Term
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Definition
| Pre-Marriage: ID has recognized an action for breach of a promise to marry based on K. A. Gifts: if the marriage does not take place, engagement gifts must be returned B. Premarital Contracts (Antenuptual Agreements): for courts to enforce, the K must have the following: entered into voluntarily; in writing; full and fair disclosure of their financial worth; fair and reasonable |
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Term
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Definition
Marriage: the creation of the status of husband and wife, with the accompanying obligations and liabilities
A. Procedural Requirements: ID requires that all marriages be solemnized, authenticated and recorded
1. License: in ID, the marriage is void without a license
2. Solemnization (Ceremony): as long as the parties believe the person solemnizing the marriage is qualified, it is valid
3. Common Law Marriage: until January 1, 1996, ID was one of few states recognizing this |
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Term
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Definition
| Annulment: deals with problems that pre-date the marriage ceremony, whereas a divorce deals with problems arising after 1. Grounds: two grounds—void and voidable 2. Damages: can get property division, child custody, child support, and some jurisdictions allow alimony 3. Jurisdiction: domicile of either party or wherever the marriage took place |
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Term
| Void Ground for Annulment |
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Definition
| void grounds: these are non-waiverable by the parties, and technically, you wouldn’t even need an annulment decreed, you could just walk away. However, you might want an order for clarity of record i. bigamy ii. incest (consanguinity) |
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Term
| Voidable Grounds for Annulment |
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Definition
voidable grounds: these grounds can be waived by either party, and you do need a court order to declare marriage null i. parties are too young (usually under 18 requires parental consent) ii. mental incapacity iii. duress (party must bring annulment when the duress is removed) iv. fraud: goes to a matter essential to the marriage (heavily tested areas concern religious conviction and misrepresentation about sex or reproductive ability) v. incurable impotence: the inability to have sexual intercourse, not the inability to procreate |
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Term
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Definition
| Divorce: usually predicated on a “fault” ground or “no-fault.” When writing essay, discuss the grounds for fault, but always mention that ID allows “no-fault” upon showing of irreconcilable differences. If asked to “advise client,” talk about how no-fault is less embarrassing and stressful, and cheaper, because it will require less investigation and preparation by the attorney. |
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Term
| Grounds For Fault Divorce |
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Definition
Grounds for “fault”: a. adultery: action must be commenced within 2 yrs after the commission of the act b. extreme cruelty: action must be brought within a reasonable time after the occurrence c. willful desertion: action must be brought within a reasonable time after the occurrence d. willful neglect: action must be brought within a reasonable time after the occurrence e. habitual intemperance: action must be brought within a reasonable time after the occurrence f. conviction of a felony: action must be commenced within 1 yr of a pardon or end of sentence g. when either husband or wife has become permanently insane: reasonable time after the occurrence h. irreconcilable differences: this is “no-fault” divorce, allowed in ID under I.C. §32-603(8) |
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Term
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Definition
| Jurisdiction: for subject matter jurisdiction, the P must be a resident of ID for 6 full weeks prior to commencement of the action. Need personal jurisdiction over D to distribute spousal support, property rights, etc. |
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Term
| Property Division at Divorce |
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Definition
| Division of Property: ID is a community property state, meaning that all property acquired during the marriage is deemed owned one-half by each spouse, and all property brought into the marriage or acquired by gift or bequest is separate |
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Term
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Definition
Spousal Maintenance (Alimony) a. When warranted: a court may grant maintenance order if the spouse seeking maintenance lacks sufficient property to provide for his or her reasonable needs, and is unable to support themselves through employment. Factors: i. financial resources of spouse seeking support, and ability to meet needs independently ii. time necessary to acquire education and training to support self independently iii. duration of the marriage; age and physical/emotional condition of spouse seeking support iv. ability of spouse paying support to pay v. fault of either party vi. standard of living established during marriage (Wilson v. Wilson) b. Termination: a judgment or order for support shall terminate upon death of the obligor, or the remarriage of obligee c. Modification: cannot be modified unless terms of the agreement were incorporated or “merged” into the divorce decree. Absent merger, the agreement is a contract independent of the divorce decree. |
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Term
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Definition
Child Support: modification of child support and child custody must be prefaced by a substantial and material change of circumstances a. Duty to pay: based on income, both parents share responsibility. Will be divided proportionately by their incomes. b. Failure to pay: in ID, it is a felony to willfully omit, without lawful excuse, to furnish necessities for one’s children. c. Uniform Interstate Family Support Act (UIFSA): provides methods of enforcement and guidelines for modifications of support orders issued in another state. Under UIFSA, once a state with proper jurisdiction issues a support order, the court of another state is limited to enforcing the original order, unless all the parties no longer reside in the issuing state or the parties agree in writing that the non-issuing court may assert jurisdiction. An income withholding order may be mailed directly to the obligor’s out-of-state employer, automatically triggering withholding unless there is a timely objection from the obligor. d. Child Support Recovery Act: says that if obligor lives in another state, and falls behind in payments by more than 1 yr or $5000, can be charged by Federal Prosecutor e. Determining payments: ID uses the Idaho Child Support Guidelines found in the ID Rules of Civil Procedure. Basically, the formula takes a proportion of each parent’s gross income, and that is their responsibility. If a court departs from the guidelines, it must set forth circumstances to justify the departure. f. Full Faith and Credit for Child Support Act: FF & C must be given to another state’s child support order if (1) the state had proper jurisdiction; and (2) the parties had reasonable notice and an opportunity to be heard |
