Family Law Flashcards
(146 cards)
1
Q
In GA, what happens if you decide to break off your engagement? What type of action might your fiancee have against you?
A
Breach of the promise to marry - contract action
2
Q
What damages can you get for a breach of a promise to marry?
A
Actual damages (wedding preparation costs), mental suffering, counseling
3
Q
What must you do with gifts given in contemplation of marriage?
A
You must return them.
4
Q
How do you determine whether the gift was given in the contemplation of marriage?
A
Consider these factors:
- type of property given
- fraud
- conditions attached to the gift
- intent of the donor
5
Q
How old do you have to be to marry in GA? What about with parental consent?
A
18: no parental consent
16 and 17 years old: okay to marry with parental consent
6
Q
What’s it called when you can’t marry blood relatives?
A
Consanguinity of affinity restrictions
7
Q
Who can’t marry in GA?
A
Parents and children Grandparents and grandchildren Siblings (whole or half) Aunts and nephews Uncles and nieces * 1st cousins can marry!
8
Q
Who else can’t marry in GA (other than consanguinity of affinity restrictions)?
A
no gay marriage
mentally incompetent (can’t comprehend and voluntarily marry)
no physical capacity (must be able to have sex)
no bigamy or polygamy
9
Q
Is there a waiting period b/w the time you get the license and when you can get married? Must you take a medical test?
A
No waiting period
No medical test
10
Q
Who can solemnize the wedding?
A
- judge
- minister
- person of a religious sect authorized to perform marriages
11
Q
What happens if the person who solemnized the wedding was improper?
A
Doesn’t affect the validity of the wedding
Improper officiant could be subject to FINES
12
Q
Is common law marriage allowed in GA?
A
No. It was abolished in 1997. Any common law marriages existing before 1997 will be recognized.
13
Q
Is physical presence required to get married?
A
Yes, both must sign the wedding license.
14
Q
Is consummation required? What does consummation mean in this context?
A
Yes. Consummation means officiant signs marriage license
15
Q
What are the 2 state of mind requirements
A
- no duress
2. capacity to consent: must have the mental capacity to understand your actions and agree to your actions
16
Q
What are marriage articles?
A
Premarital contracts entered into between two parties
Contingent on the marriage
The consideration is the marriage itself
*if the contract is made in contemplation of divorce: premarital agreement
17
Q
Must marriage articles be written? How many witnesses must sign?
A
They can be oral or written.
2 witnesses necessary
18
Q
Requirements for a marriage article to be enforceable?
A
- good faith
- NO undue influence
* make sure it is fair and that one party didn’t take fraudulent advantage of another
* did both sides disclose all of their property and financial situations?
19
Q
Does GA recognize tenancy in the entirety?
A
NO
20
Q
How do spouses take property if not stated? (Default?)
A
Tenants in common
21
Q
Are heart balm actions such as alienation of affects or criminal conversation recognized in GA?
A
NO. Spouse may be able to recover for loss of consortium in a negligence action against a 3rd party.
22
Q
Does GA still recognize interspousal immunity?
A
Yes. However, the court won’t recognize if the traditional policy reasons for having it don’t apply in a particular case. (preserving marital harmony and preventing collusion by spouses)
23
Q
Is there interspousal immunity if one spouse sues the other in wrongful death actions?
A
NO
24
Q
When will a spouse be liable to a third party for the other spouse’s purchases?
A
When the purchases are NECESSARIES
25
Confidential Marriage Communications Privilege: what is it? who can waive/assert?
Can be claimed by either spouse. Only the spouse AGAINST whom the testimony is offered may waive.
Communications made during marriage that are confidential
26
2 ways that marriage ends?
1. annulment
| 2. divorce
27
Annulment: when is it available?
If the marriage is VOID or VOIDABLE
```
Bigamy
Consanguinity
Insufficient age
Lack of capacity
Mental incompetence
Duress
Fraud
```
28
Voidable marriage
Event or condition affecting adequacy of consent to the marriage
A voidable marriage will be treated as valid UNLESS/UNTIL it is annulled.
The impediment can be removed (cured by ratification) --> insufficient age is an example
29
When will an annulment NOT be granted in GA?
If a child was born as a result of the marriage or a pregnancy resulted.
30
Void marriage
Null from inception
| CANNOT be ratified
31
Who can attack a void marriage?
One of the two parties OR
| a third party may collaterally attack
32
How can you ratify a voidable marriage?
Cohabitation after removal of the infirmity/defect
33
What is the effect of annulment?
The marriage is set aside AS IF it NEVER existed
34
Can alimony and child support be awarded in an annulment?
Yes (but remember that the child must have been before the marriage or else no annulment allowed if child born during marriage)
35
How can a divorce case be tried in GA?
judge OR jury!
36
What gives the GA court jurisdiction to hear a divorce case?
