4. Family Law Flashcards
What are the requirements of a valid pre-marital agreement? (antenuptial)
- In writing
- Signed by parties
- Voluntarily entered into
- Full disclosure of assets OR proof of knowledge of assets
Soft elements (not required but dispositive of voluntary)
- Did parties have independent legal representation
- Is the agreement FAIR?
What are the requirements for a binding marriage?
- Marriage license
- Ceremony with authorized party
- Capacity to consent (at time of ceremony)
- No legal impediments to marriage
What are the requirements for a valid common law marriage?
- Consent to marry (this includes capacity and no legal impediments)
- Cohabitation
- Holding yourself out publicly as spouses (factual analysis!)
What are the elements of alienation of affection?
- Genuine love and affection between spouses (valid marriage)
- Love and affection destroyed
- Defendant caused destruction
- Damages
What are the elements of criminal conversation?
- Valid marriage
- Adultery
- Damages
What is the doctrine of necessaries?
A spouse will be financially liable to a third party that provides for other spouse’s
- Food
- Clothing
- Healthcare
What are the categories of a void marriage?
- Failure to bring an essential element of a marriage (i.e., license)
- Bigamy (still married to someone else)
- Consanguinity
What is the marital presumption?
A marriage is presumed valid until disproven by a party to the marriage
What are the categories of a voidable marriage?
- Nonage
- Physical impotence
- Lack of capacity (at ceremony)
- Duress
- Fraud related to an essential element of marriage
- Keep an eye out for ratification (continuing to live together after capacity returns) or the remedy of marriage by estoppel for something like fraud
What are the jurisdiction rules for a divorce?
- For jurisdiction over a divorce proceeding NOT involving property disposition - one spouse must have DOMICILE in the state
- For property dispositions - court must have personal jurisdiction over BOTH parties (at home, minimum contacts, or consent to jurisdiction) OR the property must be located in the state
What are the no fault divorce grounds?
- Irreconcilable differences
- Living separate and apart for statutory period
- Incompatibility
What are the fault based divorce grounds?
- Adultery
- Desertion
- Cruelty
- Alcohol / Drug abuse AFTER marriage began
- Insanity
What are the elements of adultery for fault based divorce?
Direct or circumstantial evidence of:
- Opportunity
- Inclination
What are the elements of desertion for fault based divorce?
- Unjustified departure
- With NO INTENT to return
- For specified time period
What are the two steps to a divorce property division problem?
- Classify the property as marital or separate (title does NOT matter);
- Divide the marital property “equitably” using factors
What factors do courts evaluate in equitable division of property?
- NOT marital fault
- Duration of marriage
- Financial picture for both parties
- Employability
- Children
- Economic fault
What are the types of alimony?
- permanent periodic support (modifiable)
- lump sum
- Rehabilitative (modifiable)
- Reimbursement
What factors do courts look at for alimony?
- Standard of living during marriage
- Duration of marriage
- Age, physical, and emotional conditions of parties
- Financial resources (including marital property disposition)
- Contribution to marriage
- Time needed to acquire self-support skills
- Payor spouse’s ability to self-support
What terminates alimony payments?
- Remarriage
- Death of either spouse (but note lump sum payment still payable by estate)
- Cohabitation with another
What are the requirements for a seperation agreement?
- Same as pre-marital; AND
- Consideration
- Child issues (custody and child support) but court not bound if against best interests of the child
How does a court determine award of child support?
Statutory framework will create default payment based on the number of children and the income of each parent (for allocation)
- BUT if the best interests of the child require more payment, court has discretion to award beyond statutory award if payor can afford it
How to get jurisdiction over a child support order
- First filed state gets original jurisdiction; but can be lost if
- Not the child’s home state and a petition is filed in the home state before answer in first filing
Jurisdiction to enforce or modify a child support order
- Enforcement - full faith and credit (if jurisdiction and valid), must register child support order to take direct action against payor
- Modification - Continuing Exclusive Jurisdiction
- Court loses CEJ if:
a. No parties reside in the state; OR
b. All parties consent to CEJ elsewhere
What are the requirements for home state jurisdiction for a child custody proceeding?
- Child has lived with at least one parent in the state for the past six months; or
- State that was the child’s home state in the last six months and a parent still lives there
What are the requirements for significant connection jurisdiction for a child custody proceeding?
- Significant connections with the child and at least one parent AND
- Substantial evidence of the child’s care, protection, and relationships in the state
What are the factors evaluated for the best interests of the child?
- Wishes of parents
- Preferences of child (over 12 for sure, 8-12 maybe, under 8 no)
- Relationship with parents and third parties
- Child’s adjustment to home, school, community
- Mental/physical health
- Primary caregiver is preferred
What are the presumptions of parentage related to marriage?
- Birth mother is always mother
- Man is father if
a. born in marriage
b. born 300 days after divorce
c. born in void or voidable marriage
What are the presumptions of parentage for an unmarried man?
Presumed to be father if:
- After birth, man married mothers
- Man holds the child out as biological child
- Father consents to name on birth certificate
- Father acknowledge paternity with court formalities
- Father is adjudicated to be the baby daddy
