Family Law Flashcards
What is marriage?
A civil contract between two parties
How do you modify or terminate a marriage contract?
With state intervention
Two Requirements for a Ceremonial Marriage
- License
- Solemnization
Requirements to get a license
- Over 18 or have parental consent
- Most states have waiting period between license and ceremony
- Some states require medical testing
- BUT result cannot be condition for issuance (ex: can’t not issue to HIV adults)
- Will need anoter license if you don’t have ceremony before expiration (usually 10 to 30 days)
What are obstacles to getting a license?
- A party is married to someone else
- The parties are too closely related
- The marriage is a sham
- The parties are incapable of understanding the act of the marriage (ex: intoxicated or disabled)
- Lack of consent due to duress or fraud
How do you solemnize a ceremonial wedding?
- In most states need two witnesses + an officiant
- Marriage license must be filed with gov
- Can have a proxy sign as long as the parties provide written consent (ex: military spouse)
Common Law Marriage Requirements
- Parties agree they are married
- Parties cohabit as spouses
- Parties hold themselves out in public as being married
- Neither party was married to somone else at the time that the marriage was entered into
- Both parties have mental capacity to enter into the marriage
- Both parties are old enough
- Both parties are not too closely related
- There is evidence that they intended to enter the marriage and the words are in the present tense
Recognition of Common Law Marriage
Recognized in only a few states BUT almost all will recognize out of state valid common law marriages
EXCEPTION: A state need not recognize the common law marraige if it violates a public polciy concern of the state
In some states that allow it, parties must be domiciled in the state for a period of time
Heartbalm Actions
Note: Not recognized anymore
If left at the alter, jilted party can bring suit for damages for damages to their reputation
Three ways to terminate a marriage
- annulment
- divorce
- death
When does the impediment need to exist for an annulment?
At the onset of the marriage
Three ways that a marriage will be void
void = as if it never happened
- Prior existing marriage (second marriage void)
Burden on person trying to prove first marriage
EXCEPTION: In some states, once impediment is removed, second marriage is valid
- Incest (some prohibited degree of kinship)
Usually includes first cousins, relatives of half-blood, and adoption relationships
- Mental Incapacity: Must be lucid at the time of contract
Must understand the duties to which they are engaging
What happens when a marriage is void?
It’s as if it never happened and it is not legally recognized for any purpose
No judicial intervention is needed for it to be annulled
Any party (parent, etc.) may seek an annulment
What happens when there is a voidable marriage?
It is valid until a spouse seeks annulment
Requires a judicial decree to annul
Situations where a marraige is voidable
- Party is under the age of consent and does not have parent’s consent
Only the minor and their parents can seek annulment
Ratified if minor ages out and continues to cohabit with spouse
- Natural and incurable impotence not known to either party prior to the marriage
- Either party was intoxicated
Ratified if parties cohabit after marriage
- Fraud, misrepresentation, duress, coercion, and force
The fraud must be part of the essence of the marriage and once it is discovered the parties must stop living together
- Parties did not have intent to be married (“did it for the joke”)
Ratified if marriage is consumated
Includes marriage of limited purpose (eg. green card)
Effect of annulment
Parties still have rights and courts try to put parties in place before marriage:
- Can seek spousal support
- Can get equitable distribution of property
- Can seek child support
What is the child of an annuled marriage?
A marital child
Are there an defenses to an anulment?
Yes, you can deny the impediment
BUT this doesn’t prevent the other party from pursuing a divorce
Putative Marriage Doctrine
When someone was prior married and the second spouse didn’t know, they are the putative spouse and can use divorce provision despite there being no marriage.
What is divorce?
A legal dissolution of marriage
Residency requirement for divorce
One party must be a resident of the state, but the length of residency required varies
Courts look at:
- Was the couple married in that state?
- Did the grounds for divorce happen in that state?
