Family Law Speed

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Family Law Speed
2015-07-23 00:23:52
speed MD
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  1. Marriage
    • A contract between two people who are not otherwise prohibited from marrying.
    • Exchange of consideration in the form of mutual promises
  2. Age Requirements for Marriage
    • No age limitations when 18 or older.
    • If 16-17, requires parental consent or physician’s certificate of pregnancy/birth.
    • If 15, requires parental consent and physician’s certificate of pregnancy/birth.
    • No one under 15 may marry.
  3. Consanguinity
    • Parties must not be too closely related by blood or marriage.
    • Relations closer than first cousin forbidden.
  4. Bigamy Issues
    Parties must be free to marry –- not otherwise married
  5. Waiting period for Marriage License
    • 48 hours between issuance and marriage ceremony.
    • Must be performed within 6 months.
  6. Marriage: Ceremony Requirements
    • An official must perform -– judge, clerk or religious official.
    • Exchange of vows are required, but require no particular words or form.
    • No requirement for a witness.
  7. Marriage: Common-Law Marriage
    • Not formed in MD
    • MD will recognize valid-common law marriages entered into in other jurisdictions.
    • (1) agree that they are married via the present intent to be married
    • (2) must cohabit and
    • (3) must hold themselves as being married.
    • Can only be entered into if unmarried.
  8. Heart Balm Actions
    Breach of contract for promise to marry abolished in MD unless pregnant.
  9. Annulment
    A legal determination must be made by clear and convincing evidence that the marriage never existed.
  10. Void Marriage
    • Bigamy or incest.
    • Treated as if the marriage never took place or existed.
    • Court action is not required but can be filed by a spouse or a third party.
  11. Voidable Marriage - age
    • Age -– under 18, failed to follow statutory requirements.
    • Voidable Marriage - Mental incapacity
    • Person could not understand the nature of marriage and its consequences at the time of marriage.
    • Requires C&C evidence.
  12. Voidable Marriage - Intoxication
    • Party was so impaired at the time of the ceremony that it affected the party’s knowing ability to enter the contract.
    • Voidable Marriage - Fraud
    • In the essence of the marriage and conceal something really important at the time of the marriage.
    • Puffery is insufficient to sustain.
  13. Voidable Marriage - Duress –
    At the time of the ceremony, the party was threatened in such a way that it was not free will.
  14. Remedies of Voidable Marriage
    • Distribution of property
    • Alimony
    • Child support.
    • The legal status of children remain as legitimate children.
  15. General requirements for divorce.
    • Oral testimony and corroboration of the testimony, unless a written separation agreement.
    • Grounds for divorce must exist at the time the complaint is filed.
  16. Absolute Divorce
    Dissolves or terminates the marriage relationship.
  17. No-fault grounds for absolute divorce
    One year separation where both parties have mutually agreed to separate and live apart in separate homes for at least 12 consecutive months without sexual relations before filing the complaint.
  18. Fault for absolute divorce - adultery
    • Voluntary sexual intercourse between a married person and someone other than the spouse.
    • Can be shown by direct or circumstantial evidence - must show opportunity and disposition, such as public display of affection or gifts given.
  19. Fault for absolute divorce - Desertion
    The unjustified actual separation by one spouse for more than twelve consecutive months with the deliberate intent of terminating the marriage.
  20. Constructive desertion
    When a spouse’'s conduct makes it impossible for the other to continue to cohabit with safety and self-respect.
  21. Fault for absolute divorce - Criminal conviction with incarceration
    When a spouse is convicted of a felony or misdemeanor carrying a sentence of at least three years, and the spouse has served at least 12 months.
  22. Fault for absolute divorce - Insanity
    • When a spouse has been institutionalized for three years before the complaint is filed.
    • Must have testimony of two doctors that the insanity is incurable
    • One party must have lived in MD for at least two years before filing.
  23. Fault for absolute divorce - Cruelty or excessively vicious conduct
    Conduct that endangers the life/person/health of the other spouse or minor children.
  24. Limited divorce - “divorce from bed and board
    • Legal separation –of the parties.”
    • Does not terminate the marital relationship
    • The parties cannot remarry.
    • Formalizes the separation and enables parties to obtain relief such as alimony or child support.
  25. No-fault Limited Divorce
    • By the mutual agreement of the parties to live separate and apart.
    • No cohabitation and no chance of reconciliation.
    • No prescribed waiting period.
  26. Limited divorce - Desertion
    • Whether actual or constructive.
    • No prescribed period of time.
    • Requires intent to leave the marriage.
  27. Limited divorce - Cruelty or excessively vicious conduct.
    Conduct that endangers the life/person/health of the other spouse or minor children.
  28. Divorce Defenses - Recrimination
    Marital misconduct by both parties.
