Family Flashcards
Pre-Marriage:
-pre-marital agreements
A contract in contemplation of marriage re: economic matters in case marriage fails
*governed by Uniform PreMarital Agreement Act
(1) freely made (no duress); (2) in writing; and (3) signed by both parties; (4) full financial disclosures; (5) fair and reasonable economic provisions
premarital agreement continued
-agreement may not set forth grounds for divorce or agree in advance to divorce
-must not be unconscionable
-contingent on subsequent marriage, and void if couple doesn’t wed
-independent counsel not required, but agreement more enforceable
child custody in premarital agreements
always subject to judicial review
spousal support
pre-nup agreements for spousal support not enforced if it makes one spouse poor
gifts in contemplation of marrage (eg. engagement ring)
recoverable by other party if no wedding
breaking the engagement
not actionable in any state
non-marital children
-if child conceived before the marriage, but born after the marriage: marital child
-non-marital child has same rights as marital child: can inherit, get economic support from biological parents, bring wrongful death suit, participate in gov. programs, etc.
Marriage:
-Who may Marry? (1-6)
(1) must be mutual consent; (2) must have mental capacity; (3) parties must be of legal age (or with parental or judicial approval); (4) single; (5) no close relation; (6) same sex marriage legal in all 50 states
procedural requirements of marriage
-obtain license and participate in solemnization ceremony by clergy or judge
*no duress, must not be under the influence
ceremonial marriage: requirements
(1) solemn vow to wed; (2) before officiant; and (3) witness (usually 1 each)
common law marriage
-must have consenting parties with capacity, and make a circumstantial showing of marriage
-Common Law: marriage evidenced by co-habitation and holding out as husband and wife in public (abolished in most states)
*BUT, if recognized in marriage state, receives full faith and credit in other states
Marital Consequences: responsibilities
-sexual exclusivity
-economic support of one another
-sexual exclusivity
-socnomic support of one another: requires fair and reasonable support, based on resources of each party
**MUST always support spouse so that they do not become a public charge (needs test). Further support is based on means to pay (means test)
Marital Consequences: Rights
-separate identities for legal purposes
-own property in individual names, have separate domiciles, have separate surnames, liable for violence against other, liable for negligence against the other, prosecuted for crimes against the other spouse, incur independent debts
*EXCEPTIONS: (i) if spouse acts as agent for other, may be liable for debts of principal; (ii) if incur debt for necessities, other spouse may also be liable
interspousal immunity
-allowed to sue spouse unless it is for private activity
tortous interference with marriage
may seek damages for loss of consortium
Termination of Marriage: 5 ways to terminate
(1) declaration of nullity
(2) annulment
(3) divorce
(4) legal separation
(5) dissolution
declaration of nullity
marriage is void if bigamy or incest, blood relation, non-age subject to collateral attack.
*anyone can attack a void marriage
annulment: definition
-may set aside voidable marriage if impediment at the time of marriage. Action must be brought by H&W, and marriage is valid until set aside
annulment: the marriage is voidable if:
-non-age: 18+, but can be waived for good cause or if co-habitate beyond 18
-mental incapacity: at the time of marriage: mental illness, or developmental disability leading to inability to consent. Waivable if if co-habitate after regained capacity
-duress: forced to marry (eg. shotgun wedding). Waivable if continue to co-habitate after duress is over.
annulment: the marriage is voidable if (cont’d):
-fraud: misrepresentation or conceal info going to an essential aspect of marriage (eg. religion, sex/ability to procreate, NOT wealth tho), and likely to deceive a reasonable person. Waivable if co-habitate after truth is known
-incurable physical incapacity: can’t safely have sex. Waivable by other spouse.
Divorce: 5 grounds for divorce (plus no fault)
(1) cruel and inhuman treatment
(2) adultery
(3) desertion
(4) no-fault divorce
(5) voluntary drug addiction/alcoholism
(6) insanity
cruel / inhuman treatment
physical and/or emotional/mental abuse. Likely need to show more than 1 occasion for emotional/mental.
