Family Flashcards
What are marriage and divorce in the context of family law?
Not heavily tested
What must be shown to establish a common law marriage?
- Capacity to enter into a marital contract
- Present agreement to be married
- Cohabitation
- Holding out a marital relationship
Mnemonic: CACH
How is a marriage recognized across states?
A marriage valid under the law of the place where contracted will be valid elsewhere unless it violates strong public policy of the state that has the most significant relationship to the spouses and the marriage.
What is the status of a bigamous marriage?
Void from the beginning
What are the two marriage-saving doctrines for a bigamous marriage?
1) Presumption that the most recent marriage is valid
2) Removal of the impediment (e.g., by divorce) renders a subsequent marriage valid
What type of divorce states are virtually all states?
Virtually all states are no-fault divorce states
What is examined when determining child custody and support?
The best interest of the child
What factors are considered in custody determinations?
Custody is determined by looking at the best interest of the child.
This typically requires looking at factors such as:
* Wishes of the child’s parents
* Child’s primary caretaker
* Mental and physical health of all individuals
* Interrelationship of the child and parents
* Stability
* Domestic violence
Under what conditions can custody be modified?
Only if there is a substantial change in circumstances.
Generally, this change must be unforseen at the time of the initial judgment.
What do all states use for child support guidelines?
Numerical guidelines establishing a rebuttable presumption that the award that results from applying the guidelines is correct.
What must be shown to obtain a modification of child support?
In order to obtain a modification of a future support obligation, the petitioner must show a substantial change in circumstances making the prior order unreasonable
What is the general stance on relocation of a parent and child?
A move in good faith serving the child’s best interest will ordinarily be approved
What rights do fit parents have regarding decisions for their children?
Decisions by a fit parent must be given some deference.
This includes decisions regarding medical care but parental rights can be limited if they jeopardize the child’s health or safety
What rights do biological fathers generally have?
Generally, biological fathers have rights.
However, the state may make the parent exercise his rights within a specific time (e.g., 2 years)
Rights of a parent when another person wants to adopt a child:
An involved parent who demonstrates a full commitment to the responsibilities of parenthood will likely be able to successfully oppose an adoption petition by another and is entitled to notice of such proceedings.
What must a third party prove to gain custody over a biological parent?
Custody in the parent is presume to be in the best interest of the child.
To rebut this, a third party who wants custody must prove that:
- The parent is unfit, or
- Granting custody to the parent would be highly detrimental to the child
Division by court: How is marital property generally treated in divorce proceedings?
In a majority of states, marital property is divided at divorce, while separate property remains the property of the owning spouse
What is marital property?
Property acquired during the marriage
What is separate property?
- Property acquired before the marriage
- Inheritance
- Gift to one party
Mnemonic: BIG
Division based in premarital agreement: Under what conditions will a court enforce a premarital agreement?
A court will enforce a premarital agreement so long as it is:
- Voluntarily made,
- Substantively fair, and
- if Full disclosure of assets and obligations was made.
What must a court consider when granting spousal support (alimony)?
- Parties’ financial resources and needs
- Marital contributions
- Marital duration
What are the conditions for modification and termination of alimony?
A court may decide that alimony be modified if there has been:
* A substantial change in circumstances making the prior award unreasonable. This must be an unanticipated change.
* Usually terminates if a spouse dies or remarries
* Cohabitation may reduce or terminate alimony
What jurisdiction does a court need to issue a binding order affecting personal rights?
Jurisdiction over the defendant spouse
What is the Uniform Interstate Family Support Act (UIFSA)?
Governs child support and has been adopted by all states
What is the primary governing act for child support?
The Uniform Interstate Family Support Act (UIFSA)
UIFSA has been adopted by all states and allows for enforcement of child support orders across state lines.
True or False: The state that originally issued a child support order has continuing exclusive jurisdiction to modify that order.
True
This is applicable if the state remains the residence of the obligee, child, or obligor, and at least one party does not consent to the jurisdiction of another forum.
What is the definition of a ‘home state’ in child custody proceedings?
A home state is a state where the child has lived with a parent or person acting as a parent for at least six consecutive months immediately before the commencement of the custody proceeding
A home state retains exclusive jurisdiction for six months after a child leaves the state if a parent still resides there.
Fill in the blank: The _______ test applies if a child has no home state and allows a state to exercise jurisdiction based on significant connections with the child.
significant connections
This requires at least one parent to have significant connections to the state and the existence of substantial evidence related to child custody.
What is the emergency jurisdiction or default jurisdiction?
A test that applies if no other state has or exercises jurisdiction
This allows a state to take jurisdiction in situations where no other state is involved.
What does the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) govern?
Child custody orders
UCCJEA provides a framework for determining jurisdiction in child custody disputes.
What is required for a home state to continue to have exclusive jurisdiction after a child leaves the state?
A parent or person acting as a parent must still live in the home state
This exclusivity lasts for six months after the child’s departure.
List the two primary tests under the UCCJEA for establishing jurisdiction when a child has no home state.
- Significant connections test
- Emergency jurisdiction or default jurisdiction
These tests help determine which state can exercise jurisdiction in custody matters.
What must be present for a state to exercise jurisdiction based on significant connections?
- Significant connections with the child and at least one parent
- Substantial evidence relating to child custody in the forum jurisdiction
These criteria ensure that the state has a legitimate interest in the custody dispute.
