FAMILY LAW BAR CHECKLIST

1 FAMILY LAW: BAR CHECKLIST 1) COURTSHIP a) Breach of promise to marry is not actionable b) Engagement rings: Conditional gifts. If marriage does not occur, gift reverts back to the donor c) Prenuptial Agreements i) Prenuptial agreement upheld unless (1) Duress, fraud, or misrepresentation (basic contract principles) (2) Lack of meaningful choice in the creation of the agreement (3) Lack of full and fair disclosure of financial assets ii) Reasonableness of the agreement is not relevant 2) MARRIAGE a) Ceremonial i) License required ii) Ceremony (clergy, civil officers empowered to administer oaths) b) Common Law Marriage i) Capacity ii) Language of present intent to be married iii) Reputation in the community as a married couple iv) Cohabitation (living together and having sex) v) No minimum period of cohabitation 3) TERMINATION OF MARRIAGE a) Annulment (NOTE: Regular alimony, support, etc. apply after annulment) i) Void: As if the marriage never existed (1) Insanity or serious mental illness (2) Bigamy (prior existing marriage) (a) Disappearing spouse: 7 years gone = presumed dead (b) Before 7 years = get a decree of presumed death (3) Incest: up to first cousins; all are crimes except marriage to first cousin ii) Voidable: Terminates when attacked (1) Youth: under 16 needs court approval; 16 or 17 needs parental approval (2) Intoxication (3) Duress (4) Fraud: where one spouse lies about a material aspect of the marriage (a) Misrepresentation of religious mattes (b) Misrepresentation about matters of sex or procreation (c) NOT misrepresentation of money matters (5) Lack of physical capacity: incurable physical or psychological inability to have normal sexual intercourse iii) Difference Between Void & Voidable (1) Void marriages are a legal nullity but you should still get an annulment (even though you don’t need one); Voidable marriages need an annulment to end the marriage (2) Defect that makes the marriage void cannot be waived; defect in voidable can be waived (3) Third party can collaterally attack void marriages; voidable marriages can only be challenged by a spouse 2 b) Divorce (ALWAYS Discuss both Fault and No-Fault) i) Fault Grounds (1) Imprisonment for 2+ years (2) Bigamy (3) Indignities: course of conduct that makes ’s life burdensome or conditions intolerable (4) Adultery: voluntary sex with a non-spouse (5) Cruel & Barbarous Treatment: physical cruelty (1) continuous and minor or (2) single serious (6) Desertion: willful and malicious absence from home without justification for a year or longer (7) Insanity: institutionalized for 18 months & testimony: “no prospect of cure for the next 18 months” ii) Defenses to Fault-Based Divorce (1) Provocation: self defense in barbarous relationship is a defense (2) Condonation (a) Knowledge of misconduct (b) Forgiveness of misconduct (c) Resumption of marital relations (3) Recrimination: equal fault of like conduct (4) Connivance: corrupt consent to misconduct (5) Collusion: fraud on the court—parties fabricate grounds for divorce (6) Insanity iii) No-Fault Divorce: Standard: Marriage is irretrievably broken (1) Bilateral No-Fault (a) Both parties agree that they want a divorce (b) Parties consent, sign an affidavit, wait 90 days (2) Unilateral No-Fault (a) One party alleges that the marriage is “irretrievably broken” (b) Separated and apart for at least two years (i) Complete cessation of any cohabitation whether living in the same residence or not (ii) Complete cessation of financial, social, and sexual interdependence (c) No reasonable prospect of reconciliation c) Procedure/Jurisdiction i) One spouse must be domiciled in PA (intent and some physical presence) ii)  spouse must reside in PA for at least 6 months before the divorce iii) For economic remedies, PA must have personal jurisdiction over the  spouse iv) Venue: court of common pleas where on of the parties resides 4) ECONOMIC ISSUES a) Separation Agreements i) Contract between the parties that determines post-marriage rights and liabilities ii) Unless the contract provides otherwise, the agreement cannot be modified by alimony iii) Regarding children, the agreement can always be modified b) Property Division: Equitable distribution of property based on statutory factors i) Separate Property (1) Acquired before marriage or (2) Acquired during marriage by one