Georgia Family Law Flashcards
(130 cards)
1
Q
Antenuptial (Premarital) Agreements
A
Prematial contracts that address the rights of parties upon divorce or death
Can agree to remain separate in property
Can agree to waive alimony unless renders spouse a public charge
2
Q
Premarital K rules
A
(1) Absence of Fraud, duress, mistake, misrepreation, or non disclosure.
(2) Free and voluntary with full understanding, (cts. look at the opportunity to consult with independent counsel.)
(3) It was not unconscionable when executed
(4) It is neither unfair nor unreasonable in light of current circumstances.
(5) in writing signed with 2 w’s (1Notary)
3
Q
Common Law Marriage
A
(consent,cohab,ho)
(1) GA pre-1997 nor non-Ga,
(2)pts cosent to marry
(3) cohabitate; AND
(4) Hold themselves out to be married
4
Q
Ceremonial Marriage
A
(1) License and
(2) Consumation (solomnization); recorded w/ in 30 days or affidavits from 2 Ws req’d to issue lic and record.
(3) No bigamy(already married) or consanguity (half siblings can’t marry, cousins CAN)
(4)Age 18, 17 with consent, 16 or younger not allowed
5
Q
Heartbalm Action (Marriage)
A
Civil sut for breach of promise to marry;
money damges for reputation and expenses incurred in prep
Return the gifts
6
Q
Annulment (Marriage)
A
Decalr marriage invalid;
ok unless you have marital kids (unless marriage is consangity bigamy)
distribution of property: Puts parties back in the position they were in before marriage,
Spousal support in the interim
7
Q
Void (Marriage)
A
Never Valid
- Bigamy
- Incest
- Mental incapacity
8
Q
Voidable (Marriage)
A
Valid until ct declares void; Secsequent consent & Cohab can validate;
(1) 17 w/o parent consent or under 17
(2)duress
(3)intoxication
(4) Fraud or misrepresentation
9
Q
No Fault (Divorce)
A
10
Q
Rights and Responsibilities of property (Marriage/divorce)
A
Each spouse owns and controls the property in their own name, but TITLE IS NOT DISPOSITIVE when equitably dividing in the event of divorce.
11
Q
How do spouses take property (Marriage)
A
As tenants in common, can alter this by a deed which would make them joint tenants with a right of survivorship. (Georgia does not recognize tenancy by the entirety).
12
Q
Support and Doctrine of necessities
A
Each spouse has an obligation to support the other during marriage. uNDER DOCTRINE OF NECESSAIRS, ONE SPOUSE CAN BE HELD LIABLE TO A THIRD PARTY FOR THE OTHER SPOUSES PURCHASES THAT RELATE TO NECESSARY EXPESNES (Food clothing, medical care).
13
Q
Residence Req (Divorce and speeration)
A
Only one of the spouses must be a bonafied resident (aka domicled 6 months before filing)
Non resident can file a petition against a goeriga resident as long as its filed in the county of the D’s residency after that person lived in Ga for 6 months).
14
Q
Financial Issues (Divorce and separation)
A
Generally a court cannot determine property rights or rights to support unless it has PERSONAL JURISDCIITON.
If you cant get personal jurisdiction then the court can grant the divorce but cant award spousal support or divide property.
15
Q
Georgia Long Arm for Financial issues (DIVORCE and Separation)
A
Reach them for child support, spousal support, etc, if the nonresident
(1) mainis a matrimonial domicile in Georgia at the time of the commencement of the action OR
(2) Resided in Ga preceding the commencement of the action
16
Q
Concurrent Jurisdiction ((Divorce and separation)
A
Multiple cases could proceed until one court renders a judgment causing the other to lose SMJ (Becuase it is moot since marriage is over)
17
Q
Divorce as a Jury Issue
A
Georiga is the only state that allows the question of divorce to go to a jury.
18
Q
2 types of Divorce
A
No fault and fault
19
Q
No fault divorce
A
No fault is pled or proven as a matter of law (even though there may be fault as a matter or fact). MAKE SURE YOU MENTION THE MARRIAGE IS IRRETRIBEBNLY BROKEN WITH NO POSSIBILITY OF RECONCILLIATION.
20
Q
What must you show for a No fault divorce?
A
Must show
(1) Marriage is irretrievably broken with no possibility of reconcillation)
(2) 30 day waiting period b/t service on respondent and the grant of the divorce
20
Q
A
21
Q
What must you show for a fault divorce?