1 of the 2 parties must have been a bona fide resident of GA for at least 6 months before filing.
37
When will another state given full faith and credit to a GA divorce decree?
If 1 of the 2 parties had been a domicile of GA.
38
When will another state given full faith and credit to a GA decree that includes property rights, child support, etc?
GA court must have had personal jurisdiction over the defendant.
39
How does a P assert personal jurisdiction over D in GA when trying to get property rights, child support, etc decided?
Use the Domestic Relations Long-Arm Statute
40
When can you use the Domestic Relations Long-Arm to get PJ over a non-resident?
If nonresident
1. maintains a matrimonial domicile in GA at the time P files the action OR
2. D resided in GA before the filing (whether cohabiting or not)
41
What are the two types of grounds for divorces in GA?
1. fault
| 2. NO fault
42
Fault based grounds
1. adultery
2. desertion for a period of 1+ year
3. cruel treatment
4. voluntary drug addition or habitual drunkenness
5. mental incapacity
6. conviction for moral turpitude crime AND 2+ years in jail
7. force, menace, duress, or fraud in obtaining the marriage
8. the wife was pregnant with another man's child at the time of the marriage and the husband did NOT know
9. incurable mental illness
43
How do you prove adultery?
Circumstantial evidence:
1. opportunity
2. adulterous disposition
44
How do you prove incurable mental illness so that you can use "fault" grounds
court OR 2 physicians must say incompetent
45
What are defenses to fault based grounds for divorce?
1. collusion
2. connivance
3. condonation
4. recrimination
46
What is collusion?
Defense based on parties (spouses) agreeing to simulate the grounds for divorce
47
What is connivance?
Defense based on the WILLING consent by one spouse to the other's misconduct
Ex: open marriage
48
What is condonation?
Defense that the spouse seeking fault based divorce forgave the other spouse with full knowledge that a marital offense has occurred AND the spouse resumed living in a marital relationship
49
What is recrimination?
The party seeking the fault based divorce has also committed a fault. (form of unclean hands)
Parties will have to use no fault divorce
50
No fault divorce: what do you need to show?
Show that the marriage was irretreviably broken with no possibility of reconciliation
51
How long do you have to wait to get a no fault divorce?
30 day waiting period
52
Why would one spouse want to institute an action for legal separation and NOT divorce?
It leaves the marriage intact in name only (religious reasons possibly?)
But, legal separation allows for a division of property and alimony awards just like divorce
53
How is property divided in Georgia?
Equitable division of marital property
54
How does court determine equitable division of marital property?
1. court determines what is separate property and what is marital property
2. makes an equitable division
55
What does equitable division?
EQUITABLE DOES NOT MEAN EQUAL
56
What is separate property?
Property owned prior to marriage and any appreciation
| Any property acquired during marriage b/c of gift or inheritance
57
How does the court handle "mixed property?"
Mixed property is property that means both separate and marital.
Court will separate it unless the two are inextricably mingled
Example of mixed: pension you had before coming into marriage
58
Equitable division factors: 4 categories
1. Spouses' characteristics and backgrounds
2. Spouses' assets + standard of living
3. How did spouses accumulate their assets?
4. What considerations of the spouses should be considered?
59
Equitable division factors: spouses characteristics and backgrounds
- age, education, background, and earning capacity of each spouse
- duration of the marriage
- were there prior marriages?
- each party's opportunity to acquire future income and assets
60
Equitable division factors: spouses assets and standard of living
- Each party's income
- Employability of each party
- Standard of living during the marriage
- Assets and liabilities of each party
61
Equitable division factors: how did the parties accumulate their assets?
- source of the funds used to buy property
- contributions to the marital property
- contributions by a homemaker
62
Equitable division factors: what considerations of the spouses should be considered
- health of the parties
- needs of the parties
- provisions for the custody of children
- in lieu of or in additional to spousal support
- CAN consider marital fault
63
If there is a personal injury action, whose property is the pain and suffering of the injured spouse?
Separate property of the injured spouse
64
If there is a personal injury action, whose property is a loss of consortium claim by the uninjured spouse
Separate property of the uninjured spouse
65
If there is a personal injury action, whose property is lost wages and medical expenses during marriage
Marital property
66
If there is a personal injury action, whose property is lost wages and medical expenses after marriage
Separate property of the injured spouse
67
Pension earned during marriage: whose property?
both- marital property
68
Professional degrees and licenses attained during marriage: whose property
NOT marital property
69
Can an equitable division of property be modified?
Generally, no.
Only if you can annul the award judgment b/c of fraud
70
Spousal support: what is it usually called?
Alimony or maintenance (these are somewhat on the decline)
71
How do you determine whether a spouse is entitled to spousal support?
Based on need
One spouse must have an economic deficiency that has resulted, at least in part, from marriage.
72
What are the 4 types of spousal support?