Grounds for a no-fault divorce
All states have a no-fault divorce provision
Marriage must be irretrivably broken (aka irreconciable differences)
Reconcilliation attempt not required and it doesn’t matter if one spouse wants to reconcile
Half of states require a period of separation before filing for divorce (can be one spouse unilaterally moving out)
8 grounds for fault based divorce
Mainly used to determine alimony
- Adultery (can be opportunity and inclination by other spouse through circumstantial evidence)
- Multiple instances of cruelty or inhumane treatment (conduct harmful to physical or mental health AND cohabitation is unsafe or improper)
- NOTE: only some jurisdictions allow for fault-based for emotional abuse
- Desertion/Abandonment: Spouse voluntarily leaves marital home permanently without cause or cosent from other spouse
- Habitual Drunkeness
- Defense of assumption of risk
- Bigamy (prior marriage still valid)
- Imprisonment of one spouse
- Indignity: One spouse exhibits negative behavior to the other, making life burdensome and intolerable (Eg. vulgarity and manifest disdain)
- Only some states
- Institutionalization and no reasonable prospect of discharge or rehabilitation
Nine defense to divorces
only for at fault divorces
- Recrimination (both at fault) and Unclean Hands (other spouse is at fault)
- Connivance: spouse gave consent to wrongs
- Condonation: spouse forgave fault spouse, had knowledge of wrong, and resumed marital relationship
- Collusion: spouses fabricated the grounds together
- Provocation
- Insanity: one spouse doesn’t know difference between right and wrong
- Consent: consent to desertion or adultery
- Justification: spouse deserted due to other spouse’s misconduct
- Religion (fails as defense)
Interlockutory Decree
Most states require a waiting period before finalizing a dissolution
Mediation & Divorce
- Requires court-appointed neutral and unbiased mediator
- Parties make agreement & parenting plan and submit it to the court to approve
- Can help with most parts of divorce
- Duties of mediator:
- Be impartial and disclose conflicts
- Clearly explain and control process
- Do not coerce or improperly influence a party
- Mediator misconduct can be grounds for not enforcing a separation agreement or property settlement
Two ways to divide property
- Community property
- minority method
- Equal distribution of property
- Equitable distribution
- Majority method
- Fair/equitable distribution
Marital vs. Seperate Property
- Marital
- Most things aquired during the marriage
- Divided between spouses
- Gifts between spouses
- Seperate
- Most things acquired before marriage
- Remains property of owning spouse
- Assets acquired by gift, descent, or devise during the marriage
- Anything the prenup says is separate
- Property that a party sold for value or mortgaed or encumbered in good faith before the date of final separation
When seperate property becomes marital property
- Increases in separate property resulting from either spouse’s efforts during marriage is martial property
- Market appreciation is not martial property
- Improvement due to martial funds is martial property
- If non-owning spouse helps with mortgage it becomes marital property
Who has the burden of proof when it comes to labeling property?
The party that is trying to prove that something separate
Distribution of Martial Property Factors
- How long was the marriage?
- Were there prior marriages?
- What are the economic circumstances of each spouse?
- Age?
- Health?
- How close to retirement?
- Earnings and earning potential?
- Needs?
- Contribution to the education or career of the other spouse
- Needs for future acquisitions
- Homemaking and child-rearing services
- Value of the separate proeprty
- Was there a reduction in value in marital property by one spouse?
- Standard of living
- Custodianship of minor children
- Dissipation of assets
Treatment of professional license or degree
Majority: Not distributable property, but may affect other things like alimony and distribution of assets
Non-holding spouse may also get reimbursement for the amounts that they contributed to other spouse’s education
Treatment of Retirement or Pension Benefits
Marital property (for all amounts that accrued during marriage)
Looks at present value
Treatment of personal injury claim proceeds
Two Approaches
- If the cause of action occured during marriage, it is all marital property even if proceeds are received after the divorce
- Damages are split by type: Compensatory goes to injured spouse, consortium goest to non-injured spouse, lost wages and medical expenses are split.
