Overall/ Elements Flashcards
(39 cards)
What does the word privacy mean on a constitutional level
- Right to be secure in your person
- To be free from government intrusion
- Confidentiality of personal information
What case ensconced marital privacy into law?
Griswold v. Connecticut
What is “palimony?” What case established this?
The idea of cohabitators or friends leaving something behind for the other due to the nature of their relationship
Marvin v. Marvin
What was the outcome of Marvin v. Marvin?
She could not prove she was entitled to anything through the oral contract, but if a contract were in place (written), she would have won
Constructive trust could have worked
There is not a law that says because you live together, you are automatically entitled to something
What are the elements of Intentional interference with an expected inheritance? What case covers this?
(1) expectation of an inheritance, (2) a third party’s deliberate and independently wrongful interference with that expectancy, (3) a reasonable certainty that the inheritance would have been received but for the interference, and (4) damages.
In addition, (5) the defendant’s wrongful conduct must have been directed toward the decedent, and (6) the plaintiff must lacka. remedy in probate
What happens with premarital gifts?
They stay with the recipient unless there was a condition, also, put everything in writing
What is a heartbalm case?
Actions brought for ending an engagement, not really done anymore
What are things to ask when determining the splitting of assets/ engagement stuff?
(1) Is it conditional? (2) Is it absolute?
What are the 2 factors the court will consider when looking at prenups and determining if they are valid?
Procedural
Substantive
What does procedural mean relating to a prenup?
“On the eve of”
Did you have a lawyer?
What was the timing of this?
Done in anyone’s presence?
Influence of another character?
No notary signature
What does substantive mean relating to a prenup
The deal that was cut
Looking to see if someone got a bad deal “I signed a prenup that said I would give away anything in the marriage”
Was it unconscionable? (such a bad deal that the court should step in and do something about it
It is far more likely when it looks one-sided that a court will choose to invalidate one provision of the agreement instead of the whole thing
What are the 4 principles underpinning the protection of the right to marry?
(1) the right to choose whether and whom to marry is “inherent in the concept of individual autonomy”; (2) the right serves relatioships that are equal in importance to all who enter them; (3) assuring the right to marry protects children and families, which implicates myriad rights related to procreation and child-rearing; and (4) lastly, marriage is the very “keystone of our social order” and foundation of the family unit
Elements to show a common law marriage
(1) Holding yourself out as spouses (2) time and duration
What must be shown for habitual cruelty?
The party alleging habitual cruelty and inhuman treatment must show conduct by the other spouse that either (1) endangers life and limb or gives rise to a reasonable apprehension of such danger or (2) is unnatural enough to make the marriage revolting and destroy the basis for the marriage’s continuation
This must be shown by a preponderance of the evidence. To determine whether the requisite standard has been met, a court must consider both (1) the conduct of the offending spouse and (2) the subjective effects of the conduct on the offended sposue
Elements for IIED in the familial context
The conduct must be continuous conduct that is being acted upon and
(1) the defendant’s extreme and outrageous conduct (2) caused the plaintiff to suffer severe mental anguish and that (3) the defendant intended his or her behavior to cause such result or knew the result was highly probable
Elements for desertion
Purposefully and unjustifiably leave the marital home with the intent that the separation be permanent
In NY it’s 1 or more years
What is recrimination?
Fighting fire with fire
showing she cheated after he did
What is condonation?
the act of forgiving or overlooking an offense or mistake
basically proof that you’ve been okay with it
Benefits to no fault divorce
cleaner, less ugly, nothing will explode (hopefully)
Benefits to a fault based divorce
custody and money (sometimes)
What does it mean to be a title state?
if something is titled to you, it’s yours in a divorce
What does it mean to be a community property state?
Everything is community property from the day you get married (still practiced in 8 states)
What is Equitable distribution?
What is fair and equittable at the present time, looks only at the date of the marriage to the date of the divorce
Starts with valuation and then goes to distribution
What is transmutation?
When separate property becomes marital property or vice versa