A
Any of the 11:
Cruelty
Habiital intoxication or drug use
Adultry (opportunity and inclination w/ coroboration)
Desertion for 1year+
Mental incapacity
Incureable mental illness
Convition of an offense involving moral turpitude (honesty)
Incest
Impotency
Fraud
Pregnancy
22
Q
What is the only defense to a no-fault Divorce
A
Reconciliation during the 30-day witing period.
23
Q
Defenses to Fault Divorce
A
Collusion
Connivance (willing conent by one spouse to another spouses misconduct)
Condonation (Forgivness with full knowledge of their commission, courts will look at whether yall started having sex again
Recrimination (The party seeking the divorce is guilty of the same misconduct they are accusing the spouse of) COURT DONT LOOK AT THIS ANYMORE
24
Legal Separation
Cant divide property but Court can still get awarded support. and make determinations regarding child custody.
25
What property division appraoch does the state of Georgia use?
Equitable division of marital property: Each spouse takes ehteir separate property, and the court only divides the property acquired during the marriage. PROEPRTY DEVRESS ARE NOT MODIFIABLE (FINAL)
26
What is the two step process for property division
(1) CLassification: Determine whetehr each asset is marial, separate, or mixed property.
(2)Division: Make an equitable division of the marital estate.
Title is NOT dispositive in equital division. If you see a bar question where all of the property acquired by the spouses is tiled in one spouses name DONT FALL FOR IT.
27
What are the 3 different types of classifications for assets?
Separate property, Marital Property, Mixed property
28
What is separate property?
All real and personal property owned by a spouse before marriage (including assets held in retirement accounts).
Property acquired by gift, bequest, devise, or descent
Property acquired in exchange for separate property
Income from and appreciation of separate property
Personal damages and future damages
29
Marital Property
All other property acquired during the marriage.
30
What are the special issues with classification of property?
Comingling
Source of funds
Transmutation
Appreciation of Separate Property
Property acquired before the marriage but paid for after the marriage (source of fund rules apply).
Pensions
Professional License or Degree
31
Comingling
Comingling (Money is now inextricably intertwined)
32
Source of funds rule for property
Source of funds (property is classified as separate or marital based on the source of funds used to acquire it)
LOOK FOR Property acquired before the marriage but paid for after the marriage
33
Transmutation
Transmutation (Seperate property now becomes maritabl property based on the intent of the parties (ex. husband buys home and list him and wife as joint tenants with rights of suvivorship.
34
Appreciateion of separte property
An increase in the value of separate property belongs to the marital estate ONLY IF it is improved by use of marital funds or the efforts of either spouse.
Note a regular increase due to markets factors means that it remains separate property.
35
Pensions
Marital property if acquired during the marriage. Some spouses simply accept other assets at the time of the divorce to equalize the distribution.
36
Professional License or Degree
In Georgia professional liscense degree is not distributable property however if one spouse puts the other through school, the court may consider the degree when making an award of ALIMONY (NOT PROPERTY DIVISION)
37
Tax Consequences
Property division is not considered a taxable event.
38
Can you modifiy a property divsion?
No!!!!
39
What factors are considered when making an equitable division of property?
GIRL LOOK AT PG. 20 THERES TOO MUCH.
Just end it by noting that the trial court has a great deal of discretion in making an equitable division of property.
40
What are the two ways courts can divide property?
In kind (dividing up by assets)
By contribution. (awarding assets to one spouse and money to the other)
41
What do we look at when deciding alimony?
1. Needs of the claimant's spouse and
2. The ability of the other spouse to pay
42
What is alimony?
A sum of money paid by one spouse to an economically dependent spouse.
43
What are the 4 types of Spousal support (alimony)
1. Permanent Periodic Spousal Support
2. Lump sum?
3. Rehabilitative spousal support
4. Reimbursement spousal support
44
Permanent periodic Spousal support
Money paid regularly to support a spouse who has neither the resources nor the ability to be self-sustaining.
Duration: Indefinite until someone remarries or dies
Modification: Can be increased, decreased, or terminated upon proof of circumstantial change of circumstances.
LOOK FOR NO GRAND TOTAL 500 PER MONTH
45
Lump sum
Take what would have been paid over the years and give it all at once or in a series of payments
Duration: For the specified time period
Modification: None and its binding on Payor's estate
LOOK FOR GRAND TOATL 30K PAYABLE IN 500 MONTHLY INSTALLMENTS
46
Rehabilitative Spousal Support
Period payments for a limited time to enable a spouse to gain skills to become self supporting (can be periodic or lump sum)
Duration (for a specified time as decided by court.
