Term
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Definition
never legally existed; cannot get divorced and quasi-partnership to divide assets; can be attacked by TP. Can be challenged after death of parties. Cohabitation won't ratify the marriage.
Bigamy, incest |
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Term
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Definition
| minors, mental incompetency, marriage w/o license, fraud, 6-month; can ripen when impediment removed. Can only be attacked in suit for annulment by parties (voluntary action or death) only while disability remains. annul in timely fashion or valid by CL marriage. |
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Term
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Definition
1) actual and mutual agreement between spouses to be husband and wife
2) a permanent relationship
3) an exclusive relationship
4) cohabitation as man and wife
5) parties to the marriage must hold themselves in public as husband and wife (bills, travel together, etc)
Parties have to have a meeting of the minds that they are married.
If it's valid where it's formed, it's valid most of the time.
NO CL divorce |
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Term
| 3 types of marriage presumptions (rebuttable) |
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Definition
1) presumption of the valid ceremonial marriage
2) presumption in favor of the subsequent marriage's validity- previous marriages have been dissolved
3) presumption of marriage from cohabitation- less significant |
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Term
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Definition
you can't marry anybody during the 6 month period after divorce, except the person that you are divorcing.
CL: voidable until after 6-month period, terminated either by voluntary action by either party or death of either party |
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Term
| marriage as fundamental right |
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Definition
| state law that interferes with right to marry must be in support of an important state interest and (closely) carefully tailored to achieve that goal (same sex is legal) |
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Term
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Definition
| if it's non-age, and the person dies before they reach age of consent, the party would become heir at law |
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Term
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Definition
| must recite the date when it was entered, and effective when it was pronounced. If no appeal from fact (granting) of divorce, then divorce is final when pronounced. |
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Term
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Definition
| can appeal: alimony, child support, property division, and not appeal from fact of divorce |
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Term
| 3 ways to deal with marriage gone wrong |
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Definition
1) dissolution (divorce)
2) annulment (marriage is void and never happened)
3) legal separation (divorce from bed and board)- ct can do everything like in a divorce except pronounce divorce |
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Term
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Definition
| adultery, abandonment, extreme cruelty, gross and neglect of duty, failure to perform normal functions of marriage |
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Term
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Definition
| irreconcilable incompatibility and living separately |
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Term
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Definition
defense; if it has been shown, divorce for condoned offense is banned
X: when the condoned offense is happening again-- by a breach of either express or implied condition |
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Term
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Definition
| each state is required to give full faith and credit to decision in another state except you have right to question jurisdiction (domicile and PJ) of the person in that state |
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Term
| OK domicile in multi-state divorce |
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Definition
| if a person is domiciled here and is married and the spouse moves to another state, you can sue them in that state and the court here retains jurisdiction |
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Term
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Definition
| order of senior ct to junior ct to prohibit junior ct from taking some action |
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Term
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Definition
| senior ct is getting the junior ct to do something |
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Term
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Definition
a) any fraudulent conduct of a successful party
b) which was practiced outside of an actual adversary trial or process and
c) which was practiced directly and affirmatively on the deceased party
d) whereby he was prevented from presenting fully and fairly his side of the case
If you find it within 2 years of discovery of fraud, doesn't matter if it's intrinsic or extrinsic. But after 2 years, then has to be extrinsic to recover |
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Term
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Definition
a) happens in the case
b) perpetrated within the course of adversary proceedings
Must be brought within 2 years of entry of decree |
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Term
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Definition
| fiduciary relationship between husband and wife ceases when the divorce filed and the parties hire counsel; can also end when the parties separate with intent to get divorce |
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Term
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Definition
a) at least 1 of the parties is domiciliary of that state- person who has residence at state with intent to make it home
b) PJ |
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Term
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Definition
| obtained by getting service of process on that person in the state in which divorce is to be granted or that person has to come to the state in an appearance to a proceeding |
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Term
| 4 approaches to compensate support spouse for their loss of financial compensation |
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Definition
| cost value, opportunity costs, student spouse's enhanced earning capacity, and variation of the labor theory of value |
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Term
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Definition
HOW MUCH DID IT COST?
a) calculate the value of the supporting spouse's contribution, not only in terms of money for education and living expenses but also in terms of service rendered during the marriage
b) look backward; restitutionary approach
c) it doesn't give the spouse who supported the student spouse anticipatory income that she is entitled to
used in OK |
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Term
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Definition
a) income the family sacrificed b/c student spouse attended school rather than working
b) only works if student spouse quit job to go back to school |
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Term
| enhanced earning capacity; benefit of the bargain |
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Definition
Entitled to recover what I paid in investing
calculate according to present value of enhanced earning capacity.