Treatment of goodwill
Martial property if developed during marriage and is idependent of individual (eg dry cleaner busines goodwill)
Treatment of accumulated sick and vacation days
Three methods (aka all of the options)
- Marital property
- Not marital property
- Only days that accrued during marriage are marital property
Treatment of future interests, social security benefits, and stock options
Future Interest (eg future inheritance) is not divided
Social security benefits are not divided
Stock options acquired during marriage are marital property even is exercises after divorce
Treatment of post-separation property
property acquired between separation and dicorce
Majority: It is still marital property
Two Minority: 1) separate property 2) depends on the date of filing
modification of property division award
It is not modifiable after the fact
What is spousal support
AKA maintenance and alimony
it is the obligation of one party to provide the other with financial support
Factors in determing the amount of support a spouse receives
- Financial resources of both parties and the ability of the payor to pay
- Standard of living during the marriage
- Time to find a job or to complete education
- Length of marriage
- Contributions to the marriage
- Did one spouse enchance the earning potential of the other spouse (eg by being a homemaker)
- Age and health of the parties
- Marital misconduct (only considered in some(
- Children and who will be responsible for them
- All sources of income
- Tax treatment and consequences of the alimony and maintenance
Types of spouse support
- Lump sum
- Cannot be modified later unless fraud
- Permanent Alimony (rest of life)
- Usually only after long-term marriage (16 to 17 years +)
- Durational alimony
- Used last
- Typically cannot exeed the length of marriage
- And is only for a short period regardless
- Rehabilitative alimony
- To help spouse improve earning capacity so they can become independent (eg while they go to school)
- Auto terminates at end of period
- Reibmursement alimonty
- Copensates for the spouse who made financial sacrifies during marriage (eg supported spouse while in school)
- Palimony
- Minority of states allow it
- For long-term unmarried couples who cohabited and ended relationship
- Sex cannot be part of contractual consideration
Modification of spousal support
- All types can be modified except lump sum
- If no support was ordered, cannot modify that
- Requires significant change in needs of recipient or ability to pay of payor
- Voluntary income reduction is not a significant change for payor
Factors that may affect modification of spousal support
- Death ends it (unless specificed it is obligation of estate)
- Remarriage
- If payor remarries, court may modify
- If recipient remarries, court may terminate
- If second marriage is annulled, support is not revived
- Cohabitation of recipient
- May lead to modification or termination, but not automatically
- Factors considered
- How long has recipient lived with other person?
- Have they held each out to be married and for how long?
- Do they both jointly contribute to where they are living?
- Do they both support the children of the other?
- How much do they support each other?
- Voluntary Retirement
- Split on whether it is basis for modification
Alimony Pendente Lite
Alimony paid during pendency of divorce litigation
Not terminated by cohabitation
Jurisdiction of court over divorce proceedings
Requires subject matter and personal jurisdiction over both spouses
EXCEPTION: A court may grant only a divorce decree to one spouse even if it doesn’t have personal jurisdiction over the other spouse BUT other spouse cann attack it arguing plaintiff was not domiciled in that state
Subject matter jurisidiction generally requires some length of residency (up to 2 years) of at least one spouse
General rule about child support split between parents
Both parents are legally required to support their minor children and have an equal responsibility (but may be varied based on circumstances)
What age must child support be paid until?
General Rule = 18
Exceptions:
- 19 if child is working full-time towards high school diploma
- extended if child is disabled
- can be extended through college degree
How is child support related to visitation rights?
It is not. Visitation cannot be denied because child support is not being paid.
Who does the right to child support belong to?
The child - Parent cannot bargain it away
Do nonmarital children get child support?
Yes, as long as paternity is proven before father dies
When do nonmarital children become marital children?
- If the parents marry after the birth of the nonmarital child
- Father consents to name on birth certificate
- Father holds himself out as father
- By judicial decree
What two things attach when paternity is determined?
- The rights to custody and visitation
- The duty to support
How is paternity determined?
- Blood test
- Prior statements by deceased family members
- Medical testimony based on the probability of conception
- Defendant’s own knowledge of paternity
- The resemblance between the child and the defendant
- Marital Presumption: A child born to a married woman is presumed to belong to the woman’s husband
- Included artificial insemination if father consented
- NO TIME LIMIT
When can a wife deny that her husband is the father?
- Some states, a wife cannot
- Others exclude such evidence if it is not in the best interest of the child
- Half of the states allows wife to present evidence
When is a non-biological father required to pay child support?
