Family Law Bar Exam - Bar Exam Outlines

Family Law

MARRIAGE

• Ceremonial Marriage Requirements

  • Voluntary Consent

  • Competent to Consent

    • Can't be married to someone else

    • Can't be too closely related

    • Can't be same gender

      • Doesn't matter if another state recognizes

    • Age

      • 18 or older or

      • 16 or 17 w/ written consent of parent/guardian OR w/ court approval if no parents/guardians

      • Under 16, only w/ court approval if unmarried & pregnant, or in settlement of a suit for seduction or paternity

    • Mentally competent

    • Cannot remarry w/in 6 months of last divorce

      • But if parties live together after the 6 mo. Period, the marriage becomes common law & cannot be annulled

  • Marriage License

    • Valid for 30 days

    • Get fee reduce if complete pre marriage counsel

  • Ceremony

    • Conduct by judge & religious leader

    • Need 2 adult, competent witnesses

    • Officiant & witnesses must sign certificate

• Common Law Marriage

  • Competent & 5 Elements

    • Permanent

    • Exclusive

    • Actual Intent to be Married

    • Cohabitation

    • Holding Out to Public as H & W

  • Must show by CLEAR & CONVINCING EVIDENCE

  • Must be terminated same as ceremonial marriage

ANNULMENT

• Void Marriage

  • Fail to meet essential requirements, invalid (utter nullity)

  • Can be attacked by a party or collaterally by 3rd party

  • Can be attacked even after death of one of parties

  • NO TEMPORARY ALIMONY

    • Examples: bigamy, incest, same sex

• Voidable Marriage

  • Event of condition affecting adequacy of consent

  • Treated as valid until annulled

  • Can be attacked only by party or guardian of party and usually only one sought to be protected

    • Either party can raise marriage w/in 6 months

  • No attack after death

  • TEMPORARY ALIMONY ALLOWED

  • Marriage can be ratified by cohabitation after impediment removed

    • Examples: underage, mental incapacity, remarriage w/in 6 months, fraud, misrep, duress, error & lack of consent

• Relief Avail W/ Annulment

  • Judicial declaration of invalidity

  • Custody & visitation of minor kids

  • Child support & medical support for minor kids

  • Property division

  • Attorney' fees & costs

  • Temporary alimony for proceeding to annul voidable marriage, but not void marriage

  • PERMANENT ALIMONY CANNOT BE AWARDED IN ANY ANNULMENT ACTION

  • Restraining order or other injunctions

• Relief Not Avail

  • Divorce

  • Name Change

  • Permanent Alimony

DIVORCE & SEPARATION

• Grounds for Divorce & Separation

  • Incompatibility

    • No fault

    • "such conflict of personalities that no possibility of reconciliation

  • Abandonment

  • ADULTERY

  • Impotence

  • Wife pregnant by other AT TIME OF MARRIAGE

  • Extreme Cruelty

  • Fraudulent conduct

  • Habitual drunkenness

  • Gross neglect of duty;

  • Imprisonment for felony

  • Divorce in another state w/o PJ over 1 spouse

  • Institutionalization for insanity for 5 years

• Defenses

  • Traditional Defenses

    • Condonation

      • Forgiveness of marital offense by other spouse

      • Can be proven w/ affirmative act or implied by cohabitation or sex

  • Other Defenses

    • Recrimination

      • Both guilty of misconduct

    • Provocation

      • Conduct provoked the marital offense

    • Connivance

      • Spouse acquiesced in marital offense

    • Collusion

      • Agreement to offense or to suppress a defense

• Relief Avail in Divorce

  • Dissolution of Marriage

  • Custody & visitation of minor children

  • Child Support & med support for minor kids

  • Property Division

  • Support Alimony

  • Restoration of Maiden name of either spouse

  • Attorney fees & costs

  • Restraining order

• Separate Maintenance Action (Legal Separation)

  • Action doesn’t terminate marriage & cant prevent other spouse claim for divorce

  • Grounds & defenses same as divorce

  • Same relief as divorce except

    • No dissolution

    • No name change

    • No permanent alimony

• Waiting Periods for Final Decree

  • No minor children, 10 day waiting period

  • If minor children, 30 or 90 day waiting period

    • Final hearing cant be held till petition on file for 30 days unless court says emergency

    • Final order cant be issued till petition on file 90 days unless court waives, parties do counseling, or divorce based on abandonment, extreme cruelty, drunk, imprisonment, out of state divorce, insanity

• Jurisdiction & Venue

  • Subject Matter Jurisdiction

    • File in OK District Court

    • Actual Residency Requirement

      • Petitioner OR respondent must be "actual resident" of OK in good faith for 6 months immediately before filing

      • Actual Residence= domicile= intent to remain

    • Execption

      • Counterclaim to separate maintenance action

      • Annulment or separate maintenance action

      • Military- resident for 6 months w/o intent to remain okay

  • Venue

    • Divorce or Annulment file in County

      • Petitioner has resided for 30 days OR where respondent resides

    • Separate Maintenance

      • Where either party lives

  • Possible for 2 states have jurisdiction. Can proceed at same time and if one renders judgment, other loses SMJ.

