Family Flashcards
Premarital contracts, A.k.a. prenuptial agreements, require
Formalities: in writing and signed by both parties. Marriage itself is considered sufficient consideration.
Enforceability turns on three factors: voluntariness, unconscionability, and disclosure.
Types of marriages
Ceremonial marriage
Common law marriage
Putative spouse
Ceremonial marriage
A legally valid civil marriage that follows all statutory requirements and has been solemnized before an authorized religious or civil official.
(Noncompliance doesnt always void an otherwise valid marriage.)
Common law marriage
Common-law marriage creates marital obligations and rights identical to those flowing from a ceremonial marriage, including the equitable distribution of property.
To establish a common law marriage, the proponent must show
Capacity to enter into a marital contract, a present agreement to be married, cohabitation, and holding out a marital relationship to the community.
Putative spouse
Any person who has cohabited with another to whom she is not legally married in the good faith belief that she was married to that person is a putative spouse until knowledge of the fact that she is not legally married terminates her status and prevents acquisition of further rights.
Property rights and interest of married persons
A married person may own, hold, control, dispose of, or encumber her separate property without the consent or joined her of her spouse and without her spouse having any right, title, or interest in such a separate property.
Property acquired by either spouse during an ongoing marriage other than by gift or inheritance is presumed to be marital property subject to division on divorce.
Elements of loss of consortium action
Injuries to spouse
Loss and expenses of the plaintiff spouse
Liability of the defendant for those injuries
Declaration of nullity
A declaration of nullity is the action pursued when the underlying marriage is legally void. There are two grounds for legally void marriages: incest and bigamy.
Annulment
An annulment is the action pursued to terminate avoidable marriage. If a marriage is annulled, the parties are treated as though they were never married, but the process will be the same as divorce if there are children or property has been accumulated. Grounds for annulment are: under 18, lack of mental capacity, lack of physical capacity.
Divorce
Divorce is affected by judicial degree which terminates the marital relationship and changes the legal status of the married parties
Requirements of no-fault divorce
Showing of irreconcilable differences or an irretrievable breakdown of the marriage
Traditional grounds for divorce
Cruelty, adultery, desertion and abandonment, habitual drunkenness or drug addiction
Conversion divorce
Many states allow for the conversion of legal separation into a divorce where the parties have lived separate and apart for a specified length of time with the intention of ending the marriage.
Is parental consent required for adoption?
Consent of the child’s biological parents is generally required for adoption. However, if the parents are not married, the father’s consent might not be required. If the child has been abandoned, consent is not required.
When does an unmarried father have protection under the due process clause
When the father demonstrates a full commitment to the responsibilities of parenthood
Legal custody v physical custody
Legal custody is the right to make major decisions that affect the child’s life. Physical custody is actual possession and control of the child.
Standard for a custody decision
Custody and visitation disputes are governed by the court’s determination of the child’s best interest.
In awarding joint custody, the most important factor to consider is
The capacity of the parents to communicate and to reach shared decisions affecting the child’s welfare
When is modification of a custody order permitted,
Throughout the child’s minority but only when there are substantial and unforeseen changes in circumstances and the modification will serve child’s best interest.
Approaches to division of property between spouses
In a majority of states, marital property may be divided between the spouses, but separate property remains the property of the owning spouse.
In a minority of jurisdictions, the court may divide all assets whenever or however acquired; a few states permit the division of separate property in special circumstances, such as hardship.
And community property states, all property other than separate property acquired during marriage is community property and a split 50-50 upon divorce or dissolution.
Separate property
All property owned by each spouse before marriage and property brought into the marriage by gift, will, or inheritance is presumed to be separate property
Traditional grounds for alimony
Under the uniform divorce and marriage act, a court may grant alimony for either spouse only if it finds thst the spouse seeking alimony: Lacks sufficient property to provide for her reasonable needs and is unable to support herself through appropriate employment.
Modern factors considered when determining amount
Duration of marriage, standard of living during marriage, age of parties, condition of parties, contribution of parties, employability, marital fault not considered…