spouse as a gift, bequest, or inheritance ii) Educational Degrees: are not considered marital property 3 iii) Marital Property (1) Acquired during marriage (2) Gifts between spouses during marriage (3) Increase in value of separate property during marriage (e.g., husband’s antique car is $100,000 before marriage; during marriage it raises to $200,000; marital property is $100,000) (4) Examples (a) Workers’ compensation awards (b) Separate property converted into joint names iv) Valuation (1) Near the date of divorce but the judge has discretion (2) Net of the debt v) Factors for Distribution: totality of the circumstances (AVOID 50-50 split on the essay) vi) NO Tax consequences c) Alimony i) Standard (1) Periodic payment of money for maintenance of former spouse (2) Available if necessary to ensure ability of economically weaker party to support him/herself ii) Alimony pen dente lite (1) Alimony during the pending litigation (2) Used for immediate support (i.e., paying bills, groceries, etc.) iii) Factors (1) Totality of the circumstances (2) Marital misconduct can be considered including post-separation misconduct iv) Automatic termination (1) Death of either party (2) Remarriage of recipient v) Modification (1) Changed circumstances of either party (2) Changes is substantial and continuous in nature vi) Enforcement (1) Seize property and sell to satisfy the payment (2) Garnishment of wages (3) Lose driver’s license (4) Contempt of court vii) Tax consequences (1) Deductible by payor (2) Taxable income to recipient (3) Wealthier party will always prefer smaller equitable distribution and bigger alimony (because it’s deductible) (4) Weaker party will always prefer bigger equitable distribution and little/no alimony (because it’s taxable) 4 5) CHILDREN a) Paternity i) Strong presumption that the husband is the father of wife’s baby ii) Paternity suit to determine the paternity of a non-marital child iii) Once paternity is established, father has a duty to support his child b) Support i) Standard (1) Periodic obligation to pay a sum of money for maintenance of the child (2) Duty to support continues until the child is 18 regardless of relationship between the parents (3) Amount determined by statutory guidelines ii) Modification (1) Material and substantial change in circumstances (2) Relating to increase in wealth, children growing older, inflation, employment, retirement, or disability iii) Enforcement (either the payor relocates out of state or child relocates out of state) (1) Same as in alimony and (2) Uniform Interstate Family Support Act: All states must defer to child support orders entered in child’s home state (3) Full Faith and Credit for Child Support Orders Act: every state gives full faith and credit to support orders in all fifty states (4) Child Support Recovery Act: criminal offense to fall one year or $5000 behind in payment (5) Tax Consequences: NONE c) Custody i) Standard: Best interests and welfare of the child (1) Desires of all parties involved (2) Age and health of the parties (3) History of domestic violence, if any (4) Relationships with siblings and other extended family members (5) Joint Custody: are the parents hostile or cooperative? Do the parents live close enough to each other? (6) NO tender years presumption in PA ii) Types (1) Physical Custody: custodial parent has exclusive physical custody (2) Legal Custody: parent has decisionmaking responsibilities (3) Joint Custody: parents share decisionmaking responsibilities iii) Modification (1) Substantial change in circumstances and (2) Best interests of the child is served (look for stability and continuity: don’t modify too often) iv) Visitation (1) Parent by and large has a right to visitation (2) Exception: visitation will threaten the welfare of the child v) Third Parties and Custody (1) Strong presumption that custody to the biological parents serves the best interests of the child (2) Exception: rebut the presumption by showing unfitness 5 d) Adoption i) ii) iii) iv) Anyone can be adopted regardless of age Natural Parent’s right must be terminated voluntarily or involuntarily Involuntary termination includes abandonment or neglect Legal Effect: adoptive parent has all rights and responsibilities of a natural parent; adopted child acquires all rights and responsibilities of a natural child of the adoptive parent