1. Permanent periodic alimony
2. Lump sum alimony
3. Rehabilitative alimony
4. Reimbursement alimony
73
What is permanent periodic alimony?
Alimony that is paid monthly for an indefinite amount of time
74
When does permanent periodic alimony end?
When either party later dies OR
When the recipient remarries OR
When the recipient cohabits w/ lover
75
When can a permanent periodic alimony be modified?
there must be a material change in circumstances
76
What is a lump sum alimony?
Money is paid up front (or in installments) and is discounted to present value
If paid in installments, there is a fixed period.
77
When does a lump sum alimony end?
DOES NOT EXPIRE upon death of either spouse or remarriage
78
When can a lump sum alimony be modified?
NONE - treated like a contract
79
What is rehabilitative alimony?
Money to get nonworking spouse back into workplace
| Specified time period
80
When does rehabilitative alimony end?
Death of either spouse OR
When the recipient remarries OR
When the recipient cohabits w/ lover
81
When can rehabilitative alimony be modified?
When there has been a MATERIAL CHANGE in the circumstances
82
What is reimbursement alimony?
It is repayment based on what one spouse contributed to the education of another.
This is based on the amount of contribution, not based on the current value of the degree.
Lump sum or installments
83
When does reimbursement alimony end?
DOES NOT EXPIRE upon death of either spouse or remarriage
84
When can reimbursement alimony be modified?
Can't be modified - treated like a contract
85
Spousal support (alimony) factors
- duration of the marriage
- standard of living during the marriage
- financial resources of each party, including how the marital property is being divided
- age and physical and emotional condition of the parties
- contributions of each spouse to the marriage
- time needed to get education or training to enable a party to start working
- ability to pay the alimony amount
- conduct, INCLUDING MARITAL FAULT
86
What bars a party's claim for alimony?
If that party committed adultery BUT ONLY IF the adultery was the cause of the spouses' separation.
87
When can marital fault be considered by court?
Both in the equitable division of property AND in the spousal support
88
How can a spousal support award be modified?
For substantial and material changes in circumstances
89
How does the court determine child support?
It uses a detailed statutory scheme.
| There is a child support obligation table
90
How does the table determine child support? What does it consider?
- child's need
- parent's ability to pay
- there is a formula that takes into account:
1. number of children
2. ages of the children
3. special needs of the children
4. ALL sources of parental income
5. time spent with the child
91
How is the amount of time spent with the child during marriage relevant to the child support award?
More time spent with child, less paid in child support.
92
What if you don't pay child support? Can you still visit your kids?
Yes. They are independent of each other.
93
When does child support end?
At 18.
| Court, in its discretion, can order child support until 20 if child is still in high school.
94
How can you modify a child support award?
Only for a substantial change in circumstances.
95
What can you do if your ex-spouse doesn't pay you spousal support or the child support?
1. contempt (could include jail time until you pay)
2. judgment or levy - spouse becomes creditor
3. garnishment of wages - spouse can get wages directly from other party's employer
4. attorney's fees
96
What are additional remedies for failure to pay child support?
1. automatic wage withholding
2. interception of federal returns if he owes you more than $500
3. Child Support Recovery Act
4. non-renewal of professional license
97
What does the custody determination include? (2 aspects)
1. legal custody
| 2. physical custody
98
Legal custody: what is it?
Right to make major decisions affecting the child
99
Physical custody: what is it?
Actual possession and control of the child
100
What is the law governing custody when more than one state is involved?
The UCCJEA
101
When can GA make the initial custody determination/award?
If GA is the home state of the child -> child has lived in GA for 6 consecutive months (home state)
102
What if child is not still living in GA, but a parent is. Can GA make initial custody determination?
Yes, if the child lived in GA within 6 months of the proceeding (for at least 6 months) AND the parent is a current resident of GA
Ex: File for custody in GA on June 1. Child doesn't live in GA anymore, but did from May of last year until May of this year
103
Definition of home state
Any state where the child has lived with a parent for 6 consecutive months
104
What if no state has home state jurisdiction? When can GA make initial custody determination?
If the child has significant connections with GA and there is substantial evidence of the child's well-being in GA.
105
If there is no home state and child doesn't have substantial connection to GA, GA could still do initial custody award if ....
deferred jurisdiction (all other states have declined b/c GA more appropriate)
106
When can a GA court modify a GA custody award?
GA has continuing exclusive jurisdiction UNLESS
- no significant connection or substantial evidence in GA OR
- no child or parent resides in GA
107
What if GA wants modify ANOTHER STATE'S custody decree?
GA must have jurisdiction b/c it is a home state OR child has significant connections and there is substantial evidence of the child's well being
PLUS the other state must no longer have continuing exclusive jurisdiction
108
When should GA decline jurisdiction over a custody award?
