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Bar Exam > MI Domestic Relations > Flashcards

MI Domestic Relations Flashcards

1
Q

Ceremonial Marriage Requirements

A

License and Solemnization

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2
Q

Marriage License Requirements

A
  1. Capacity (18 or 16/17 with parental written consent)
  2. 3-day waiting period; must be solemnized within 33 days of application
  3. Written materials on venereal diseases/HIV exchanged (but medical testing not required)
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3
Q

When Marriage Licenses Won’t be Issued

A
  1. Married to someone else
  2. Too closely related
  3. Sham
  4. Parties incapable of understanding the nature of the act
  5. One or both under influence of drugs/alcohol
  6. Lack of consent due to duress or fraud
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4
Q

Solemnization Requirements

A

2 or more witnesses + officiant

Judge, magistrate, mayor, county clerk, cleric, minister, rabbi can solemnize

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5
Q

Common Law Marriage

A

Parties agree they’re married, cohabit as spouses, and hold themselves out to the public as married (present intent “we are married”); same capacity requirements as for ceremonial marriage

Abolished in MI unless contracted before 1957

MI will recognize valid common law marriages from other states

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6
Q

Heart Balm Action

A

Civil suit for damages to a jilted party’s reputation

Abolished in MI

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7
Q

Annulment

A

Voids a marriage as if it never happened

Void Marriage: prior existing marriage; incest; mental incapacity

Voidable Marriage: age; impotence; intoxication; fraud; duress; coercion; force; lack of intent

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8
Q

Grounds for Divorce

A

No-Fault:

Irretrievably broken with no prospect of reconciliation
One party must have resided in MI for 180 days immediately before filing

Fault:

May be considered when awarding maintenance
Adultery, cruelty, desertion, bigamy, imprisonment, indignity, mental disorder

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9
Q

Limited Divorce

A

Rarely used in MI; often for religious or medical reasons

Parties permitted to live apart and be legally married

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10
Q

Separate Maintenance

A

Decree of support for a party but doesn’t permit living apart; still considered married

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11
Q

Marital Property

A

All property acquired during or by reason of the marriage

Separate assets when comingled with marital assets and treated as marital property

Appreciation in interest of an actively managed account

Appreciation of marital home (title immaterial)

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12
Q

Non-Marital Property

A

Property acquired before the marriage

Property excluded by parties’ valid agreement

Property acquired by gift or inheritance (except gifts between spouses)

Property sold/conveyed/disposed of in good faith and for value before final separation date

Property that has been mortgaged/encumbered in good faith before final separation date

Any award/settlement received for cause of action accrued before marriage, regardless of when payment is received

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13
Q

Specific Types of Marital Property

A

Professional licenses: subject to equitable distribution

Retirement/Pension benefits: marital property if acquired during marriage

Personal Injury claim proceeds:
- Marital: lost wages, earning capacity, medical expenses
usually split based on timing (before v. after split)
- Non-Marital: pain, suffering, disability, and loss damages (injured spouse); loss of consortium (non-injured spouse)

Future interest - not distributable

Social Security benefits - not subject to equitable distribution

Post-separation property: can be marital property

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14
Q

Equitable Distribution Tax Consequences

A

Transfer of property between divorcing spouses is tax free

The transferee’s tax basis is the same as the transferor’s tax basis upon sale

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15
Q

Jurisdiction

A

Generally must have both subject matter and personal jurisdiction

MI: a party must reside in state at least 180 days and live in county where filing for 10

Can have sufficient jurisdiction to grant a divorce but not for other related matters (alimony, child support, etc.)

Can challenge ex parte divorces by proving plaintiff wasn’t domiciled in the state at judgment or left immediately after

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16
Q

Types of Marital Agreements

A

Premarital Agreement: typically terms relating to division of property or spousal support in case of divorce or death
Valid marriage is sufficient consideration
MI adopted the Uniform Premarital Agreement Act

Separation Agreement: enforceable if signed in contemplation of separation/divorce; generally merged into final judgment for divorce (if full and fair disclosure)
Can define property division, spousal support, child support, custody, and visitation

Property Settlement Agreement: settle economic issues of marital estate; entered before a divorce decree is issued

17
Q

Premarital Agreements are enforceable if: (generally)

A
  1. There has been full disclosure of financial status of each party at execution
  2. Agreement is fair and reasonable
  3. Agreement is voluntary

Must be in writing and signed by party to be charged

18
Q

Modification of Marital Agreements

A

Property Rights may be prevented from modification

Child Support is always modifiable

19
Q

Spousal Maintenance Factors

A

Duration of marriage
Contributions to the marital estate
Age
Health and special medical needs
Source and amount of property awarded in divorce
Necessities and circumstances (standard of living)
Ability to pay
Earning capacity
Time required for a party to reintegrate into the work force
Past relations/conduct

