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IL Family Law > Full Set > Flashcards

Full Set Flashcards

(53 cards)

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1
Q

TERMINATION methods

A

Annulment (“declaration of invalidity”) • death • divorce

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2
Q

Void Marriage

A

no court needed, one of requirements missing (bigamy w/ good faith exception & defenses Enoch Arden, Last in Time • incest • mental capacity)

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3
Q

Voidable Marriage

A

needs judicial decree (age, can be nullified by aging • impotency @ time of ceremony w/o knowledge, SOL 1yr • intoxication • fraud • sham)

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4
Q

Annulment effects

A

children are marital

maybe entitled to some spousal support

some equitable distribution of property

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5
Q

Annulment defenses

A

unclean hands

laches

estoppel

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6
Q

Putative marriage doctrine applies in IL, what is it?

A

good faith belief entered into valid marriage

courts will protect innocence

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7
Q

NO FAULT DIVORCE

A
  1. “irretrievably broken” (2yr separation, reduce to 6mo. w/ writing
  2. failed reconciliation
  3. not best interest to keep trying
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8
Q

COMMUNITY PROPERTY JURISDICTION VS. EQUITABLE DISTRIBUTION JURISDICTION

A

COMMUNITY PROPERTY – held jointly & equally divided by court

CL EQUITABLE DISTRIBUTION – “fair” and “equitable” guided by contribution and need

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9
Q

Special Assets - PROFESSIONAL LICENSES & EDU

A

Not in IL or the majority of states

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10
Q

Special Assets -RETIREMENT & PENSION

A

Yes, if earned during M.

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11
Q

Special Assets - PERSONAL INJURY CLAIMS

A

Not necessarily in IL. In the minority, yes if CoA occured during M.

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12
Q

Special Assets - Goodwill

A

Not in IL. Yes in the majority

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13
Q

Special Assets -SICK & VACATION DAYS

A

No, unless paid out in certain (also no in majority).

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14
Q

Special Assets - FUTURE INTEREST

A

No

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15
Q

Special Assets - Social Security

A

No

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16
Q

Special Assets - POST-SEPARATION PROPERTY

A

sometimes because bright line is the divorce not the separation.

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17
Q

Special Assets - Stock options

A

yes, if acquired during M

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18
Q

FAULT DIVORCE

A

Adultery (opportunity & inclination)

cruelty

1yr intentional desertion w/ defense of spouse staying behind

2yrs habitual drug use

bigamy

imprisonment

STD transmission

impotency

attempted murder of spouse

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19
Q

DIVORCE DEFENSES

A

Connivance (spouse consented to wrongdoing)

knowledgeable forgiveness w/ resumed sex, not available if “forgive-able” act after filing

collusion

insanity

consent to marital misconduct

religion

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20
Q

COMMON-LAW DIVORCE, FINALIZING DIVORCE, MEDIATION

A

CL Divorce – 1. legally married and entitled to support, 2. no remarriage

There’s an interlocutory finalization period.

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21
Q

MARITAL OR NON-MARITAL

A

MARITAL – acquired during the marriage • title immaterial

NON-MARITAL – acquired before • excluded by valid agreement • gift, legacy, decent • property sold before the final separation • after divorce • PI w/ COA prior to marriage • judge awarded from one spouse to other • increased value of separate property • income from NMP

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22
Q

DISTRIBUTION OF MARITAL ESTATE (factors)

Study These Flashcards
A 
duration 
obligations from prior marriage 
income 
debts/needs 
age/health 
contribution to spouse’s education 
value of homemaking 
standard of living 
child custody 
spousal support 
tax implications to each party 
significant contribution and enhancement to other spouse’s NMP
23
Q

