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Family Flashcards

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1
Q

Breach of the Promise to Marry

A

Provides for tort damages including actual damages, as well as loss to reputation and mental anguish. Punitive damages may also be available.

Rare today in most states.

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2
Q

Gifts in Contemplation of Marriage

A

Gifts made conditioned on the subsequent marriage, like engagement rings, are null if the marriage fails to take place.

Consider the type of property given, the conditions attached, and the intent of the donor.

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3
Q

Antenuptial (Premarital) Agreements

A

Address the rights of the parties in the event of death or divorce. Parties can agree to the disposition of property at divorce and to alimony. Generally, the waiver of alinoy will be upheld unless doing so will cause disadvantaged spouse to become a public charge. Courts will not be bound by provisions regarding the children.

Many states have adopted the Uniform Premarital Agreements Act (UPAA)

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4
Q

Requirements for Validity for Premarital Agreements

A

1) Must be in writing and signed
2) Entered into voluntarily (without fraud, duress, or overreaching)
3) Full disclosure of assets OR proof that party had independent knowledge (under UPAA, court must determine first that the agreement was unconscionable when executed and then whether there was a fair disclosure of assets or independent knowledge.

Some courts will consider general fairness and whether the parties were represented by independent counsel.

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5
Q

Requirements for Marriage

A

1) Must have a license (some states require a medical certificate showing no disease; most states proved a 72 hour waiting period after the application and before the ceremony can take place)
2) Have to have a ceremony with an authorized officiant
3) No legal impediments to marriage

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6
Q

Legal Impediments to Marriage

A

1) Can’t be too closely related (cannot marry ascendants, descendants, siblings, aunt/uncle, niece/nephew, whether by whole or half blood; many states prohibit marriages between those related by marriage; marriage between first cousins in permitted in some states).
2) Can’t be already married to another
3) In some states, can’t be the same gender
4) Must have the capacity to consent (mental ability to consent at time of ceremony; must be of the age of majority)

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7
Q

Common Law Marriage

A

1) You must consent to marriage
2) Have to cohabit
3) Hold yourself out publicly as husband and wife

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8
Q

Marriage by Estoppel or Putative Marriage

A

Equitable remedy that may be given by some courts to the innocent party who acted in good faith when entering an invalid marriage.
In some states, the putative spouse can acquire all of the rights of the a legal spouse.

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9
Q

Spousal Support

A

1) During marriage, spouses owe support to one another
2) The doctrine of necessaries can be used to make one spouse liable to third parties for the other spouse’s purchases for necessary expenses, such as food, clothing, and health care.

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10
Q

Spousal Abuse Orders

A

Laws protect victims of domestic abuse both in and outside marriage. The victim is entitled to a protective order against the other spouse which can be granted ex parte (without notice to other spouse) and can last for one month to several years depending on the jdx.

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11
Q

Tortious Interference with Marriage

A

1) Alienation of Affection - claim against third party who alienates affections of spouse. Requires: genuine love and affection between spouses who are validly married; love and affection was alienated and destroyed; causation.
2) Criminal Conversation - having sex. Requires: marriage of the spouses; adultery between defendant and the spouse during the marriage

Punitive damages exist for both claims.

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12
Q

Annulment

A

The declaration that a marriage is invalid. Available for defective marriages that are legally void or voidable.

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13
Q

Void Marriages

A

1) Fail to meet the essential requirements, so invalid
2) Can be attacked by one of the parties or collaterally by a third party.
3) May or may not be remedied by continued habitation after removal of impediment .
Exs.: Bigamy, too closely related

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14
Q

Voidable Marriages

A

1) Event or condition affecting adequacy of consent to marriage contract
2) Treated as valid until annulled
3) Can be attached only by or on the behalf of a party to the marriage and in some cases only by the party who is sought to be protected
4) Marriage can be ratified by continued cohabitation after removal of infirmity.
Exs.: Underage, incurable physical impotence, lack of capacity, duress, fraud affecting essential element of marriage.