Estoppel
- When he said he’d pay it
- Teh wife relied on it
- The wife would suffer economic detriment from relying on it
Exceptions: Some states allow father to prove they aren’t biological father and don’t need to pay
How is child support amount determined?
It is typically based on all the sources of income received by the paying parent
Several models are used:
- Most jurisdictions use an income share model: Net income of both parents is added together and responsibility is allocated
- Some states use flat percentage of non-custodial parent’s income based on number of children being supported
All states use guidelines, but courts may deviate if they explain why (they are a rebuttable presumption)
Personal Jurisdiction Over Out of State Parent
UIFSA creates these options:
- Personal service within the state
- Consents to jurisdiction
- Resided with the child in the state in the past
- Or past residency, without child, but paid support
- Child may have been conceived in that state
- Defendant directed child to reside in that state
- OR forced that child to reside their due to their own actions
- Asserted parentage through state’s father registry
Can the child support payor monitor how child support is spent?
No
Factors considered in determining child support
- Best interests of child
- Age
- Special needs
- Assets of both parties
- Standard of living during the marriage
- Medical Insurance paid (deducted from net income of the parent who pays for the insurance)
When can child support be modified?
- If the parent’s circumstances substantially change
- Exs: change in occupation, remarriage, involuntary change in income
- Substantial change = 10% change in amount owed
- Voluntary changes in income generally aren’t a reason to modify (unless it was in good faith and won’t cause hardship to child)
- If the child’s needs subtantially change
Effect of child support modification claim
- Burden of proof is on the parent requesting the change
- Change is retroactive only to date of service of the modification motion
Termination of child support
- Child reaches 18 (unless exception applies)
- Child marries
- Parental rights are terminated
- Child emancipation
- Child dies
- Parent dies
- NOTE: child giving birth does not auto terminate support
What special rule about support applies to an employable child?
Their support can be contingent on compliance with reasonable parental demands
Jurisdiction for modification of child support
UIFSA applies, and says that the state that issued the order has continuing exclusive jurisdiction to modify unless:
- Both Parents and the child no long reside in the state OR
- Agreeemnt of the parties
BUT can register order in other state for enforcement purposes
Tax consequenes of child support
NONE: Paying parent cannot deduct it and it is not income for receiving parent
Enforcement of Child Support Awards
- Civil Contempt orders
- If payor violates court order to pay
- Court may require fine or incarceration until paid
- Criminal Contempt
- Failure to pay is willful –> impose jail term
- Sanctions
- Withholding tax refunds
- Suspend drivers license and other licenses
- Seize property or assets
- Order insurance of bond
- Seize passport if they ow more than $5000
Types of Custody
-
Legal: Right to make major decisions for child
- Exs: health, eduction, religion
- Physical: Right to have child reside with them and provide for daily care and control
-
Joint: Neith parent has superior right to make major decisions for child
- Favored
- Both parents must be willing to cooperate for the best interst of the child
Determining what state can make custody determinations
Dictated by UCCJEA - Run down the list to figure out which applies
- Home State Jurisdiction
- Significant-Connection Jurisdiction
- Default Jurisdiction (when no court has home-state or significant connection) - Where child has appropriate connections
- Exclusive Continuing Jurisdiction (court that made the initial ruling in the custody case keeps jurisdiction)
- Temporary Emergency Jurisdiction
Home state jurisdiction requirements
Child’s home state and has been their home state for six months or since birth if < 6 months
OR
Was child’s home state in past six months, child doesn’t live there anymore, but one parent does
Significant Connection Jurisdiction Requirements
No other state has or accepts home state jurisdiction
AND
The child and at least one parent has a significant connection with the state
AND
There is substantial evidence in the state concerning the child
When does exclusive continuing jurisdiction end?
