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Family Law

QuestionAnswer
Marriage -creation of the status of husband and wife -once this status has been formed, the law imposes various obligations and liabilities on the parties
Limits on who may marry 1) Age 2) Consanguinity and Affinity 3) Sex of Parties (same-sex marriage prohibited) 4) Mental Capacity 5) Physical Capacity 6) Bigamy or Polygamy- Not allowed
Limits on Marriage in WY Marriage is specifically defined as a civil contract between a male and female -same-sex marriages that are valid in a state where they are entered into is valid in WY
Procedural Requirements 1) License 2) Solemnization: by a ceremony performed by a judicial officer or a member of clergy
WY Procedural Requirements: License Expires after one year unless the marriage has been solemnized
State of Mind Requirements 1) Capacity to Consent 2) Intent (own free will, intend to enter into) 3 Marriage for a Limited Purpose: "sham marriage"
Common Law Marriage Requirements: 1) an exchange of consents between 2 ppl 2) cohabitation 3) a holding out publicly of living together as husband and wife
Putative Marriages doctrine enables a crt to provide equitable relief to a party who acted in good faith in enteirng a marriage that was subsequently declared invalid.
Premarital Contracts -Purpose= to provide for a distribution of assets upon divorce or death in a way that is different from what the law would ordinarily require -Fall within SoF (must be in writing and signed by the party charged)
Content of Premartial Contract Uniform Premarital Agreement Act (UPAA) -rights/obligations in any of the prop of either/both of them -the right to buy, sell, lease, assign, dispose of, or otherwise manage and control prop -disposition of prop upon separation, dissolution, death, etc
Contents Continued -Modification/elimination of spousal support -making of will, trust, or other arrangement to carry out provisions of agreement -ownership rights in and disposition of the death benefit from life insur. policy -choice of law governing constr -any other
Premarital Contract: Enforcement by Court Crts will strictly scrutinize for good faith and lack of undue influence. Factors Considered: -Voluntariness -Full and Fair Disclosure -Fair Provision -Independent Counsel Under UPAA-consider voluntariness and unconscionability
WY Premarital Contracts Consideration- the marriage is sufficient consideration for a prenuptial agreemtn, but once a couple marries, a postnuptial agreement requires additional consideration or it will be void
WY Content of Premarital Contract While not specifically adopted in WY, WY case law is in agreement with the provisions contained in the UPAA
The Marriage Relationship: Property -Each spouse owns/controls her own prop both before and during marriage -Tenancy by the Entirety= joint names, a tenancy by the enirety is presumed (includes right of survivorship and prohibits conveyance or encumbrance of prop by one spouse.
The Marriage Relationship: Suits between Spouses -Traditionally, crts reluctant to impose liability -Abolished Doctrine of Interspousal immunity retaing exception only for highly private activity
The Marriage Relationship: Marital Rape many States have amended their criminal laws to remove the marital exception from rape laws
The Marriage Relationship: Spousal Abuse and Protective Orders Many states have enacted legislation that criminalizes the condcut and icreases police involvement
The Marriage Relationship: Spousal Abuse and Protective Orders WY -Spouse who is a victim of DV can seek order of protection. -an order of protection is effective for a fixed time not to exceed one eyar, although it may be extended for good cause shown
Family Privacy: Common Law -In general, the internal affairs of a family cannot be regulated by the courts -Families have the righ to expect privacy for actions within their homes and freedom from governemental interference with their domestic affairs
Family Privacy: Constitutional Privacy -Right of privacy not in US Const, but US S.Crt has recognized-right of personal privacy is const'lly protected- it is implicit in the concept of "liberty" w/in protection of DP Clasue. -Privacy=fundamental right, regulation of it is invalid unless NtoCG
Husband-Wife Evidentiary Privilege; Spousal Immunity 1) Spousal Immunity= a marreid person may not be compelled to testify against her spouse in any criminal proceeding (belongs to witness spouse) -May be invoked only during valid marriage