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15
Q

Effect of Annulment

A

1) Marriage is set aside as if it never existed
2) Children remain legitimate
3) Child support can be awarded
4) Spousal support may be awarded, but not in all states
5) Property generally treated as if never married; put spouses in “pre-marital” state

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16
Q

Divorce Jurisdiction

A

1) One of the spouses must be domiciled in the state seeking to enter the divorce
2) Generally, if the spouse is a resident of the state for a minimum period of time, then there is a presumption he is domiciled there and the court will have jdx.
3) For a court to determine financial issues (like property rights and support), the court must have personal jdx over both parties

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17
Q

Grounds for Divorce (No-Fault)

A

1) Allows for dissolution of marriage without regard to marital fault - Majority jdx follow this
2) Generally allowed if proof of a) irreconcilable differences (may require agreement of the spouses); b) living separate and apart for a specified time period; c) incompatibility

Traditional defenses to divorce are generally unavailable, but one spouse can claim reconciliation to restart the time clock for living separate and apart.

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18
Q

Grounds for Divorce (Fault based)

A

1) Adultery (proved by opportunity and inclination);
2) Desertion - unjustifiable departure from the marital home for a specified period with no intent to return;
3) Cruelty (physical or mental);
4) Habitual drunkenness or abuse of drugs commencing after the marriage;
5) Insanity

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19
Q

Defenses to Fault Based Divorce

A

Rarely used but still exist:

1) Collusion - parties agreed to simulate the grounds for divorce;
2) Connivance - Plaintiff willingly consented to the other spouse’s misconduct
3) Condonation - the plaintiff forgave the marital offense with full knowledge of the offense ( usually requires sex after the forgiveness)
4) Recrimination - plaintiff is also guilty of marital fault (doctrine of unclean hands)

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20
Q

Legal Separation

A

Often permitted for the same grounds as divorce
Effect of legal separation:
1) Parties are still married
2) Parties can seek to have their rights regarding property, spousal support, child custody, and child support decided

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21
Q

Approaches to Property Division

A

1) Community property - all property acquired during the marriage is owned one-half by each spouse and property owned before marriage is separate
2) Equitable division of all property owned by either spouse
3) Equitable division of marital property - each spouse takes his separate property and the property acquired during the marriage is divided equitably (majority)

In any case, property distribution decrees are not modified (compare to support awards)

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22
Q

Property Division Two-Step Process

A

For Equitable Division of Marital Property:

1) Classify: determine what is marital property and what is separate property; and
2) Divide: Make an equitable division of the marital estate no matter how the property is titled. Equitable division does not necessarily mean equal –> courts have discretion

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23
Q

Separate Property

A

Includes: all real and personal property owned by a spouse before marriage, including assets held in individual retirement accounts; property acquired by a spouse at any time by gift, bequest, devise or descent (inheritance); property acquired in exchange for property acquired before the marriage; income from and appreciation of separate property; pain and suffering awards, victim of crime compensation awards, future medical expenses, and future lost wages; property acquired by a spouse after an order of legal separation where the court has made a final disposition of property.

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24
Q

Marital Property

A

Includes: all property acquired by either or both spouses during the marriage up to the final divorce decree; value of vested and unvested pension, vested and unvested stock option rights, retirement or other fringe benefit rights relating to employment that accrued during the period of marriage; recovery in personal injury, workers’ comp, social security disability actions, and other similar actions for wages lost during marriage

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25
Q

Commingling

A

Separate prop can become marital if the property is inextricably intertwined.

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26
Q

Transmutation of separate property

A

Separate property can become marital property based on the intent of the parties

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27
Q

Improvement of separate property

A

When separate prop is improved by the use of marital funds or the efforts of the non-owning spouse, courts in most jurisdictions will grant the marital estate or non-owning spouse reimbursement for the value added

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28
Q

Property acquired before the marriage but paid for after the marriage

A

Courts are split. Majority: property should be apportioned between separate and marital estates in proportion to the contribution of separate and marital funds to pay for the property.

