Family Flashcards
Nonmarital property (NMP)
assets acquired before marriage or acquired during marriage by gift, descent or devise.
MP
all property acquired during marriage
NMP can become MP if
marital funds contributed to it
Increase in value of NMP can count as MP if
if it resulted from either spouse’s effort.
Retirement funds as MP
Yes if acquired during marriage
Modification of a property division award
Not modifiable
Post-separation property in property division – MP?
MP in IL
Spousal support is awarded when
one spouse cannot support himself with his own employment
Spousal support can be discharged in bankruptcy?
false
Spousal support can be waived?
Yes. it can be waived for other consideration (e.g. waive maintenance in exchange for the house)
5 Types of spousal support
- lump sum, 2. permanent, 3. durational,4. rehabilitative, 5. reimbursement
Permanent alimony is awarded when
awarded to compensate for the lost earning capacity or benefits conferred during the marriage.
Durational alimony is awarded when
awarded to provide a party with economic assistance for a limited time following a short-term marriage. Typically cannot exceed the length of the marriage.
Rehabilitative alimony is
temporary alimony awarded to help improve a spouse’s earning capacity
Reimbursement alimony is awarded when
a spouse made sacrifices during the marriage that resulted in a reduced standard of living. It is based on past contributions rather than present or future needs.
Palimony may be awarded to
unmarried partner who cohabitated in a long, stable relationship. © IL does not recognize palimony.
To seek modification of spousal support, a party must establish
A significant change in the circs of the recipient’s needs or financial abilities of the payor.
Payor cannot take on new obligations prior to entering into a separation agreement and later claim change of circumstances to reduce the award
Modification of spousal support
- when the recipient remarries
- when the recipient cohabitates with a non-family member
If remarries, support may be terminated
If cohabitates, support may be modified if the recipient’s needs decreases as a result of cohabitation
Termination of spousal support upon payor’s death
Terminated. Usually not included as a liability of the deceased’ estate, unless specified.
Alimony pendente lite definition
alimony paid during the pendency of the divorce litigation
Alimony pendente lite does not terminate when
cohabitation of the recipient spouse with a nonfamily member
Family expense statute
A creditor may sue either spouse for payment of necessaries
Ex-parte divorce jurisdiction
A court may grant divorce to one spouse even if it doesn’t have PJX over the other spouse. The court does not have JX to address property division, spousal support, or child support.
Child support generally
Both parents, regardless of their marital status, are legally required to support their minor children.
Applicable law when a state has personal jurisdiction over an out-of-state parent for child support actions
UIFSA
Under UIFSA, court obtains personal jurisdiction when 6 circumstances:
- Personal service;
- Consent of out-of-state parent;
- Residency: Past residency with the child in that state;
- Directed/Caused: Out-of-state parent directed or caused child to reside in that state;
- Sex: Out-of-parent had sex that may have conceived the child in that state; or
- Registry: Out-of-state parent asserted parentage via putative father registry in that state
Child support after father’s death?
child may inherit from father’s estate if paternity proved before death.
Nonbiological father may be required to pay child support when ∑ 3
- Representation–husband represented that he would provide for the child
- Reliance–wife relied on the representation; and
- Detriment–wife suffered economic detriment as a result (e.g. loss of opportunity to obtain child support from bio father)
Two methods of calculating child support:
- Income-shares model
2. Percentage-of-income model.
Modification of child support is allowed when
a substantial change in circumstances regarding the child’s needs or parents’ financial situation.Modification only applies to prospective payments.
Modification of child support when a spouse voluntarily reduces income
Courts will impute an income amount unless change was made in
(1) good faith and there’s
(2) no hardship to the child
Child support can terminate when
- child reaches the age of majority 18 or
- is emancipated
An employable child’s right to support terminates when failure to comply with reasonable parental demands.
Modification of child support:
rules for jurisdiction
the state that issued the initial child support order has continuing exclusive jurisdiction. unless exceptions.
The state that issued the initial child support order has continuing exclusive jurisdiction to modify, unless 2 exceptions
The state that issued the initial child support order has continuing exclusive jurisdiction.
- Parties (both parents) and the child no longer reside in that original state; OR
- Parties expressly agree to permit another court to exercise JX.
Applicable law that governs child custody/visitation issues
UCCJEA
Jurisdiction under UCCJEA
Adjudication (Entering or modifying custody/visitation orders) under UCCJEA requires subject matter jurisdiction
5 types of subject matter jurisdiction under UCCJEA
- Home state jurisdiction;
- Significant-connection jurisdiction;
- Default jurisdiction;
- Exclusive-continuing jurisdiction
- Temp. Emergency
A court has initial home state jurisdiction if
- The state is the child’s home state OR
2. The state was the child’s home state in the past 6 months but one parent/guardian continues to live in it.
Home state
state where child lived with a parent/guardian for at least 6 consecutive months prior to custody proceeding
A court has significant connection jurisdiction if ∑3
(a) . No other state is home state
(b) . Child AND at least one parent has a significant connection to the state
(c) The state has substantial evidence regarding child’s welfare, training and relationships
A court has default jurisdiction if ∑2
(a) no other state has home-state or significant-connection jurisdiction; and
(b) state has appropriate connections to the child
A court that makes initial custody ruling has exclusive continuing jurisdiction until 2 situations:
(1) Both parties no longer reside in that state or
(2) Child no longer has a significant connection to that state + no more substantial evidence connecting the child to that state.
A court can assume emergency jurisdiction if ∑ 2
(a) Child is in danger and
(b) Need immediate protection
Standard for determining child custody
best interests of the child
Factored considered in determining child custody:
parent’s role (primary caretaker), older child preference, siblings, domestic violence
Legal parents are presumptively entitled to custody against third parties unless 2
- parent is unfit or
2. parental custody would be detrimental to the child or
Visitation rights of a noncustodial parent
A noncustodial parent is allowed reasonable visitation with a minor child.