Fill in the blank: If a child support order is registered, it may be _______ by any state.
enforced
This ensures that child support obligations can be upheld across state lines.
What is the significance of the home state test in custody decrees?
The home state has exclusive jurisdiction to modify a custody decree
The home state test ensures that custody matters are handled in the state with the closest connection to the child.
What is common law marriage?
A marriage recognized by some states without a formal ceremony or license, based on the couple’s agreement and cohabitation
Common law marriage requires the couple to live together and present themselves as married.
If a couple is common law married in a state that recognizes it, what will happen in other states?
Other states will recognize the marriage too
This principle is based on the Full Faith and Credit Clause of the U.S. Constitution.
What type of divorce system is recognized by virtually all states?
No-fault divorce system
This system allows for divorce without the need to prove wrongdoing by either party.
Do some states recognize fault-based grounds for divorce?
Yes, some states do recognize fault-based grounds
Fault-based grounds require proving a specific reason for the divorce, such as adultery or abuse.
What is annulment?
A legal declaration that a marriage is null and void
Annulment can be granted for reasons such as fraud or inability to consent.
Fill in the blank: Annulment is recognized for _______ and other reasons.
fraud
Other reasons can include coercion or mental incapacity.
What do all states employ regarding child support?
Numerical guidelines
These guidelines help determine the amount of child support to be awarded.
What type of presumption do child support guidelines establish?
Rebuttable presumption
This means that the award from applying the guidelines is assumed to be correct unless proven otherwise.
Are child support guidelines applied in all cases regardless of parents’ marital status?
Yes
The guidelines must be used in every situation involving child support.
What factors do courts consider when determining child support?
- Income and earnings of the parents
- Number of children
- Ages of the children
- Special needs of the children
These factors help ensure that the child support awarded is appropriate to the family’s circumstances.
What must the petitioner show to obtain a modification of a future child support obligation?
A substantial change in circumstances making the prior order unreasonable.
A substantial change can include various factors affecting the financial situation of the petitioner or the child.
Under what condition will some courts modify child support if there is a reduction in income?
If the reduction in income was voluntary, some courts may not modify it; others will use a multi-factor test.
The multi-factor test may include examining if the party acted in good faith.
What is the burden of proof for modifying child support?
It is a heavy burden.
The petitioner must provide convincing evidence of the substantial change in circumstances.
Can child support be modified retroactively?
No, unless there was fraud or other compelling circumstances.
This means changes to past payments are generally not allowed.
Fill in the blank: The petitioner must show a _______ to modify child support.
substantial change in circumstances.
What is the general principle regarding relocation of a parent and child?
A move sought in good faith that will serve the child’s best interest will ordinarily be approved.
This principle emphasizes the importance of the child’s welfare in relocation cases.
What factors does the court consider when approving a relocation?
The court balances the impact on visitation by the noncustodial parent against the benefits of the move to both the child(ren) and the custodial parent.
This balancing act ensures that both the child’s needs and the noncustodial parent’s rights are considered.
What are the different views regarding the burden of proof in relocation cases?
Some states place the burden on the relocating parent while others place it on the objecting parent.
This difference can affect the outcome of relocation petitions depending on the jurisdiction.
Why would custody to the parent be considered highly detrimental to the child?
Custody to the parent would be highly detrimental to the child
This statement implies that there are specific circumstances under which a parent’s custody might not serve the best interests of the child.
What must any third-party visitation or custody statute prioritize?
Any third-party visitation or custody statute must give special weight to the parent’s determination of the child’s best interest
This emphasizes the importance of parental authority in custody decisions.
Do most states count professional degrees earned during marriage as marital property?
No, most states do not count professional degrees earned during marriage as marital property.
What will a court not enforce regarding premarital agreements?
A court will not enforce a premarital agreement regarding child custody or support if it is not in the best interest of the child.
What are the three types of alimony?
Permanent, temporary, lump sum
What are the three types of alimony?
Permanent, temporary, lump sum
What factors do some states consider when determining alimony?
Some states consider spousal misconduct, one spouse’s support for the other’s education or training
Factors influencing alimony decisions vary by state and can include many personal and financial considerations.
Who has discretion in awarding alimony?
The trial court has substantial discretion in choosing to award alimony
This discretion allows courts to make decisions based on the unique circumstances of each case.
What is the key principle regarding jurisdiction in divorce cases?
Unless the court has jurisdiction over the defendant spouse, it may not issue a binding order affecting personal rights such as property division or support, but it may grant a divorce.
This principle ensures that courts cannot enforce orders that impact the rights of a spouse they do not have jurisdiction over.
Which court may dissolve a marriage?
The court does not need jurisdiction over both spouses to terminate a marriage.
If the plaintiff spouse is domiciled in the forum state or if the state has some other equivalent long-term connection between at least one of the parties to the marriage, then that court has jurisdiction to dissolve the plantiff’s marriage.
What is required for a court to issue a property division order?
The court must have jurisdiction over the defendant spouse to issue a binding property division or support order.
This requirement ensures that the court can enforce its orders regarding property division.
True or False: A court can grant a divorce without jurisdiction over both spouses.
True
A court can dissolve a marriage if at least one spouse is domiciled in the forum state.
Fill in the blank: A court may not issue a binding property division or support order unless it has _______ over the defendant spouse.
jurisdiction