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29
Q

Pensions

A

Considered to be marital property subject to division even if the non-working spouse did not contribute

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30
Q

Professional License or Degree

A

Not considered marital property subject to division. But, some jdxs consider it when awarding spousal support. Minority of jdxs value the degree then award more property or alimony to the other spouse based on the valuation.

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31
Q

Tax Consequences

A

Property division is not a taxable event (compare to alimony, which is taxable)

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32
Q

Equitable Division

A

Once court identifies and values the marital property, the court will make an equitable division. Numerous factors court considers (see pg. 12).
Marital fault is generally not a consideration.

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33
Q

Alimony

A

Paid to the economically dependent spouse

34
Q

Types of Alimony

A 
Permanent Periodic Support (can be increased, decreased, or terminated upon proof of substantial change of circumstances)
Lump Sum Support (can be payed in installments, but cannot be modified)
Rehabilitative Support (usually for a specified time period in order for dependent spouse to gain education or skills)
Reimbursement Support (repayment for the supporting spouse's contribution to the increased education provided to the other spouse, cannot be modified)
35
Q

Factors to be Considered when Awarding Alimony

A

Standard of living during marriage
Duration of marriage
Age and physical/emotional conditions of parties
Financial resources of each party
Contribution of each party to the marriage
Time needed to obtain education or training for a party to find employment
Ability of the payor spouse to meet his needs and pay support
Some jdxs consider marital fault

36
Q

Two primary considerations when awarding alimony:

A

The need of one spouse and the ability of the other spouse to pay

37
Q

Modification of Spousal Support

A

Based on a substantial and material change of circumstances affecting the needs of the recipient spouse or the ability of the other spouse to pay.

Generally, a voluntary reduction in income will not be sufficient to reduce the obligation (leaving job or incarceration)

38
Q

Termination of Spousal Support

A

Periodic payments generally terminate on remarriage of the recipient, death of either spouse, or, in some jdxs, on the cohabitation with another person.

Lump sum awards survive death and are not modifiable.

39
Q

Tax consequences of spousal support

A

Generally, spousal support is includable in the income of the recipient and deducible by the payor, unless otherwise provided by agreement.

40
Q

Contracts between Cohabitants

A

Contracts are valid unless sex is the only consideration. Express contracts regarding earnings and property rights will generally be enforced. Implied contracts may be used to award property.

41
Q

Child Support

A

Both parents share equally the duty to support their children based on the child’s need and the ability of the parent to pay.

42
Q

Duration of Child Support

A

Generally, the age of majority OR death of child OR emancipation of child OR termination of parental rights.

Some states allow child support to continue past 18 if child is still in high school until some age or completion of education.
Support may continue for some longer period if the child is disabled.

43
Q

Jurisdiction of Child Support Orders

A

Uniform Interstate Family Support Act (UIFSA) has been adopted in all 50 states and D.C.

44
Q

UIFSA and Original Jdx

A

Jdx is proper where the first petition under UIFSA is filed. Another state can only exercise jdx if:

1) the second petition is filed before the time to answer the first has expired;
2) the petitioner objected to jdx in the first action
3) the second state is the child’s home state.

45
Q

UIFSA and Jdx to Enforce

A

The issuing court has continuing jdx to enforce.

Another state can enforce by:

1) direct enforcement - obligee mails the order to the obligor’s employer in another state and the employer will withhold wages;
2) Registration - child support order is registered in another state and is then subject to enforcement in that state.

46
Q

UIFSA and JDX to Modify

A

Once the court enters a valid child support order, it maintains continuing exclusive jdx during the life of the order unless no parties reside in the issuing state or the parties consent to another state’s jdx.

47
Q

Modification of Child Support Orders

A

Child support is modifiable based on a substantial change of circumstances affecting the needs of the child or the ability of the parents to pay.

48
Q

Enforcement of Child Support Awards

A

1) Child Support can be enforced through traditional civil and criminal contempt proceedings.
2) As a result of federal legislation, parties may seize property, use wage withholding, intercept tax refunds and revoke licenses to enforce child support payments

49
Q

Child Custody

A

Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) applies to interstate custody disputes.

