FAMILY LAW

• This is our last seminar for this class. You made it!• Final Exam is due (no exceptions) on Dec 14th at

midnight ET• Contact me if you need an Incomplete. If you

have an EXCUSED reason for being behind then you may qualify. If granted you will have two extra weeks to complete your work.

• Have a very happy and safe holiday!

• Family Law is a branch of law that deals with domestic issues

• Family Law varies from state to state• What type of cases are heard in Family Court?MarriageDivorceCustody, Support and VisitationDeath

• Marriage is a contract. John and Mary promise to fulfill the duties of a married couple as imposed by law. These include support, inheritance, and consortium.

What is consortium? This is the legal right of one spouse to the company and affection of the other.

• John and Mary marry after fulfilling the state's requirements (including age and mental competence), obtaining a license, passing blood tests, and having a ceremony with witnesses. Their marriage is a "special" contract because John and Mary cannot dissolve (end) it. Only a court can.

• When parties enter into a marriage contract, they must:

• Possess the capacity to get married (Legal capacity, mental capacity, no prior undissolved marriages)

• Possess the intent to get married (no fraud, duress, or coercion).

• Also called premarital or antenuptial agreement: A contract that two people may write and agree upon. It details their rights and duties, especially with respect to property and debts. The goal of a prenuptial agreement is to minimize future disputes in case of divorce or when one spouse dies.

• Essential factors for the enforceability:• voluntarily entered into• based on full disclosure by both parties. • must be fair as of the time it is sought to be

enforced.

• Separation: A legal term that refers to John and Mary's agreement to live apart although they are married. They may enter into an agreement about all aspects of their separation.

• Legal Separation: A legal term that refers to a court order. If John and Mary cannot agree on terms of a separation, either of them may sue the other in court. If the court orders the terms of separation, the order is a "legal separation." It may also be called "temporary orders.”

• Divorce: The end of a marriage by court decree. Dissolution is the term more often used in no-fault actions. Following a divorce, John's and Mary's rights and duties are specified from the date of the final decree.

• A court decree stating that John and Mary never legally married because they didn't fulfill the requirements of marriage. Some of the causes of an annulment may be for:

Bigamy or polygamyIncestuous marriagesUnderage marriagesIncurable impotence

Lack of capacity or intent

• Following an annulment, John and Mary revert to their premarital status. They are single, have never been married.

Fault Divorce: What may result if John or Mary sues the other for divorce, claiming that the spouse is "at fault." Fault needs to be proven. Different grounds of fault include:

-adultery-conviction of a crime involving moral turpitude (an act

that is so vile-or base-that it contravenes basic moral standards)

-cruelty (mental or physical) -desertion or abandonment (excess of 1 year) -habitual drunkenness -insanity-nonsupport

• A divorce in which neither the husband nor the wife officially blames the other for the breakdown of the marriage. A marriage can be ended for the following reasons, or grounds: -irreconcilable differences that have led to a

breakdown of the marriage (John and Mary cannot get along)

- the parties have lived separately for a certain period of time with the intent that the

separation be permanent • A no-fault divorce is available in some form in

all 50 states

• Money for support and maintenance to which one spouse is entitled from the other spouse after a divorce or separation.

• The court usually awards an amount based on need. Payments often end if the receiving spouse remarries or dies.

• Is Alimony always necessary? No! Court considerations: - duration of the marriage- standard of living- contribution to the marriage- age & health of the parties- ability to pay/ financial resources of the parties- conduct

• The court usually decides contested custody cases on a standard of "best interest of the child." Difficult standard to apply. Court considerations: past history of childcare, fitness of parent(s) & child's wishes.

• Legal custody is the right & duty to make vital decisions about child's education, medical care, religious training & similar issues

• Custody in one parent with visitation rights in the other. Child lives with one parent (the custodial parent) while the noncustodial parent may visit with the child.

• Joint custody: John and Mary both have legal custody. The child may live with each of them at different times.

• Payment for the child's care and support from the noncustodial parent to the custodial parent. These payments usually end at the child's age of majority, or when he completes his education, or when he becomes emancipated.

• In most instances, child support is set by federal law, and is based on the parent’s gross income.

• What is Property? Property includes anything that can be owned (house, land, jewelry, money, stocks, patents)

• 2 major division patterns in the different states: - Common law (separate property): John and

Mary may each have their own & may hold property together, such as a car or a house (marital property). They (or the court) decides how to divide all the different categories of property, according to equitable distribution.

- Community property: John and Mary generally continue to hold what they had before marriage. Property earned during the marriage is owned by both. Pre-marriage property generally remains with John or Mary.

• For this transcription assignment, you will practice transcribing dictation of 3 formal pleadings that would be submitted to an attorney for review and signature.

• Refer back to what you have learned thus far about formatting documents, making sure that capitalization and punctuation are used properly. Your submitted transcription must be in final form.

• The three documents that you will draft are:

1. Joint Petition of Simplified Dissolution of Marriage

2. Joint Affidavit Regarding Separation of the Parties, Division of Property, and Waiver of Bifurcation Hearing

3. Verification

• Again, make sure you check your punctuation and spelling .

• Make sure you bold and capitalize the appropriate words.

• What is alimony?• What is annulment of marriage?• What are visitation right?• What is adoption?• What is bigamy?• What is assumption of the risk?• What is nuisance?

• What is the sudden emergency doctrine?• What are the different types of damages?• What is product liability and what must be proven

for a plaintiff to win?• What is the burden of proof in a criminal case?• What is extortion and what is arson?

• What is conspiracy?• What is the exclusionary rule?• What is a preliminary hearing?• What is an accessory to a crime?• What is larceny?• What are Miranda rights?• What is commuting a sentence?

• What is a judgment on the pleadings?• Are leading questions ever allowed?• When are jury instructions given?• What is a trial de novo?• Who decides if a jury is hung?• What is a subpoena duces tecum?• Do both parties participate in discovery?

• What is a request for admissions?• Only "v" and not "vs" can be used for "versus" in a

case name – true or false?• Letter salutation• Burden of proof in a civil case.• What are depositions?• When can a party amend a pleading?

• What is concurrent jurisdiction?• What is “statute of limitations?”• What is a summons?• What are long-arm statutes?• What is a verified complaint?• What is an enforceable contract?• What does “lapse” mean in contract law?

• What is Statute of Frauds?• What is “rejection?”• What is “breach of contract?”• What is “quasi contract?”• What is “restitution?”• What is a “testamentary gift?”• What is a covenant – is it testamentary?

• What is “trust property?”• Intestate laws are governed by the Uniform

Commercial Code – true or false?• What powers does the executor of a will have?• What is a devisee?• What is a holographic will?

• What is “abstract title?”• What is a “joint tenancy?”• What is “remainder” and “reversion?”• Under the Uniform Commercial Code, only real

property may be subject to a lease – true or false?• What does “riparian” mean?

• Community property laws create what type of property ownership?

• What is a listing contract?

* Also, you can review the legal terms (located in Docsharing)

• States have attempted to find alternative means of dealing with family law issues. In Oregon, an attempt is being made to simplify family law especially for uncontested divorce. This attempt is referred as discrete task representation. 

•Please read the article “How Four Family Law Practioners Balance Professional and Client Needs,” which can be found at www.osbar.org/publications/bulletin/02dec/different.html. 

•After you have read the article, post your opinions about the article and this alternative approach on the Discussion Board.