Domestic Relations Flashcards
100 mile rule ** DRIFT
- must briefly discuss established custodial environment & best interest factors
(If X had met her burden, the court would also assess whether the new arrangement amounted to a change in child’s custodial environment)
In cases where the parents live within 100 miles of each other at the time the case is commenced, the law states that a parent cannot move 100 miles away from the legal estate. In order to do so, the party seeking to move must either get consent from the other party, or get permission from the court.
If the parties have joint legal custody, a full evidentiary hearing is required. In conducting the evidentiary hearing, the court assesses the following factors: 1) whether there has been domestic violence in the relationship 2) whether the person opposing the move is doing so, to gain a financial advantage 3) the parties’ current use of their parenting time, and whether the party seeking the move is doing so for the purpose of frustrating the other party’s parenting time 4) the benefits to the party seeking the move and the benefits to the child should the move occur 5) the feasibility of modifying the parenting schedule to preserve and foster the parental relationship between the child and each parent, and whether each parent can comply with the modifications.
The party seeking the move has the burden of proving the beneficial nature of the move by a PREP. OF THE EVIDENCE
Evaluating Motion for change of custody +
Established Custodial Environment**[MOST HIGHLY TESTED]
In evaluating X’s motion for a change of custody, the law states that a court must first evaluate whether the motion shows proper cause or change in circumstances that warrants a modification. It must be something significant and generally not anticipated at the time of the judgment. The movant must show by a preponderance of the evidence the existence of an appropriate ground for legal action to be taken by the trial court. The appropriate ground must be relevant to atleast one of the 12 best interest factors.
An established custodial environment is one where the child looks to the custodian for guidance, necessities of life, discipline, and parental comfort, over time.
If a custodial environment is established, the movant must show by CLEAR & CONVINCING EVIDENCE that the change in custody is for the best interests of the child. If a custodial environment is not established, the movant must show by a PREPONDERANCE OF THE EVIDENCE that the change in custody is for the best interests of the child. The law states that there are 12 best interest factors the court uses in making this determination.
Best Interest of the Child Factors** [MOST HIGHLY TESTED]
- discuss if there is a custody determination
An evidentiary hearing on whether to change custody will be based on the best interests of the child factors. Some relevant factors include the love/affection/emotional ties between parents and child, moral fitness of the parent as a parent, capacity of parent to continue the education and raise the child in his religion; capacity to provide child with life necessities, length of time child has lived in stable environment and desirability of continuity, permanence of the family unit, mental and physical health of parties, reasonable preference of child
Spousal Support Factors (WHALEAPPPPP) ***
Modifiable?
spousal support is awarded when it is just and reasonable. Court looks at factors such as the parties’ ability to work, health, age, length of marriage, equity principles, ability to pay, fault, present and future needs of the parties, present situation, property awarded.
Modification
On petition of either party, either party can seek modification of a spousal support award after trial. Party moving for modification has burden of showing change in circumstances to warrant modification. While parties may stipulate to non-modifiability of award, a court is not bound by this when alimony is awarded after a contested trial.
Division of Property: Marital vs separate assets*** [TESTED IN FEB 2021]
In a divorce proceeding, property is divided either by agreement or per statute. If there is no agreement, court seeks to reach an equitable distribution of property. Marital assets (property acquired or earned during marriage including professional degrees earned during marriage) are divided between the parties. Separate assets ( acquired before marriage, an inheritance, or gift, settlement check for pain and suffering) are not subject to division.
Separate assets become marital property if they are commingled w/ marital assets and the parties treat them as marital assets.
In dividing marital property court looks at CHAPEL END factors
Prenuptial agreements*
Prenup agreements will be enforced if it is fair, equitable and reasonable under the circumstances and it was entered into voluntarily and with full disclosure of assets.
It will not be enforced if there was fraud, duress, mistake, misrepresentation or nondisclosure of a material fact or if the facts and circumstances are so changed since the agreement was executed that its enforcement would be unfair and unreasonable
Child Support*
Modification?
Parental rights and responsibility for child depend on one’s status as a parent, not one’s marriage [Feb 2021]
**Parents are jointly obligated to support a minor until the minor is emancipated by operation of the law ( validly married, reaches 18 [19.5 if attends highschool ft and is going to graduate], or is on active military duty)
Child support order can be modified (but not retroactively modified) but moving party has to show proper cause or a change in circumstances.
Post-nuptial agreements
Enforceable if couple is already separated and the agreement dictates how they will divide their assets when they divorce.
If couple is not separated, it is unenforceable if it anticipates and encourages a future separation or divorce.