- The parties no longer reside in the state OR
- The child no longer has a significant connection to the state and no substantial evidence of the child’s condition is available in that state
When can a court decline jurisdiction in a custody case?
applies to home states and courts of exclusive continuing jurisdiction
When the forum is no longer convenient based on the following factors:
- When domestic violence has occurred and is likely to continue
- Length of time the child resided outside of the jurisdiction
- The distance between the jurisdictions
- The parties’ financial circumstances
- Agreement of the parties
- The nature and location of relevant evidence
- Each court’s ability to decided the issues
- The familiarity of each state court with the facts and issues
- If the child has been wrongfully removed from another state
When can a court assume emergency jurisidiction?
- If the child is in danger AND
- The child requires immediate protection
emergency order stays in palce until the home state changes it
EXCEPTION: If there is a prior custody order, must allow time for parties to return to prior court
Expedited enforcement of a child custody determination
The respondent must appear the day after being servied with an order, otherwise petitioner will get immediate physical possession
Exceptions:
- The custody order was not registered AND
- The court did not have jurisdiction OR
- The order was stayed or vacated OR
- Notice was improper
- OR the oder was registered but stayed, vacated or modified
When can you get a warrant for child custody?
When the child is likely
- to suffer serious physical injury
- wrongfully be removed from the state
When can law enforcement official obtain return of the child or enforce an order?
- The official believes the person holding the vhild violated a criminal statute OR
- Such action is requested by the court
What are the custody rules for military personnel?
- UDPCVA applies
- If there is no imminent deployment, then the courts cannot use potential deployment negatively against the military personnel
- Can’t make permanent orders before or during deployment
Parental Kidnapping Prevention Act
PKPA
- Supersedes any conflicting state law, and applies to interstate parental responsibility disputes
- Purpose = discourage forum shopping
- International PKPA prevents children from being taken out of country
- Hague Convention requires return of child unless it puts the child in grave danger
Standard and factors for determing child custody
Best interest and welfare of the child
- Unless a parent is deemed unfit, a parent is in the best position to care for the child
- Presumption of legal parents over third parties
- Who was the primary caretaker prior to divorce?
- Race cannot be a factor
- Religion & past sexual conduct is rarely a factor
- Court will consider older child’s wishes if they have sufficient maturity
- Avoid separating siblings (unless in best interests)
- If domestic violence, rebuttable presumption in favor of nonabusive parent
When may a third party get child custody?
Three scenarios:
- The parents are deeemed unfit
- It would be deterimental to child to place them with parents
- The parents have terminated their rights
Exception to meeting scenarios: Parent by estoppel when child has been living with third party for a while
Minority Exception: Best interest standard will be applied for determining between parent and third party
Guardian ad litem
Court appointed advocate for the child during highly contested cases
Who gets child visitation rights?
- General rule = parents have a constitutional right to have contact with their children
- Practice = reasonable visitation time with minor children
- Includes unwed biological fathers if they demonstrate a commitment to parental responsibilities
- Denied only if it would seriously endanger the child
- Can be limited by no overnights or require supervision
- Third parties generally only get it in cases of in loco parentis
- A fit parent is given special weight to deny nonparent visits
- Cannot be denied due to sexual relationship or cohabitation unless adverse effects on child
- Cannot be denied due to HIV under any circumstance
What happens if a grandparent wants visitation rights?
- No states gurantee it
- BUT if it is denied, courts will look at:
- The fit parent’s decision
- The statute
- The best interests of the child
What happens if one parent interferes with visitation order?
Remedies = change in custody or contempt proceedings
Examples:
- Compensatory visitation
- Award attorneys’ fees
- Impose fine
- Order jail time
- Habeas corpus petition if parent has legal custody but not physical custody
Second State enforcement of custody order
If order is registered in second state, in can be enforced
BUT second state cannot modify unless:
- prior court denies jurisdiction AND
- out of state party is given sufficient notice
When will a court modify a custody order for relocation?
When there is a substantial and unforeseen (at time order was entered) change in circumstances
- Modifiction must be in best interest of child and promote stability
- Burden is on the custodial parent seeking relocation to prove it is for a reasonable and legitimate purpose
- Some states switch that burden to non-relocating parent
- Application needs to be filed before relocation
- If joint custody, harder to relocate
- Factors:
- Best interests of the child
- Relationship pf the non-relocating parent with the child
- And ability to preserve it
- Relocating parent’s history of promoting parenting time
- Age and needs of the child
- The child’s preference
- Quality of life of relocating parent and child
- Parent’s motives
When may a court modify a custody order?
