Glossary of Family Law 2
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- What is needed for a licensed marriage?
- 1. Medical exam (procedural, not public policy -- good faith is enough)
2. Capacity (SANS -- Sane; Adult; Not related; Single) (public policy, cannot be waived)
- Is solemnization procedural or public policy?
- Procedural. Thus, good faith is enough, and unauthorized celebrant does not invalidate it.
- What are the elements of common law marriage? (abolished in most states)
- 1. Exchange of consents
3. Holding out
- What is the exception to the rule that a marriage valid where performed is valid everywhere?
- Uniform Marriage Evasion Act: if you go out of state to avoid public policy, the marriage will not be recognized.
- What is the rule on gifts?
- If they are conditional to marriage, e.g., engagement rings, the guy gets it back.
If it's not conditional, the girl keeps it.
- What are the components of constitutional privacy?
Contraception: can't outlaw
Abortion: no undue burden pre-viability; health of mom must be protected post-viability.
Marriage: laws can't prevent miscegenation.
Procreation: laws can't prescribe sterilization.
Education: can't prohibit religious or private schools.
Related parties living together.
- Where is constitutional privacy not found?
- The BUSHES
Unrelated parties living together (total # of people)
Housing (state can prefer some for housing)
Education of oneself
Status of welfare (state can prefer some over others)
- What are the features of annulment?
- It was void from the get go.
No decree is necessary.
Nonwaivable defects are bigamy. consanguinity, insanity.
Third parties can challenge.
- When is a marriage voidable?
- Fraud going to essentials ("I'm Baptist"); ("I'm a millionaire does NOT go to essentials)
Lack of physical capacity
Only innocent party can challenge.
- What type of jurisdiction is there for divorces? What implications are there?
- It's in rem jurisdiction.
Service by publication is okay.
Only Plaintiff need be bona fide domiciliary.
No $ or custody issues decided unless there's personal jurisdiction over D.
- What are the grounds for fault divorce?
- Adultery; bigamy; cruelty; desertion (over a year); drug addiction; insanity imprisonment; imipotency; venereal disease.
- What are defenses to fault?
Connivance (hire 'em an escort)
Recrimination (unclean hands)
- Are prenups valid?
- Yes, if they don't violate public policy.
Statute of Frauds required
Consideration is found in marriage
- Are spouses responsible for other's debts?
- No. They are independent actors.
- Are separation agreements valid?
- Yes, if there is consent.
They're non-modifiable, except for child support.
They must be in writing.
- What type of property distribution does Illinois have?
- Equitable distribution. 41 states have it in total.
- How does equitable distribution work?
- 1. Label it as separate and marital.
2. Separate (owned prior; gift; inheritance; unearned appreciation) goes to individual.
3. Marital, including pensions & tort recovery, to be split up.
4. Court distributes marital property equitably.
- What does the court look at in equitable distribution?
Unilateral or bilateral source of collection (pipe collection)
Liability of parties (who has debt?)
Longevity of Marriage
Standard of Living of parties
Health of parties
Income of parties
- Is property division modifiable?
- No, except for fraud.
- What does a court look at for alimony?
Standard of living
Misconduct of spouse
- What are the types of alimony?
- 1. Permanent (where needs will be continuing). Modifiable with substantial change in circumstances, BUT NOT IF SELF INDUCED. Also, can't modify retroactively.
2. Rehabilitative: help her get her degree.
- What are the tax aspects of alimony?
- It's deductible to the payer, income to the recipient.
- What is looked at for child support?
- Needs of the child and ability to pay.
- When does child support extend beyond 18?
- Child incapable of employment.
Desire and capacity for a baccalaureate.
- Is a child of a marriage presumed to be the child of the husband?
- Yes, presumed but not irrevocably.
EXCEPT, under Uniform
Status of Children Assisted Conception Act, if husband agreed to assisted conception, irrevocable presumption of fatherhood.
- Are bastard children entitled to equal rights as marital kids?
- Yes, unless there is an "important governmental interest" (medium scrutiny). Most laws preferring marital kids are unconstitutional.
- Is child support modifiable?
- Yes, with a change of circumstances.
But, can't be self induced and is not retroactive.
- What are the tax aspects to child support?
- It is not deductible to the payor and is not income to the recipient.
- Do parents have a constitutional right over custody and care?
- Yes. Fit parents can see to the best interests of the child.
- Which courts have custody over a child for custody issues?
- 1. Home state: where child and one parent have resided 6 months. OR,
2. Child and one parent have 'significant connection.' OR,
3. Child is abandoned, OR
4. No other state wants it.
5. Also, court that made initial determination has exclusive and continuing jurisdiction until neither child nor parent has significant connections with it (prevents venue shopping)
- What factors are examined in deciding child custody?
Child's preference (the older, the more weight)
Health of parties
Involvement of parties
Proximity of relatives
Schools and institutions
- Is there a presumption toward joint custody?
- What types of custody are there?
- Legal (decisionmaking) and physical (where kid lives)
- If Dad is a deadbeat, does he lose visitation?
- Are child support orders modifiable?
- Does this mean no full faith and credit?
- No. Even though child support orders are interlocutory, there is full faith and credit -- Congressionally mandated, under Parental Kidnapping Prevention Act)
- What are the elements of adoption?
- 1. Extinguish birth parents' rights
2. Make adoptive parents parents, through judicial sanction.
- When is adoption involuntary?
- 1. Parents' abuse, abandonment or neglect.
Procedural due process requires notice and a fair hearing.
- When is Dad entitled to a due process hearing before adoption?
- 1. He has acknowledged paternity in writing.
2. He is involved with the child.
- Does a wife need a court order to change her name to take her husband's?
- No. But if she wants a hyphenated name, she needs a court order.
- What is it called when a third person entices a spouse?
- Alienation of Affection.
- What's it called when a third person has sex with a spouse?
- Criminal conversation.
- What was Marvin/Hewitt all about?
- Palimony. Operated off of implied contract/quasi contract.
- What is the test if there's a frozen embryo and the parents are divorced and wife wants to unfreeze the baby?
- Relative interests of the parties.
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