Family Law

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conorbw
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93310
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Family Law
Updated:
2011-07-21 15:52:09
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Family Law
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Family Law
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  1. Breach of promise to marry
    not actionable
  2. Pre-marriage gifts
    • Gifts conditional on subsequent marriage can be recovered if the couple does not marry
    • Other gifts are not recoverable, e.g. Christmas gifts
  3. Prenuptial Agreements
    • No rule limiting these agreements to financial arrangements
    • Statute of Frauds: agreement has to be in writing and signed by both spouses.
    • Parties must have gotten married in order to enforce the terms of the agreement.
    • Agreement can be attacked as unconscionable or the product of fraud or duress.
    • Unconscionable if the richer party did not disclose his assets and the poorer party neither waived disclosure nor had independent knowledge of the assets. Also unconscionable if it would leave the spouse in the condition of unforeseen, extreme hardship.
    • Did both parties have advice of counsel?
    • Did one party have greater business experience?
    • Did the challenging party know the rights that were forfeited, i.e. court ordered alimony and property division.
  4. 2 Requirements for Marriage
    License + Ceremony
  5. Marriage: License
    • Purpose is to make sure parties have legal capacity to marry.
    • Parties must be of age, sane, not intoxicated.
    • Capacity issues here are the same as those for annulment.
    • Spouses have to be a man and woman. Only 6 juris allow homosexual marriages.
    • No blood test required.
    • License expires in six months
    • If you don't get the license, it is typically a misdemeanor, BUT the marriage is valid.
  6. Marriage: Ceremony
    • Three requirements:
    • 1) officiant - member of the clergy or a government officer who can administer an oath.
    • 2) witness
    • 3) an exchange of promises - parties must solemnly agree to take on the new status of husband of wife; no magic words.
  7. common law marriage
    if a couple enters a common law marriage in a state that allows such marriage, then they are treated as married in all of the other states as well.
  8. Consequences of being a married person
    • 1) duty of economic support: parties are no longer free to financially ignore the spouse
    • 2) obligation of sexual exclusivity

    Otherwise, the parties retain their independent economic and civil status.
  9. Annulment: Void v. Voidable Marriages
    • Void:
    • 1) no decree necessary to terminate; no responsibilities or rights of a married person
    • 2) annulment is optional b/c you aren't married in the first place; but it is good to do so for clarity of the record and to gain a judicial determination of property division and other collateral matters
    • 3) impediments that make marriage void cannot be waived
    • 4) can be collaterally attacked
    • Voidable:
    • 1) valid until you go to a judge to get the annulment
    • 2) impediments can be waived
    • 3) can only be challenged by one of the spouses.
  10. Annulment: Bigamy
    • Makes a marriage void;
    • To have capacity to marry, you have to be single.
  11. Annulment: Consanguinity
    • Incest
    • you lack capacity to marry people your'e related to.
    • Not waivable
    • Who can't you marry?
    • ancestors
    • descendents
    • siblings of whole or half blood; can marry step siblings)
    • lineal marriages up or down one generation (man can't marry his aunt or his niece).
  12. Annulment: nonage
    • where one party is under the age of 18.
    • ususally acceptable for a 1y6 or 17-yr old to get married with parental consent or judicial consent.
    • Waivable: waived if you continue to cohabit (reside & sex) after both parties are of majority age.
  13. Annulment: mental incapacity
    • can be a permanent condition, e.g. insanity or a developmental disability.
    • Can be a temporary condition.
    • Also covers intoxication.
    • Waivable if you continue to cohabit (reside and sex) after the incapacity is removed.
  14. Annulment: incurable physical impotence
    • has to be incurable
    • Voidable
  15. Annulment: duress
    • Duress
    • Voidable
  16. Annulment: Fraud
    • Voidable
    • Fraud Defined: when one fiance either misrepresents or conceals a fact that goes to an essential aspect of the marriage prior to the date of the wedding.
    • Cases are subjective as to materiality.
    • Lies/secrets regarding religion are probably material;
    • Lies re: procreation is material.
    • Lies re: sexual proclivities/history are material if their major (prostitute)
    • Lies about money, property and social status are not grounds for annulment.
  17. Annulment Remedies
    • Modern view is that all remedies are available.
    • However, in some states, economic remedies, such as alimony are not available in annulment.
  18. No-fault divorce
    • Grounds for this category of divorce does not implicate misbehavior.
    • Is Not: no grounds/on demand divorce. You still have to show grounds.
    • Grounds: marriage had an irretrievable breakdown.
    • Prof: spouses have lived apart and refrained from sex for a statutory period (6 months in IL if both parties claim breakdown; 2 years if the claim is unilateral).
    • During the period of separation, the parties are still married; still can't have sex with other people.
  19. Grounds for fault-based divorce
    • 1) adultery
    • 2) Desertion
    • 3) physical or mental cruelty
    • 4) voluntary drug addiction or habitual drunkenness
    • 5) insanity after the date of marriage

