Term
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Definition
defined as civil contract.
capacity
consent
consideration
mutual rights and obligation
these elements sort of persist, not explicit! |
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Term
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Definition
need a license (typically from the county clerk)
---age restrictions (18 w/o consent; 16-17 y/o's need parental or judicial consent)
---waiting period of 24 hrs.
---fee
Ceremony of some sort (solemnization!) |
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Term
| some restrictions on who can marry: |
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Definition
too closely related.
first cousins may marry if they are 50+, or one of the parties is permanently, irreversibly sterile. |
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Term
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Definition
parties have to be 18
cannot be in a civil union/married to someone else
cannot be too closely related (first cousins cannot get civil unions!) |
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Term
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Definition
no ceremony, no issuing of license, no license later turned into certificate.
msut have present state of mind of considering themselves husband and wife.
cohabitation requirement
must hold themselves out to the public as if they are husband and wife. (could be as simple as receiving mail as mr. and mrs., filing taxes together, having joint bank accounts).
Abolished in IL, but we will recognize other state's C/L marriages under full faith and credit. |
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Term
| procedural defects in solemnization. |
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Definition
| As long as one of you reasonably believed that the ceremony was solemnized, it is still valid! |
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Term
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Definition
tort claims for heartbreak.
breach of promise to marry
---limited to actual damages, not pain and suffering.
seduction
alienation of affections
criminal conversation. |
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Term
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Definition
| confidential relationship; giving rights and obligations to spouse. |
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Term
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Definition
annulment
death of a party
divorce |
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Term
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Definition
nullifies marriage; renders it invalid.
as if it never occurred.
Includes void or voidable marriages. |
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Term
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Definition
dead on arrival.
If one of the big formalities is missing or flawed.
(someone is already married).
exceptions: if one had a good faith belief in validity, then once the impediment is cured, the 2nd marriage could become valid, so long as parties continue to reside together as husband and wife.
no exception for incestuous marriages. |
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Term
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Definition
| someone who has been missing for a long time may be treated as deceased |
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Term
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Definition
treated as valid until a spouse seeks to have the marriage voided.
have to have a judicial decree.
One of the grounds is age: if underage and without consent when married, then until they reach the age of majority, they could seek to have the marriage voided. |
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Term
| impotence at time of marriage: |
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Definition
if other party doesn't know of impotence at time of marriage, then this could be grounds of voiding a marriage.
makes the marriage voidable. |
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Term
| intoxication at the time of marriage: |
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Definition
| if drunk at the time of marriage, you have 90 days to petition for declaration of invalidity. |
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Term
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Definition
voidable!
fraud must go to "the essentials of marriage:" religious beliefs, false pregnancy, etc. |
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Term
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Definition
| wipes away the existence of the marriage. |
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Term
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Definition
No fault: neither party's sole responsibility for ending the marriage.
parties have to allege that irreconcilable differences exist.
Illinois premises no-fault divorce on irreconcilable differences.
IL requires 2 years of living apart; but both parties can agree to stipulate to reduce time apart to 6 months. |
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Term
| Living separate in Illinois is... |
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Definition
| really more a state of mind. doesn't necessarily require that the parties live physically apart. |
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Term
| Adultery as grounds for divorce: |
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Definition
| opportunity and inclination |
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Term
| cruelty as grounds for divorce: |
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Definition
| extreme and repeated mental or physical cruelty. |
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Term
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Definition
| spouse has voluntarily left the home for a year with teh intent not to return. |
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Term
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Definition
| essentially a defense against claim of abandonment: you say that the spouse essentially forced you to leave. |
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Term
| habitual drug/substance abuse. |
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Definition
| 2 years of drug use/drunkenness is a ground |
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Term
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Definition
| marrying another while knowingly be married to someone else. |
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Term
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Definition
| felony conviction for an infamous crime. (crime punishable by more than a year). |
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Term
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Definition
| ground in illinois for fault-based divorce |
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Term
| trying to murder a spouse |
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Definition
| ground in illinois for fault-based divorce |
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Term
| There are a number of defenses: |
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Definition
condonation
connivance
unclean hands (this is not the name, but this is basically it).
collusion
provocation |
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Term
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Definition
something more like "legal separation."
parties are still "married," but they live separate and apart.
can't remarry, may owe support. |
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Term
| 2 methods relating to distribution of assets in marriage: |
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Definition
community property
equitable division |
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Term
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Definition
objective is to achieve FAIRNESS.