adultery
voluntary sex or deviant conduct with another person. If in dispute, requires additional testimony other than spouse
desertion
unjustified and permanent departure for more than 1 year. Constructive desertion = forsaking marriage without leaving (eg. no sex)
no-fault divorce
allows unilateral decision by one spouse that marriage is irretrievable. Must testify under oath and show that relationship is broken down irretrievably, or irreconcilable difference
*must be separated for more than 6 months
voluntary drug addiction / alcoholism
must be voluntary, gross and confirmed. Some states require a certain number of years
insanity
spouse must become mentally ill, and illness lasts for a long period of time. Some states require institutionalization; and some require support obligation
defenses to fault grounds for divorce (4 of them)
(i) recrimination (dirty hands ie the other spouse is also cheating)
(ii) condonation (waiver: knowledge + forgiveness)
(iii) connivance (entrapment, ie was induced into adultery)
(iv) collusion (fraud on the court: agreeing to grounds that do not exist)
legal separation
want to live apart with economic rights adjudicated, yet retain H&W status
*grounds: same as divorce PLUS failure to support economically
dissolution
same result as divorce, but fault issues are not considered, and no court involvement until an agreement is reached
jurisdiction: subject matter jurisdiction
If one spouse domiciled in a state, there is jurisdiction for that state to adjudicate marriage. Look to domicile for at least 90 days.
personal jurisdiction
PJ for D required for collateral orders (eg. alimony, child support)
Full faith and credit
FF&C given if spouse domiciled in issuing jurisdiction
Maintenance (Alimony): Types:
-temporary
-Maintains status quo. Economically weaker spouse can petition the court for maintenance while the case is in process.
-Court may award this and figure out the amount by formula (can adjust)
permanent periodic
-the Court considers numerous factors in awarding maintenance including:
(i) whose fault; (ii) age/health; (iii) education/earning capacity; (iv) marital duration; (v) whether custody affects ability to work
*parties may negotiate maintenance terms
rehabilitative
-awarded by the Court to assist spouse in obtaining education or job training. Court considers:
(i) whether paying spouse obtained a greater education or job skills during the marriage, and (ii) whether payee provided support for the other spouse to do so.
lump sum; reimbursement
-lump sum: to avoid connection with spouse on-going. My accept a discounted total in order to get a lump sum.
-reimbursement: not completely based on financial need: it’s a way to compensate a spouse who sacrificed education, training, or career advancement during the marriage by taking any old job that would support the family while the other spouse trained for a lucrative professional career
enforcement of alimony
if payments cease, court can seize and sell property, take away driver’s license, revoke professional licenses, attach property, and send to jail.
modification of alimony
allowed, but must show substantial change in circumstances.
-BUT if maintenance provided for in separation agreement, must show extreme hardship. Modification only prospective (no arrears)
termination of alimony payments
-terminates with the death of either party, or spouse receiving payments re-marries.
-co-habitation with new person not typically enough to terminate
Division of Property:
done through Equitable Distribution of assets
process of division of property
first classify assets (separate or marital), then distribute
separate property
(i) property owned before marriage; (ii) gifts/bequests to spouse during marriage in their name only; (iii) property spouses agree to be SP; (iv) personal injury award; (v) appreciation in value of any of the above
*UNLESS due to active effort of the other spouse
marital property
-equitably divided community property
(i) property acquired during the marriage; (ii) gifts made in contemplation of marriage; (iii) vested intangibles (eg. stocks, pensions); (iv) value of professional licenses acquired during the marriage.
*some court equitably divide both separate and community property
Considerations in Equitable Division of Marital Property
(1) loss of health insurance; (2) loss of inheritance rights; (3) need of custodial child to occupy the home; (4) duration of the marriage; (5) education; (6) incomes; (7) earning capacity; (8) health; (9) assets and liabilities; (10) contribution to acquire property; (11) homemaker contribution
Child Support:
-duty of the parents
both parents have duty to provide support typically until 18 (but vaires)
duty of non-parents
-liability for support extends to:
(i) parent who relinquishes control still liable for support until child is adopted; (ii) person who acted as parent adn created reliance
amount of child support
calculated based on % of income and number of children
modification of child support
-may seek modification if there is a substantial change in financial situation, child care costs, age of child, relative income
enforcement of child support
same as for maintenance
jurisdiction for child support
-out of state child support orders fall under the Uniform Interstate Family Support Act (UIFSA)
UIFSA
provides that once initial support order is entered, all states must defer to that order, and initial state has exclusive jurisdiction.
*exclusive jurisdiction continues as long as child or one parent resides in that state
Child Custody:
-separation agreements RE children
-enforced if in the child’s best interest
-can be merged with the divorce, but if not it is a separate contract
custody standard
-custody determination made through application of “best interests of child” standard. The Courts consider:
(i) keeping kids together; (ii) what the child wants; (iii) both spouses’ marital and living situation; (iv) educational/financial position of parents; (v) health of the parties; (vi) history of domestic violence
non-parent v. parent custody
-presumption that the best interest of the child is to be with the bio parent unless a showing of extraordinary circumstances or non-fitness of bio parents.
