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Statements of Law > Family > Flashcards

Family Flashcards

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1
Q

Premarital Agreements - Content

A

(1) distributions of property at death or divorce
(2) wills/trusts
(3) Choice of Law
(4) alimony unless public charge
NOT enforceable for child custody and support

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2
Q

Premarital Agreements - Validity

A

(1) signed, writing
(2) voluntary
(3a) GR, full and fair disclosure of assets unless independent knowledge
(3b) UPAA, unconscionable -> disclosure unless knowledge
(4) Fair and reasonable, more likely with laywer

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3
Q

Ceremonial Marriage - Requirements

A

(1) license, waiting, communicable diseases *failure won’t invalidate
(2) ceremony with officiant
(3) no legal impediments (i) closely related up or down (ii) bigamy
(4) capacity to consent at time of ceremony (i) age (ii) no mental influences (iii) voluntary from outside influence

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4
Q

Common Law Marriage - Requirements

A

(1) consent to marry (i) capacity (ii) no legal impediments
(2) cohabitation for period
(3) hold self out publicly as spouses in legal documents or in community

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5
Q

Putative Marriage - Equitable Estoppel Remedy

A

prevent the loss of marriage benefits of the innocent spouse entering into an invalid marriage

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6
Q

Marital Rights

A

(1) Property - own and control (i) separate property (ii) marital property (iii) jointly by the entirety real estate acquired jointly.
(2) Abuse - protective orders ex parte for spousal abuse
(3) Tort - sue third parties for (i) Alienation of Affection (ii) Criminal Conversation (iii) Loss of Consortium
(4) Constitutional Protections of Family Privacy - Area of Home, Home Life, right to marry, procreate, contraceptives, live together, educate children, care, custody, control

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7
Q

Marital Tort Rights
1. Alienation of Affection
2. Criminal Conversation
3. Negligent Interference with Consortium

A

(1) evidence of (i) genuine love and affection between validly married spouses (ii) that L&A has been alienated or destroyed (iii) defendant’s acts caused it (4) damages (subjective and may be punitive)

(2) evidence of (i) valid marriage and (ii) adultery

(3) evidence of (i) defendant’s duty, breach, causation, injury to spouse (ii) damages to other spouses interest in sex, companionship, and services

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8
Q

Marital Duties

A

(1) support spouse purchases (i) Necessities, doctrine of necessities, makes other spouse liable for necessary expenses (ii) Agency, authority to make purchases
(2) support child until 18, death, emancipation, or termination of parental rights

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9
Q

Annulment

A

If entered, marriage treated as never existed because when entered an impediment existed making it void or voidable.

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10
Q

Annulment of Void Marriage

A

Generally, a marriage is void because it fails the requirements for a common law or ceremonial marriage.
Any party may seek annulment of a void marriage.

However, States following the Uniform Marriage and Divorce Act (UMDA), a marriage may become valid if the failure is removed and they remain cohabitants. Others require a remarriage after the failure is removed.

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11
Q

Annulment of Void Marriage - Bigamy

A

If the failure was a legal impediment such as bigamy, the second marriage is entitled to a strong presumption that the current marriage is valid.

The proponent of annulment must overcome the presumption by strong evidence that the prior marriage subsists.

Again, removal of the legal impediment by the death or divorce of the earlier marriage may validate the current marriage under the UMDA.

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12
Q

Annulment of Voidable Marriage

A

Generally, a voidable marriage is valid until declared null and void. Only one of the spouses may bring this action

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13
Q

Grounds for Annulment of Voidable Marriage

A

(1) lack of capacity (i) by nonage - may ratify by continuing till statutory age (ii) lack understanding/alcohol
(2) incurable erectile dysfunction - ratifiable
(4) duress - shotgun wedding
(5) fraud - misrepresent fertility, sexual relations, have children

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14
Q

Grounds for Annulment of Voidable Marriage

A

(1) lack of capacity (i) by nonage - may ratify by continuing till statutory age (ii) lack understanding/alcohol
(2) incurable erectile dysfunction - ratifiable
(4) duress - shotgun wedding
(5) fraud - misrepresent fertility, sexual relations, have children

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15
Q

Defenses to Annulment of Void Marriage

A

deny the existence of defect or UMDA validation

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16
Q

Defenses to Annulment of Voidable Marriage

A

ratification
laches
estoppel

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17
Q

Effect of Anulment

A

marriage is set aside as if never existed
(1) children are still marital children
(2) spousal support is not awarded nor reinstatement of previous support
(3) reinstatement of property division before marriage
(4) full faith and credit when decree rendered in domicile of either party or state of celebration

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18
Q

Divorce - Jurisdiction

A

Subject matter - Court has if at least one party is domiciled for at least 90 days. domicile is resident with intent to remain.

