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What are the two procedural Requirments for a valid Marraige?
Solemnization by clergy or judical officer
What are the state of mind requirements for a valid marraige?
That the parties understand their actions and voluntarily agree to them.
Premarital agreements are recognized but do not bind the court regarding child custody arrangements. What are the 4 requirements that make a premarital agreement binding?
- 1. Agreement was entered into voluntarily
- 2. Meets statute of fraud requirements (SOF)
- 3. Parties made a full and fair disclosure of their net worth
- 4. The economic provisions are fair and reasonable
What is annulment of a marraige?
It is a declaration that a marraige is invalid because there was an impediment at the time of the marraige. After decree parties are treated like they were never married at all.
What are two types of marraige that are subject to annulment?
Void marraiges and
If marraige is void, no court declaration is needed for the parties to walk away. If the impediment making it void, bigamy etc, is removed, then it turns into a voidable marraige. Voidable marraiges may be annuled if one of the spouses brings an action to have it declared invalid.
What are three grounds that make a marraige void?
Bigamy, Consaguinity, Nonage in some states.
These marraiges can not be ratified and any intersted party may seek annulment. But spouses do not need a decree to walk away. These marraiges are also subject to attack after the death of the parties unlike voidable marraiges.
What are three grounds that make a marraige voidable?
Nanage, Incurable physical impotence, lack of capcity
These marraiges can be ratified, are valid until declaration by court, only spouses may seek annulment, and are not subject to attack after death of one of the parties.
Defenses to a voidable marraige are ratification by conduct after impediment removed, estoppel and laches.
What are the two types of divorce?
What two things are required to obtain a no fault divorce in most states?
Marraige is irretrievably broken
Parties have been living apart for statutory period of time
What are the 5 grounds for a fault marraige?
Extreme physical or mental cruelty
Voluntary drug addiction or habitual drunkeness
What are the 3 defenses to fault divorce?
Collusion between the spouses
Connivance (willing consent by spouse to other's misconduct)
- Condonation (forgivness with full knowledge and resumption)
What happens when a couple obtains legal seperation?
Parties rights regarding property, spousal suuport, custody and child support is adjudicated. Can be expanded to included divorce on parties request.
Upon a divorce, the court will divide up property. There are three categories of property for this purpose:
Community property (all property aquired during marraige belongs one half to each spouse, all other property belongs to the spouse who aquired it)
Equitable division of all property (aquired before or after marraige)
Equitable division of all marital proeprty (spouse takes his property, and marital property is equitably divided) most popular
Equitable division of property is the most popular way to divide property after a divorce. What factors are most important to the court in spliting this up?
Age, education etc,
Duration of marriage
Standard of living
Child Custody etc
MAKE IT UP
What are the factors that go into a determining the amount of spousal support owed?
- 1. Duration of the marriage and the standard of living
- 2. The age and physical an emotional condition of the parties
- 3. Financial resources of the parties
- 4. the contribution of each party to the marraige
What are four types of spousal support?
- 1. Permanent periodic spousal support paid regularily
- 2. Rehailitative spousal support until spouse gets on her feet
- 3. Lump sum
- 4. Reimbursement spousal support
What governs the courts jurisdiction over child custody matters?
The Uniform Child Custody Jurisdiction and Enforcement Act
What is the primary test used to determine if court has jurisdiction to modify a child custody or visitation order?
- 1. Child's home state
- 2. Was the child's home state in the last 6 month (home state if child lives there for at least 6 consecutive months
Grounds for judge to divide marital property
- Almost anything may count!
- Fault NEVER a factor (contrast with alimony)
- "Health, education, job skill, earning potential, custody of children, contributions made during marriage, duration of marriage"
- Division is final and can't be challenged (contrast with some alimony)
- Applied to non-custodial parent
- MN uses percentage tables
- Lifetime obligation if special needs
- Past-due payments not modifiable
- Self-induced reduction in income not ground for reducing
- Death does not excuse - estate must provide
Child support penalties
- Seize assets
- Wage reduction (garnishment - employer must comply)
- Intercept tax refunds
- "Revoke drivers license, sometimes professional or recreational license"
- Contempt of court
Uniform Interstate Family Support Act:
- Orders valid against employers anywhere
- Orders can be registered in other state for enforcement
- First order is valid order so long as either parent or child lives in state - 'continued exclusive jurisdiction'
Child custody jurisdiction and standards
- Home state of child control (6 consecutive months prior). Order locks in 'continuing exclusive jurisdiction'
- 'Best interests of the child' is basic standard. Very discretionary.
- "E.g., desires of parents, wishes of child if over 12-14, age and health of all parties, new companions of parents, domestic violence, sibling proximity, historic caregiver"
- Very strong presumption for biological parent (defeated only by 'unfitness or extraordinary circumstances')
- Must show 'significant danger to health of child' to block
- Failure to pay child support not a factor (and blocking visitation -> contempt of court)
- Relocation of primary custodian requires prior notice +bona fide reason + court review/adjustment of order
- Visitation of non-parent mandated only if extraordinary cirucmstance
- Best interest of child still basic standard. Stability for child included.