Family Law Flashcards
BREACH OF THE PROMISE TO MARRY
1) Rare today in most states
2) When used, provides for tort damages including actual damages as well as loss to reputation and mental anguish. Punitive damages may also be available.
GIFTS IN CONTEMPLATION OF MARRIAGE
Gifts made conditioned on the subsequent marriage, like engagement rings, are null if the marriage fails to take place. If intent wasn’t for marriage, not recoverable.
ANTENUPTIAL (PREMARITAL) AGREEMENTS
Address rights of the parties in the event of death or divorce.
What can prenups do?
Parties can agree to the disposition of property at divorce and to alimony. Generally, waiver of alimony will be upheld unless doing so will cause disadvantaged spouse to become a public charge. What to do with kid can’t be in prenup bc BIOC.
Validity of prenup? (3 reqs)
- Must be in writing and signed
- Entered into voluntarily (without fraud, duress, or overreaching)
- Full disclosure of assets OR proof that party had independent knowledge
Some courts will consider general fairness/representation of counsel
Reqs for legally valid marriage (4)
- License (some states have waiting period
- Ceremony + auth officiant
- No legal impediments (closely related fam, bigamy)
- Capacity to consent (drunk, age of consent)
Common law marriage reqs (3)
- Consent to marriage (not just cohabitate)
- Cohabitation
- Holding out publicly as married
Marriage by estoppel
Equitable remedy for ppl who acted in good faith entering into invalid marriage
Rights of spouses (4)
- Property
- Support
- No spousal abuse
- No tortious interference in marriage
Property right btw spouses
1) Each spouse owns and controls his or her own property but in the event of divorce, title will not be dispositive in the equitable division of property.
2) Generally, if spouses take title to real estate in their joint names, a tenancy by the entireties is presumed and therefore one spouse cannot convey or encumber the property without the consent of the other spouse.
Support right btw spouses
Spouses must support each other. DOCTRINE OF NECESSARIES: One spouse can be liable to third party for other spouses necessary expenses.
Spousal abuse orders
Laws protect victims of abuse, entitled to protective order that can be extended
Tortious interference with marriage (2 types)
- Alienation of affection (genuine love/affection btw spouses validly married, love terminated/destroyed, D’s acts caused… don’t need adultery)
- Criminal conversatoin (marriage + adultery)
Which marriages are subject to annulment
Void or voidable marriages
Marriage is VOID
- Didn’t meet essential reqs
- Either party or third party may attack
- May or may not be remedied by continued habitation after removal of impediment (but not with something like bigamy)
Causes: Bigamy, closely related
Marriage is VOIDABLE
1) Event or condition affecting adequacy of consent to marriage contract
2) Treated as valid until annulled
3) Can be attacked only by or on 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.
Causes: Nonage, physical impotence, lack of capacity
Effect of annulment (5)
1) The 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.
Divorce: Jurisdiction
One of spouses must be domiciled in state where seeking divorce (compare: for property rights/support suits, court must have personal jdx). Two states can have jdx–whichever decides first wins.
Grounds for divorce (2)
- No fault divorce
2. Fault based divorce
No fault divorce (3 ways)
Can be allowed if:
- Irreconcilable differences (both might have to agree to get this)
- Living separate and apart for a specified period of time
- Incompatibility
Fault based divorce (5 ways)
- Adultery (circumstantial E + inclination, usually need corroboration)
- Desertion for specified period of time
- Cruelty (phys or ment)
- Habitual drunk/drug user AFTER commencement of marriage
- Insanity (might require institutionalization)
Defenses to divorce for no fault and fault based
No fault = no defenses
Fault based (rarely used):
1. Collusion (parties agree to simulate divorce grounds)
2. Connivance (one party agrees to spouses misconduct)
3. Condonation (spouse forgave other spouse of offense)
4. Recrimination (both parties guilty of marital fault)
Legal separation
Usually same grounds as divorce. Still married, but can have rights re property, children decided. Permanently divides marital property from that point on. May do bc elderly, religion, insurance.