A court can deny visitation by noncustodial parent if
if it would seriously endanger child’s wellbeing
Visitation rights of an unwed bio father
Unwed bio father has a constitutional right to have contact with the child ONLY WHEN he demonstrates a commitment to parental responsibilities (participation in child-rearing or financial support).
Modification of custody/visitation order is permitted if
there is a SUBSTANTIAL change in the circs that is UNFORESEEN at the time of the final judgment
Modifying custody order:Relocation of a custodial parent and child
may qualify as substantial change in circs if there’s a legitimate and reasonable purpose for the move.
Modifying custody order: Custodial parent lives with a partner
Custody change is generally NOT granted unless cohabitation adversely affects the child.
Three types of marital agreement
- Premarital;
- Separation;
- Property-settlement
Choice of law that governs premarital agreements:
Most states apply the law of the state with the most significant relationship to the agreement
A premarital agreement is enforceable if ∑4:
Enforceable if ∑4:
(a) in writing and signed by the party being charged;
(b) full disclosure of asset and liabilities;
(c) agreement is fair (conscionable);
(d) voluntary.
Many states: The agreement must expressly state its applicability to divorce.
To invalidate a premarital agreement under UPAA
UPAA requires clear and convincing evidence that the agreement was
(1) (a) unconscionable (unfair)
(b) without fair disclosure and
(c) didn’t/couldn’t have had adequate knowledge of the other’s assets and obligations; OR
(2) involuntary
Mediator misconduct may be grounds for not enforcing a separation agreement or property settlement agreement.
Enforcing a premarital agreement AFTER a marriage is voided
enforceable only if it will avoid an inequitable result.
Prenup: “Fair and reasonable” factors
look at both procedural and substantive fairness.
(1) agreement was obtained by fraud, duress, or undue influence, or
(2) mediator misconduct
-Substantively unfair if terms
Prenup: Voluntariness factors
(1) time-pressure,
(2) opportunity to be represented by independent counsel
Prerequisite to adoption
Before adoption may occur, the biological parents’ rights must be terminated.
An unwed father can consent to terminate parental rights through conduct when he:
- Failure to register in the adoption registry or
2. Failure to demonstrate a commitment to parental responsibilities
Involuntary termination of parental rights can occur when 5 situations
Abuse/neglect, Abandonment, Incapacity, Termination of rights over a sibling, Consent to an adoption is unreasonably withheld.
Legal effect of adoption on parental rights
Adoptive parents have all the rights and responsibilities of legal parents
Biological parents no longer have visitation rights in most states
Can you dissolve adoption?
If so, on what ground
Only permitted in some states in limited circumstances
(discovery of an undisclosed mental or physical illness).
Can a parent withdraw consent to adoption
Only with court approval, before the final decree.
putative spouse
Under this doctrine, a party who
1. participated in a ceremonial marriage and
2. believes in good faith that the marriage is valid
may use state’s divorce provisions if the marriage is later found void due to an impediment
Effect of putative spouse doctrine
although the claim does not result in a divorce, party may obtain equitable relief through maintenance and property
Separation agreement & property settlement agreements enforceability
a court generally will enforce spousal maintenance and property division provisions so long as the agreement is not unconscionable or based on fraud
To invalidate, a party must show
- unconscionability or
- fraud.
A marital contract is unconscionable when
when it is so unfair to one party that no reasonable person in the position of the parties would have agreed to it.
Modification of child support after divorce after father discovers non-paternity
Traditionally, not modifiable because courts cite child’s best interest as reason to deny admission of evidence of non-paternity or to deny a motion to disestablish paternity.
Some courts disestablish paternity and terminate support
In evaluating adoption dissolution claims, courts consider
length of the relationship,
child’s needs,
parent’s motives
A statutory marriage requires
- Marriage license and
2. Ceremony.
Marriage license is NOT issued when 4
- already married
- closely related
- marriage is a sham
- lack of capacity to consent
A common law marriage requires ∑ 4
- Agreement that parties presently intend to be married
- Cohabit as married
- Capacity to marry (mental and legal)
- Hold themselves out to public as married
Three ways to end a marriage
- annulment
- divorce
- death
Definition of annulment
Annulment voids a marriage if an impediment exists at the time of the marriage
Void marriage vs. voidable marriage
Void marriage does not require judicial decree.
Voidable marriage requires judicial decree.
Impediments in a voidable marriageAFIII
valid until judicial dissolution:
(1) age
(2) fraud/duress
(3) intoxication
(4) impotence
(5) lack of marital intent.
Who can seek annulment based on age as an impediment?
Only a minor/guardian can seek annulment based on age, unless that minor reached 18 and continued to cohabit.
Impediments in a void marriage
- Prior existing marriage
- Incest
- Mental incapacity
Removal of an impediment makes the marriage still makes the marriage voidable
Bases for a fault-based divorce (ABCD HII)
Adultery, bigamy, cruelty, desertion, habitual drunk, imprisonment, institutionalization
To claim adultery as a ground for a fault-based divorce
must show 1. opportunity and 2. inclination by the alleged cheater
To claim cruelty as a ground for a fault-based divorce
must show a course of abusive conduct that makes cohabitation unsafe
To claim desertion as a ground for a fault-based divorce
must show one spouse 1. voluntarily left the house with 2. the intent to remain apart permanently
Bigamy definition
one party knowingly marries while there’s a pre-existing marriage
Requirements for a divorce
- residency (at least one party must be a resident)
2. no-fault or fault-based marriage
Choice of law that governs premarital agreements:
Most states apply the law of the state with the most significant relationship to the agreement