Husband-Wife Evidentiary Privilege; Privilege for confidential marital communciations -Either spouse is privileged to refuse to disclose or prevent another from disclosing a confidential communication made between the spouses while they were husband and wife. -communication must have been made in confidence -privilege survives divorce
Parent-Child Privilege a privilege for parent-child communications has been recommended by some legal scholars, but has not gaind acceptance in the courts
Tortious Interference with the Martial Relationship (actions of deprived spouse agaisnt 3rd party) Elements, must prove: 1) love and affection of the spouse for P 2) overt acts, conduct, or enticement on part of D causeing affections to depart 3) acutal damages 4) a casual connection btwn conduct and loss of affection
Criminal Conversion -related to adultery -The participation in sexual intercourse by the nonsuing spouse and a 3rd person -P spouse has cause of action because it is considered an invasion of the P spouse's conjugal rights
Negligent Interference with Constortium or Services In most states, either spouse may maintain an action for loss of the other's consortium due to injuries from Ds negligence
Termination of Marriage: Annulement -declaration that marriage is void -annuled=treated as if never married -Two types of marriages subject to annulment: 1) void and 2) voidable marriages
Void Marriages -One that never existed -Marriages void: Bigamy or Polygamy, Consanguinity
Voidable Marriages -Spouse may bring an action to have the marriage declared invalid because of an impediment existing at time of marraige -Voidable Marriages: nonage, incurable physical impotence, Lack of Capacity (mental, Duress), Fraud (goes to essentails of marriage)
Defenses to Void Marriages No impediment- deny the existence of the defect that allegedly caused the marriage to be void...if this impediment is removed then the marriages becomes voidable
Defenses to Voidable Marriages Equitable Dfenses: other than denying existence of defect and ratification; have laches, estoppel, and unclean hands.
Annulment: WY Void and Voidable Consanguinity: Void Incurable Physcial Impotence: must be brought within 2 yrs of solemnization Lack of Mental Capacity: void
Annulment Divsion of Property -Usually crts try to divide the property by giving each party that property to which he has legal or equitable title.
Annulment Divsion of Property: WY Property is subject to equitalb edivsion under the same statutory provisions used to divide property under a divorce
Divorce and Separation WY "No Fault" divorce WY allows divorce on the ground of irreconcilable differences
WY Fault Grounds 1) Insanity: only where the insane party has been confined to mental hospital for 2 years
Jurisdiction and Recognition of Decrees: Residnecy Requirments -P must reside in WY for 60 days immediately preceding filing for divorce, or have been married in Wy and lived in the state since marriage. The D need not reside in WY
WY Division of Prop -Crt will distribute property according to the equitable divsion approach, dividing all the prop owned by either spouse, no matter when or how acquired or how title is held. Crts strive for equal division
WY Factors Considered in Dividing Prop 1) the respective merits of the parties 2) the condition in which each spouse will be left by divorce 3) through who the prop was acquired 4) any burdens imposed on prop for benefit of parties and children -marital fault may be considered in division
WY Pensions -When retirement funds are divided as part of prop division, they are valued as vested at the time of divorce, plus the reasoned valuatoin in present $ of nonvested increments, or, if an immediate case pymt req'd, the after-tax value of acount is used
WY Professional License or Degree -not property with value divisible in divorce
Spousal Support -may be awarded while parties are still married, during the pendency of a divorce, or as part of the terms of a divorce decree -purpose is to ensure an adequate income stream for persons whose economic dependency has resulted from the relationship
Amount of Spousal Support: Factors Considered -standard of living established during marriage -duration of marriage -age, physical and emotional conditions of both parties -financial resources of each party
Amount of Spousal Support: Factors Considered Continued -amt of time needed to obtain education or taining to enble either party to find appropriate employment; and -ability of spouse from who spousal support is sought to meet his needs while also payin spousal support
Types of Spousal Support - Permanent Periodic Spousal Support: paid regularly; modifible by petitioning crt and demostrating substantial change in circum. -Rehabilitative Spousal Support: periodic pymts for limited period of time calculated to enable spouse to gian skills/educ