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Term
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Definition
| Child Custody: distinction between joint legal custody, which refers to decision making rights, responsibilities and authority relating to the health, education and general welfare of the child, and joint physical custody, which affects the place where the child resides or the parent supervised the child. |
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Term
| Child Custody Jurisdiction |
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Definition
| Jurisdiction: ID has adopted the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). This basically says the home state of the child has original and continuing jurisdiction. The “home state” is where the child lived 6 months prior to the filing of the divorce. If the child has no “home state” a court may use a state where either parent has a significant connection to a state, and there is substantial evidence concerning the child is available in the state. |
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Term
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Definition
| Determination of Custody: the court shall determine what is in the best interests of the child. Factors include: i. wishes of the parents as to the child’s custody ii. wishes of the child as to whom to live with (particularly if the child is over 12 years) iii. interaction and interrelationship of child with parents and/or siblings iv. child’s adjustment to home, school and community (stability in child’s circumstances) v. existence of domestic violence vi. proximity of parents’ homes |
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Term
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Definition
| Rights of non-parents (step parent, grandparents): ID presumes custody should be with a natural parent over a non-parent, however the best interests of the child will always prevail. |
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Term
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Definition
| Parental Autonomy: ID has standards of parental conduct in the area of physical abuse or neglect. A parent who violates those standards risks criminal sanction or the removal of the child. Due to ID’s geography, population, and diversity of religious, ethnic, and cultural backgrounds, a “reasonable parent” standard is inapplicable. (Pedigro v. Rowley) |
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Term
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Definition
| Child Protective Act: 1. Petition: any person or governmental agency having evidence of abuse, abandonment, neglect homelessness or unstable home environment may request the attorney general or prosecuting attorney to file a petition 2. Removal: if it appears the child should be removed from their present condition or surroundings, the court may so order, and upon service of the summons, a peace officer must take the child to a place of shelter care. 3. Hearing and Decree: must be held no later than 30 days after filing of petition 4. Emergency Removal: child may be taken without an order to prevent serious physical or mental injury or where child is abandoned, however child may only be held for a maximum of 48 hours before adjudicatory hearing is held. |
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Term
| Termination of Parental Rights |
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Definition
| Termination of Parental Rights: Grounds considered are— 1. Abandonment: willful failure to maintain a normal parental relationship including reasonable support or regular contact. Failure to maintain this relationship without just cause for 1 year shall constitute prima facie abandonment 2. Neglect or physical/sexual abuse of the child 3. Presumptive parent is not the natural parent 4. Parent is unable to discharge parental responsibilities and inability will continue for prolonged indeterminate period 5. Where termination occurs based on above grounds, court will then decide what is the best interests of the child. |
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Term
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Definition
| Adoption A. Jurisdiction: person adopting must have lived and “maintained a dwelling within ID” for at least 6 months prior to filing B. Who may adopt: person adopting must be at least 15 years older than the person adopted, or 25 years of age or older. This does not apply where the adopting parent is married to the natural parent, or when the person adopting an adult shows the court that a substantial relationship as a parent has been maintained in excess of 1 year. |
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Term
| Rights of Unmarried Fathers |
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Definition
| Rights of Unmarried Fathers to prevent their natural child’s adoption 1. Registration with Dept. of Health and Welfare: person who is father or claims to be the father of a child born out of wedlock may claim rights pertaining to his paternity by registering with the Dept. of Health and Welfare, including his willingness and intent to support the child to the best of his ability 2. When registration must be made: prior to the date of any termination proceeding or proceeding where child is placed with an adoption agency 3. Effect of failure to register: failure to register the claim to paternity is barred thereafter and constitutes an abandonment of the child and prima facie evidence of grounds for termination of the father’s parental rights. |
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Term
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Definition
| Consequences of adoption: the adopting person and the child bear the legal relation of parent and child with all the rights and duties of that relation, including inheritance. (It’s as if they are now the natural children of the adopting parents.) |
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