*this goes beyond the best interests of the child standard
joint custody
-each parent gets significant, but not necessarily equal time with the child.
-must have frequent, continuing, and meaningful contact with both
visitation
-if lose custody, bio parents always get visitation
*NOT contingent on payment of child support
-look to the wishes of the child, parents, and family relationships
-child’s preference is given greater weight if more than 12 years old
*NO willful denial of visitation rights
visitation: grandparents
may be given visitation, but may be unconstitutional for Court to override fit parent’s decision to prevent visitation
*enforcement: may be held in contempt
relocation
custodial parent must get permission from the court and show it’s in the child’s best interest to relocate
modification
-custody may be modified and reassessed under teh same standards as above.
-must prove a substantial change in the circumstances of the moving party
jurisdiction for child custody
-in all states, divorce courts are authorized to make custody awards
- the Court has jurisdiction to initially enter or modify custody award if in child’s home state
what is the “child’s home state”?
look to the child’s home for more than 6 consecutive months, home within the last 6 months and whether one parent is still located in the home state.
conflict of law
-out of state custody orders are controlled by teh Uniform Child Custody Jurisdiction and Enforcement Act (UCCHEA)
-the State issuing the initial order has continuing exclusive jurisdiction. (other states must defer)
Unmarried Co-Habitants: contractual rights
-Contractual rights but sex can’t be the only consideration.
-implied contracts are not likely to be enforced
Children: presumption
rebuttable presumption that the husband is the father of a child born during marriage
legitimation
the father of a non-marital child may use DNA to prove paternity and get rights over child
litigation of parternity
-suit may be brought by other parent, child, or state to establish duty of support. SoL tolled until 18
*Evidentiary issues: paternity must be proved by clear and convincing evidence. May consider resemblance and med tests. If fail to prove, records may be sealed.
due process
father has due process right to show full commitment to parenthood. If the child is a newborn, the dad must be willing to take custody.
parental tort rights
Unmarried mom can recover in tort for death of child, but not father unless legally recognized
discrimination limitations
-if discriminate against illegitimate children, the state must have an interest substantially related to an important government purpose.
-laws intended to punish will likely be stricken.
Parent, Child, and the State: The legal disabilities of child:
-property
-contract
-property: can own and convey, but can disaffirm upon majority
-contract: can enter and enforce and disaffirm upon majority except for necessaries
Parent, Child, and the State: The legal disabilities of child:
-medical care
-tort
-med care: requires parental consent, except for abortion, birth control, STD treatment. *the State can override parent decision if would be irremediable injury to the child
-tort: liable for own torts
Parent, Child, and the State: The legal disabilities of child:
-criminal acts
-wills
-criminal acts: juvenille delinquency
Parent, Child, and the State: The legal disabilities of child:
-criminal acts
-wills
-criminal acts: juvenile delinquency
-wills: can’t create a valid will
Intrafamily tort immunity
Some states give parents a duty to support child and child a duty to support elderly parents. Some states give immunity but not for intentional conduct.
constitutional rights
parents have the right to control upbringing, but the state has an interest against child abuse or neglect and education
termination of parental rights
Grounds: (1) abandonment; (2) neglect; (3) abuse.
-The State must prove by clear and convincing evidence
Adoption: Jurisdiction
-Where the parent and child are domicile for 6 months, where potential parent is located, where there’s substantial evidence of child’s care, adoption location, child’s connection with the state, adoptor’s state
who can adopt?
almost any adult
who can be adopted?
-almost any child or adult if bona fide intent to establish parent-child relationship
consent to adoption
-generally needed, but not always from father if not married
-consider his involvement in child’s life
-parents may not withdraw consent after adoption decree is entered
methods for adoption
-either through licensed agency, or independent placements
-independent placements typically require attorney or other intermediary defined by state law
Adoption Alternatives:
-assisted reproduction
in vitro fertilization; egg and embryo donors; intrauterine insemination
Uniform Parentage Act
Under the UPA, if a woman consents to assisted inception and gives birth, her and husband are legal parents
-donor of sperm or eggs no legal rights whatsoever to child
Surrogacy arrangement
-written gestational agreement with an adult woman to bear child through assisted reproduction
-the court must approve before conception or the agreement is unenforceable
-gestational mother is responsible for fetus health decisions. Must notify the court upon birth