Personal - (i) for divorce itself, in rem jurisdiction over the status of the marriage (ii) for financial issues like property and support, in personam over the defendant

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19
Q

Divorce - Grounds

A

(1) No Marital Fault, (i) both have irreconcilable differences (ii) one or both living apart for continues statutory time (iii) both spouses are incompatible

(2) Marital Fault (i) adultery (ii) unjustified departure with no intent to return (abandonment) (iii) cruelty (iv) addiction/drunkeness (v) insanity

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20
Q

Divorce - Defenses

A

(1) no marital fault, (i) deny the existence of the ground (ii) reconciliation

(2) marital fault, (i) sham, collusion to divorce (ii) consent, connivance to adultery (iii) forgiveness, condonation of faults (iv) unclean hands, recrimination

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21
Q

Legal Separation

A

religious reasons, marriage does not terminate but can have all their rights adjudicated as if divorced

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22
Q

Divorce - Property Division

A

-Through the court, unmodifiable decree of the distribution of property among spouses upon divorce
-nontaxable event

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23
Q

Divorce - Property Division - Approaches

A

(1) Community - all property owned before or gifted separately after marriage is separate, all property acquired after is marital, split 50%50%

(2) Equitable Division of ALL Property - no classification of separate or marital, divide based on factors.

(3) Equitable Division of MARITAL Property - classification of property, divide marital based on factors

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24
Q

Divorce - Property Division - Equitable Division - Classification - Separate Property

A

Each spouse takes their separate property including property
(i) owned before marriage
(ii) acquired by gift or inheritance
(iii) acquired in exchange for separate property
(iv) income and appreciation of separate property
(v) awarded for pain and suffering, personal damages awards
(vi) acquired after decree of final disposition in legal separation

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25
Q

Divorce - Property Division - Equitable Division - Classification - Marital Property

A

Each spouse takes an equitable division of property acquired during the marriage up to the date of separation or filing of divorce, includes
(i) wages and earnings
(ii) employment benefits, majority = regardless of vesting after divorce
(iii) awards for lost wages during the marriage
(iv) reimbursement for bills incurred and paid with marital property
(v) awards for damage to marital property

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26
Q

Classification Issues - Property Changes Character

A

(1) commingling, separate is inextricably linked with marital property or other spouse separate property ex. deposit in joint bank account

(2) transmutation, separate intended to be marital ex. use of separate as gift to both for joint title

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27
Q

Classification Issues - Improvements of Separate Property

A

When marital funds or spousal effort used to improve owning spouse separate property, generally remains separate property.
However, non-owning spouse entitled to reimbursement or a credit to marital estate.

28
Q

Classification Issues - Property Acquired Before Marriage but Paid After

A

Split authority, majority that property split pro rata to separate property contributions and marital contributions

29
Q

Classification Issues - Pensions

A

Generally, the portion of a pension earned during a marriage is marital property. However, may be separate property and the nonearning spouse entitled to offset.

30
Q

Divorce - Property Division - Equitable Division - Property Division

A

Not necessarily equal, non modifiable, great deal of discretion
Factors considered:
(1) The Parties: (i) age (ii) education (iii) income capabilities (iv) health (v) needs

(2) The Family Relationship: (i) duration (ii) lifestyle enjoyed (iii) roles (iv) number of children (v) child custody

(3) Economics: (i) present and future assets and liabilities (ii) fault and waste (iii) present and future income contributions

(4) Distribution: (i) assets in kind (ii) assets and money (ii) in lieu of alimony

31
Q

Propery

A
32
Q

Alimony - Types

A

(1) Permanent Periodic (PPS)- regular payments for indefinite period to spouse who has no resources or ability to self-sustain; modifiable upon substantial change in circumstances

(2) Lump Sum Support (LSS) - installment or lump payment as present value of future specific period payments; nonmodifiable

(3) Rehabilitative Periodic Support (RPS) - regular payments for specific time period to enable spouse to gain skills and become self-supporting; in addition to PPS and LSS; modifiable upon substantial change in circumstances

(4) Reimbursement Support (RS) - installment or lump payment for value of past contribution to spouse through school; in addition to PPS and LSS; nonmodifiable

