Term
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Definition
Contracted by
1) living together/agreement to be H and W
2) holding themselves out as married with
3) the mutual intent to be married
4) capacity or competency
FULLY VALID for all legal purposes - can only be dissolved through formal divorce
POLICY: keep kids from appearing to be bastards; shielded public from potential claims of "needy women" |
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Term
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Definition
Provides equitable remedy when an innocent spouse relied in good faith on a mistaken belief that marriage was valid
Must be:
1) property marriage ceremony AND
2) 1 or both parties had good-faith that it was valid
-Good faith - courts use reasonable person standard
-Parties' property treated as quasi-community property - equally divides it |
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Term
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Definition
Division of assets based on cohabitation
KOZLOWSKI v. KOZLOWSKI defined marital-type relationship as one in which there's commitment, sacrifice of other opportunities to help one another, provide companionship, fulfill each other's $, emotional, physical and social needs |
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Term
| How do you determine if there's a domestic partnership? |
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Definition
*Burden is on the partners to show this
ALI looks to--
-Members of same or opposite sex, not married, live together as a couple for a significant period of time
-Not related by blood or adoption
-Maintained common household
-Promises/statements (oral or written) to one another
-Extent to intermingling of lives
-How much relationship changed their lives
-Emotional/physical intimacy
-Community reputation as a couple
-Procreation/adoption of children |
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Term
| Meretricious relationship |
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Definition
Stable, marital-like, cohabitation w/o lawful marriage: looks to
1) continuous cohabitation
2) duration and 3) purpose
4) pooling of resources
5) parties' intent
*If found, no spousal support BUT equitable division of property |
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Term
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Definition
| Compensates family members for impairment of their intimate relationship with a loved one who was injured by a tort for: loss of services; companionship - some jurisdictions allow recovery by kids - others only by spouses |
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Term
| Cruelty reason for divorce |
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Definition
| No bright lines rule, but has been expanded to include any impairment of physical/mental happiness of the other - even a single incident can meet the standard - greater awareness of DV |
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Term
| Domestic relations exception |
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Definition
| Federal courts won't hear domestic issues (divorce, child custody, alimony, visitation) - state courts are more equipped to handle them and have a significant interest in dealing with such issues |
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Term
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Definition
Any state has jurisdiction to grant a divorce to a person legally domiciled in that state AND all other states must recognize that divorce - Full Faith and Credit
Question of fact - was the person legally domiciled? |
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Term
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Definition
| Looks to domicile, notice and consent - CASON v. CASON - U.S. husband who got divorce from 1st wife in the D.R. and didn't tell her/get consent was not divorced |
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Term
| Jurisdiction for alimony and property distribution |
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Definition
| Alimony and property can ONLY be awarded if court has personal jurisdiction over BOTH spouses |
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Term
| Divisible divorce doctrine |
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Definition
Treats property, support and custodial rights arising from marriage differently than the marital status itself
So a court that only has jurisdiction over P can still grant divorce (ex parte) - full faith and credit from other states, but ONLY on divorce itself
So a court that doesn't have jurisdiction over those issues can still have jurisdiction to grant the divorce itself (and everything else can be figured out later, by that or another court) |
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Term
| Common law state divorce framework |
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Definition
-ALIMONY: ends when recipient dies, remarries or original marriage voided
-DISTRIBUTIVE AWARD: lump sum awarded at divorce, usually for moving expenses (can be instead of or in addition to alimony)
-MARITAL PROPERTY: includes all property acquired by either spouse during marriage til separation/divorce
SEPARATE PROPERTY: property either spouse had before marriage or through inheritance
-DIVISION OF PROPERTY: separate remains separate - marital property usually divided about 50/50 - for maintenance, court looks to income, property of parties, duration of marriage, present/future earning capacity, ability of parties to seek support, etc. |
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Term
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Definition
| Can now be awarded to either party - considers standard of living - women get less alimony nowadays because they usually are working |
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Term
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Definition
| Pre-divorce: awarded to support either spouse to maintain "status quo" pending finalization; may include temp property division |