    ** Dont forget the no-fault divorce option, which is cheaper and less embarrassing.
  20. Grounds for Fault-based divorce: Adultery
    • 2 methods of proof:
    • 1) direct testimony - someone saw you having sex
    • 2) circumstantial = opportunity + disposition
    • Opportunity means defendant spouse was alone with the other person
    • Disposition can be shown through love letters or gifts.
  21. Grounds for Fault-based divorce: Desertion
    • Definition: an unjustified departure from the marital home for a continuous period of one year.
    • If the spouse leaves to escape domestic violence, you don't need to satisfy the continuous departure requirement.
  22. Grounds for Fault-based divorce: Physical or mental cruelty
    • Physical: single episode of violence is enough
    • Mental: any misconduct that makes the petitioning spouse miserable.
    • typically requires ongoing conduct; continuous pattern of denigration; refusal of sexual intimacy, etc.
  23. Grounds for Fault-based divorce: voluntary drug addiction or habitual drunkeness
    "voluntary" is designed to exempt a circumstance under which someone has surgery and then gets hooked on the painkillers.
  24. Grounds for Fault-based divorce: insanity after the date of marriage
    • most states require institutionalization.
    • most states require proof it is incurable, psychiatric testimony, and a number of years before you can commence the proceeding.
  25. Affirmative Defenses for Fault-Based Divorce
    • 1) Condonation
    • 2) Connivance
    • 3) Recrimination
  26. Affirmative Defenses for Fault-Based Divorce: Condonation
    • Essentially operates like a waiver.
    • Often involves an adulterous affair.
    • Requirements: knowledge of misconduct + forgiveness + resumption of sex
    • rarely effective in domestic violence cases
  27. Affirmative Defenses for Fault-Based Divorce: Connivance
    • analogous to entrapment
    • plaintiff spouse lured the defendant into engaging in the misconduct that is the subject of the divorce petition.
    • rarely effective in domestic violence cases
  28. Affirmative Defenses for Fault-Based Divorce: Recrimination
    • Similar to the equitable concept of 'dirty hands'
    • Requires showing offsetting misconduct by the other spouse.
    • Typically in an adultery proceeding
    • historically a valid defense; but not every court will deny divorce on this ground.
  29. Legal Separation
    • Designed to allow people in a dysfunctional relationship to get property, but to keep the marriage intact.
    • grounds are usually the same as those for divorce: fault-based and no-fault grounds.
  30. Divorce Jurisdiction
    • One state has to be domiciled in the forum for the court to have jurisdiction.
    • Spouse must reside in the forum for a statutorily specified 90 days in IL, even if the other spouse has never been in IL.
    • BUT, these requirements are only effective to get the divorce decree.
    • Personal juris is required for collateral orders and property division or alimony.
    • So long as there is an earlier divorce decree by another state, all other states will honor it via full faith and credit.
    • Out of country divorces may or may not be honored, at the discretion of the court.
  31. Equitable Distribution of Property
    • Step One: Categorize the Assets owned by the couple
    • 3 possible categories: Husband's separate property; wife's separate property; marital assets.
    • Separate Property = (i) items either spouse owned prior to the marriage; (ii) any gifts or inheritances received during the marriage by a spouse in sole name; (iii) appreciation in value of property in (i) or (ii).

    • Step Two: Distribution of marital property based on the judge's discretion
    • Some factors:
    • a) age and health of the parties
    • b) education/job skills
    • c) custody of the children
    • d) contributions to the marriage
    • e) duration of the marriage