Three approaches to property division
- Community property (all property acquired during marriage is owned one half by each spouse)
- Equitable division of ALL property owned by either spouse
- Equitable division of marital property (most popular)
Are property division decrees modifiable? Are support decrees modifiable?
No; yes
Two steps of property division
- Classification (what is marital and what is separate)
2. Equitable division of marital estate
What is separate property?
Property from before marriage, gained by gift, property exchanged for property acquired before marriage, income and appreciation of separate property, crime compensation, property acquired after legal separation
What is marital property
All property acquired by either or both spouses during marriage, pensions, retirement, personal injury, social security, etc.
Prop division: Commingling
Sep property can become marital if inextricably intertwined. Courts attempt to trace.
Prop division: Transmutation of separate property
Sep prop can become marital prop based on intent of parties (one party puts downpayment on house + title in both their names)
Prop division: Improvement of separate property
When sep prop improved through use of marital funds or efforts, non-owning spouse gets reimbursement
Prop division: Property acquired before marriage but paid for after marriage
Courts split!
Prop division: Pensions
Considered marital property even if non-working spouse didn’t contribute or one spouse contributed less.
Prop division: Professional license or degree
Not considered marital property, some jdxs consider it when awarding alimony
Prop division: Tax consequences
Prop division not taxable
Equitable division factors
- Age, education, background, and earning capabilities of both parties;
- Duration of the marriage, and if there were any prior marriages;
- Standard of living during the marriage;
- Present income of both parties, and their vocational skills and employability;
- Source of money used to purchase the property;
- Health of the parties;
- Assets, debts, and liabilities of the parties;
- Needs of each of the parties;
- Provisions for the custody of minor children;
10 Whether the distribution is in lieu of or in addition to alimony; - Each party’s opportunity to acquire future income and assets;
- Each party’s contribution to the acquisition of, or enhancement of the existing marital assets;
- Each party’s contribution as a homemaker to the family unit; and
- Whether each party has dissipated marital property (economic fault).
Who is alimony paid to?
Economically dependent spouse
Types of alimony
- Permanent periodic support
- Lump sum support
- Rehabilitative support
- Reimbursement support
Example: Periodic alimony of $2,000 per month to wife until her death or remarriage.
Duration: Indefinite
Modification: Can be increased, decreased, or terminated upon proof of substantial change of circumstances.
Permanent periodic support
Example: The sum of $36,000 paid at a rate of $1,000 per month for 36 months
Duration: For specified time period; can be payable in installments or in a lump sum.
Modification: None – treated like a contract right; binding on payor’s estate
Lump sum support
Example: Rehabilitative alimony to wife of $1,000 per month for thirty-six months to gain education or skills
Duration: For specified time period, unless modified by court.
Modification: Can be increased, decreased, or terminated upon proof of substantial change of circumstances.
Rehabilitative support (designed to restore disadvantaged spouse’s earning capacity)
Example: The sum of $20,000 as repayment for the supporting spouse’s contribution to the increased education provided to the other spouse.
Duration: For specified period of time; can be payable in installments or in a lump sum.
Modification: None – treated as a contract right and can be awarded even if the supporting spouse is not otherwise eligible for spousal support.
Reimbursement support
Alimony factors (8)
- Standard of living during marriage
- Duration of marriag
- Age/physical/emotional condition of parties
- Financial resources
- Contribution of each party to marriage
- Time needed to obtain education or employment
- Ability of payor spouse to meet their needs
- Maybe marital fault
TWO PRIMARY considerations for alimony
- Need of claimant spouse
2. Ability of other spouse to pay
Modification of spousal support
Allowed based on substantial and continuing change in circumstance affecting needs of recipient. Voluntary reduction in income usually not sufficient
Termination of spousal support causes
- Remarriage of recipient
- Death of either (lump sum awards survive death/aren’t modifiable)
- In some jdxs, cohabitation with another
Taxes on alimony
Post 2019, not income nor deductible. Pre-2019, opposite.