This is used in Illinois.
Contribution and Need are the two principal considerations. |
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Term
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Definition
classifying goods as non-marital and marital.
--marital is all property acquired during the length of the marriage. Drive towards fairness may allow courts to consider non-marital property anyway!
--title doesn't matter so much; it's TIME of acquisition.
--showing property acquired during marriage to be separate property: party making claim bears burden of proof.
Distribution. |
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Term
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Definition
property acquired before marriage.
property excluded by valid agreement of parties (premarital agreement specifying x, y, z).
property acquired by gift, legacy, or descent.
property sold/conveyed before separation.
property mortgaged before separation.
personal injury awards from claim arising before marriage.
property acquired after divorce/separation.
property attained by judgment from one spouse to another.
appreciation and income of non-marital property. |
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Term
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Definition
principles of fairness govern.
Court will consider basically anything you can think of that bears upon fairness. This includes how much you've helped or hurt the marital property, standard of living, needs, other marriages, economic circumstances, which party has custody of children.
Fault is NOT considered!! (except for economic misconduct--using marital money to lavish your girlfriend). |
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Term
| commingling marital and non marital property: |
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Definition
contributed property takes on quality of receiving property.
If you put marital money into non-marital property (like a bank account) then it becomes non-marital, and vice-versa.
Can seek reimbursement for contributions, though!!! |
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Term
| is goodwill marital property? |
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Definition
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Term
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Definition
we refer to it as maintenance in illinois.
non discharageable as a debt in bankruptcy proceedings.
factors court will consider: similar to property.
---driving theme: notions of contribution and need.
---financial resources, including property awards.
---standard of living (during last years of marriage)
---time before spouse can be re-employed/employed
---duration of marriage
---respective age and health of spouses
---marital misconduct/fault.
---valid agreement
---contribution and services to education/training |
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Term
| duration of spousal support: |
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Definition
permanent support is disfavored.
---typically only awarded for very long marriages.
limited duration alimony. |
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Term
| modification of spousal support: |
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Definition
generally modifiable!
unless specifically noted, spousal support will be modified if the party seeking modification can show a substantial change in circumstance to warrant an upward or downward modification. |
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Term
| voluntary reduction of income: |
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Definition
| cannot voluntarily impoverish yourself to reduce your maintenance payments. |
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Term
| Situations in which spousal support automatically terminates: |
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Definition
remarriage of receiving spouse
cohabitation of receiving spouse (well..that's not automatic, but a basis for supporting spouse to seek modification. )
death of a party. |
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Term
| retirement and spousal support: |
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Definition
considered on a case by case basis.
Is it reasonable? Is it in good faith? |
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Term
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Definition
| creditors can sue either party for necessary family expenses. |
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Term
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Definition
| At least 1 spouse must be a resident in illinois for 90 days prior to seeking dissolution. |
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Term
| divisible divorce doctrine: |
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Definition
An ex parte divorce is allowed: a court may have jurisdiction to award divorce, but only divorce.
...but may lack sufficient jx to address other factors. |
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Term
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Definition
obligation borne by all parents, not just married.
right belongs to the child, not the guardian receiving the check.
cannot be waived or bargained away. |
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Term
| duration of child support: |
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Definition
duration varies by jx;
continues through 18 or emancipation.
In IL, can continue to receive support until 19 if in high school and not emancipated.
Can also have post-secondary child support: for non-minors, this is aimed at providing tuition and living expenses for going to college, grad school, or trade school. |
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Term
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Definition
mama's baby, papa's maybeeee...?
we make a presumption that all children born to a married woman are the husband's child.
with unmarried fathers, paternity must be established.