Modification: Can be increased, decreased, or terminated upon proof of a circumstantial change of circumstances.
47
Reimbursement Spousal Support
Reimburse a spouse who made financial contributions to pay for the other spouse to get additional education or training that increased the second spouses earning power, and the paying spouse didn't get to enjoy the benefits of that increased earning power because of the divorce.
Duration: A specific period of time but can be payable in installments or lump sum
Modicitaion. None it is treated as a contract right an binding to payors esate.
48
What factos do courts look at when devideing alimony?
Look at pg 24 in barbri
49
What is an absolute bar to alimony?
Adultery or desertion
50
What are the only types of spousal support (alimony that is modifiable)
Permant periidic or rehabilitative alimony.
Look for a change that is
1. substantial
2 continual
Voluntary reduction is not suffienct to reduce change (you quit your job, that's on you).
51
Termination of Spousal support
1. Recipient remaires
2. either spouse dies
3. Recipient cohabitatioes with another (termination not automatic so payor has to ask judge).
52
Tax consequences
Pre 2019 it was taxable and seen as income to recipient.
53
Can you modify the equitable division of property?
No
54
A parents duty to pay child support is based on what?
1. The childrens need
2. The ability of the parents to pay
55
What model does Ga use to calculate child support?
The income shares model.
It uses the namer of children and the income of the parents to determine a baseline of support. Ct then adds things like health ins. and extraordinary medical or education expenses.
56
Courts deviate from the amount set forth in teh income shares model for child support if?
If deviation is in the best interst of the child or the award would be inequitable to a party.
57
Child support obligations are independent of?
Visitation.
Visitation cannot be withheld becuase of failure to pay child support and a parent could be denied visitation but still required to pay child support.
58
Duration of child support
Until child is 18.
59
When does the duty to support a child end?
Death of the child
Emancipation
Termination of parental rights.
In Georgia courts have the discretion ot continue child support until age 20 if an unmarried child is still in secondary school.
60
Child support can continue for a longer time and may be indefinite if
A child is severely disabled.
61
How do you get someone to pay for the Childs college?
Gerogia courts will enforcee an agreement by the parents to continue child support into college, but courts will not extend child support into college on thier own.
62
Jurisdiction over child support
Uniform Interstate Family Support Act
Simplifies the collection of child support when parties move out of the state
63
Who has original jurisdiction over Child support.
RUN TO THE COURTHOUSE. It is where the first petition under UIFSA is filed. Other states can excerscise jurisdiction though if certain circumstances apply.
64
How to get original jurisdiction form UIFSA if someone beat you to the courthouse.
1. The second petition is filed before the time to answer the first one has expired.
2. The petitioner has objected to jurisdiction in the first state
3. The second state is the child's home state.
Child home state is where the child has lived with a parent or person acting as the patent for a period of 6 mths.
65
Who has the jurisdiction to enforce child support?
Court that initially issued the order and UIFSA helps parties enforce orders in other states by:
Direct enforcement or registration.
66
What is direct enforcement of child support?
Allows the obligee to mail the order ro the obligors employer in another state. Employer recieves the court order and withholds wages based on that child support order.
67
What is Registation of Child support?
A method other states use to enforce child support. UIFSA provides for registration of a support order with another state. The issuing state sends the order to the state where the obligor resides. It is registered, filed as a foreign judgement, and subject to enforcement in that state.
68
How does the Full faith and credit for child support orders Act come into play?
Full faith and credit must be given to valid child support orders of a court in another state.
69
Who has the jurisdiction to modify child support?
The court that enters a valid child support order, maintains a continuing, exclusive jurisdiction over the order UNLESS
1. no parties reside in the issuing state or
2. the parties consent to another state jurisdiction.
70
How do you get child support awards modified?
Child support is modifiable based on a substantial change of circumstances to pay.
Voluntary changes dont count.
No petition to modify can be filed until two years have elapsed from the prior order.
71
How long do you have to wait to relitigate to modify for child support?
2 years. AND PAST DUE INSTALLMENTS OF SUPPORT CANNOT BE RETROACTIVELY MODIFED.
72
Are child support payments taxable?
NOPE.
73
How are child support awards enforced?
Holding the nonpaying party in contempt of court.