Separation agreements
Entered into after marriage; enforceable if supported by consideration. Must be full and fair disclosure, voluntarily entered into.
What can/can’t parties waive in separation agreements
Waive: Alimony, property division
Can’t waive: Custody/child support (court doesn’t have to follow)
Can you modify a separation agreement?
If merged into divorce decree, is modifiable by court. Otherwise, unmodifiable (except BIOC).
Contracts between cohabitants (unmarried)
Enforceable unless only consideration is sex.
How is child support usually determined?
Income shares approach, child support guidelines
Duration of child support
- Age of majority (except in some states if still in high school)
- Death of child
- Emancipation
- Termination of parental rights
- Can last longer if child disabled
Jdx over child support orders
Uniform Interstate Family Support Act. OJ Wherever first petition filed unless other state is child’s home state, etc.
Jdx to enforce child support
Issuing court has continuing jdx
Enforcement of child support
Withhold wages or register/enforce, civil/criminal contempt (another state can enforce as well as issuing state)
Jdx to modify child support
Issuing court has continuing jdx unless no parties reside in state or consent to another state
What allows modification to child support
Substantial and continuing change of circs. Voluntary reduction in income not ground for modification. Past due CS cannot be basis for prospective modification.
CS income/deductible?
No.
Jurisdiction for child custody
Home state. Either:
- State where child has lived w/ parent for 6 months
- State that was child’s home state w/in last 6 months and child absent from state but parent continues to live in state
If no home state: State w/ significant connection and substantial E of child’s wellbeing in state
Jdx for modification of child custody
Issuing state has continuing jdx UNLESS
- No child or parent resides there OR
- Child no longer has significant connection w/ state and no substantial E in state
When must/may a court decline jdx over child custody?
Must decline: Proper proceeding pending elsewhere or person seeking to invoke jdx has engaged in unjustifiable conduct
May decline: If inconvenient forum
Temporary emergency jdx over child support reqs (3)
- Child is physically present AND
- Child has been abandoned OR
- Necessary to protect child bc child, sibling, or parent is subject to abuse
Factors courts consider for BIOC
- The wishes of the parents (constitutionally protected)
- The preference of the child
a. Children under the age of 8 are generally not considered but over the age of 12 are given great weight.
b. Questioning generally occurs in chambers - The relationship of the child with the parents and siblings and others involved with parents.
- The child’s adjustment to home, school, and community
- The mental and physical health of the parties
- Parent who was the primary caregiver (but no gender preferences)
Something you should mention re: family court decisions
Family court has great deal of discretion for alimony and child custody
Types of custody
- Joint custody (both parents involved–not used if parents can’t be around each other)
- Sole custody (BIOC, other parent gets reasonable visitation unless will harm child)
- Custody to nonparent (only if parents will harm child/are unfit)
Modification of custody
Substantial and material change of circumstances; BIOC
Nonmarital children: Presumption of parentage
Husband of mother presumed to be father if:
- The child is born during marriage OR
- Child is born w/in 300 days after termination of marriage OR
- Child is born during void/voidable marriage
Nonmarital children: Unwed fathers
Child can be considered child of unwed father if:
- After birth, father + mother marry
- Father holds child out as biological child
- Father consents to name on BC
- Father acknowledges paternity formally
- Judgment decreeing paternity
Ways to terminate parental rights
- Voluntary termination
2. Involuntary termination (child in danger, abandoned, unfit parents, etc.)
Types of adoption
- Agency adoption (agency intermediary)
2. Private adoption (private intermediary)
Requirements for adoption (2)
- Termination of bio parent rights (bio parents must consent, unmarried father must consent if involved in child’s live)
- Creation of new parents rights (adoptee over 12 ish must consent)
