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48 Cards in this Set
- Front
- Back
Prenuptial Agreements factors
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(1) Unconscionability / Duress to get out
(2) Unconscionability factors: (a) Fair disclosure of assets (b) Voluntariness (c) Counsel (d) Experience of Parties (e) Understanding of forfeited rights |
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When you sign a prenup, you can C a FEUD in the future
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Counsel
Fair disclosure of assets Experience of Parties Understanding of forfeited rights Duress |
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Common law marriage requirements --> Don't put a marriage on ICEE if its valid at common law
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Intent
Capacity Exchange of promises Evidence --> cohabitation / holding out |
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Duties of married people to each other (2)
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Economic reciprocity and sexual exclusivity
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Void vs. Voidable Relationship
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Void Factors --> Incest & Bigamay
Voidable --> FRAUD, Non-age, inability for sex, duress, mental capacity |
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Voidable for fraud if it goes to the
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ESSENTIAL ASPECT OF MARRIAGE
e.g. pregnancy, drug addiction, misrepresented religion, incapability of having marriage (money doesn't count) |
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Fault-based divorce reasons
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Adultery (evidence of opportunity / inclination)
Desertion (no intent to return) Extreme Cruelty Voluntary drug addiction (subsequent to marriage) Insanity |
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Adultery defenses are a bunch of CRAP
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Condonation (waiver)
Recrimination (dirty hands) Agreement (collusion / fraud) Procurement / Trickery (entrapment) |
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Jurisdiction of divorce
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One person must be domiciled in state.
In rem action = plaintiff's residence enough to grant divorce, but no personal jurisdiction over property rights. |
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Ex parte divorce
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Only one spouse participates
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Separation agreement modification rule
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If merged into divorce decree, it can be modified
If separate K, then subject to K rules of modification |
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Equitable Distribution of Property Analysis
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(1) Categories the assets
(2) engage in equitable determination as to who gets what, according to whether they have entitlement. |
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Take a PAID SEAT and we'll equitably distribute
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Property Separate
Age + Health Income Duration of Marriage Standard of Living Earning Capacity Assets + Debts Tax consequences |
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In determining spousal maintenace, they will SPAR
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Standard of Living
PAID SEAT factors Ability of spouse to be self-sustaining Reduced earning capacity |
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Child Support Basics (2)
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(1) BOTH biological parents owe equal economic duty to support, regardless of marriage
(2) Duty extends until child reaches age of majority, or with death of parent. |
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Modification of Child Support Test
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Substantial and Material change in circumstances affecting needs of the CHILD, or ability to pay of obligor spouse.
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Enforcement of Child Support Statute
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Uniform Act, avoids conflicting orders / original forum has continuing exclusive jdx of child support question / its substantive law will control all issues.
Modification must be done in home state. |
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Amount of Child Support test
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(1) Monetary Need, and (2) Ability to pay
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Modification of Spousal Support rule
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Only period spousal support may be modified, not permanet
Substantial and material changes in circumstances affecting the needs of the RECIPIENT SPOUSE, or the ability of parent to pay |
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Modification of Child Support factors are RIGID
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Retirement / Employment
Income Growth of children Inflation Disabling Illness |
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Modification of past due spousal / child support installments
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Overdue maintanenace cannot be retroactively modified.
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Voluntary impoverishment as factor to child support
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Voluntary impoverishment is not a factor in determining child support
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Jurisdiction of Child Custody Court Test
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Child's home state --> State in which child lived w/ parent for at least six consecutive months immediately before proceeding
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Child Custody Test
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BEST INTERESTS OF THE CHILD --> age, health, violence, dynamic, adjustment, relationship w/ siblings (not gender)
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Third party visitation Rule (Troxel)
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Best Interests of Child will not override the wishes of a fit parent, its a due process right that preempts
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Modification of Child Custody will FLIP DADS
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Finances
Lifestyle Initial Custody Predictability Desires of Children Age of Children Domestic Violence Stability |
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Custodial parent can relocate if the court hears HER SOBS
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Health Related
Economic Necessity Relationship between child / noncustodial parent Second marriage demands Opposition by noncustodial parent Best interests of child Strength / Stabilize family |
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Unmarried Cohabitants and economic support remedy (4)
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(1) Express OK as long as sexual relations is not only consideration
(2) Implied contractual remedy based on conduct (3) Constructive trust --> prevent unjust enrichment (4) Quantum meruit --> FMV of services |
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Discrimination against nonmarital children test
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Intermediate scrutiny
Substantially related to an important governmental interest |
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Suit to establish paternity test
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Clear and convincing evidence
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Consent for adoption
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Needed from (1) both biological parents, and (2) child if over age 12
Cannot be revoked or withdrawn |
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Unmarried father right
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Has a right to develop a quality relationship with an infant
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Modification of visitation rights
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Best interests of child filtered through substantial change in circumstances test
Kidnapping Prevention ACt --> All states defer to state with strongest connection to child (home state) |
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To discuss joint custody lets eat at the PIG CAFE
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Preference of Child
Involvement of parents Geographical proximity Communication of parents ability Agreement of parents Fitness of both parents Effect on child |
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Fault as factor in equitable distribution
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Fault is never a factor in equitable distribution of marital property
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Pensions as a factor in equitable distribution
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Pensions are subject to equitable distribution
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Professional licenses and equitable distribution (Majority / Minority)
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Majority --> Not distributable
Minority --> Degree value is determined and distributed as property ALSO court may award supporting spouse reimbursement spousal support (fixed sum), even though not otherwise eligible for spousal support |
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Modification of property distribution decrees
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NOT modifiable
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Uniform Parentage Act presumption
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Woman who gives birth is mom
Husband of woman is dad |
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Consent of Husband for surrogacy
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Has 2 years under Uniform Parentage Act to say he didn't consent to assisted reproduction
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Approval of surrogacy agreement
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Written agreement, approval by court.
If no approval, then NOT ENFORCEABLE ( surrogate mom is real mom, husband [if party to agreement[ is dad) |
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Constitutional rights of unwed father trigged if: (2)
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Full commitment to parenthood
Participation in child's rearing |
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Dissipation
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use of martial property for sole benefit one one spouse for purpose unrelated to marriage may affect status during equitable division. --> may be set aside
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Transmutation
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Agreement to change property from separate to marital status.
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Child Custody jurisdiction tests (4)
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Under Uniform Act and Parental Kidnapping Act:
In order of importance: (1) Home state (2) Significant connections (3) Emergency (4) Default |
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Dispute between parent and 3rd party for custody
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3rd party must show parent subjectively intended to abandon
Presumption is that child w/ parent is best interests. Rebuttable by showing parent is unfit or is detriment to child |
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Adoption jurisdiction
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(1) Connection w/ child & state is significant
(2) Evidence concerning case is present in state (3) Adopters live in state |
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Notice of adoption to biological parents:
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Not required if:
(1) Parents knew of birth (2) Did not acknowledge paternity Notice required if: (1) Established relationship w/ child (2) Registered w/ putative registry |