Family Flashcards

Question

no-fault divorce

Answer 1

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

Answer 2

must be voluntary, gross and confirmed. Some states require a certain number of years

Answer 3

spouse must become mentally ill, and illness lasts for a long period of time. Some states require institutionalization; and some require support obligation

Answer 4

(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)

Answer 5

want to live apart with economic rights adjudicated, yet retain H&W status *grounds: same as divorce PLUS failure to support economically

Answer 6

same result as divorce, but fault issues are not considered, and no court involvement until an agreement is reached

Answer 7

If one spouse domiciled in a state, there is jurisdiction for that state to adjudicate marriage. Look to domicile for at least 90 days.

Answer 8

PJ for D required for collateral orders (eg. alimony, child support)

Answer 9

FF&C given if spouse domiciled in issuing jurisdiction

Answer 10

-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)

Answer 11

-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

Answer 12

-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.

Answer 13

-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

Answer 14

if payments cease, court can seize and sell property, take away driver's license, revoke professional licenses, attach property, and send to jail.

Answer 15

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)

Answer 16

-terminates with the death of either party, or spouse receiving payments re-marries. -co-habitation with new person not typically enough to terminate

Answer 17

done through Equitable Distribution of assets

Answer 18

first classify assets (separate or marital), then distribute

Answer 19

(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

Answer 20

-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

Answer 21

(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

Answer 22

both parents have duty to provide support typically until 18 (but vaires)

Answer 23

-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

Answer 24

calculated based on % of income and number of children

Answer 25

-may seek modification if there is a substantial change in financial situation, child care costs, age of child, relative income

Answer 26

same as for maintenance

Answer 27

-out of state child support orders fall under the Uniform Interstate Family Support Act (UIFSA)

Answer 28

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

Answer 29

-enforced if in the child's best interest -can be merged with the divorce, but if not it is a separate contract

Answer 30

-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

Answer 31

-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

Answer 32

-each parent gets significant, but not necessarily equal time with the child. -must have frequent, continuing, and meaningful contact with both

Answer 33

-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

Answer 34

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

Answer 35

custodial parent must get permission from the court and show it's in the child's best interest to relocate

Answer 36

-custody may be modified and reassessed under teh same standards as above. -must prove a substantial change in the circumstances of the moving party

Answer 37

-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

Answer 38

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.

Answer 39

-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)

Answer 40

-Contractual rights but sex can't be the only consideration. -implied contracts are not likely to be enforced

Answer 41

rebuttable presumption that the husband is the father of a child born during marriage

Answer 42

the father of a non-marital child may use DNA to prove paternity and get rights over child

Answer 43

-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.

Answer 44

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.

Answer 45

Unmarried mom can recover in tort for death of child, but not father unless legally recognized

Answer 46

-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.

Answer 47

-property: can own and convey, but can disaffirm upon majority -contract: can enter and enforce and disaffirm upon majority except for necessaries

Answer 48

-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

Answer 49

-criminal acts: juvenille delinquency

Answer 50

-criminal acts: juvenile delinquency -wills: can't create a valid will

Answer 51

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.

Answer 52

parents have the right to control upbringing, but the state has an interest against child abuse or neglect and education

Answer 53

Grounds: (1) abandonment; (2) neglect; (3) abuse. -The State must prove by clear and convincing evidence

Answer 54

-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

Answer 55

almost any adult

Answer 56

-almost any child or adult if bona fide intent to establish parent-child relationship

Answer 57

-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

Answer 58

-either through licensed agency, or independent placements -independent placements typically require attorney or other intermediary defined by state law

Answer 59

in vitro fertilization; egg and embryo donors; intrauterine insemination

Answer 60

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

Answer 61

-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