33
Q

Alimony - Factors

A

Court great discretion
(1) Supported Spouse (i) meet needs (ii) age (iii) physical condition (iv) emotional condition (v) financial resources (vi) time needed for training and education for employment

(2) Supporting Spouse (i) ability to meet needs while paying (ii) ability to pay (iii) age (iv) physical condition (v) emotional condition

(3) Marriage (i) standard of living (ii) contribution (iii) marital fault

34
Q

Alimony - Modification

A
  • Only Permanent Periodic and Rehabilitative Periodic Support
  • Substantial change in circumstances in supported spouse needs or supporting spouse ability to pay.
  • New Legal Obligations by remarriage or new biological children if unanticipated at time of divorce
35
Q

Alimony - Termination

A
  • Only Permanent Periodic and Rehabilitative Periodic
  • upon supported spouse (i) remarriage or (ii) cohabitation or (iii) death of either spouse
36
Q

Alimony - Taxation

A

Pre-2019, receipts are income to supported spouse and payments are deductible to supporting spouse
Now, not a taxable event

37
Q

Marital Contracts

A

(1) Marital Agreements - alters/confirms marital rights and property during the marriage, same principals and requirements of premarital agreements
(2) Separation Agreements - agree to live apart and resolve economic issues (provide or waive alimony and division); enforceable in K if (i) voluntary agreement, (ii) full and fair disclosure by both, and (iv) consideration (mutual promises); enforceable by court if “merged” or recited terms in divorce decree
(3) Contracts between Cohabitants - enforceable as marital agreements if sex is not the only consideration.

38
Q

Child Support - UIFSA - Original Jurisdiction to Issue

A

Uniform Interstate Family Support Act (UIFSA)
(1) First state where the petition is filed
(2) Second state if (i) filed second petition filed before first petition time to answer, (ii) objected to jurisdiction in first state AND (iii) second state is child’s home state

39
Q

Child Support - UIFSA- Jurisdiction to Enforce Order

A

UIFSA
(1) First state that issued may enforce
(2) Second state that did not issue may enforce by
(2a) direct enforcement - child supported spouse mails order to employer of child supporting spouse to withhold wages
(2b) registration and filed as foreign judgment - first state sends order to second state where child supporting spouse resides, second state registers and files as foreign judgment, has effect as if second state initially ordered.

40
Q

Child Support - Jurisdiction to Modify Order

A

(1) Generally, first state has continuing and exclusive jurisdiction to modify if at least one party still resides in first state,
(2) the second state’s role is only to enforce support order.

41
Q

Child Support - Modification Grounds

A

Substantial and continuing change of circumstances affecting the needs of the child, e.g. growth of child,
or the ability of the child supporting spouse to pay, e.g. change in employment, inflation, retirement, illness.

Past due support cannot be retroactively modified.

42
Q

Child Support - Taxation

A

Not a taxable event, payments are not deductible to payor

43
Q

Child Support - Enforcement

A

(1) Civil and criminal contempt of court order
(2) taking tax refund, forfeiture of professional and other licenses
(3) seizure of real estate
(4) attachment of wages
(5) pay attorney’s fees

44
Q

Child Custody and Visitation - UCCJEA - Original Jurisdiction to Issue

A

UCCJEA
(1) Home State Test, disregarding temporary absence (i) is the child’s home state for 6 months immediately before proceeding (ii) was the child’s home state within past 6 months, absent from state, but parent or guardian lives in state
(2) When Home State Doesnt Apply (i) child and parent or guardian have a significant connection to state and substantial evidence of child in state

45
Q

Child Custody and Visitation - UCCJEA - Jurisdiction to Modify

A

(1) First state that issues has continuing exclusive jurisdiction to modify
(2) First state must permit Second state to modify if (i) no child or parent or guardian continues to reside in the issuing state OR (ii) the child no longer has a significant connection or substantial evidence in the issuing state.

