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Engagement Gifts Can get gift back, if conditioned on subsequent marriage (e.g. engagement ring)
Pre-Marital Agreement Requirements (uniform statute) 1) In writing, 2) Signed by both parties, 3) Parties get married
Grounds to Challenge a Pre-Marital Agreement (uniform statute) 1) Unconscionability 2) Duress
Unconscionability of Pre-Marital Agreement 1) No asset disclosure by other spouse, 2) No waiver of asset disclosure, AND 3) No independent knowledge of the assets + Agreement Unfair
Unfair Agreement Agreement would leave challenging spouse in UNFORESEEN AND EXTREME HARDSHIP.
Duress Physical Coercion, or Time Pressure (some Sts)
Discuss in Pre-Marital Agreement question 1) Whether both parties had an attorney, 2) Level of business experience of parties, 3) Challenging party had understanding of rts being forfeited
Formation of Marriage 1) Ceremonial Marriage: a) License + b) Ceremony 2) Common Law Marriage
License Purpose to ensure legal capacity. Minority of Sts req blood test or waiting period.
Ceremony 1) Officiant 2) Witness 3) Exchange of Promises (solemnization)
Common Law Marriage Capacity + Exchange of Promises
Difference between Annulment and Divorce Annulment is predicated on a ground that arises PRIOR TO DATE of the marriage. Divorce is predicated on a ground that arises AFTER THE DATE of the marriage.
Grounds for an Annulment Void: 1) Bigamy 2) Consanguinity Voidable: 1) Underage 2) Mental Incapacity 3) Incurable Physical Impotence 4) Duress 5) Fraud
Reasons for Optional Annulment Clarity of Record and to Resolve disputes on collateral issues
Underage 16-17 req's consent of parents. Continuing to live together a/f age of capacity waives this ground.
Mental Incapacity (ground for annulment) 1) Illness/Disease of the Mind, 2) Developmental Disability, 3) Influence of Drugs/Alcohol
Incurable Physical Impotence (ground for annulment) Must be incurable and not simply lack of affection/intimacy.
Fraud (ground for annulment) Any concealment OR misrepresentation of a fact that goes to an ESSENTIAL ASPECT of a marriage, prior to marriage. (e.g. lying about religion or sex/procreation) Lying about money/property not essential.
No-Fault Ground for Divorce Irretrievable Break-Down of Marriage: Separation for specified period of time. During period of separation, couple remains married. If mutual-consent, period of time will be shorter.
Fault-Based Grounds for Divorce (30 Sts) 1) Adultery 2) Desertion 3) Physical and Mental Cruelty 4) Voluntary Drug Addiction or Habitual Drunkenness 5) Insanity
Adultery Circumstantial Evidence = Opportunity + Inclination
Desertion Unjustified departure from marital home for specified period of time w/ no intent to return
Insanity Diagnosed + Institutionalization
Affirmative Defenses to Fault-Based Grounds 1) Condonation 2) Connivance 3) Collusion 4) Re-Crimination
Condonation Waiver of Ground (e.g. Adultery: knowledge + forgiveness + Resumption)
Connivance like Entrapment
Collusion Fraud on the Ct (parties fabricate grounds for divorce)
Re-Crimination P is guilty of off-setting misconduct (abolished in many jur).
Legal Separation Ct order in which parties are entitled to live separate and apart in own homes and not be accused of desertion or other misconduct and on order that provides economic provisions. Leaves marriage intact.
Reasons for Legal Separation Health Insurance, Tax Returns, Religious Scruples
Grounds for Legal Separation Same as in Divorce, plus Failure to Support
Jurisdiction in re Divorce If one spouse domiciled in Forum St, Forum St has subj-matter jur over divorce. Every St has a residency requirement. Forum St must have personal jur over D if resolving collateral remedies (e.g. division of property).
Equitable Distribution (majority) Asset Categories + Distribution
Asset Categories H's Separate Property, W's Separate Property, Marital Property
Separate Property 1) Any item owned prior to marriage, 2) Any gift/legacy received during marriage by spouse in own name, 3) Appreciation in Value of items in first two categories.