UNITARY THEORY OF PROPERTy

Study These Flashcards
A

must be EITHER marital or non-marital, if mixed default to receiving party

24
Q

PERSONAL EFFORT to other party’s NMP

Study These Flashcards
A

if that substantially appreciates it may end up in marital estate

25
SPOUSAL SUPPORT FACTORS
``` GENERAL • financial resources • standard of living • time for reemployment • length • age/health • fault (not IL) ``` ``` IL SPECIFIC • those above & fault • custody • tax consequences • valid agreement • formula for max $ & duration ``` IL FORUMULA • couple’s gross
26
SPOUSAL SUPPORT PAYMENT METHODS
``` lump permanent award limited duration rehabilitative reimbursement palimony (cohabitants)) ```
27
SPOUSAL SUPPORT MODIFICATION
Substantial change in circumstances (cannot be from voluntary unemployment) ``` death remarriage of receiver good faith retirement income change duration of support tax consequences effort to be self-supporting future earning capacity property acquired anything else the judge wants to ```
28
SPOUSAL SUPPORT DURING MARRIAGE
JSL for basic necessities, can sue for family expenses
29
SPOUSAL SUPPORT TAX CONSEQUENCES
support recipient as income, payer is deductible
30
SPOUSAL SUPPORT JURISDICTION OF COURT
Subject matter & personal RESIDENCY at least one spouse 90 days EX PARTE can only dissolve the marriage contract cannot do any other ancillary stuff
31
CHILD SUPPORT DUTY/RIGHTS
All parents obligated. The right is the child’s. Parents cannot bargain it away.
32
CHILD SUPPORT HEALTH INSURANCE
generally included
33
CHILD SUPPORT DEVIATION
rebuttable presumption in favor of guidelines, IL courts need finding of facts to deviate
34
CHILD SUPPORT MODIFICATION
always available * GENERALLY substantial change in child’s needs or parent’s employment, only prospective * WITHOUT SUB. CH. if 20% off, 36 mo. after prior order, on public aid & is enforceable
35
CHILD SUPPORT TERMINATION
emancipation • majority age (extensions available) • death of child • termination of parental rights GENERALLY substantial change
36
CHILD SUPPORT JURISDICTION HOME STATE
(Uniform Interstate Family Support Act) with initial jurisdiction continuing and exclusive
37
CHILD SUPPORT TAX CONSEQUENCES
not taxable for either party
38
CHILD SUPPORT ENFORCEMENT
civil/criminal contempt license suspension withhold income withhold tax refunds wage garnishment
39
CHILD SUPPORT AGE OF CHILDREN
19 if in HS, forever if incapacity or student (consider acad. perform., parental circumstances, & SOL sans divorce)
40
CHILD SUPPORT PATERNITY
* by DNA * acknowledgment * 60 days of acknowledging or after order * SOL through all of child’s minority by estoppel (representation of providing, wife relied, wife would suffer $ detriment)
41
CHILD SUPPORT PERSONAL JURISDICTION
* broad through long arm statute of Uniform Interstate Family Support Act (personal service) * consent * residency * past residency * one-act * assertion through registry * anything else
42
CHILD SUPPORT AMOUNT
based on NET INCOME (spousal support on GROSS INCOME) IL imputes income & uses PERCENTAGE OF INCOME MODEL (flat % of both net increasing exponentially to 6 children in 1 household)
43
Factors for CHILD CUSTODY
* LEGAL/PHYSICAL/SOLE/JOINT CUSTODY * IL has no preferences best interest of the child standard * BEST INTEREST OF THE CHILD (primary caretaker • race/religion • domestic violence • child’s preference • GAL) * THIRD PARTIES (no right • estoppel • stepparent custody 5y • grandparent custody living parent 1 mo./incarceration) * HOMESTATE JURISDICTION (6 mo./birth • one parent still in home state) * Significant Connection Jur, default, emergency, exclusive to original (unless decree or no parents residence • NO HOMESTATE PROBLEM (significant connection • default connection • emergency • exclusive to original, unless decree or no parents reside))
44
VISITATION & MODIFICATION OF CHILD CUSTODY
* LEGAL PARENTS have right * NON-CUSTODIAL PARENTS get reasonable visitation * THIRD PARTY in loco parentis • burden to rebut presumption • need to be specifically contemplated in the statute * PUTATIVE FATHERS must show commitment – responsibilities of parenthood • 2 yr SOL * MODIFICATION substantial change • relocation in best interest of child • motives medical • decisions both, but Mormons * ENFORCEMENT under UCCJEA w/ registration and expedited enforcement procedure
45
MARITAL AGREEMENTS elements
1. full & fair disclosure 2. reasonable terms 3. voluntary 4. writing 5. signed clear and convincing evidence standard
46
MARITAL AGREEMENTS DISCLOSURE
$$$
47
MARITAL AGREEMENTS REASONABLE TERMS/VOLUNTARINESS
@ execution (unconscionability • sophistication • fraud • duress)
48
MARITAL AGREEMENTS MODIFICATION
available, can make some things explicitly unmodifiable
49
PREMARITAL AGREEMENTS
(Uniform Premarital Agreement Act • act is consideration • law where agreement was, IL is minority • contract principles • IL voids provision against spousal support if become public dependant • can’t contract away child support or custody)
50
SEPARATION AGREEMENT
property division, child custody • visitation • favored by courts • can be encorporated in divorce judgment to make it enforceable as judgment creditor
51
AGREEMENTS BETWEEN COHABITANTS
enforceable, but IL is hostile to them, if not in writing
52
TERMINATION OF PARENTAL RIGHTS FOR PURPOSE OF ADOPTION
* voluntary (unwed dads register 30 days, CCE, if child is 6mo+ then has he lived w/, contacted last 6mo. * surrender, irrevocable 72hr, SOL fraud/duress 1y, 14y+ must consent) & involuntary (CCE only courts, abuse, unreasonably withheld, death, incapacity, neglect, not with legal parent 15/22mo, 2 steps unfit then whether termination is best)
53
SURROGACY
valid in IL 1. writing 2. 21yr 3. both counsel 4. prior birth 5. husband signs too

IL Family Law (1 decks)

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