Seize property
Wage withoding
Intercept tax refunds
Revoke license
74
What is the Child support Recovery act
Created by Gerogia which provides that a state agency can help parent s collect child support.
75
What is Uniform Child Custody Jurisdiction and Enforcement Act?
Assist in deciding which state can decide child custody matter initially and which states have jurisdiction to modify custody orders.
76
How do you know which court has jurisdiction over child custody and visitation?
Use the primary test to find the home state.
When home state rule does not apply then you look for where a kid has significant connection with state and there is substantial evidence concerning the child avail in the state.
77
What is the primary test for child custody and visitation?
Helps determine which state has jurisdiction over child custody.
This is the state where the child has lived with a parent for at least 6 CONSECUTIVE MOTNHS or
A state that was the Childs home state within the last 6 months and the child is absent from the state, but a parent continues to live in the state.
78
(Child custody and Visitation) Husband and wife married in Gerogia and had child. Union separation, wife takes child to South Carolina to live with her parents. Where is her some state?
For the first 6 months of her absence, Gerogia is still Childs home state.
79
What do you do when the "home state" rule does not apply for child custody and visitation?
1. Look at where the child has significant connection with the state, and
2.Substantial evidence concerning the child available in the state.
In addition, a court has jurisdiction to enter or modify a child custody or visitation order if no other state has jurisdiction or if another state with juerdiciton defers.
80
How do you modify child custody agreements?
The court that made the initial custody agreement has continuing, exclusive jurisdiction
UNTIL: Child nor their parents or person acting as parent RESIDE IN STATE
UNTIL: Child no longer has significant connection with the state (not talking to parent who does live in the state) ISSUING STATE MUST MAKE THIS DETERMINATION
81
Declining jurisdiction for child custody
Any court that has jurisdiction must delving if
1. there is a proper proceeding elsewhere.
2. A party seeking to invoke the jurisdiction engage unjustifiable conduct (wrongfully taking the child).
82
CHILD CUSTODY: When can a non home state/no connection court exercise Temporary emergency jurisdiciton
Courts can exercise temporary emergency jurisdiction even if the:
1. child is physically present AND
2a. has been abandoned OR
2b. Jurisdiction is necessary to protect the child becuase someone or the child is being abused.
83
CHILD CUSTODY: What is the standard
Best interest of the child.
84
What is custody
Legal custody (decision making authority)
Physical custody (physically taking care of the child)
85
CHILD CUSTODY: What do we look at in the best interest of the child
- Wishes of the parent (constitutionally protected)
- Preference of the child (depending on age)
- Child relationship with parent/siblings
- Childs adjust mean to school
-Mental and physical health of the parties
- Who was the primary caregiver
86
CHILD CUSTODY: What are the 3 types of custody
- Joint
-Sole
-Cusotdy to non parent
87
Joint custody
Could mean legal or physical or both
Encouraged and ratified if parents agree and it is in the best interest of the child
88
Sole custody
Strong evidence demonstrates that it is in the best interst of the child
Other print will be entitled to visitation unless harm would result
89
CHILD CUSTODY: Custody to non parent
Parents rights are constitutionaly protected so now the standard is not simply the best interst of the child.
STANDARD: Parent is entitled to custody unless non parent can show
- harm
- Unfitness
90
What is the standard if there is custody to a non parent
Nonparent bears the burden of showing harm or neglect
- HERE IT IS NOT BEST INTREST OF THE CHILD BECUASE PARENTAL RIGHTS ARE CONSITUTIONALLY PROTECTED
91
Visitation for parent
(If you have visitation you dont have custody)
When one parent has sole custody, the other has reasonable visitation rights.