Marital Property Everything acquired by either spouse during pendency of marriage, regardless of who earned the money to pay for it and regardless of whose name is on the title.
Distribution of Marital Asset Considerations Age, Health, Skills/Ed, Duration, Custody, Squandering, and Anything else Ct considers appropriate
Type of Distribution In Kind and Cash Award (not subj to modification)
Alimony (i.e. spousal support) Purpose to insure adequate income for party who became economically dependent b/c of marriage. Not punitive/automatic, but purely discretionary.
Statutory Factors in re Alimony Similar to considerations for marital assets, plus Marital Fault.
Structure of Order for Alimony 1) Permanent Periodic Payments (modifiable), 2) Rehabilitative Award (termination date, to help pursue ed), 3) Lump Sum Payment (non-modificable), 4) Reimbursement
Termination of Alimony Death of either party, or Re-marriage (majority)
Child Support Every person w/ biological children owes those children support. If living in home w/ child, assumption fulfilling that support.
Examples of Non-Custodial Parents Post-Divorce or Out-of-Wedlock
Duration of Child Support Age, Completion of lv of Ed, Lifetime if disabled child
Is Child Support modifiable? Yes, if MATERIAL CHANGE IN CIRCUMSTANCES (not self-induced reduction in income). Arrears never modifiable.
Enforcement of Child Support 1) Seize Property, 2) Income Withholding Order, 3) Interception of Tax Returns, 4) Suspend Drivers/Professional License, 5) Contempt of Ct
Out-of-St Enforcement of Child Support (uniform statute) Can mail order to ER or to Ct. 2nd St prevented from entering inconsistent orders, as long as child/custodial parent continue to live in 1st St.
Separation Agreement Parties can negotiate economic issues. Agreement is enforceable if 1) in writing, 2) full disclosure of financial assets, and 3) essentially fair. Any provision in re children is always subj to review and modification.
Types of Child Custody Legal (decisions in re child's upbringing) and Physical (where child will live)
Jurisdiction over Child Custody (uniform statute) 1) St currently the home St of the child, OR 2) Home St of child w/in past 6 months. (continuing exclusive jur)
Home State of a Child St where child lived w/ the parent for at least six consecutive months prior to commencement of the action.
Standard for Child Custody Best Interest of the Child
Best Interest of the Child factors Wishes of child, if over age 12-14. Physical/Emotional cond of parents, Domestic Violence, Visitation, Siblings/Relatives, Presence of Third-Party in home, Economic advantages, Special Needs of Child. (NOT gender)
Joint Custody considerations Cooperation of Parents and Distance of Parents' Residences
Non-Parent Custody Dispute Presumption that Best Interest to keep child w/ Parent. Non-Parent must show Parent is unfit.
Visitation Non-Custodial Parent always entitled to visitation. Exception: safety of child (supervised visitation).
Visitation Request by a non-parent Presumptive veto by parent in re contact w/ non-parent. If detriment to child, St int can overcome presumption.
Modification of Visitation or Child Custody Changes in Circumstances that affect Best Interest of Child
Paternity Married Woman: Rebuttable presumption that husband is father (unless not physically present at time of conception or medical impossibility). Unmarried Woman: Paternity suit (blood test).
Voluntary Relinquishment of Parental Rights Surrender of Physical Custody + Execution of Legal Docs
Involuntary Termination of Parental Rights St demonstrates biological parent is unfit. Parent entitled to due process protections. Burden of Proof = Clear and Convincing.
Grounds for TPR 1) Physical/Sexual Abuse, 2) Abandonment (failure to communicate and pay child support), 3) Neglect (failure to provide care and support), 4) Severe Mental Illness, or other unfitness (e.g. drug abuse)
Steps for Adoption 1) Secure necessary consents 2) Investigation of Prospective Adoptive Parents 3) Hearing to Finalize Adoption
Necessary Consents for Adoption 1) biological parents (if minor child), exception: TPR/voluntary relinquishment or cannot find parent. 2) adoptee over age of 14. 3) legal custodian
Investigation of prospective adoptive parents Interviews, background checks, psychological profiling, home visits
Created by: Sarah_Shore