46
Q

Child Custody and Visitation - UCCJEA - Jurisdiction to Modify

A

(1) First state that issues has continuing exclusive jurisdiction over

47
Q

Child Custody and Visitation - UCCJEA - Decline Jurisdition

A

(1) inconvenient forum and other state more appropriate
(2) party seeking to invoke engaged in unjustifiable conduct

48
Q

Child Custody and Visitation - UCCJEA - Emergency Jurisdiction

A

(1) child has been abandoned in state
(2) necessary to protect child, sibling, or parent from threatened abuse by parent

49
Q

Child Custody and Visitation - UCCJEA - Enforcement

A

(1) child custody order can be registered in another state by certified copy with the clerk of court and enforced as if it issued
(2) habeas corpus - can order the person to appear and award immediate possession,
(3) can order warrant to take physical possession if child imminent physical harm or removal from state
(4) can request prosecutor, sheriff or other to locate and obtain return of child or enforce visitation, the same can do so if the person holding child violated criminal statute

50
Q

Child Custody - Definition

A

child custody includes (i) legal custody, the right to make major decisions affecting child life or (ii) physical custody, the right to actual possession and control of child.
Joint custody includes joint legal, joint physical, or both.

51
Q

Child Custody - Standard

A

Courts determine custody and visitation with great discretion for whatever is in the best interest of the child.

52
Q

Child Custody - Factors

A

(1) Parent’s wishes because constitutionally protected
(2) child’s preferences if over 8 years old, greatly considered if over 12.
(3) child’s relationship with parents, siblings, and others involved
(4) Child’s adjustment to home, school, community
(5) Childs mental and physical health
(6) Parent’s mental and physical health
(7) Parent’s involvement in day-to-day life (primary caregiver)

53
Q

Child Custody - Nonfactors

A

(1) gender of the parents
(2) financial ability of the parents

54
Q

Child Custody - Joint Custody - Factors

A

Generally encouraged if parties’ agree.
Factors:
(1) Parent (i) fitness (ii) agreement to joint custody (iii) communicate about child’s well being (iv) involvement in day to day

(2) Homes proximity and similarity

(3) Child’s (i) preference (ii) Psychological development

55
Q

Child Custody - Sole Custody

A

only if strong evidence that demonstrate in best interest of child.

56
Q

Child Custody - Parental Vistiation

A

Generally, reasonable visitation if other has sole custody.
Supervised visitation if parent engages in conduct that might injury child
Denial is very rare, only if some physical harm will result. failure to pay support irrelevant.

57
Q

Child Custody - Nonparental Visitation

A

Most states allow third party visitation rights (i) if there are extraordinary circumstances, e.g. parent’s divorced or died, and (ii) based on the prior relationship it is in the best interest of the child
However, parental wishes are given special weight with regard to third party visitation rights.

58
Q

Child Custody - Modification

A

Generally, modifiable but the burden of proof is on the party seeking to show (i) a substantial and material change in circumstances affecting the child’s interests and (ii) the modification is in the best interest of the child.

59
Q

Parental Rights - Parentage Actions - Generally

A

(1) brought to receive parental rights of custody and visitation and duty to pay child support
(2) establishes a biological relationship, paternity, or maternity.

60
Q

Parental Rights - Parentage Actions - Presumption

A

(1) man is presumed to be father if (i) husband of mother (ii) child born during marriage or within 300 days of marriage termination

(2) woman is mother of child, irrespective of marriage

(3) unwed man is father of child if (i) parents married after birth (ii) holds child out as his (iii) consents to being on certificate (iv) formal acknowledgement (v) court order of paternity

61
Q

Parental Rights - Parentage Actions - Termination - Disestablishment

A

(1) most states prohibit a parent to terminate an established parent-child relationship
(2) some states permit father to prove nonpaternity by clear and convincing evidence

62
Q

Parental Rights - Parentage Actions - Creation - Paternity Action

A

(1) brought by child, mother, or state for support of a man or for a child to inherit
(2) if paternity is established, duty of support attaches
(3) established by clear and convincing or by preponderacne through tissue and blood or dna

63
Q

Parental Rights - Parentage Actions - Termination -

A

(1) parents may voluntarily or involuntarily have their parental rights terminated by clear and convincing evidence
(2) Grounds for involuntary termination include (i) infliction of physical or sexual abuse (ii) unjustified departure with no intent to return (abandonment) (iii) neglect, deprivation, failed support (iv) mental retardation (v) parental unfitness by conduct that harms phsychologically or physically

64
Q

Parental Rights - Adoption - Requirements

A

(1) consent of bio parents- consent of natural parents unless parental rights already terminated or waived by unreasonable withholding consent not in best interest of child. unwed father may veto depending on manifestations of parental responsibility
(2) consent of child - if over 12 or 14
(3) home study of the proposed adoption

65
Q

Parental Rights - Adoption - Consequences

A

new birth certificate

Statements of Law (15 decks)

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