50
Q

Initial Award of Custody under UCCJEA

A

1) Primary test: Home State (either the state where the child has lived with parent for at least 6 consecutive months, OR state that was the child’s home state within the last 6 months and the child is absent from the state but a parent continues to live there
2) If there is no home state, a court can assume jdx if the child has a significant connection with the state and there is substantial evidence of the child’s well-being in the state.
3) If state with Home State or significant connection jdx declines, a state can assume deferred jdx.
4) If no other state exercises jdx, any state can win by default.

51
Q

Modification of Existing Decree under UCCJEA

A

The issuing state exercises continuing exclusive jdx UNLESS:

1) No child or parent continues to reside in the state; OR
2) The child no longer has significant connection with the state and there is no substantial evidence in the state

52
Q

Declining Jdx under UCCJEA

A

A court may not exercise jdx if:

1) a proper proceeding was already pending elsewhere when the petition is filed, unless the other court defers OR
2) the person seeking to invoke the court’s jdx has engaged in unjustifiable conduct

A court may decline to exercise jdx if it determines it is an inconvenient forum.

53
Q

Temporary Emergency Jdx under UCCJEA

A

Requirements:

1) a child is physically present AND
2) the child has been abandoned OR
3) It is necessary to protect the child because child, sibling, or parent is subject to abuse.

54
Q

Legal Custody

A

Includes the rights to make decisions regarding the child

55
Q

Physical Custody

A

Includes the possession and control of the child

56
Q

Hallmark consideration in custody and visitation cases:

A

Best Interests of the Child

57
Q

Facts that courts consider for child custody:

A

1) the wishes of the parents
2) the preference of the child (usually when child is older than 8)
3) relationship of the child with the parents and siblings and others involved with parents
4) child’s adjustment to home, school, and community
5) mental and physical health of parties
6) parent who was the primary caregiver (but no gender preferences)

58
Q

Types of custody

A

Joint custody (most typical)
Sole Custody
Custody to nonparent

59
Q

Joint Custody

A

Can mean joint legal, physical, or both. Joint custody is intended to promote the involvement of both parents in the child’s life.
If parents are openly hostile or unable to communicate, the courts will not award joint custody.

60
Q

Sole Custody

A

Can be awarded to one parent when strong evidence demonstrates that it is in the best interests of the child. The other parent will be entitled to reasonable visitation unless harm to the child will result.

61
Q

Custody to Nonparent

A

Because of the constitutional protections afforded a parent, in a custody dispute between a parent and nonparent, the standard is not simply the best interests of the child.

Parent is entitled to custody unless the nonparent can show harm to the child OR unfitness (abandonment, neglect, abuse, surrendered custody). After finding of harm or unfitness, courts will then perform a best interest analysis

62
Q

Parental Visitation

A

Absolute denial of visitation to a parent is rare.

63
Q

Non parent visitation

A

Every state has a statute that allows third parties, generally grandparents, to seek visitation.
Non parent visitation generally applies in some extraordinary circumstances such as : divorce, separation, or death.

If a parent is fit, his or her wishes on non parent visitation are constitutionally protected and must be given “special weight”

64
Q

Modification of Custody

A

Party seeking modification bears burden of proof.
Standard: modification requires a substantial or material change of circumstances.
Overriding concern: BIOC

65
Q

Relocation

A

Courts will consider whether relocation:

1) is in the child’s best interest
2) motivated by a benefit to the family, and
3) not intended to thwart the relationship with the other parent.

66
Q

Enforcement of Custody Awards

A

1) Violations of custody and visitation can be enforced through civil contempt proceedings
2) state habeas corpus proceedings (limited to physical custody of child)
3) Suit in equity
4) out of state decrees
5) child kidnapping (Federal Parental Kidnapping Prevention Act mandates that states give full faith and credit to another state’s child custody determination if jdx is proper)

67
Q

Non Marital Children

A

Intermediate Scrutiny is applied in an equal protection analysis ( gov’t action/regulation must be substantially related to an important gov’t purpose)

A parentage action can be brought to establish a biological relationship and settle issues of paternity. Once parentage is established, the parent owes support and has rights of custody and visitation.