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Term
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Definition
NEED and ABILITY
Only if spouse lacks sufficient property to provide for reasonable needs AND can't support themselves through employment, OR are the custodian of child that limits ability to work
UMDA: fault not basis for alimony award |
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Term
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Definition
For payor to DECREASE: burden to establish material, permanent and substantial change in circumstances AND payee's lower need - voluntarily taking lower-paying job usually not sufficient
For payee to INCREASE: must show increased need/decreased ability to work (divorce, unemployment, increased rent, increased insurance) |
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Term
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Definition
Awarded for designated period of time to help spouse transition to new life
In order to extend, payee must challenge BEFORE term ends |
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Term
| Dividing property after divorce |
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Definition
UMDA:
1) Consider ALL property, whether marital or non-marital, and divide equitably based on contributions, or divide equally (17 states do this)
2) Give each spouse their separate property (25 states do this) - then divide community property equitably OR w/o regard to fault but based on other factors |
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Term
| Void marriage vs. voidable marriage |
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Definition
VOID: was never valid - attacked by 3rd parties, can be attacked after death - not ratifiable - GROUNDS: bigamy, incest
VOIDABLE: valid until it's annulled - CAN'T be attacked by 3rd parties or after death - ratifiable - like if parties learn about issue and then accept it (impotence, underage) - GROUNDS: incapacity, duress, fraud, no parental consent when underage |
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Term
| Alimony recipient's cohabitation with another |
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Definition
California has rebuttable presumption that recipient living with person of opposite sex has decreased need
GA states that voluntary cohabitation of recipient with another in a sexual relationship is grounds for modification |
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Term
| Division of property - factors |
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Definition
Which items?
Characterize - is it marital or non-marital?
Educational degrees are NOT property - no exchange value and can't be assigned, sold or transferred |
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Term
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Definition
Reimbursing working spouse for what he's contributed while she was getting her degree - usually half the edu. expenses, living expenses, standard of living he sacrified for her
NOT really alimony - just the name of it |
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Term
| Can debts to a former spouse be discharged by bankruptcy? |
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Definition
Looks to four factors:
1) if spouse needs support
2) there are kids and income imbalance
3) paid directly to recipient in installments
4) obligation ends on remarriage/death |
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Term
| Uniform Premarital Agreement Act |
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Definition
Contract considering:
-Rights/obligations of each party's property
-Right to buy/sell/use/transfer property
-Disposition of property upon separation/divorce/death
-Modification/elimination of spousal support
-Wills/trusts
-Choice of law |
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Term
| What makes a prenup valid? |
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Definition
1) VOLUNTARINESS - not obtained through fraud, duress (involuntary acceptance of terms, wrongful pressure, party had no other alternative) or mistake
2) FINANCIAL DISCLOSURE - reasonable amount of $ disclosure - "confidential relationship"
3) REVIEW FOR "SUBSTANTIVE FAIRNESS" OR "UNCONSCIONABILITY" - courts find no substantial injustice when marriage was over a decade, there are kids, and change in circumstances (e.g., kid becomes disabled)
4) LOOK TO FORESEEABILITY - have the circumstances changed since it was made? was it apparent that one party would get significantly richer/poorer? |
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Term
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Definition
1) Modification of child support - can't limit or waive court authority to award support - would look to best interest of the child at the time
2) Waiver of Spousal Support - many states now enforce these (sometimes limited to those that aren't unconscionable)
3) Non-monetary contract terms - but courts reluctant to enforce conduct, division of labor, sexual relations, cohabitation, etc. |
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Term
| Is a separation agreement conscionable? |
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Definition
| Court looks to fraud, overreaching, concealment of assets, or sharp dealing - and whether it was fair and reasonable |
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Term
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Definition
-Claimant's needs/financial resources
-Time claimant needs to find a job
-Standard of living during marriage
-Length of marriage
-Age, health and emotional condition of claimant
-Ability of other spouse to meet his own needs and those of the claimant |
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Term
| Interspousal support obligations |
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Definition
| Court looks to what is necessary subjectively to that particular couple - look to family expenses, etc. |
