Novemeber 24th Notes

Fundamentals of Legal Practice
November 24, 2009

Review Dec 3rd
Page 219 to end of book

Dissolution
    -not called Divorce anymore
   
Statutory Marriage
1. license
2. marriage ceremony (w/ state authority)
3. competent parties (understand what you are doing)

-states and other countries vary with what marriage is, if the marriage is valid where you entered it, it is valid everywhere else
-WA will hold it valid if it is valid elsewhere  Article IV § 1

Common Law Marriage
1. parties of opposite sex living as a married couple
2. holding themselves at married in the public for a minimum period of time set by statute (generally 7 years)

-WA does not have common law marriage
-Creditors, like banks, do not like people not saying they are married later for joint liability

Palimony
-Marvin v. Marvin 1976
-were not married but she took his name, had joint banking, and he stated he could get half of his possessions
-more of a contract issues
    -promissory estoppel
    -unjust enrichment

Dissolution of Marriage
Annulment
-declare the marriage was never valid
-void ab initio (from the beginning)
-limited grounds for an annulment
    1. Sham Marriage: no one intended for the marriage (usually green card)
    2. Bigamy: can't have two spouses at same time, second marriage is void
    3. Underage Party: can't be under 18 or 16 w/ parental consent
    4. Incest: can not marry relatives, WA can not marry cousins (usually 1st)
    5. Mental Incompetency: contractual competency
    6. Intoxication: need to be very drunk to the point you don't know
    7. Duress: forcing marriage (shotgun wedding)
    8. Physical Incompatibility: refusal to ever have sex

Dissolution
1. Specific Grounds are required
-all 50 states are "no fault" meaning, you do not need grounds to divorce, no proof needed
    -You once had to prove: (no longer the case)
        -mental cruelty, adultery, abandonment, physical abuse
-WA does not require any specific statements
    -others just want it stated specifically

2. Minimal Grounds
    1. allege "irretrievably broken" or irreconcilable differences
    2. minimal residency requirement meet
        -court has an interest in your marriage
        -Nevada has a quicker divorce because the residency is easy 6 weeks

-if your spouse wants to divorce you, there is nothing you can do
    -you can slow it down w/ counsel or tactics to save marriage
    -interlocutory period (cooling off period)
        -WA is 90 days

-You can do a divorce by yourself with
Complete agreement on:
1. Property
2. Custody
3. Support (spousal and child)
-otherwise you will need a lawyer

Petition for Dissolution of Marriage
-petitioner (filer) and respondent

Custody
-WA visitation rights
    -Grandparents can not petition for visitation rights

Alimony (now called Maintenance)
    Two forms
    -Rehabilitative
    -Permanent

Custody
    -Physical Custody
        -where the child is, who's care
    -Legal Custody
        -responsibility of making decisions on the child's behalf
   
    -Joint Custody
        -courts prefer to split both
        -if travel is hard, legal custody is still split
    -if you can not split custody (generous visitation)

"Tender Years Doctrine"
    -children under 5 belong with mother
    -old school thinking
Now is: "Best interest of the child test"
        -who is the caretaker of the child (usually the woman)

Division of Property
-as long as it is done without coercion and with full disclosure
    -property agreement, does not have to be 50/50
    -important for both parties to have their own lawyers
        -in case there are challenges
    -community property statements
        -become tenants in common instead
    -not everything is community property
        -gifts, wills, some property

Division of Indebtedness
-responsibility of outstanding debt
    -judges decision on debt is not binding on creditors
        -take all debt responsibility
            -then you split the assets
$200,000 in assets
$140,000 in debt
take the debt and get $170,000 in assets
-that way you don't have to worry about spouse defaulting
-2 list property approach (make two list that are equal in value and give to spouse)

Final judgment of dissolution of marriage
    -document finalizes marriage (after 90 day cooling period)
    -either side can finalize it, not the petitioner


Contracts
-law is basically contracts, torts and criminal law

K = contracts

contracts
    -legally binding agreement
    (promises can be broken because they are not enforceable)

3 Parts of a Contract
1. Offer
2. Acceptance
3. Consideration - quid pro quo (this for that)

-need some understanding
-competency
-legal agreements

-in order for there to be a valid contract you only need 3, but to enforce it, it must be in writing

-damages you seek are to make you whole after the breach (varies on what you are seeking)
    -personal service contractors can not be enforced with specific performance
         (making a painter paint a house, then he ruins the house leading to another lawsuit)

Common law of Contracts
   
UCC - Uniform Commercial Code
    -bulk sale transfers, banking system
    -to get all the states to agree on business contractors
    -Louisiana does not have this, they use Napoleonic Code

Unilateral and Bilateral Contracts
Unilateral:
    -personal contracts: usually unilateral

Bilateral:
    -business contracts: agree to perform   

Executed Contract:
    -both parties have already performed

Executory Contract
    -one party have performed and the other has yet to perform

Express Contracts
    -parties lay out what they want and why the want it (negotiating)
    -oral or writing (most contracts are oral)

Implied Contracts
    -must look at conduct to figure out what they want
    (ordering food)

Valid Contracts
    -fully enforceable by the parties
    -properly formed with O, A, C

Void Contracts
    -totally unenforceable (never)
    2 Types
    1. Illegal
    2. Violate public policy  (paying someone to vote)(money to divorce, inherit)
        -destructive to society

Voidable Contracts
7 Types
(means one of the parties can opt out of the contract)
    -they are sometimes enforceable
-Minor: minor can leave anytime
-Fraud:
-Duress: forced into contract
-Drunk:
-Insane:
-Undue Influence: usually family or friend
-Bilateral Mistake: both think they are dealing with the same thing but not
    (either party can opt out)

Quasi Contracts (are not contracts) ("pretend")
-even though it is enforced as one
1. unjust enrichment- allow mistake to occur
    -people should not be allowed to benefit from others mistakes when they have knowledge just to get the benefit
    -painters coming to paint a house without a contract because they painted the wrong house

2. promissory estoppel- create the detrimental reliance
    -being stopped from making promises that are not enforced   
    -makes you responsible for the promises you make
    -"we could really use a guy like you" is not a job offer

*we pretend to prevent injustice