- Relocation
- Custodial parent is living with nonmarital partner
- Modification only if choabitation has adverse affect on child
3 things parental consent may be needed for
- Medical procedures unless:
- emergency
- child is older and mature OR
- public health issue OR
- child is getting sexual health
- Religous beliefs, but court can intervene if the beliefs are not in best interest of child
- Upbringing - Parent can raise child as they see fit
What can/can’t you include in premarital agreement
Can apply to divorce and death
- Can
- Division of property
- spousal support
- Can’t
- Child support
- Child custody
What are the five requirements for a martial agreement to be enforceable?
- Full Disclousure
- of financial status (income, assets, etc.)
- Fair and Reasonable
- Was it procedurally and substantively fair?
- Usually only care at the time of execution
- Also consider age, wealth, and health
- Voluntary
- Free of fraud, duress, or coercion
- Requiring agreement as condition to marriage is not duress
- Look at time pressure and opp to be reped by independent counsel
- Free of fraud, duress, or coercion
- In Writing
- Signed by the party you are trying to enforce against
EXCEPTION: court may invalidate agreement if it leaves one spouse impoverished and dependent on state
When will a premarital agreement be invalidated?
Need one of the following:
- Involuntariness OR
- Unfairness or unreasonableness + lack of reasonable knowledge or disclosure
When will a separation agreement or property settlement agreement be invalidated?
If a party can show unconscionability or fraud
Can there be an enforceable agreement between unmarried cohabtitants?
Yes, as long as sex is not the only consideration
If there is no agreement, courts will use equitable distribution of property
What state laws apply to a premarital agreement?
Either:
- The state where the agreement was executed OR
- The state with the most significant relationship to the parties and the transaction
What happens to adoption records?
They are sealed except for the parents’ medical records
How are natural parent’s rights terminated before adoption?
- Voluntarily (natural parent gives consent)
- Unwed fathers consent by failing to register in adoption registry and having no relationship with child
- If child is newborn though, unwed father has constitutional right to develop a relationship
- Unwed fathers also consent by failing to demonstrate a commitment to the responsibilities of parenthood
- Unwed fathers consent by failing to register in adoption registry and having no relationship with child
- Involuntary termination by a court
- Based on abuse, neglect, or dependency
Does a child need to consent to their adoption?
Yes if they are 12/14 or older (depends on state)
What are the requirements for involuntary termination of parental rights?
- Clear and convincing evidence of one of the following:
- Abandonment
- Objective test: Parent failed to commit to child
- Subjective test: Parent intended to abandon child
- Sibling abuse
- Incapacity
- Termination of parental rights over a sibling OR
- Abuse and neglict of the child over time
- Child was outside the home for 15 out of 22 months and not with a relative
- Abandonment
What happens after adoption?
Child has all the rights of a biological child and parents have all of the duties to them as if they were a biological child
Most jurisdiction give biological parents no visitation
Adoptions may only be dissolved if there is undisclosed mental or physical illness
Requirements for domestic violence statute
- Typically physical abuse (not mental or emotional abuse)
- Perpetrator is in relationship with the victim, a family member, or household member
- Typically need a continuum of behavior, but single episode may qualify
Relief granted for domestic violence
- Injuctive “No Contact” order is typical
- Violation of it can result in imprisonment or fines
- Two step process
- Ex parte order for temporary order (TRO)
- Notice to defendant and hearing for a permanent order (PRO)
When may a child be emancipated?
- Child may petition court if they are:
- self-supporting
- Not living with parents
- OR they are considered emancipated if they are married
- What happens?
- Child is no longer minor
- They have duties and obligation of adult
- Parent has no obligations
Jurisidiction of a court over a divorce
- Personal Jurisdiction
- If you consent they have personal jurisdiction over you
- Just need it over one spouse for decree, but need it over both for property division
- Subject Matter Jurisdiction
- Residency requirement: Depends on the state, but typically 6 months