--by genetic testing
--by voluntary acknowledgement |
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Term
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Definition
| unconstitutional to put limits on paternity actions. |
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Term
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Definition
person may be estopped from denying fatherhood obligations if:
--has made promises to care for child (whether or not it is his child)
--mother relied on that promise
--mother would suffer economic detriment due to reliance |
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Term
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Definition
Long arm statute that allows state to obtain personal jurisdiction over out-of-state father.
--through personal service
--consent
--residency
--past residency
--any act that may have resulted in a child. |
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Term
| guidelines for child support: |
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Definition
typically, both parents are assumed to be obliged to support the child, but non-custodial parent is the one required to make payments to the other.
Factors:
Income, subject to deductions.
employment/unemployment
Percentage Income Model (used in Illinois!) |
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Term
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Definition
| presumption that a percentage of each parents' income should go to care of the child. |
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Term
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Definition
Used in Illinois!
percentages based on "economies of scale."
20% for 1 child.
28% for 2
32% for 3 children.
when children are in different homes, however, this percentage will not apply.
court has discretion to increase or decrease amount. |
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Term
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Definition
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Term
| Modification of child support: |
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Definition
Substantial change of circumstances (this is the keyword for modification!!! spousal and child).
Only events that have occurred subsequent to child support award will be considered. |
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Term
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Definition
at least 16
self-sufficient (not just employed)
parents don't object |
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Term
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Definition
| will NOT terminate child support obligations; remainder will be awarded from estate. |
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Term
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Definition
legal custody: major decisions--medical/religious/etc
physical custody: day-to-day decisions
sole or joint. |
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Term
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Definition
rarely 50/50.
each parent has authority to have child live with them for a little bit.
No presumption in illinois, but we have a stated policy of keeping both parents involved. |
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Term
| Best interest of the child: |
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Definition
Themes:
-continuity
-stability
Desire of parents to cooperate.
residential circumstances.
unfriendly co-parents. |
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Term
| Jx of Child Custody Matters |
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Definition
UCCJEA: intended to prevent jx disputes between courts.
Prioritization of assertions of jx:
--home state courts. (state where child lived for last 6 months; or where they were born if less than 6 months old; or where they lived for 6 months before their...recent move....)
--significant connection jx (if no home state, question asks whether parent/child has signif connection to state; and there is substantial evidence pertaining to custody in that state)
--default jx (no home, no sig con jx? then the court who made initial custody determination has jx)
--temporary emergency jx (any court can assert jx on a temporary emergency basis, necessitating immediate protection) |
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Term
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Definition
| Parents facing possible deployment were being disfavored; current legislation protects them a bit. |
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Term
| primary caretaker doctrine: |
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Definition
| speaks to issues of stability and continuity: says, "who has been the caretaker this far?" |
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Term
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Definition
family interaction
physical/mental health of all parties
willingness of parents to cooperate and preserve relationship with other parent
child's adjustment to school/community
wishes of parent/child
domestic violence
catch-all: any other factor deemed relevant. (race, religion, sex conduct of parent can all be considered!!!!) |
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Term
| race/religion in illinois |
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Definition
| cannot be definitive factor, but can be considered. |
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Term
| 3rd party interests in visitation: |
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Definition
all non-parents are 3rd parties.
--no "right" to custody, but "privilege."
--if parents have dropped the ball, then 3rd party parent figure might be considered!! |
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Term
| step parents and custody: |
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Definition
| may petition for custody if child is 12+ y/o and was parenting before divorce; child must wish to live with step-parent; must have been married for 5 years; actual parent must not be able to provide care; and MUST BE IN BEST INTEREST |
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Term
| grand-parent custody standing: |
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Definition
If grand-parent's child died, then they can step in.
living parent must have been absent for a month; grand parent must not know where living parent is or they're incarcerated or they've been convicted of some crimes. |
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Term
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Definition
only parents have right to visitation.
non-custodial parent generally has right to "reasonable visitation."
right to parenting time. |
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Term
| 3rd parties and visitation: |
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Definition
non-parents have the right to petition for visitation, but only where they have acted as a parent (so not all non-parents can petition for visitation).
we give special weight to the decisions of "fit parents." |
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Term
| Family members standing to visit: |
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Definition
Family members-sibs, grand parents, great grand parents, step-siblings.