too many unforeseen variables, like premature death and job market |
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Term
| variation of the labor theory of value |
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Definition
| figure out how much time, effort and energy the support spouse did |
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Term
| equitable division of property- judge considers: |
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Definition
1) what is in marital estate
2) what is the value of the assets
3) what is an equitable division- just and reasonable |
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Term
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Definition
| what you receive after you married. Strong presumption any property received after marriage is marital. Burden is on person claiming separate property to prove otherwise |
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Term
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Definition
during marriage, pension plan replaces life savings-- marital property. 2 kinds:
a) defined contribution
b) defined benefit |
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Term
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Definition
| individual account set up by employer and contributed by both employer and employee |
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Term
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Definition
| employer put some money in on your behalf for as long as you work there, and you will receive money after a length of time. More common; government/military employees |
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Term
| how to divide pension plan |
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Definition
a) present value (immediate offset)
b) deferred distribution |
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Term
| present value (immediate offset) |
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Definition
1) guess of how much it is 2) something to offset
- works with defined contribution plan; make them pay immediately to spouse--ct preferred |
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Term
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Definition
wait until the employee becomes eligible for the retirement benefits; you don't get anything until the earning person gets something. Then you get a piece of whatever they get
minority prefers
requires QDRO |
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Term
| problem with immediate offset |
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Definition
- doesn't work well with defined benefit-- so many uncertainties out there b/c it's hard to place value on the benefit--> not easily ascertainable present value
- require presumption and there may not be enough funds to offset |
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Term
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Definition
wages replace marital until time of divorce
retirement replaces savings so marital |
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Term
| QDRO (Qualified Domestic Relation's Order) |
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Definition
| order of the divorce court to administrator of the funds that will tell them to pay a % directly to the spouse of earning person; deferred distribution requires this |
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Term
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Definition
received post divorce: replace post-coverture wages that would be earner's separate property
BUT if retirement benefits extinguish disability, then disability will become joint property |
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Term
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Definition
| Like other pension funds, but to be eligible for it, has to be married for at least 10 years. (for OK state pension funds, has to be married for at least 3 years before you can do QDRO) |
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Term
| 4 methods to determine workers comp awards |
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Definition
1) mechanistic- statutory based
2) case by case- too inconsistent
3) unitary- precluded by Workers Comp Act
4) analytical (also replacement) |
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Term
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Definition
court-preferred; Determine what compensation awards paid for (wages or medical expenses) to determine what to replace
A workers comp award is marital property to the extent that it recompenses for the couple's loss of income during the marriage.
To the extent that it compensates for loss of post-divorce earnings by the injured party, it is separate property.
A former spouse has no inherent right to the salary earned by the other spouse after divorce, there is no right to a disability award which is intended to replace future wages |
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Term
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Definition
1) property if they were earned during the marriage by the skill of the receiving spouse, even if they aren't received until after marriage ends
2) most lottery awards are divided equally between the parties |
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Term
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Definition
separate property determination (source of funds rules)
A marriage partner may acquire separate property during the marriage by separate gifts and by property which has been obtained in exchanged for, or from the proceeds of, separate property |
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Term
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Definition
| if separate property cannot be traced and is mixed with marital property, the entire mass may be treated as marital |
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Term
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Definition
1) intent to give
2) complete delivery of the thing given
3) acceptance by the donee |
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Term
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Definition
| joint property even though each party put their own separate property into it. The parties jointly used it |
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Term
| income from and appreciation in value of separate property |
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Definition
| income from separate property during marriage is marital. income earned by one of the parties is marital |
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Term
| 3 critical value assessment elements for income from and appreciation in value of separate property |
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Definition
1) cost/value of separate property
2) non-divisible in-marriage enhancement caused by inflationary factors or other marketplace forces producing appreciation in price levels
3) increase in value, if measurable by proof due to personal efforts, skill, or expended fund of the spouses' labor |
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Term
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Definition
enhanced value of separate property will be considered marital if the increase in value is due to the marital effort of either spouse
value increased by market forces outside control of individual is separate |
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Term
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Definition
| subtract value when he began (before marriage) from present value (what has been accrued since marriage) |
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Term
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Definition
| in OK: not divisible property, but we do have restitution alimony to compensate support spouse who put earner spouse through school--> alimony value dissipates over time as people are marred longer--more time to enjoy your investment |
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Term
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Definition
in OK: take asset of the profession--equipment, account receivables
if solo practice: no goodwill, but if practice continues, it is a marital asset |
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Term
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Definition
| increases during separation and after valuation date is probably separate |
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Term
| 3 ways to value stock- when spouse forms a corporation after the marriage started |
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Definition
1) market value- take the # and multiple by the value
2) net asset- take all physical assets and subtract debt from it, then that is property
3) investment value- take earnings of company each year for 5 years and capitalize it to give you a value |
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Term
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Definition
1) antenuptial- before you get married
2) postnuptial- after you get married
3) separation- after couple separate
4) settlement agreement |
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Term
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Definition
-only awarded when underlying basis for award has some rational connection to the marriage (need must also be rationally connected, caused, or exacerbated by the marriage)
- has to be a fixed amount, calculable and definite
-90 days to file |
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Term
| Burgess Test for whether prenup can be followed |
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Definition
1) is it fair and reasonable to the party opposing the K?
2) if not, was a full, fair and frank disclosure of the other spouse's worth made before execution of the K?