  29. Divorce Defenses - Condonation
    Waiver or forgiveness of wrongdoing with knowledge of the misconduct and resumption of sexual relations.
  30. Divorce Defenses - Connivance
    Aggrieved spouse consents/permits the marital misconduct
  31. Divorce Defenses - Collusion
    Both parties conspire to fabricate grounds for divorce.
  32. Divorce Defenses - Provocation
    One party provokes the marital misconduct.
  33. Equitable distribution state –
    • Fair division of property between spouses according to statutory factors.
    • Not necessarily an equal split.
    • Applicable only in the absence of an agreement
  34. How to Divide Marital Property
    • Fair and equitable manner
    • Consideration to monetary and non-monetary considerations.
    • The interest of children of the marriage should be given particular and favorite attention.
  35. Division of property in Annulment/divorce
    Real and personal property.
  36. Division of property in a Limited divorce
    Personal property only.
  37. Classifications of the Spouse's Property
    all property must be marital or non-marital property.
  38. Marital property
    • All property acquired during the marriage
    • All property held as tenants in the entirety (rebuttable presumption)
    • retirement benefits
    • pensions earned during marriage
    • wages
    • salaries
    • lottery winnings
    • other accumulations.
  39. Non-marital property
    • Property acquired before marriage
    • property acquired by gift/inheritance received in a party’'s sole name
    • passive increases in non-marital property
    • property directly traceable to non-marital property
    • property excluded by agreement.
  40. Divorce: Source of Funds rule
    When property is purchased by both marital funds and separate funds, the property will be considered marital property to the extent that marital funds were used.
  41. Divorce: Valuation of Property
    • Net value -– the value minus debt owed.
    • Valuation at time of divorce, not separation.
  42. Divorce: Distribution Factors
    • (1) economic circumstances of each party,
    • (2) monetary/non-monetary contributions of each party to the family,
    • (3) contributions to help acquire marital property,
    • (4) each party’s contribution to non-marital funds to acquire property as TITE,
    • (5) whether alimony is being awarded and how much,
    • (6) fault/misconduct of the parties,
    • (7) age and physical/mental health of the parties,
    • (8) length of the marriage, and
    • (9) anything else the court finds just and proper in reaching an equitable award.
  43. Family use property
    • Use of the family home for up to 3 years when principal residence in MD.
    • Use of personal property acquired during the marriage which is primarily used for family purposes.
    • Std: in the best interest and welfare of the child.
  44. Professional licenses or degrees
    Personal to the holder and not a property interest.
  45. Retirement and pension benefits
    Marital property when acquired during the marriage.
  46. Social security
    Not subject to distribution, but may be considered by the court.
  47. Property taxation
    • Not when transferred between two spouses
    • Taxed when sold.
  48. Spousal Support and Alimony may be ordered
    • During the divorce proceedings, legal separation or following divorce.
    • Must be sought in divorce complaint.
  49. Taxation of Alimony
    • Taxable for the recipient
    • Deductible for the payor.
  50. Alimony Factors
    • (1) ability to be self-supporting,
    • (2) time needed to obtain suitable employment, including training,
    • (3) standard of living and duration of the marriage,
    • (4) circumstances that led to the dissolution of the marriage (fault),
    • (5) age, mental/physical health of parties,
    • (6) contributions to the marriage,
    • (7) resources and needs of both parties,
    • (8) agreement between the parties,
    • (9) effect on eligibility for medical assistance, and
    • (10) any other factor affecting fairness.
  51. Alimony pendente lite
    • Temporary alimony payments while the divorce proceeds.
    • (1) proof of marriage
    • (2) proof that divorce action is pending
    • (3) need for the alimony, and
    • (4) proof that the party has the ability to pay.
    • Awarded regardless of fault or success on the merits.
  52. Rehabilitative alimony
    • Preferred.
    • Awarded for a specific amount of time to allow the receiving spouse to become self-supporting.
  53. Indefinite alimony
    • Permanent award of alimony.
    • Disfavored, but permitted when:
    • (1) unlikely that the spouse will ever become self-supporting, or
    • (2) unconscionable disparity in standard of living between the spouses after rehabilitative is awarded.
  54. Modification of alimony
    • Requires a change in circumstances which would cause an inequitable result in its absence.
    • Divorce agreement must expressly allow.
  55. Termination of alimony
  56. (1) date set by court
    • (2) death of either party or
    • (3) remarriage of recipient.
    • Cohabitation without remarriage, termination or modification is possible grounds for modification.
  57. SMJ for Divorce - residency requirement
    • If cause of action arose in MD, no residency requirement.
    • If cause of action arose outside of MD, one year residency requirement.
  58. Venue for Divorce
    Proper venue is in the country where the defendant works or lives, or the county where the plaintiff lives.