If unreasonable denial of visitation, then these parties can petition. Must have other factor:
-other parent is deceased/incompetent/missing for a month or more.
courts will then consider Best Interest Factors. |
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Term
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Definition
putative fathers have visitation rights, but can only exercise this if they demonstrate commitment to the child, even before the kid is born.
providing support is big.
2 year SoL on establishing paternity.
certain classes of fathers may be ineligible: sex offenders and murderers. |
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Term
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Definition
Party seeking to remove child from Jx has burden to prove that the move is in the best interest of the child.
effects on quality of life; motive of move; |
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Term
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Definition
governed by uniforma pre marital agreement act.
Like all other contracts: require consideration. Marriage is sufficient consideration.
choice of law: state with most significant relationship.
SoF applies. |
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Term
| spousal support provisions in Pre-marital agreements. |
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Definition
In IL, the court will render clauses pertaining to elimination of spousal support unenforceable if it renders an unfair situation for the dependent spouse.
may set it aside if it leaves the spouse a public dependent. |
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Term
| custody and child support decisions in pre-marital agreements: |
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Definition
| Cannot determine custody by pre-marital agreements, and cannot ADVERSELY impact a child's right to support. |
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Term
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Definition
property settlement agreements, child custody, spousal support; now you actually have children you can consider.
separation agreements are encouraged. |
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Term
| 5 requirements for agreements to be enforceable |
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Definition
full disclosure (full and fair)
fair and reasonable terms
voluntary execution of agreement
must be in writing
must be signed by both parties. |
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Term
| One challenging a premarital agreement: |
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Definition
| bears burden of proving invalidity. |
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Term
| unconscionability in marital agreements: |
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Definition
disfavored!!!
interpreted through lens of "full and fair" disclosure.
If there has been full disclosure, it's unlikely to be considered unconscionable. |
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Term
| reasonableness of agreement terms is determined when? |
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Definition
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Term
| voluntariness of marital agreement: |
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Definition
look to aspects of timing.
--did the parties have enough time to seek counsel, perhaps. |
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Term
| If agreement is reasonable and voluntary, but leaves one impoverished... |
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Definition
| if there is an undue hardship not contemplated at time of agreement, it will not be enforced. |
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Term
| quasi-marriage contracts: |
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Definition
co-habitation agreements are regarded suspiciously if sex is part of the deal.
courts may recognize equitable distribution or implied-in-fact contracts.
Agreements not in writing--Illinois is extremely hostile to unwritten cohabitation agreements. |
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Term
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Definition
essentially creates new birth record. can only have 2 parents!
Jx: proceedings must occur where child resides. |
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Term
| putative father registry: |
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Definition
consent of unwed father for adoption is required if putative father is registered.
failure to register: regarded as waiver of consent. we imply that he has no interest in securing legal position with child.
To contest this, father must show that it was impossible that he register. |
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Term
| mother surrendering child rights: |
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Definition
| revocable for 72 hrs after birth. |
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Term
| Children being adopted under 14: |
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Definition
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Term
| children over 14 being adopted: |
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Definition
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Term
| involuntary termination of parental status: |
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Definition
In cases of child abuse/neglect, court will intervene to potentially terminate parental status.
standard: clear and convincing evidence to terminate parental rights.
2 step process: court must make finding by clear and convincing evidence that parents are unfit, and inquiry into the BEST INTEREST of the child to terminate parental rights. |
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Term
| abandon your child for the 3 months in illinois? |
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Definition
| state may terminate your parental rights. |
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