68
Q

Presumption of Parentage

A

The husband of the mother is presumed to be the father if:

1) the child is born during marriage OR
2) the child is born within 300 days of termination of the marriage OR
3) the child is born during a void or voidable marriage

69
Q

Unwed Fathers

A

A child can be considered the child of an unwed father if:

1) after the birth of the child, the father marries the mother.
2) the father holds the child out as his biological child.
3) the father consent to his name on the birth certificate.
4) the father acknowledges paternity
5) there is a judgment decreeing paternity

70
Q

Paternity Suit

A

Generally used by unwed mother to obtain child support from father. Once established, father can assert rights of custody and visitation.
Level of proof varies. Can be clear and convincing evidence or preponderance of the evidence.

71
Q

Termination of Parental Rights

A

1) voluntary termination - parents may voluntarily relinquish all rights to their children (often done in preparation of adoption)
2) Involuntary termination

72
Q

Involuntary termination

A

State may not interfere in family decision making unless the decision endangers the well-being of the child.

The state may seek to terminate parental rights for:

1) infliction of serious physical harm on the child or other children in household
2) abandonment
3) neglect or deprivation
4) failure to provide support for the child without cause for a specified time period
5) mental health of the parent that results in inability to care for the child.
6) parental unfitness (physical, psychological, drug abuse)

73
Q

Types of adoption

A

Agency Adoption - licensed adoption agencies act as intermediaries
Private Adoption - private persons act as intermediaries to arrange adoption

74
Q

Requirements for adoption

A

1) Termination of biological parents rights:
a. consent of biological parents is required UNLESS rights were already terminated or if unreasonably withheld against BIOC
b) consent of unmarried father required if father is actively involved in the child’s life

2) Creation of new parent rights:
a. consent of adoptee if over certain age (12 or 14)
b. home study - investigation of new home
c. payment of money is prohibited (exception for medical costs of pregnancy)

75
Q

Consequences of adoption

A

severs all rights and obligations of bio parents to child and creates duties to adoptive parents and child.

76
Q

Assisted Reproduction

A

1) Often used as an alternative to adoption
2) In some cases, it is necessary that a person other than the intended parents is involved (surrogate or gamete provider)
3) Uniform Parentage Act (UPA) contains provision related to assisted conception, but has not been adopted by many jdxs.

77
Q

Assisted Reproduction and Maternity

A

Mother-child relationship is established by:

1) Birth of the child (unless valid gestational - surrogacy - agreement)
2) Adjudication of woman’s maternity
3) Adoption by the mother
4) Adjudication confirming mother of child born to a gestational surrogate

78
Q

Assisted Reproduction and Paternity

A

A husband who is married to a woman who has a child through assisted conception is the child’s father unless he proves his lack of consent within two years after the birth.

79
Q

Gamete Donors

A

1) Egg and sperm donors are NOT parents of a child conceived through assisted conception.
2) Some jdxs have allowed sperm donors to have rights if agreed in writing by the donor and the woman.

80
Q

Posthumous Conception

A

If a gamete donor consented in writing that his or her gametes could be used after death to conceive a child, that child can be considered the child of a deceased parent.

81
Q

Gestational Agreements

A

1) some states have failed to enact legislation on surrogacy because they characterize the agreement as the sale of a child.
2) Gestational mother is also referred to as a surrogate.
3) Gestational mother, her husband (if married), and intended parents must enter into a written agreement

82
Q

Court must approve gestational agreement if:

A

1) court has jdx
2) child welfare agency has conducted a home study unless waived
3) agreement is found to be voluntary
4) provision has been made for health care costs until birth
5) if surrogate is promised consideration, it is reasonable

If the agreement is unenforceable, the gestational mother is considered the mother of the child, regardless of biology.

If the agreement is approved, the intended parents must file notice of birth and the court will issue an order of parentage.

Family Law (1 decks)

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