3) if neither of the above, did the party challenging the K in fact have a generally accurate knowledge of the other's worth? |
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Term
| consent decree (settlement agreements) |
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Definition
judgment under which people operate after the agreement disappears:
-need to incorporate it into the agreement
-can only be modified by the agreement of both parties
-not a judicial finding
-court will examine to make sure decree is fair before it adopts it
-statutory are IN unless you say they are OUT |
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Term
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Definition
| abrogate so much of an obligation as remains unperformed; ends the unperformed remainder |
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Term
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Definition
| process by which new terms are sought to be added to a judgment or old ones changed, even though general purpose and legal effect of the decision remain intact |
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Term
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Definition
1) rehabilitation
2) support |
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Term
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Definition
long time marriage, older person; needs support alimony to maintain lifestyle
-lawyer needs to find out how much that will be, i.e. tuition
-temporary order to see how much she needs to live on |
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Term
| alimony in lieu of property |
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Definition
-can be insured against
-doesn't terminate, nor end in 90 days |
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Term
| when can support alimony be modified |
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Definition
when there is a change that is substantial, continuing, and not contemplated at time of trial
- cannot be modified if paid in full
- jurisdiction to modify remains with trial judge |
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Term
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Definition
-permanent amounts to live on
-when agreement is not incorporated n decree, separate Ks from the parties
-when it is incorporated, and it is consent decree, has to be modified by both parties |
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Term
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Definition
| can be voided by fraud, coercion, deceit, anything you can do to set aside a K |
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Term
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Definition
1) add gross income of both parents to get monthly income
2) look at income guidelines to find out how much CS to pay
3) make the parents contribute proportionally according to their income; divide by ratio of incomes to each other non-custodial to custodial
4) take base CS and add medical support order, childcare expenses, and transportation expenses |
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Term
| support alimony from someone other than the parties to the child support case |
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Definition
| included in calculation of income; factor |
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Term
| support alimony from the parties in the case |
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Definition
| not included in income calculation; non-factor |
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Term
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Definition
1) utilize child support guidelines worksheet and attach it to the decree
2) order income assignment unless parties can show good cause not to or have an agreement not to
3) if income assignment, must go through the central registry (maintained by DHS) |
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Term
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Definition
| no child needs 3 ponies; CS shouldn't be excessive |
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Term
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Definition
| take the big number that exceeds guideline and multiply by 4% |
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Term
| court can deviate from CS amount when |
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Definition
1) order is unjust, inappropriate or create economic hardship on the person OR
2) the parties represented by counsel have agreed to a different number OR
3) one party is unrepresented and the deviation benefits that party |
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Term
| if deviate from CS amount, judge must make findings of fact to support that |
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Definition
1) reason the court deviated
2) the amount of CS that would have been required if no deviation
3) and a finding by the court how the deviation is in the best interests of the child |
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Term
| to have modification, court must find |
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Definition
1) material change in condition and
2) that change in condition warrants the modification--burden is on moving party
-no retroactive modification |
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Term
| 3 things are necessary to have modification |
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Definition
1) change in child needs
2) decrease in recipient's income
3) material change in payor's income/circumstances |
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Term
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Definition
no SoL to collect
-need to be paid first to registry to current obligation, then to past due amounts, and finally to interest on the principal balance |
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Term
| defense to back CS payment |
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Definition
1) laches and estoppel
-only works if there is an unreasonable delay which created a material prejudice
2) waiver- agreement not to collect
- only applies to past due; can't waive future payments w/o court approval |
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Term
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Definition
- Have to pay child support until child reaches 18.
- If 18 and still in high school, pay until they graduate or reaches 19
- If a child has significant additional needs (disabled, etc.), child support can be continued after adulthood OR parties have agreed to continue support through college or something like that |
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Term
| Uniform Interstate Family Support Act |
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Definition
look at where the child resides as a result of the acts of the individual
the court has continuing jurisdiction over a CS order if: 1 of the parties lives in the state, or all parties file written consent |
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Term
| multi-state alimony for support |
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Definition
| still remains in state regardless of where you move. Different from CS |
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Term
| what create jurisdiction in another state |
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Definition
- served in the state
- individual sometime resides with the child in the state |
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Term
| standing to collect back CS |
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Definition
| non-disabled adult child has no standing to bring an action to collect |
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Term
| indirect contempt for remedial purposes |
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Definition
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Term
| indirect contempt for penal purposes |
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Definition
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Term
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Definition
CS payor's employer withholds the CS and sends directly to the payee
--> may not be enforced if it will cause payor to lose job |
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Term
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Definition
needs contemporaneous time record and expert; based on judicial balancing of equities to award
burke hearing |
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Term
| income share approach for CS- OK |
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Definition
parents have to contribute based on their earnings--guidelines are mandatory
-CS that you pay for other kids in other cases is deducted from adjusted gross income
-support alimony from case at hand not considered; from a different party considered |
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Term
| when income exceeds 15 K in guideline for CS |
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Definition
1) court can change the number considering all the facts
2) most of the time, do 4% rule |
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Term
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Definition
- indirect contempt
- revocation of licenses
- criminal statute of abandonment of minor child |
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Term
| termination of parental rights |
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Definition
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