  59. Personal jurisdiction for Divorce
    • PJ not required to get a divorce.
    • PJ required to decide child support, alimony and rights outside of MD.
  60. Ex parte divorces
    Divorces with out-of-state defendants.
  61. Foreign Country Divorces
    Not necessarily entitled to full faith and credit by MD.
  62. Divorce: Indigent Parties
    • Not entitled to representation
    • State must waive filing fees.
  63. Waiver of Child Support
    Right to receive child support cannot be waived due to duty to their biological children.
  64. Right to receive child support
    Exists independent of visitation rights.
  65. Tax Consequences of child support
    • Not taxed as income for the recipient
    • Not deductible for the payor
  66. Any payment not deemed alimony
    Child support.
  67. Rebuttable marital presumption of paternity
    for children born during the marriage
  68. Children out of wedlock.
    Paternity can be proven by an acknowledgment in writing of paternity, or paternity test when in best interest of the child.
  69. Child Support
    Child support is a regular ongoing payment with other additional expenses to be paid for pre/post-natal expenses, extraordinary medical expenses, health insurance, day-care/education costs.
  70. Goal of Child Support
    Each child should enjoy the same lifestyle as if the parents were still together. This is the floor; parties can agree to more. Income applies to a certain point, but the court may exceed it in its discretion.
  71. Voluntary Impoverishment
    • If a spouse/parent quits her job, the court will look at potential income.
    • This is not a change which warrants
  72. Modification of Child Support:
    • Requires a material change in circumstances in either (1) child’s needs or (2) parent’s ability to pay, making it in the best interest and welfare of the child.
    • Amount can only be change prospectively.
  73. Ways to Enforce Support Orders
    • Income withholding.
    • Contempt
    • Seizure of tax refund
    • Suspension of driver’s license
    • Denial of passport
    • Seizure of property.
  74. Civil contempt
    • Court puts non-paying parent in jail until the parent pays the child support.
    • Requires C&C evidence.
  75. Criminal contempt
    • Fine and imprisonment as punishment for a willful failure to pay.
    • Trial by jury required to prove that failure to pay is not willful.
    • Defendant is entitled to constitutional protections.
    • Requires proof beyond a reasonable doubt.
    • Punishable by imprisonment by 3 months.
  76. Child Support: Uniform Interstate Family Support Act (UIFSA)
    Federal Statute which simplifies child/family support.
  77. UIFSA Initial determination
    • Jurisdiction lies in the home state where the action was filed.
    • Requires proper service in-state or through long-arm statute.
    • If unavailable, procedure exists to transfer the petition to the state of the non-custodial parent.
  78. UIFSA Modification
    • Home/initiating state maintains exclusive continuing jurisdiction to enforce an order until both the parties and the child move out of state or consent to jurisdiction in another state.
    • Prevents forum shopping and inconsistent orders.
  79. UIFSA Enforcement in Another State
    A child support order can be registered in any state where the obligor has income or property.
  80. Legal custody
    The right to make decisions for the child
  81. Physical Custody
    The right to have the child live with a parent.
  82. Joint custody
    • When both parents have legal and physical custody of the child.
    • Need not be 50/50 split.
    • No presumption of joint custody in MD.
  83. Child Custody: Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA)
    Federal law which determines the location of child custody cases.
  84. UCCJEA - Initial determination
    MD can hear the case when it is the home state for six months or since birth, or it was the child’s home state within the past six month and one parent still remains.
  85. UCCJEA Exclusive continuing jurisdiction
    Until the parties do not reside in the state or the child lacks significant connection to the state.
  86. UCCJEA Enforcement of another state’s order
    • (1) registration of a certified copy of the custody order and
    • (2) a court order which will grant the petitioner’s request --- absent the respondent’s assertion of a defense.
  87. Child Custody: Best Interest and Welfare of the Child Standard
    Biological parents are presumed to be the best custodians unless unfit to parent or other exceptional circumstances
  88. Child’s Factors - BIWC
    • Age/sex/health of the child
    • Child'’s special needs
    • Opportunities affecting the child’s future
    • Wishes of a mature child (age 12 or older)
  89. Parent’s Factors - BIWC
    • Character and fitness
    • Wishes
    • Agreement of parents
    • Distance between parties
    • Length of separation
    • Prior negative issues like domestic violence or abandonment of children.
    • Parent’s' willingness to cooperate is the most important factor.
  90. Additional considerations - BIWC
    • Keeping siblings together
    • Parental employment obligations
    • Geographic locations
  91. De facto parents
    Stepparents and non-biological same-sex parents are not automatically recognized as having rights of access to the child, but their relationship will be considered when the court makes custody decisions.
  92. Child advocate attorney
    Appointed for a child in hotly-contested cases.
  93. Visitation: Noncustodial parents and third parties
    Are entitled to reasonable visitation. This may be restricted but only when in the best interest of the child.