When a proper proceeding is pending somewhere else
| When P has engaged in unjustifiable conduct
109
When can GA exercise TEMPORARY emergency jurisdiction?
1. child is physically present AND
| 2. child has been abandoned or it is necessary to protect the child b/c someone in family is subject to abuse
110
What is the standard used in custody awards? Visitation?
Best interest of the child standard used for both custody and visitation
111
best interest of the child (factors)
1. parents' wishes
2. wishes of the child
3. relationship of the child to parents, siblings
4. child's adjustment to home, school, community
5. mental and physical health of the individuals involved
6. parental conduct and fitness
7. other relevant factors
112
How strongly will a court consider a child's wishes for custody when the child is 11-13 years old?
Not controlling, but taken into account
113
How strongly will a court consider a child's wishes for custody when the child is 14+ years old?
Child's wishes control unless court determines not in child's best interest
114
Do courts try to keep siblings together?
Yes
115
What if a nonparent tries to get custody? What must nonparent prove?
Heavy burden against nonparents - nonparent must prove by clear and convincing evidence that the parent(s) is unfit
116
When will a child custody modification be considered?
Significant change in circumstances affecting best interests of the child concern
117
Is a parent entitled to visitation?
Yes. Other parent MUST be given reasonable visitation rights
118
What if a grandparent wants visitation? What do GA courts consider?
- did child live with grandparents 6+ months?
- did grandparents financially support child for 1+ year
- is there an established pattern of child care
- any other relevant factors
119
If grandparents get visitation, how much must they be given?
24+ hours a month
120
Will a GA court enforce a contract if any part of the consideration is sexual relations?
No. NO part of the consideration can be sex. (opposite of general rule)
*Look for this if there is no marriage but parties entered into some sort of agreement when living together
121
How is property divided when unmarried people who were living together split up?
divided as titled
122
Nonmarital children - what is the standard if statute classifies based on this?
intermediate scrutiny: gov't must show that the law is substantially related to an important gov't interest
123
Nonmarital children: can they inherit through intestacy
Yes. They have the RIGHT to inherit from their intestate fathers (would just have to prove paternity)
*statute can't eliminate this right
124
How must paternity be proven?
By clear and convincing evidence
125
What if a child enters into a contact for a motorcycle at age 16? Contract for necessaries at age 16?
Motorcycle: voidable
Necessaries: bound
126
How old do you have to be to write a valid will in GA?
14 years old
127
How old do you have to be to have tort or criminal liability in GA?
13
128
What if you commit a crime and you're under 13?
Juvenile court
129
When is there no spousal immunity?
When one spouse commits an intentional tort
130
What factors will GA courts use to determine whether spousal immunity applies in NEGLIGENCE actions?
1. avoidance of collusion
2. preservation of family harmony
3. depletion of family assets
4. maintenance of parental authority
5. possibility of inheritance (no windfall)
131
What if one ex-spouse interferes with custody or kidnaps?
No tort action in GA, but criminal action
132
Adoption- what if child you are adopting is 14+ years old?
The child must consent in writing and consent must be acknowledged in court
133
Adoption: steps
1. consent from natural parents
| 2. investigation and court approval (court must make sure adoptive parents are suitable)
134
Do you need to get consent from an unmarried father?
It depends on how active he has been in the child's life.
| - did the father live with the child? care for him? admit paternity? pay child support?
135
What can be paid to the natural parents during adoption?
Only actual expenses and legal expenses (hospital, medical expenses)
136
Does GA allow private adoptions?
Yes
137
Annulment: when can you get an annulment
Declaration that a marriage was invalid -due to an impediment at the time of marriage
138
Three elements that the person seeking to enforce a prenup must prove:
1. no duress, fraud, misrepresentation, mistake
2. not unconscionable
3. not unfair and not unreasonable in light of current circumstances
139
No duress prong
1. full disclosure of the parties' assets
2. the party opposing enforcement entered into the agreement freely, voluntarily, and with a full understanding of its terms after being offered the opportunity to consult with independent counsel
140
Not unconscionable prong
One party can't take fraudulent advantage of the other
141
Not unfair or unreasonable
If there are changes beyond what was contemplated, it may be unfair if unforeseeable.
142
Common law marriage elements
1. both parties must agree to a marriage relationship
2. cohabit, and
3. both parties must hold themselves out to be married
143
Marriage articles: enforced in what type of court?
Enforced in court of equity
144
Separate property: what happens if it increases in value during the marriage?
Still separate property unless both spouses worked together to form the appreciation, in which case marital estate would be granted a reimbursement for the value added.
145
What if one person does a downpayment before marriage and then house is paid for by both during marriage?
Figure out what proportion was paid separately and what was paid as marriage property.
146
What if people are not married and they enter into an agreement as to how they want to divide property when they break up?
- use general contract principles
| - look out for normal contract defenses AND whether any part of the consideration was sex (invalid)