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Term
| Community property vs. common law property |
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Definition
COMMUNITY: at death/divorce, each party in a marriage has equal share of marital assets - disregards title - all property split 50/50 - any property acquired before marriage is non-marital - NO surviving spouse laws
COMMON LAW PROPERTY: states adopt statutes recognizing "marital property" (property acquired during marriage) - divided equally or equitably - recognizes women's contributions - TITLE MATTERS upon death - each spouse gets some statutory percentage of other's estate |
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Term
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Definition
1) Willful abandonment of cohabitation for a long time (1 yr+)
2) Intent to abandon |
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Term
| Fault-based divorce bars and defenses |
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Definition
RECRIMINATION - affirmative defense claiming both were guilty
PROVOCATION - one spouse claims he was bad b/c of other spouse (must show it was a proportionate response)
CONNIVANCE - bars relief if party seeking divorce is at fault (entrapment - like encouraging other spouse to have an affair)
CONDONATION - can't bring up something you've already forgiven for, i.e. cheating |
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Term
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Definition
UMDA states that must show marriage is irretrievably broken, either by showing a) parties have been living separate and apart for required time period, or
b) there's serious marital discord affecting both's attitudes
*Some states are exclusively no-fault (KY), while others are mixed (PA) |
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Term
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Definition
Brought to declare legally void marriage from the beginning, based on:
1) incapacity
2) prior valid marriage still existing (bigamy)
3) Unsound mind
4) Fraud
5) Force
6) Impotence |
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Term
| Equitable distribution of property |
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Definition
Courts look to
-Length of marriage
-Age, health, income, skills, estate, liabilities and needs of each party
-Future earnings capacity
-Standard of living during marriage
-Fed, state and local tax ramifications |
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Term
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Definition
| 1) Fault-based - adultery, DV, etc. 2) Need-based - loss of $ 3) Contract - breach 4) Partnership - agreement to share profits, assets and debts 5) Restitution - requires repayment for benefits of a quasi-K 6) Reimbursement - compensates one spouse for increasing the other's earning capacity 7) Compensation for loss (ALI approach) - for the poorer spouse due to being homemaker, etc. |
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Term
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Definition
TEMPORARY - pendente lite - support until final decision is made
FINAL -
-Rehabilitative/short-term
-Reimbursement
-Limited-duration
-Permanent/indefinite
-"Lump sum" |
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Term
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Definition
-Legit changes in payor's income (lost his job)
-Change in financial needs of payee (disability, lost job, got promotion, etc.) |
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Term
| Post-divorce bankruptcy filing |
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Definition
| Debt undertaking during marriage is marital debt for which BOTH spouses remain responsible after divorce - payments are not usually discharged upon bankruptcy filing - look to parties' intent |
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Term
| In loco parentis doctrine |
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Definition
Person who assumes parental obligations is treated as a parent for some purposes - wide application re: child support
-Looks to the relationship b/w the parent and the child |
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Term
| Child support guideline methods |
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Definition
1) INCOME SHARES MODEL - both parents living apart have legal obligations to support child based on their means - kid should get the same % of joint parental income as if parents were together
2) % OF INCOME MODEL - based on ONLY noncustodial parent's income; creates fixed amount - determines obligation based on # of kids to be supported (assumes parent w/ kids is already supporting them)
3) MELSON FORMULA - "children first" (least popular method) - combined parents' income goes mostly to child support, just enough set aside to live - very fact-driven |
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Term
| High earners and child support |
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Definition
-When income fluctuates from year to year, guidelines allow courts to enter support order based on average
-Every kid is entitled to a level of support proportionate with parents' income |
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Term
| UMDA vs. state law: modification of child support |
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Definition
State law - allowed during changing circumstances
UMDA - only allowed in cases of unconscionability |
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Term
| Modification of child support |
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Definition
| -Parents must pay child support - takes precedence (case where dad had law school loans, court said these were secondary to paying child support) |
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Term
| Best interest of the child |
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Definition
Case-by-case determination - puts both parents on equal footing and focuses on happiness and welfare of the child
