean hands – both of yall are adulterers)

13
Q

Legal Separation

A

No termination of marriage, but all of the rights regarding property and custody are adjudicated

14
Q

Division of Property - Approaches

A

Community Property (all marital prop is split 50-50); Equitable Division of All Property (all marital and separate property is split); Equitable Division of Marital Property*** (each spouse gets separate property and court equitably divides marital property)

15
Q

Equitable Division of Marital Property - Factors to Consider

A

(1) Age, education, background, and earning capacities; (2) duration of marriage; (3) Std. of living during marriage; (4) Present incomes and employability; (5) Source of money sued to purchase property; (6) Health; (7) Assets and liabilities; (8) Needs; (9) Child custody provisions; (10) Spousal support provisions; (11) Contributions to marital assets and family unit; (12) Dissipation of property

16
Q

Mixed Property

A

Separate property inextricably mingled with marital property or with the separate property of the other spouse to the extent it can no longer be traced or separate property treated in a way that shows intent for it to be marital property

17
Q

Spousal Support - Amount

A

Court has discretion and will consider (1) duration of marriage / std of living; (2) age / phys/emotional conditions; (3) financial resources; (4) contributions to marraige; 95) time needed for party to get training; (6) ability of payor spouse to meet his needs while paying SS

18
Q

Spousal Support Types

A

(1) Permanent Periodic SS: regularly for life to support spouse who doesn’t have resources to be self-sustaining, modifiable; (2) Rehabilitative Periodic SS: regularly for a ltd period of time until spouse gains skills to be self-supporting, modifiable; (3) Lump Sum: nonmodifiable fixed amount payable all at once or in a series of payments; (4) Reimbursement SS: nonmodifable payment of a fixed sum to a souse who supported the other spouse while they obtained a degree

19
Q

Termination of Spousal Support

A

Periodic SS terminates upon the death of either spouse or the remarriage of the recipient spouse; lump sum / reimb survives cuz fixed payment

20
Q

Child Support - Amount

A

Formula based on number of children, ages, special needs, and parents’ income. Courts have discretion.

21
Q

Child / Spousal Support - Enforcement

A

Contempt of court or going after pay check, assets, tax refunds, property, license, etc. If support order was issued in another state, UIFSA funnels everything back to the original state; gives state “continuing exclusive jx” over support order

22
Q

Custody - UCCJEA Home State Test

A

A court has jx to initially enter or modify a child custody or visitation order if the state (1) is the child’s home state or (2) was the child’s home state within the past 6 months and a parent still lives there.
If there is no home state, court will give jx to the state that has a significant connection with the child and a parent and there’s substantial evidence that child is available there.

23
Q

Custody - “Home State” Defined

A

Child lived with a parent for at least 6 consecutive months immediately before commencement of proceeding

24
Q

Custody - BIC Standard

A

Best Interest of Child Standard: (1) wishes of child and parents (if child is >12); (2) child’s relationship with parents/siblings/others; (3) child’s adjustment to home/school; (4) physical and mental health of individuals involved

25
Q

Joint Custody - Factors

A

(1) fitness of parents; (2) what parents want; (3) parents’ ability co cooperate; (4) child’s preference; (5) level of involvement of parents; (6) how close together they live; (7) homes; (8) effect on child; (9) parents’ ability to carry out joint custody order

26
Q

Custody - 3Ps

A

Not unless court finds that biological parents are totally unfit (DPC concerns – you have a right to raise children) (not BIC Standard)

27
Q

Visitation

A

Independent of the child support obligation; cannot be withheld because of arrearages but may be supervised; no right of 3Ps to visit if parent is fit

28
Q

Adoption - Requirements

A

Consent of biological parents (may be waived if unreasonably withheld like abandonment), consent of adoptee (if >12), investigation and court approval

29
Q

Parent-Child Relationship (UPA)

A

(1) giving birth to child (unless governed by surrogacy k); (2) being married to the woman who gave birth to child during marriage or within 300 days after separation; (3) adjudication of parentage; (4) adoption; (5) acknowledgement of paternity; (6) consent to assisted reproduction; (7) consent by intended parent to a surrogacy agreement