    ** once an order is entered, it is final and not subject to modification
  32. Alimony
    • 4 Types: Permanent-periodic; lump sum; rehabilitative award; reimbursement
    • Marital fault is not considered in making the award, but this is not an absolute bar.
    • If the award is other than a lump sum or reimbursement, it will terminate upon death of either party or remarriage of the recipient (or, in IL, if the recipient cohabits with another).
  33. Alimony: Permanent-periodic
    • obligation of the wealthier spouse to make a periodic payment continuing indefinitely.
    • Modifiable if conditions change.
  34. Alimony: Lump Sum
    • Single award designed to solve the support problem by giving an endowment fund.
    • Not modifiable.
  35. Alimony: Rehabilitative Award
    award for a limited time to enable the recipient to gain education or job training
  36. Alimony: Reimbursement
    one spouse supported the other during the marriage and as a result, suffered an opportunity cost.
  37. Child Support: General
    • All parents owe their children a duty of support, regardless of whether they were born out of wedlock.
    • If the child lives with the biological parent, the obligation to support is presumed to be satisfied.
    • Amount to be paid is based on guidelines and differs from state to state.
  38. Termination of Child Support
    • Child support has to be paid until the kid turns 18.
    • In IL, the support obligation is extended through age 19 if the kid is still in high school.
    • Obligation continues throughout the life of the child if he has a disability that prevents him from supporting himself.
    • Obligation does not terminate when the parent dies; in IL, it continues as an obligation of the deceased parent's estate.
  39. Modification of Child Support
    • Payor and the recipient can request modification for legitimate changes in circumstances.
    • But past due payments (arrears) are not modifiable.
    • Slef-induced reduction in income is not grounds for modification.
  40. Remedies for failure to pay
    • Seize personal assets: accounts, tangible personal property, etc.
    • Wage Reduction Order: send an order to the parent's employer requiring that wages be withheld and sent to the custodial parent.
    • Intercept tax refunds fromt he IRS
    • take away the parent's driver's license and occupational licenses
    • deny recreational licenses
    • suspend the parent's passport
    • hold the parent in contempt of court
  41. Uniform Interestate Family Support
    • provides for direct interstate enforcement of a child support order.
    • Enables the court to send an order to an employer anywhere in the U.S. The employer will have to withhold the money and send it to the custodial parent.
    • To avoid inconsistent orders, the first state to enter an order retains exclusive jurisdiction so long as either parent or the kid continues to live in the jurisdiction (referred to as continuing exclusive jurisdiction).
  42. Separation Agreement
    Negotiated agreement regarding property division, alimony, child support, etc.
  43. Enforceability of Separation Agreements
    • 3 Requirements:
    • 1) have to make full disclosure of your assets
    • 2) terms have to be fair
    • 3) any provision dealing with the kids is subject to court modification de novo.
  44. Modification of Separation Agreements
    • Look back to the divorce decree:
    • If the decree said the separation agreement was merged into the decree, then agreement is modifiable.
    • If the agreement is incorporated into the decree, then modifiability is judged on the face of the contract. If the contract is silent, it is non-modifiable.
  45. Custody of Children: Jurisdiction
    • If this is a divorce and both parents are in the state, the state can adjudicate custody.
    • In any other scenario, home state of the child will be one that has jurisdiction to adjudicate parental responsibility.
    • Home state is the one in which the kid has lived with the parent for at least six months of the suit. Once a state with valid home state jurisdiction enters an order relating to the custody of that child, continuing exclusive jurisdiction of that state comes into effect.
  46. Custody of Children: Standard of decision
    • Standard: Best interests of the child
    • This is highly discretionary.
    • Some factors include:
    • a) wishes of the parents
    • b) relationship between the parents and kid
    • c) age and health of the family
    • d) whether the parents have companions
    • e) domestic violence
    • f) placement of siblings
    • g) if one parent is the primary caregiver.
    • if joint custody is a possibility: do the parents get along? Do they live near one another?
  47. Custody dispute b/t parent and non-parent
    • Standard: Best interests of the child.
    • custody is a core prerogative of being a parent; it is almost never taken away.
    • To deny visitation, you have to show a significant danger to the health and welfare of the child.
    • If the custodial parent interferes with visitation, it is considered contempt of court.
  48. Custody of Children: Parental Relocation
    • parents with primary parental responsibility must provide advanced notice to the court and the other parent to demonstrate there is a bona fide reason for the relocation.
    • Court can adjust the custody arrangements to accommodate the new reality.
  49. Visitation requests by non-parents
    • in the case of the parent denying a non-parent's visitation, petitioning non-parents typically have to show extraordinary circumstances that create a significant state interest in maintaining that person's relationship with the child.
    • Also applies to homosexual parenting couples. Non-biological partners who want visitation have to show extraordinary circumstances.
  50. Modifications of Custody
    • Best interests of the child.
    • Focus on the stability of the child's life.
  51. Children born to non-married women (non-marital children)
    same rights as marital children
  52. Paternity Suits
    can be filed by the mother or the child via a guardian at any time until the child reaches the age of majority.
  53. Voluntary Termination of Parental Rights
    • Parents can voluntarily relinquish their parental rights.
    • Involves a physical surrender and the execution of forms.
    • Generally there is a waiting period involved to allow for reconsideration.
  54. Involuntary Termination of Parental Rights
    • Generally preceded by temporary removal.
    • parents get full due process
    • requires 'clear and convincing evidence'
    • typical grounds are physical or sexual abuse of the child; abandonment; neglect/failure to care for the child; failure to pay support for an extended period of time; severe personal unfitness (drugs or mental illness)
  55. Necessary Consents for Adoption
    • 1) biological parents if the child is a minor, unless their rights have been terminated or the voluntarily surrendered the kid; and
    • 2) consent of the adoptee if above the age of 14-osh; and
    • 3) anyone who has legal custody of the child.
  56. Adoption Process
    • 1) consents
    • 2) investigation
    • 3) temporary trial period
    • 4) hearing: best interests of the child. adoption finalized.

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