Fault can be considered but cannot be the determinative factor

20
Q

Types of Spousal Support

A

Lump Sum
Permanent Support
Rehabilitative Support
Reimbursement Support

21
Q

Lump Sum

A

Fixed, non-modifiable, doesn’t terminate upon remarriage, chargeable against the estate if obligor spouse dies

22
Q

Permanent Support

A

For long term marriages (usually 15+ years)

Generally also applies to people who are older and less likely to remarry or reintegrate into the workforce

23
Q

Rehabilitative support

A

Limited in time, typically for the time needed by rehabilitating spouse to enhance/improve their earning capacity and reenter the workforce

24
Q

Reimbursement Support

A

Situations where one spouse has contributed to the enhanced earning capacity or education of the other

25
Q

Palimony

A

Support between unmarried cohabitants

Not allowed in MI

26
Q

Modifying Support

A

Significant change in circumstances in needs of dependent spouse or financial abilities of obligor

No reduction for willful/voluntary reduction in income

Death of spouse terminates support

Remarriage may terminate

Cohabitation may allow for modification if recipient’s needs decrease as a result of cohabitation (not automatic)

Retirement - depends on jurisdiction

27
Q

Child Support

A

Entitled until at least 18
Can be extended to 19.5 if still a full-time high school student
Can’t be eliminated by parents
Visitation rights can’t be denied for nonpayment

28
Q

Revocation of Paternity Act

A

Allows a child’s mother, acknowledged father, or potential biological father to challenge legal paternity within 3 years of birth or 1 year of acknowledgement of paternity

29
Q

Calculating Child Support

A

Income Shared Model

Child should receive same support as if parents were married; rebuttable presumption that amount in guidelines is correct

If court deviates, must set forth:

  1. Amount that would have been awarded under guidelines
  2. How the order deviates
  3. Value of any property/other support ordered in lieu of child support; and
  4. Reasons why using the formula is unjust/inappropriate

Not tax deductible or included as income

30
Q

Modifying Child Support

A

Substantial change in circumstances regarding child’s needs or parents’ financial situation

Again, voluntary reduction in pay not a reason

31
Q

Terminating Child Support

A
  1. Reaches age of majority
  2. Child marries
  3. Parental rights terminated
  4. Child/parent dies
  5. Can terminate if emancipated

Extensions: 19.5 high schooler, in college, disabled

32
Q

Child Custody

A

Legal: right to make major decisions
Physical: right to have child reside with parent and obligation for routine daily care/control
Joint: must both be willing/able to cooperate

33
Q

Uniform Child Custody Jurisdiction and Enforcement Act

A

Home State Jurisdiction:

  1. Child’s home state for 6 months or since birth if too young; or
  2. Was child’s home state in past 6 months and child now gone but parent continues to live there

Can enter/modify order if:
1. No other state accepts home-state jurisdiction;
2. Child and at least 1 parent have significant connection with state; and
Substantial evidence in the state about child’s care, protection, training, relationships

Default: when no home-state or substantial connection state, default is court in a state with appropriate connections to child

Temporary: if there’s an emergency when the child is in danger add needs immediate protection

34
Q

Best Interest Factors

A
  1. Emotional ties between parents/child
  2. Ability to provide love and affection and raise child within religion
  3. Ability to meet material requirements (food, shelter, clothing, medical needs)
  4. Ability to provide a stable home
  5. Permanency of the home
  6. Health and moral fitness of parents
  7. Child’s school/community record
  8. Child’s preference (if mature enough)
  9. Ability/willingness of parents to continue relationship with each other
  10. History of domestic violence

Upon parent request, court must privately interview minor children regarding preference - not revealed to parents or attorneys

35
Q

Grandparent Visitation

A

Allowed in MI when:

  1. Parents are separated, divorced, or marriage annulled;
  2. One parent is dead;
  3. Parents never married;
  4. Legal custody granted to non-parent;
  5. Grandparent provided stable custodial environment in year preceding petition
36
Q

Equitable Parent Doctrine

A

Applies when husband is not the biological father; must desire rights of paternity and be willing to submit to obligations

Allows husband to exercise parental rights

37
Q

Involuntary Termination of Parental Custody

A

Desertion, incapacity, abuse of a sibling, termination of rights over a sibling, abuse and neglect of the child over time, failure to comply with court-structured plan once child assigned a legal guardian

38
Q

Surrogate Parenting Contracts

A

Void and unenforceable as contrary to public policy

39
Q

Domestic Violence

A

Must be in a relationship with victim or a household/family member

Generally requires a continuum of behavior but a single episode may qualify

Relief is usually injunction but can also include exclusive possession of residence, child custody, and support

Bar Exam (9 decks)

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