fam law Flashcards
general
Pre-Nup Blurb
Under the Uniform Premarital and Marital Agreements Act in order for a Pre-nuptial to
be valid most jurisdictions require: 1) a writing, 2) full financial disclosure, 3)
independent legal counsel and 4) it must be reasonable and not unconscionable. Any
provisions regarding minor children will generally be held invalid.
Alimony Blurb
Most jurisdictions have enacted the alimony standards and guidelines. Term alimony
can be temporary or for a period of years. The court can also order a lump sum amount
at the time the court enters the decree of divorce. The intent is to keep parties at their
standard of living after looking to various factors including 1) length of marriage, 2) age
of parties, 3) health of parties, 4) education of parties, 5) Conduct during marriage, 6)
Station in life, 7) employability, 8) Occupation, 9) Sources of income, 10) Liabilities, 11)
Future Acquisitions of Assets.
Modification of Alimony
Alimony can be modified when justice requires and there has been a substantial change
in circumstances
Division of Assets
Most jurisdictions have an Equitable Division of Assets statute, the longer the marriage
the more the court will throw in to the equation to be equally divided.
The Court will look to various factors in dividing marital assets including 1) length of
marriage, 2) age of parties, 3) health of parties, 4) education of parties, 5) Conduct
during marriage, 6) Station in life, 7) Employability, 8) Occupation, 9) Sources of income,
10) Liabilities, and 11) Future Acquisitions of Assets.
Physical Custody of Minor Children
Most courts will award physical custody of minor children based on the best interest of
the children, and generally the primary caretaker will have physical custody of the minor
children. The court may seek the recommendations of a G.A.L.
Uniform Child Custody Jurisdiction and Enforcement Act
The UCCJEA governs child custody orders. The court may follow two tests – the home
state test and the significant relations test
my outline
MAYBE WE WILL GET MARRIED
Rights of unmarried cohabitants
Can have k’s for economic sharing, property except sexual k purpose
Implied contract where their conduct present joint venture, partnership
Division of property-
Resulting trust, party make clam to property in the other name (show paid money to the property with intent ownership
Constructive trust- prevent a party from being unjustly enriched by obtaining title through wrongful conduct
Quantum merit- recovery in quasi-K for valuable services rendered to avoid unjust enrichment
NON MArital children-
-Discrimination not allowed (denied right because born out of wedlock
-Establish paternity (4 ways)
brought by mom or child to establish biology to get support, visitation, and custody rights
Can use blood or genetic test,
prior statements about paternity from deceased family
Medical testimony about father sterility or likihood of paternity during time between sex and birth
Admissions of acknowledgement by the alleged parent
LET’S GET MARRIED/ OR PORTRAY TO MARRY
To marry: 1)need a license (from gov) signed by the person who soemnizate the marriage (judicial officer/clergy) and filed with office 2) ceremony
3)compacity (18 unless parents consent)
4)both intent
Common law marriage
Abolished except in some, where reconigized other state have to reconigize
Legal requirements not satified but consent between 2 ppl to be in a permanent exclusive relationship but have
-intent-cohabitation-hold out to the public as spouses (last names, joint accounts, tell ppl, married
Limits to marry
-too closely related
-no capacity
-under 18
-bigamy(unless prior marriage resolve) if many marriages, the last one is only valid
Agreements
Premarital agreement - k’s that distribute assets on divorce or death cant decide custody in agreement, the marriage is the consideration
-writing - voluntary-full and fair disclosure of assets
-can be revoked or amended without consideration, was legal representation provided
Property
Joint and separate until married then tenants by entirety if divorce tenant by common
Responsibility- each spouse is responsible for each other and liable to 3rd parties for purchases of other if that person implied or express
- Each responsible for necessities of other (Medical, food, shelter, clothes
BYE THIS IS NOT IT
Annulment
-marriage invalid it never occurred (was void or voidable) because of one of the limitations
-can get temp support while in process of annulment
- Division of property put parties back as were b4 “marriage”
- Can be entered where either party is domiciled, or where got married
Divorce
-Genrally, divorce require proof of fault unless in a no fault state
-If in a fault state, state one of the grounds for divorce (irretrievably / irreconcilable) broken marriage (not getting along), Living separate (6mins to a year), incompatibility, neglect of sex,
-any state will grant as long as one or both was domiciled
-full faith credit clause of decree any state will recognize as long as 1 or parties was domiciled in the granting state
-can offer defense but states won’t force a marriage to continue if 1 party wants out (13th am)
Seperation
-fake divorce because not on paper as divorce so cant remarry, but everything else is separated as if not together
- This only Split assets, determine custody, give spousal support , parties can stay on medical care
-can become final after a period
Dividing property
-*cts cant divide property or give support decree outside state unless it have jurd. Over both parties
-generally not modifiable
-equitable or community Dickson
-Equitable division- separate property before marriage is separate and what’s acquired during the marriage is distributed according to factors)
-Community division- separate property before marriage is separate and what’s acquired during the marriage is distributed 50/50 (no factors)
How to distribute
1. Categorize separate vs marital property (determine if commingled property to put with marital property) - gifts, bequests(wills), decent(inheritance), appreciation of sep prop even if during marriage is separate, prop bought during marriage with separate prop funds is separate.
