Flashcards in Family Law Deck (57)
How old must someone in Indiana be to marry?
18. Someone 17 may marry with the signed and verified consent of her parents or a judge. Someone 15-16 may marry if she receives signed and verified consent of her parents, she is pregnant and he is the putative father of the expected child, and the two decide to marry.
What are the restrictions on marriage re: consanguinity.
Marriages between persons more closely related than second cousins is prohibited unless both parties are at least 65 years old.
What two (2) things are required for a valid marriage in Indiana?
(1) A license (which expires in 60 days), and
What are the three (3) state of mind requirements for marriage?
(1) Capacity to consent,
(2) Intent, of their own free will, to enter into the marriage, and
(3) The marriage is not for a limited purpose (a "sham" marriage).
Is common law marriage recognized in Indiana?
No, unless a couple is considered married under another state's law.
What is consideration for a premarital contract? Must the contract be in writing?
Entry into the marriage is sufficient consideration. The contract must be in writing to satisfy the Statute of Frauds.
May a premarital contract be amended? Must there be additional consideration?
A premarital contract may be amended or revoked only by written agreement signed by the parties. No additional consideration is required.
If spouses take title to real estate in their joint names, what type of tenancy is formed?
A tenancy by the entirety with a right of survivorship. Conveyance or encumbrances of the property by one spouse is prohibited.
What two (2) types of marriage are subject to annulment?
(1) Void marriages, and
(2) Voidable marriages.
What is a void marriage?
One that never existed for any purpose and is a complete nullity. No subsequent act can ratify the marriage. Interested parties may attack void marriages.
What is a voidable marriage?
One of the spouses (not an interested party) may bring an action to have the marriage declared invalid because of an impediment existing at the time of marriage. The marriage is deemed valid unless one of the spouses seeks an annulment.
Under what grounds is a marriage void?
Bigamy, consanguinity, foreign marriage to avoid IN law, mentally incompetent at time of marriage, and common law marriages entered into in IN after 1957.
Under what grounds is a marriage voidable?
Nonage, incurable physically impotence, and lack of capacity.
What are the defenses to a void marriage?
The impediment did not exist.
What are the defenses to a voidable marriage?
The impediment did not exist, ratification, laches, or estoppel.
What are the grounds for a divorce?
Indiana is a "no fault" state. Generally, "irretrievable breakdown" is the reason for divorce. Others include: impotency, conviction a felony subsequent to the marriage, and incurable sanity for at least 2 years.
When will a court grant a legal separation?
(1) Conditions in or circumstances of the marriage currently make it intolerable for both parties to live together,
(2) The marriage should be maintained, and
(3) Neither party has filed for dissolution of marriage.
What type of theory re: property does Indiana employ?
The "one pot" theory.
What factors will a court consider to determine whether a division of property is just and reasonable?
(1) The contribution of each spouse to the acquisition of the property,
(2) The extent to which property was acquired prior to marriage or through inheritance or gift;
(3) The economic circumstances of the party,
(4) The conduct of the parties during marriage re: the disposition or dissipation of property,
(5) The earning ability of each party;
6) Length of marriage, and
7) Tax consequences of the division to each party.
What items are deemed property subject to division?
(1) Retirement plans,
(2) Personal injury settlements,
(3) Professional goodwill,
(4) Disability insurance benefits,
(5) Income tax refund,
(6) Interest in an annuity, and
(7) Remainder interest in real estate.
What items are not deemed property subject to division?
(1) Property belonging to another,
(2) Future earnings or contingent benefits,
(3) A zero value business,
(4) An education degree, and
(5) Union disability pensions.
Is debt considered part of the marital pot?
Yes, absent proof of an unjust result.
Can a property division order be revoked or modified once entered?
Only in the case of fraud, which must be asserted within 6 years after the order is entered.
What are the limited circumstances under which spousal maintenance may be awarded?
(1) Based on disability of the spouse or a child,
(2) Rehabilitative maintenance (continuing education for up to 3 years), or
(3) Maintenance agreements.
Under what circumstances is child support terminated?
When the child:
(2) Turns 19,
(3) Is legally emancipated,
(4) Is on active duty in the armed services,
(5) Is married,
(6) Is no longer under the parents' control, or
(7) Is at least 18, has not attended school in the past 4 months, and is capable of self-support.
What is the general rule re: modification of maintenance and child support awards?
No modifications before 12 months.
What are the grounds for modifying a maintenance, child support, or child custody award?
Substantial and continuing change in circumstances.
What are the enforcement options for maintenance and child support awards?
(1) Civil contempt,
(2) Criminal contempt,
(3) Judgment against the noncomplying party,
(4) Seizure of real estate,
(5) Attachment of wages, and
(6) Order of payment of attorneys' fees.
In addition to the above, child support awards also allow:
(7) Automatic wage withholding,
(8) Interception of tax return, or
(9) Nonrenewal or refusal of professional or driver's license.
What is the purpose of the Uniform Interstate Family Support Act ("UIFSA")?
To simplify collection of child support/spousal support where the original support order was issued in one state or foreign country but the obligor or the child resides in another.