Term
| What do you need in order to have a valid marriage ceremony (solemnization)? |
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Definition
1. officiant
2. witness
3. must exchange promises to enter into marriage relationship |
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Term
| Requirements for common law marriage? |
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Definition
1. capacity
2. need to exchange promises that you intend to enter into a marriage relationship (must be present tense)
NOTE: there is no time limit |
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Term
In what ways may a common law marriage be proven?
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Definition
1. co-habitation- living together and having sex
2. holding yourselves out as husband and wife to 3rd parties |
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Term
| When will a prenuptial agreement not be upheld? |
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Definition
1. unconscionability
- required that both parties made a full disclosure of their assets and income or that they waived such disclosure
- if the agreement would leave one party in extreme economic hardship
2. Duress |
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Term
| Incidents of being married? |
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Definition
1. Duty to support each other finanically
2. sexual exclusivity
3. each retains their legal ID as to 3rd persons
exception: necessities and if one is acting as an agent of the other
4. each retains their legal ID as among themselves
5. woman does not have to take the man's name |
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Term
| What is an annulment based on? |
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Definition
| a problem that occurred before the marriage |
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Term
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Definition
1. bigamy
2. incest
3. non-age
4. mental incapacity
5. incurable physical inpotence
duress
fraud |
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Term
| What are the specific types of fraud that can lead to an annulment? |
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Definition
1. religion
2. sex or procreation
money is NOT a grounds for annulment |
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Term
| What is a divorce based on? |
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Definition
| problems that occurred after the marriage |
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Term
| What is the grounds for divorce in a no fault divorce? |
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Definition
| the marriage is irretrievably broken |
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Term
| In order to get a no fault divorce the couple must... |
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Definition
| live apart for some time...really this just means they stop having sex. so if they have sex, the clock starts again |
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Term
| Grounds for a fault divorce: |
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Definition
1. adultery
2. desertion
3. physical or mental cruelty
4. voluntary drug addition or habitual intoxication
5. insanity |
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Term
| Defenses for the grounds of a fault divorce? |
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Definition
1. condonation: a waiver of the ground
2. entrapment
3. collusion
4. recriminalization |
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Term
| What is a limited seperation and why would people want it? |
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Definition
It is a divorce or bed and board
people want it for:
economic/social reasons or
philosophical reasons |
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Term
| What court has subject matter jurisdiction over a divorce proceeding? |
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Definition
one spouse must be domiciled in that stated (usually P)
and
most states have a residency requirement so people don't forum shop |
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Term
| What if P wants a divorce and money, what court has jurisdiction? |
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Definition
| Need personal jurisdiction over the D spouse. get it either through the presence of D in the jurisdiction or use of a long-arm statute |
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Term
| Can property division be modified? |
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Definition
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Term
| What is the logic behind alimony? |
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Definition
| merely a continuation of the reciprocal duty that spouses have to support each other while married (ensures an adequate income for a spouse that has become economically disadvantaged during the marriage) |
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Term
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Definition
1. permanent periodic alimony
2. lump sum
3. rehabilitative
4. reimbursement |
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Term
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Definition
if specific in the agreement then it ends then
if not specific, it ends if
- either party dies or
-the recipient gets remarried |
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Term
| If a parent voluntarily continues child support past 18, what is that subject to? |
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Definition
| the child's obedience to reasonable parental requests |
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Term
| What does the party paying child support have to show to get a modification? |
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Definition
substantial and materal change in circumstances
modification is prospective only- past-due payments are fixed |
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Term
| What can a court do if a parent does not pay their child support? |
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Definition
1. seize property
2. garnish wages
3. take income tax refund
4. can have various licenses taken away or refused to be given
5. sent to jail |
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Term
| What if the dead-beat parent is out of the jurisdiction? |
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Definition
Uniform Interstate Family Support Act
the original forum will have exclusive jurisdiction over the child support order and it's substantive law will control. No other state can modify the order (even if the deadbeat lives in that state)
ordering state can garnish wages in another state and can send the order to the other states courts which will enforce the order like it's their own |
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Term
| What is the Child Support Recovery Act? |
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Definition
| It's a federal statute which makes it a federal crime to fall behind in child support for more than 1 year and over 5K if your child lives in another state |
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Term
| Uniform Child Custody Jurisdiction and Enforcement Act |
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Definition
| Once a state with jurisdiction enters a valid child custody order, that state has continuing exclusive juris over the matter and other states will defer to that state's rulings unless it ceases to be the home state of the child |
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Term
| When does a state have juris to enter a custody order? |
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Definition
| if it is either currently the home state of the child or was the home state of the child w/in the previous 6 months and a parent is living there |
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Term
| What are some factors that may be looked at in awarding custody? |
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Definition
-wishes of the parents
-wishes of the child if a teenager
- parties health, age, physical, mental and emotional condition
- who was the primary caregiver
- who can take all the kids (not just some)
- was there physical abuse
GENDER SHOULD NOT BE TAKEN INTO ACCOUNT |
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Term
| If a non-parent wants custody of a child, what do they have to prove? |
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Definition
have to rebut the presumption that it is in the best interest of the child to stay with the parent
some states require the non-parent to show that the parent is unfit |
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Term
| If non-parent wants visitation rights, what do they have to show? |
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Definition
1. best interest of the child
AND
2. it would be a detriment to the child to w/hold visitation with the grandparents |
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Term
| What does a parent have to show to get a custody modification? |
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Definition
| a change in circumstance that affects the best interest of the child |
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Term
| What is required for TPR? |
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Definition
| state has to show that the parent is unfit by clear and convincing evidence |
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Term
| For an adoption, who's consent do you need? |
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Definition
1. biological parent (unless rights terminated or cannot be found)
2. the child if a teenager
3. anyone else who had legal custody of the child (for instance, the state if the child was taken from the home) |
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Term
| What is the process for an adoption? |
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Definition
get consent
investigation into the adoptive parents
a hearing in court (best interests of the child) |
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