  • If 2 actions filed in OK, first filed takes precedent.

  • For financial issues: petitioner must have PJ over respondent spouse

• Automatic Mandatory Status Quo Injunctions

  • On filing of petition & personal service, an AUTOMATIC TEMPORARY INJUNCTION is in effect against both parties & can be enforced like any other injunctions, through contempt

  • Injunctions in force till resolution of case (final decree, etc.)

  • Prevents:

    • Transferring, encumbering, concealing, disposing of marital prop UNLESS in usual course of business, to retain a lawyer, or for life necessities

    • Can damage or destroy prop

    • Make retirement withdrawals

    • Open or divert mail

    • Sign or endorse other party name

    • Disturb peace of other party or kids

    • Disrupt or withdraw kids from school

    • Hide kids

    • Remove kids out of state

• Temporary Orders

  • During pending action, parties can request temp orders regarding child custody, support, visitation, alimony, payment of debt, property possession, attorney fees

  • Procedure

    • Application by petitioner verified

    • 5 day notice before any hearing

    • If emergency, ex parte orders are permitted w/ police report, DHS report, sworn affidavit by other w/ first hand knowledge of issue, BUT only upon showing of irreparable harm to applicant or kid if order delay

      • Must be set for "show cause" hearing w/in 10 days

    • Temp orders terminate on final decree unless incorporated

    • Temp orders can be vacated or modified, and are not appealable

PROPERTY DIVISION

• General

  • OK is a common law state when it comes to dividing property.

  • The divorce MUST:

    • Determine what is marital property & what is separate property

    • Make an equitable division of the marital estate w/o regard to title of the property

    • IMP: Equitable means fair, not necessarily equal

• Separate Property

  • Acquired by spouses before marriage;

  • Prop acquired by 1 spouse by gift, inheritance, or personal award during marriage;

  • Property acquired in exchange for separate property, unless changes character due to transmutation;

  • Income from & appreciation of separate property if due to the inherent nature of the property or market factors

• Marital Property

  • All property acquired by the parties during the marriage by industry of the H and/or W

  • Income from & any increase in value during marriage of separate property IF DUE to efforts of either spouse or from marital funds

  • There is a REBUTTABLE PRESUMPTION that property acquired during marriage is marital

• Source of Funds Approach

  • If separate property increases in value in part due to market and in part due to spousal efforts, the court will apportion based on the source of the fund which divides the increase in proportion to the contribution from the separate & marital sources

• Transmutation

  • Transmutation means:

    • Separate property becomes marital property based on the actions of the parties that indicate their intent to change its nature

• Commingling

  • Separate property can become marital if the separate property LOSES ITS IDENTITY AND CANNOT BE TRACED

  • Commingling caused by the nature of the property (pension fund) does not result in transmutation

• Equitable Division

  • Court's division of the property is NOT SUBJECT TO MODIFICATION once divorce is final

  • Factors considered in making equitable division of marital prop

    • Contribution of each party to the acquisition of the marital estate (even homemaker)

    • Expenses in caring for the children, but not economic needs of a party

    • Marital fault NOT a factor

    • Economic fault (wasting, hiding assets, dissipating) is a factor

  • Marital Debt- jointly acquired during marriage in furtherance of a marital goal is also equitably divided

    • Factors for equitable division of debt

      • Incomes of parties

      • If an asset associated w/ the debt, which party received the asset

      • Why the debt incurred

  • Marital prop can be divided

    • in kind,

    • set off,

    • or awarding a greater share to one spouse & ordering other to make monetary payment to the other spouse

      • Alimony in Lieu of Property: not modifiable & does not terminate at death or remarriage

  • Special Issues:

    • Professional Practice

      • License or degree not marital property

      • Assets of business are marital property

      • Goodwill: marital unless goodwill no value independent of continued presence of spouse

    • Pension Rights

      • One spouse's pension benefits acquired & interest earned...