Family Flashcards
elements for common law marriage
capacity
present agreement
cohabitation
holding out
will a marriage in one state (including common law) be valid in another
yes unless violates strong public policy
what is putative marriage
when innocent party participatd in ceremonial marriage and believes in good faith that marriage is valid but later discover there was an impediment
can get spousal support / property
fault based divorces
adultery
cruelty (physical abuse)
desertion
code of conduct for mediator
impartial and disclose conflicts of interest
clearly explain process
no coercion or improper influence
community property
only 9 states
requires equal division of marital property
equitable distribution of marital property (majority rule)
requires fair distribution
takes into consideration all circumstances
what is marital property
all property or assets acquired during marriage by any means other than gift, descent, devise
separate property can become marital if marital funds/efforts used to increase value
what kind of property is retirement/pension
if spouse works during marriage and creates benefits paid out after divorce – MP
what kind of property is professional license or degree
SP
but spouse can seek reimbursement for contribution to education and living expenses
what kind of property is personal injury claim
some states: if cause of action accrued during marriage – MP
OR
some states: compensatory and consortium are SP, lost wages / expenses are MP
factors for spousal support
financial resources of both
standard of living
time it will take for spouse to find job
length of marriage
contributions to marriage
age and health
misconduct (only some states)
types of support
permanent
limited duration
rehab (till spouse gets job/education)
reimbursement (for financial sacrifice)
when can spousal support be modified
party seeking modification shows significant and continuing change in circumstances
NOT voluntary reduction in income
ways to find PJ over out of state parent for child support or paternity action
- personally served within state or consents
- lived with child in state in the past
- had sex in the state
guidelines for amount of child support
best interests
age
special needs
assets of both parties
standard of living
when can child support be modified
substantial change in circumstance regarding kids needs or parents finances
voluntary reduction in income in good faith may reduce amount
who has JDX over modifying child support
state that issued has continuing jdx unless
both parents and child no longer live there or
consent
hierarchy of jdx for uniform child custody jdx and enforcement act dictating who decides custody
home state
if no home state, significant connection jdx
what is home state jdx
child has lived there for 6 months or since birth or
was child’s home state in past 6 months, child no longer lives there but one parent still does
what is significant connection jdx
- no other state has home state jdx
- child and at least one parent have significant connection and
- substantial evidence concerning child is there
things court considers for best interest of child standard
primary caretaker
child’s preference if kid is mature
what if third party wants custody
legal parents are presumptively entitled to custody unless unfit or detrimental
if natural parent has had little contact or child has lived with 3rd party for long time, court can use parent by estoppel or de facto parent to rebut presumption
when does unwed father have due process right to contact with child
when shows commitment to responsibilities of parenthood
when does third party have right to visitation
basically just when in loco parentis
parent’s wish is given special consideration
how to modify custody order
show substantial change in circumstance
what if custodial parent wants to relocate
must show legit and reasonable purpose
factors
-best interest
-relationship of non relocating parent with kid
-age and needs
-child’s preference
-quality of life
when is pre nap enforceable in common law
i. full disclosure
ii. fair and reasonable
iii. voluntarily entered into
when is pre nap UNENFORCEABLE under uniform premarital agreement act
must show one of following
- involuntariness (fraud, duress, coercion) or
- unconscionability when executed AND lack of reasonable knowledge/disclosure of assets
what do courts consider for if pre nap is voluntary (common law)
no fraud, duress, coercion
consider time pressure and opportunity to have independent counsel
party insisting on pre nap is not enough
what is meant by fair and reasonable or unconscionable for pre nups
procedural: look at duress, undue influence, misconduct by mediator, whether party had lawyer
substantive: fairness of terms at time of execution
probably fair as long as there was disclosure
how to invalidate separation agreement or property settlement agreement
unconscionability or fraud
conflict of laws for premarital agreements
either state in which it was executed or state with most significant relationship
what does not violate parental rights
vaccines and refusing admission to school without
a fit parent has a right to what
care custody and control of children
do married spouses have to pay spousal support for each other
common law - yes for necessities
but courts will not interfere with an intact family, so not going to help unless file for divorce