*Presumes joint custody unless clear and convincing evidence otherwise* |
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Term
| UMDA child support factors |
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Definition
-Financial resources of child
-Financial resources of custodial parent and non-custodial parent
-Standard of living kid would have if parents were still married
-Emotional or educational needs of kid |
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Term
| Duty of support by stepparents |
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Definition
| Most states don't put any duty on stepparents to support stepchildren (only 14 states do) BUT if stepparent acts like a real parent, and then gets divorced from child's parent, they might still have to support that kid |
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Term
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Definition
Joint legal - both parents share rights/responsibilities to make decisions related to health/education/welfare of kids (sole - one parent only)
Joint physical custody - both parents have frequent and continuing contact with kids (sole - one parent only) |
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Term
| Moral considerations in child support |
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Definition
| Per se rule - old rule - parental immorality = loss of custody, or at least a rebuttable presumption Nexus rule - must show nexus b/w parental behavior and harm to the kid (NOT considered under UMDA) |
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Term
| Sexual orientation and child custody |
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Definition
Nexus - can't deprive custody based on sexual orientation unless it will harm the child (MAJORITY RULE)
Per se - presumption that LGBT parent shouldn't have custody (MINORITY RULE)
Balancing approach - sexual orientation is a factor, might be harmful, but not definitive |
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Term
| Friendly-parent provisions |
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Definition
| Require courts to consider which parent is more likely to encourage close contact with the other parent |
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Term
| Albright test for child custody |
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Definition
-Best interest and welfare of child:
-Age, health, sex of child
-Determination of parent that has continuity of care before separation
-Who has the best parenting skills and willingness/capacity to provide primary child care
-Employment/responsibilities of parent
-Physical/mental health/age of parents
-Emotional ties of parent/child
-Moral fitness of parents
-Stability of home enviro. of each parent
*Marital fault should NOT be used as a sanction in custody awards*
*Differences in religion, values and lifestyles shouldn't be sole basis for custody decisions* |
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Term
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Definition
When parties, without solemnization or a marriage ceremony, can contract a valid CLM by (their burden to show):
1) living together/agreeing to be H and W
2) holding themselves out as married with
3) mutual intent to be married
4) must have capacity/competency |
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Term
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Definition
There must be
1) proper marriage ceremony
2) one or both parties believed in good faith that there was no impediment to the marriage and it was valid and proper
*Allows parties' property to be treated as quasi-community property - equally divides it |
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Term
| Fault-based bars and defenses |
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Definition
RECRIMINATION: affirmative defense claiming both parties were at fault (e.g., both cheated)
PROVOCATION: one party claims the other provoked his behavior
CONNIVANCE: no relief if parties found to be making up the fault (e.g., one spouse arranges the affair for the other)
CONDONATION: if you already forgave the fault, you can't bring it up again as grounds for divorce
COLLUSION: when parties make up grounds for divorce |
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Term
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Definition
Can get divorce if
1) there's an irretrievable breakdown and
2) parties living separate and apart for at least 180 days, OR
3) there is serious marital discord affecting both's attitudes
*Marriage is NOT a contract |
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Term
| Living separate and apart |
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Definition
| Can live "separate and apart" under the same roof - as long as there are no sexual relations - policy is that people may not be able to afford to live alone |
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Term
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Definition
-Allow divorce ONLY on fault grounds
-Require waiting period and counseling before decree can be sought
-Only 3 states have it - La, Az, Ark
-Often entered into by more conservative/religious couples |
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Term
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Definition
-Death
-Remarriage
-Cohabitation (in many states)
-Reaching end of term of K |
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Term
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Definition
| Paying out support/maintenance long-term, until death or remarriage - with the understanding that recipient probably cannot rehabilitate herself |
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Term
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Definition
1) Involuntary acceptance of the terms
2) Wrongful pressure
3) Party under duress had no alternative but to accept the terms |
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