92
Visitation for nonparty if parent is fit
It parent is fit,
- they have no right (constitutionally protected)
- Still not looking at the best interest of the child
93
Visitation for nonparty if parent is unfit
94
To seek equitable caregiver status what must you show
Family is not intact
- Parents cant win if the parents are together and the child is living with them
95
Standard of proof for non parent visitation
Prove by clear and convincing evidence
- Best interest of the child
- Health and welfare of the child will be harmed if visitation is not permitted
96
What does a non parent win if they get visitation
24 hours or more per month
97
Visitation: Equitable caregiver statues
A non parent who has surveyed in a prenatal role can be designated as an equitable caregiver
- Now has standing to seek custody or visitation
98
What must a non parent show to get equitable caregiver status
5 things
1. Fully undertook parental role
2. consistently engaged in caretaking
3. established boned relationship with child (was supported by parent at the time)
4. did not expect compensation
5. child will be harmed without relationship
99
Modification of child custody decrees
CUSTODY IS ALWAYS MODIFIABLE
BURDEN IS ON THE PERSON SEEKNG MODICFIATION
MUST SHOW SUSBTANTAL AND MATERIAL CHANGE THAT AFFECTS THE CHILDS WELLBEING (NOT THE PARENTS WELLBEING
100
Relocation (Due process)
To ensure due process, Georgia requires relocating parent gives
1. notice
2. and other parent has an opportunity to be heard
101
Factors to look at for relocation
1. BIOC
2. REASONS FOR RELOCATION ARENT MALICIOUS
102
How are child custody awards enforced
- Contempt proceedings
- Habeas corpus
-Suits in equity
-UCCJEA (must have a certified copy filed with the court)
103
PARENTAGE (nonmarialtial children)
Born to an unmarried woman (except for gestational agreement)
104
PARENTAGE (nonmarialtial children) standard of review
Substantially related to an important government interest
105
What does the court allow non marital children to receive
- Inheritance from father
- SOL on paternity suits arent allowed
- Same rights to child support
- Government benefits may not be denied
- Can still sue for wrongful death
-federal law granting immigration preferences to martial children (IS ALLOWED)
106
Parentage
Establish a biological relationship
107
What do you get when you establish parentage
- Rights to custody/vistiation
-Duty to pay child support
108
Paternity presumptions for married women
Mothers husband is presumed to be the father if:
- Child born within marraige
-10 months after divorce
Even if marriage was void or voidable
109
Non paternity
Gerogia allows you to establish non paternity so that child support obligations will be eliminated.
110
How do unwed fathers establish rights
- Showing paternal responsibility
- Fomally acknowledging paternity
- Seeing court order by fling a legitimate petition
111
How does an unwed father show paternal responsibility
Acknowledge paternity, supervision, education, protection, care, and support
112
How does an unwed father formally ackowledging paternity
Place his mane on the birth certification or
sign a notarial act acknowledging he is the father
113
DNA to establish paternity
There is a rebuttable presumption that 97 percent probability of paternity.
Generity testing is not reaquired though
- Testimonial and other medial evidence is sufficient to prove paternity.
114
Paternity action is available until when
At least 18 years
115
Termination of parental rights can be what?
1. Voluntary
2. Involuntary
116
Involuntary termination of parental rights
Must show the families decisions engage the child.
Parents need due process (and has a right to counsel)
State need to prove by clear and convincing evidence
Note states purpose is not to remove the child permanently. They are focused on BIOC
117
Adoption (2 types)
Agency
Private
118
What are the 3 steps for adoption
1. Termination of natural parents rights
2. Creation of new parental rights
119
Adoption: Termination of natural parents rights
Usually requires consent unless rights were terminated
- Consent of unwed father is required if he is actively in Childs live
-Parents have 4 days to revoke termination
120
Adoption: Creation of new parental rights
a. Consent of adoptee (if 14 yr or older)
b. Payment of money is prohibited (reasonable and actual expenses like legal fees and cost of pregnancy are ok)
121
Consequences for adoption
Cuts off the biological parents rights and obligations, create new rights and obligations in adoptive parents.
122
Venue for adoption
Person seeking adoption be a resident of the county where petition is filed.
123
ASSISTED REPRODUCTION (NEVER BEEN TESTED):
Children conceived by artificial insemination are martial children if
- both spouses consented and
- its in writing
124
ASSISTED REPRODUCTION (NEVER BEEN TESTED): Establishing maternity
- Mother give birth
- adjudication
- Adoption
- Court order
125
ASSISTED REPRODUCTION (NEVER BEEN TESTED): Establishing paternity
A man who is married to a woman who has a child through assisted conception:
- Is presumed to be the fathers child unless he proves lack of consent
126
ASSISTED REPRODUCTION (NEVER BEEN TESTED): Gamete doners
If you supply gametes without the intent to be a parent, you are not the parent
127
ASSISTED REPRODUCTION (NEVER BEEN TESTED): Types of surrogacy
1. Genetic
2. Gestational
128
ASSISTED REPRODUCTION (NEVER BEEN TESTED): Genetic surrogacy
A woman who is not an intended parent uses her own gametes (Egg)
129
ASSISTED REPRODUCTION (NEVER BEEN TESTED): Gestational
A woman who is not an intended parent uses gametes that are not her own (not her egg)
