Family Law Flashcards
Marriage Requirements
(1) license, (2) ceremony with authorized officiant, (3) no legal impediment (can’t be related or married to someone else), and (4) capacity to consent.
Common Law Marriage
Requires (1) consent to marry (including consent and capacity), (2) holding out as married, and (3) cohabitation for required period of time.
Marriage by Estoppel (Putative Marriage)
Equitable remedy for invalid marriages. Gives rights to spouses who enter into invalid marriages in good faith.
Fault Grounds for Divorce
Adultery, abandonment/desertion (unjustified departure from marital home with no intent to return), physical or mental cruelty, habitual drunkenness or drug abuse that began during marriage, and insanity.
Reimbursement Support
Alimony awarded when one spouse supports other spouse while they obtain a degree, to extent spouse didn’t get to enjoy benefits of other spouse having the degree because of divorce.
Marital Fault
Is considered for alimony in some states, but never for property division.
Alimony or Spousal Support
Trial court has discretion. Can be modified on a substantial and continuing change in circumstances. Marital fault is considered in some states.
Permanent: awarded when spouse has neither the resources nor ability to be self-sustaining. Terminates when recipient remarries, at death of either spouse, or upon cohabitation with another person (in most jurisdictions)
Temporary:
Periodic: not modifiable. These payments survive death.
Lump Sum:
Separation Agreement
Entered into after marriage. Enforceable if there is consideration. Spouses can waive alimony or equitable division of property. Can agree on custody and child support, but court is not bound by child agreements.
Tender Years Doctrine
Grants custody of young child to mother unless she is proven unfit. Questionable constitutionality because of gender bias. Many courts just give custody to primary caregiver.
Tortious Interference with Marriage
Alienation of affection: defendant’s acts caused loss of love and affection between validly married spouses.
Criminal Conversion: adultery.
Home State
State where 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.
Child Custody Factors to Consider
Parents’ wishes
Child’s wishes
Child’s relationship with parents and siblings
Child’s adjustment to home, school, and community
Mental/physical health of the parties
Parent who is the primary caregiver