  94. Third party visitation rights
    If parental unfitness or exceptional circumstances –- both must be in best interest of the child.
  95. Visitation: Enforcement Remedies
    • Contempt
    • Change in custody
    • Award of reasonable attorney’s fees or fines.
  96. Visitation: Modification
    Party seeking modification has burden of proving a material change in circumstances which make it in the best interest of the child to change the order.
  97. Visitation: Relocation
    • May trigger reevaluation of custody if it is shown to be in the best interest of the child.
    • Consider constitutional right to travel.
    • Child'’s interest is considered as well.
  98. Marital Agreements: Prenuptial Agreements
    Contracts made before the marriage which dictate awards of property and spousal support after marriage
  99. Marriage itself
    Valid consideration for entering into the agreement and signing the prenup.
  100. Signing a prenup
    Can be condition of marriage.
  101. Prenup Enforceable
    • When valid -– MD courts consider:
    • (1) full disclosure of finances,
    • (2) fair terms re- health, wealth and age, and
    • (3) voluntary nature of agreement, including opportunity to consult independent counsel.
  102. Marital Agreements: Separation Agreements
    • Contracts relating to custody, support and property made by spouses who intend to divorce.
    • Entered into after marriage but before divorce. These agreements may be merged into the final judgment of divorce, provided full and fair disclosure and the consent of the parties.
  103. Marital Agreements: Post-nuptial Agreements
    • An agreement that upon divorce settles support and property issues.
    • Must designate marital and non-marital property. Presumed valid absent inequity or injustice.
    • Can be vacated upon contract principles, such as unconscionable (fair and equitable), duress or fraud.
    • BOP on party seeking to vacate.
  104. Marital Agreements: When they can be modified
    • Provisions affecting children are always modifiable if in best interest of child.
    • Spousal support may be modified unless prevented in the agreement.
  105. Marital Agreements: Enforcement after merger
    • If incorporation into a divorce decree: court order, or court's contempt power.
    • Incorporated not merged: through contract law or court’'s contempt power.
  106. Adoption: Termination of Parental Rights
    Adoption terminates the previous parent-child relationship and creates a new one, resulting in a new birth certificate.
  107. Who can adopt?
    Any adult can petition to adopt.
  108. Can singles can adopt.
  109. Standard for adoption
    The best interest in the child.
  110. Adoption: Voluntary
    • Consent to the adoption of a child.
    • Best interest of the child standard.
  111. Adoption: Involuntary
    • Only through a court proceeding.
    • Abuse, neglect or dependency case.
  112. If one parent is convicted of a crime of violence against another parent and sentence of at least 10 years...
    termination of the convicted parent's parental rights
  113. Adoption: Legal effect
    Adoptive parents have all the rights and responsibilities of biological parents, and the child enjoys the same status that the biological child will have.
  114. Adoption: Open Adoption
    MD allows visitation between biological parents and the child after adoption if all parties agree and it is in the best interest of the child.
  115. Adoption: Equitable Adoption
    MD law allows a child to be recognized for some purposes based upon the conduct of parents – see: estates and inheritance.
  116. Abuse: Protection Orders
    • Actions can be filed by anyone involved in a close family relationship as defined by statute.
    • Protection orders are designed to protect parties from abuse -– behavior that causes reasonable fear of harm, sexual offenses, stalking or false imprisonment.
  117. Abuse: Temporary Ex Parte Protective Orders
    • Petitioner must prove by preponderance of the evidence that there are reasonable grounds to believe that abuse has occurred.
    • Effective for 7 days, but can be extended.
    • Respondent must be served notice but need not be present.
    • Relief available includes no contact, abuser vacates residence, child custody decided, seizure of weapons, and presence prohibited from certain locations.
  118. Abuse: Final Protective Orders
    • Once an ex parte order is granted, a final order must be heard within 7 days.
    • Petitioner must prove abuse occurred by clear and convincing evidence.
    • Good for one year, but may be extended for six months.
    • Relief available includes child support, visitation schedule, use of vehicle and counseling in addition to ex parte relief.
    • Violation of protective orders can result in contempt, fines, criminal penalties and incarceration.
    • Can be made permanent.
  119. Abuse: Peace Orders
    • Allow for protection of non-family members.
    • Similar relief available as in protective orders.
    • Standard is clear and convincing evidence.
  120. Statute of Limitations for Court Orders (Family Law).
    A recipient of child support or alimony has twelve years from the due date of the individual payment to bring suit.
  121. Award of Attorney's Fees
    • A party who fails to pay court-ordered child support or alimony may be sanctioned with the payment of attorney's fees. 
    • Court considers  (1) the financial needs and resources of both parties, and (2) whether there is substantial justification for bringing the action.