2. Distribute marital property
Pensions, states that require reimbursement of license or degree for support, appreciation in sep prop b/c of support (co mingle)
3. Determine spousal support (alimony, maintenance) - party ability to survive because separate property is insufficient
-can be Lum sup, periodic payments, or indefinitely
Child custody and visitation
Custody
Legal Custody- 1)make legal decisions
Physical custody - 1) have full possession and control
Joint custody- both make legal and both physical
Visitation
- One person have sole custody and other is given visitation (unless dangerous)
- Non parents
Child support
-Both parent have duty of support (amount depends on formula ie, rosenbug calculator) factors determine amount
- Cant be denied because support is not being paid
- Last until child is 18 or is emancipated (go to court and ask judge to determine them independent
- Full faith clause along as rendering had jurisdiction parties had due process (notice and opportunity to be heard)
- Issuing court can modify if the child or one of the parents reside in state
Modification
Need a significant change in circumstance for any modification, standard change given the circumstance. (Check factors)
Adoption
Termination the relationship between a child and parent and establishing a new legal relationship
- Need consent of both parents unless either;
- Court determines it is in the best interest of adoptee’s best interest for withdrawal of parent consent or;
- father did not assume parental responsibility UNLEss considered to be fit.
- If father considered to be fit, he have a constitutional right to get a opportunity to develop a quality relationship with infant (minor) child
- May need child consent for adoption if 12 or 14 and older
-Cant pay money beyond pregnancy related medical expenses (otherwise you are buying and selling children)
Surrogacy
Agreement to bear a child (carry and deliver)
- Can be real parents egg and sperm
- Must be a written agreement with all parties, that surrogate will withdraw all her rights and duties as a parent
Donor
Giving sperm or egg to create a baby
- Have no parental rights unless agreed in writing for donor to have parental rights
- Mother’s husband is presumed father of child born from artificial insemination
Factors
Factors to distribution : duration of marriage, standard of living, contribution by each spouse marital property, assets, debts, liabilities of parties, income, education, employability of each spouse, needs of each, health of parties, distribution in lieu with alimony/spousal support, health. Of the parties
*fault if a fault state (infidelity don’t count)
Factors to spousal support) financial resources available to each
Standard of living during marriage, time necessary to obtain employment/educational training, contribution of each party during the marriage (child care, career support, contributions to the home), spouse paying support ability to satisfy their needs if have to pay support
Factors to custody
Parents, wishes, child wishes(if over 8), ability and willingness of each parent to provide for child needs, interaction and interrelationship of child with parents with parents, sibling (don’t like to split), others who is in child life
Factors visitation
Parent - danger to child well being
Non parent- substantial relationship w/ child, visitation is in child best interest, fit parent don’t object
Factors to Child Support
-amounts is based on parents income, child age, healthcare needs, special needs, child age,
Factors of substantial change for modification
-Spousal support- need a substantial, material, and unanticipated change in either party circumstance . CSANT BE SELF INDUCED (party voluntary took a lower paying job and get reduced support obligations
-Child support - need substantial change that affects either needs of child (child got sick or disabled) or parents ability to pay (again cant be inducing/voluntary)
-Child Custody- substantial material change in circumstances that affect the child best interest
Factors of Consent for adoption
- Need consent of both parents unless either;
- Court determines it is in the best interest of adoptee’s best interest for withdrawal of parent consent or;
- father did not assume parental responsibility UNLEss considered to be fit.
- If father considered to be fit, he have a constitutional right to get a opportunity to develop a quality relationship with infant (minor) child
- May need child consent for adoption if 12 or 14 and older