Types of Spousal Support Cont... -Lump Sum Support: a fixed amt payable either all at once or broken down into a series of pymts; generally not modifiable, doesn't terminat upon remarriage
WY: Amt of Spousal Support -may be awarded, not favored -Objective criteria and controlling factor for an award of spousal support is the ability of the payor spouse to pay and the need for the support by the recipient spouse in the future
WY: Effect of Marital Fault -A WY Crt may take marital fault inot considereation when awarding alimony
WY: Termination of Spousal Support-Period Pymts Generally: terminates upond death or remarriage...in WY remarriage can be change in circumstances, but it does not automatically cancel obligation w/out add'l crt action
Child Support G/R: both parents equally share a duty to support their children
WY: Child Support: Amt of Award: Guidelines -"presumptive support tables"used to determine a party's child support (CS) oblig -CS outlined in table is rebuttably presumed to be correct & every CS order must set forth the presumptive CS amt and state whether order departs from guildelines
WY: Amt of Presumptive Support Based on... -Number of children AND -parent's combined income --amt set by guidelines in a particular case is divided btwn parts in proprtion to the net income of each
WY: Deviation from Child Support -crt may deviate from presumptive CS amt upon a finding that applying the presumptive child support would be unjust or inappropriate -if the crt does deviate from presumptive amt, reasons for deviation must be specifically set forth in the order
WY: Factors Considered in Deviation 1. age of child 2. cost of necesssary day care 3. any special health/educ'l needs of child 4. responsibility of either parent for support of other children 5. value of services provided by either parent
WY: Factors Considered in Deviation Cont.. 6. any pregnancy-parents not married @ time of childs birth 7. costs of transportation to/from visitation 8. ability of parents to furnish health insurance 9. amt of time the parent spends w/ child 10. any other necessary expenses for benefit of child
WY: Factors Considered in Deviation Cont.. 11. wehter either parent is voluntarily unemployed or underemployed 12. whehter either parent has violated any provision of the divorce decree; and 13. any other relevant factors
WY: Escalation and Abatement of Child Support -a clause may be inserted in CS order that will automatically increase noncustodial parent's support oblig based on anticipated changes in that parents income=escalation clause -noncust'l parents support oblig may be decreased based on time spent togethe
Termination of Duty of Child Support -CS ceases upon childs death, emancipation, marriage, or TPR. -some crts may order continued pymts if child remains a full-time student or if child is severly disabled and has no capacity to be self-supporting adult
WY: Termination of Duty of Child Support -parents oblig to support child continues past age of majority if child is btwn age of majority and 20 yrs and is attending high school full-time -ongoing CS oblig will terminate if parets marry or remarry each other
Modification of Spousal Support and Child Support Awards: Spousal Support -Only periodic spousal support may be modified-if there is no award in divorce order there is no ongoing award to modify and all future rights to spousal support are terminated
Spousal Support: Grounds for Modification -substantial and material change in circumstances affecting the needs of the recipient spouse or the ability to pay of the obligor spouse
Modification of Child Support -substantial change in circumstances affecting the needs of the children or the ability of parents to pay.
Modification of Child Support: Factors Considered 1. employment; 2. growth of children 3. inflation 4. income 5. retirement 6. disabiling illness
WY: Modification of Chlid Support party may petition crt to review & adjust CS order if: 1)order was entered more than 6mos b4 the peition; AND 2) petition alleges that support amt will change by at least 20& per month by applying the presumptive child support tables -crt approval req'd
WY: Modification: Substantial Change in circumstances.... -req'd -party seeking modification has burden -i.e. of sufficient change: remarriage/ change in custody --inflation...not substantial change -upon request of either parent, crt will review & adjust if CS order every 3 yrs w/out a req'd showing of cha
WY: Modification: Retroactive Modification -not available unless agreed upon by parties
Created by: sachav3