Family Law
Name at least 3 things a court will determine for alimony?
1. standard of living during the marriage
2. duration of the marriage
3. financial resources of both parties
4. contribution of each party to the marriage
5. time needed to gain education or skills
6. ability of payor to pay the alimony
7. age, physical and emotional condition of both parties
Under an anti-lapse statute, Maggie wants to gift James the supreme court dolls. James predeceases Maggie. Can James's wife claim the gift instead?
No, the wife is not a descendant of the grantor.
definition of a partnership
an association of two or more persons to carry on as co-owners a business for profit
type of evidence that each party must produce without being asked (3 categories)
1. identities of persons with discoverable information that the party may use to support her claims or defense (names, telephone numbers, addresses, and topics on which they have discoverable information)
2. documents and things that the party may use to support her claims or defenses (photographs, records, videos, and ESI)
3. computation of relief along with supporting documents/ESI
what is the difference between 5th and 6th right to counsel?
5th attaches during a custodial interrogation
6th attaches during a formal proceeding: lineup ID, post-indictment interrogation, or arraignment
David and Ann want to draft a prenup agreement. David wants the prenup to include provisions about child support, alimony, and property separation. What is your response?
Child support provisions and child custody provisions are not enforceable unless they are in a separation agreement.
What are the types of non probate assets?
insurance policies, property in trust, and property passing by right of survivorship
When will a court disregard an entity and pierce the corporate veil?
commingled assets between personal and corporate
owners treat the entity as an alter ego and not a separate entity
owners do not hold meeting as required
use of corporate assets for personal use
A third party defendant ____ (may/must) assert a claim against the plaintiff if the claim arose out of the same transaction/occurrence
may
only defendants, not third parties, must raise their compulsory counterclaims against the plaintiffName a few exceptions to the warrant requirement.
1. automobile exception
2. search incident to law arrest
3. plain view
4. consent
5. search incident to impoundment
When allocating alimony, will a court consider fault like adultery or insanity (fault based divorces)?
Depends on the jurisdiction
Hannah grants her Blue Honda civic to her boss in their will. After execution of the will, Hannah gets a promotion and buys a new car. Upon Hannah's death, can the boss claim the new car?
No, under ademption by extinction, the specific devise called for a specific blue honda. if the will devised a "car," the boss could claim.
list the three types of agency authority
1. actual authority - imbued in the agent based on the agent's understanding of the principal's manifestations of conduct to the agent
2. apparent authority - imbued in the agent based on the third party's understanding of the principal's manifestations of conduct to the third party
3. ratification - implied/explicit action by the principal purporting to accept the contract that the agent made without valid authority
What are the three elements of claim preclusion?
(1) valid, final judgment on the merits,
(2) the cases were brought by the same claimant against the same defendant, and
(3) the same cause of action is involved in the later lawsuit
Generally, a claimant is required to assert all causes of action arising out of the same transaction/occurrence that is the subject matter of the claim
What is the remedy for a violation of the 6A right to counsel at a nontrial proceeding?
the harmless error rule applies - if failure to provide counsel did not constitute harmless error, no reversal
Which tortious interference with a marriage requires a showing of adultery to claim for relief: alienation of affection or criminal conversation?
criminal conversation requires a showing of adultery and a valid marriage. the claiming spouse can sue the 3rd party that invaded their marriage.
alienation requires a showing of intrusion on true love and affection by a 3rd party
what are the elements needed for a valid private trust?
when is a principal liable for contracts that an agent enters into?
authority - actual or apparent
a motion for new trial mat be granted when...
(bonus: what are the three common instances for granting new trial?)
there is an error during trial. must file within 28 days.
bonus: usually jury misconduct, excessive/inadequate verdicts, verdict goes against the evidence presented
when do you have a right to a jury trial?
serious offenses only - offense is serious if potential imprisonment for more than 6 months
NOTE: NO right to jury trial in juvenile proceedings
If a wife waives spousal support in a prenup then quits working to support the family home, can she receive spousal support at divorce?
Yes, if the dependent spouse (the wife) will become a warden of the state. meaning, the wife does not have job prospects or financial resources without depending on the state.
What is a spendthrift provision?
precludes the beneficiary from voluntarily or involuntarily transferring their interest: keep creditors away
The president of a corporation whose primary business is selling model airplanes has proposed to sell all of the corporation's assets and reinvest in specialty edible underwear company.
What steps must the corporation take to make this change?
1. board of directors must pass a resolution calling for a shareholder vote (call meeting with notice; simply majority for quorum; majority of disinterested members present to pass)
2. shareholders must vote (at a special meeting called by the board, the president, the holders of at least 10% outstanding shares, or anyone else authorized by AoI/bylaws; quorum of majority of shares; majority of shares present to pass)
appellate courts have discretion under the collateral order doctrine to appeal an issue if the issue is...
separable from and collateral to the main suit and is too important to require deferring appellate review
the order may then be classified as a judgment in a separate ("collateral") matter
what are the two things a claimant must show to prove ineffective assistance of counsel?
(1) deficient performance by counsel
(2) but for deficiency, the result of the proceeding would have been different (for example, the defendant would not have been convicted or the sentence would have been shorter)