Family Law Flashcards
Common Law Marriage
Most states have abolished common law marriage. In jurisdictions that recognize common law marriage, the proponent of the marriage must prove that the parties:
(1) Cohabitated for the statutory period
(2) Held themselves out as married
(3) Intended to be married
Pre marital contract
Most states will enforce a premarital agreement as valid contract if it is:
(1) in writing and signed by both parties
(2) Executed after full disclosure of the property and financial obligations of both parties AND
(3) Voluntary
what factors will the courts consider in determining whether an agreement was voluntary
(a) the presence of independent legal counsel
(b) The length of time between the agreement of the marriage
(c) The sophistication of the parties; AND
(4) The presence of other pressing reasons to proceed with the marriage (e.g a pregnancy)
Child custody in premarital contracts
Most courts decide custody according to the best interests of the child at the time f the custody hearing, regardless of any premarital agreements
child support in premarital contracts
Parents have an absolute obligation to support their children. A premarital contract CANNOT adversely affect a child’s right to support under any circumstance. such agreements are not binding on the court and are unenforceable
Divorce
Traditionally, divorce was only permitted if one party was determined to be at fault.
Today, most states have completely abolished fault as a ground for divorce; however, every state has adopted a form of no fault divorce. Common grounds for a no fault divorce are:
(1) A minimum duration of separation (usually 6 months to 1 year); AND/OR
(2) Irreconcilable differences
(3) Some sates require more separation and irreconcilable differences while others may require one or the other
Marital action jurisdiction - Annulment
Under the majority view, a state where either party is domiciled has jurisdiction to enter an annulment decree. Ex party annulments are allowed in the state where either party is domiciled.
Marital action jurisdiction - Divorce
Under the full faith and credit clause, a divorce granted in one state is entitled to full faith and credit in other states. Generally a divorce is valid and must be recognized by other states if the petitioning party:
(1) was domiciled in the state that granted the divorce (regardless of whether tat court had personal jurisdiction over the other spouse) AND
(2) Provided adequate notice of the proceeding to the other spouse
Marital action jurisdiction - Divisible Divorce
Under the concept of divisible divorce, a distinction is made between the marriage and the marital property. A state does not have jurisdiction to divide marital property that is located in another state in the absence of personal jurisdiction over the defendant property.
Property division at Divorce - equitable distribution approach
The analysis is relatively similar under both approaches:
(1) Categorizes the property as separate or marital; Then
(2) Determine an equitable distribution of the marital property between the spouses.
Separate Property
(a) All Property acquired by either suppose BEFORE marriage
(b) All property acquired by a spouse during marriage by gift, bequest, devise, or descent
(c) All property either spouses acquires with the proceeds of the spouse’s separate property; And
(d) all passive appreciation of separate property
Marital property
Marital property generally includes all property acquired during the marriage (regardless of who holds title) that is not separate property
professional Degrees and licenses
In almost every state, professional degrees and licenses are considered separate property not subject to distribution at divorce. However, reimbursement may be available for support provided by a spouse that contributed to the other spouses degree or license
general factors taken into account by the court when determining the equitable distribution of marital property at divorce
(1) The income, property, and liabilities of each party
(2) The duration of the marriage
(3) The obligations for support arising out of a prior marriage
(4) The lifestyle each spouse is accustomed to
(5) The contributions made by each spouse towards the accumulation of marital property (including contributions as a homemaker)
when is a spouse eligible for spousal support
A spouse is eligible for spousal support if the spouse seeking support:
(1) Lacks property sufficient for his or her reasonable needs and is unable to support himself through appropriation of gainful employment ; OR
(2) is the custodian of a child such that it would be inappropriate for him to work
General factors the court will take into account when determining the appropriate amount to award for spousal support
(1) the financial resources of the party seeking maintenance;
(2) the time necessary for the spouse seeking support to obtain an appropriate job (includes time needed for education or training);
(3) The duration of the marriage;
(4) the standard of living established during the marriage;
(5) The age and physical/emotional condition of the spouse seeking maintenance;
(6) The age and physical/emotional condition of the spouse seeking maintenance;
(6) The ability of the spouse paying support to meet her own needs while meeting those of the spouse seeking support
Modification of Spousal support
in most states a spousal support can only be modified where there is a substantial change in circumstances of either party making the prior order unreasonable
- some courts will not permit a modification of spousal support if the change in circumstances was anticipated and voluntary
child support
Parents have an absolute obligation to support their children. Federal law requires every state to provide guidelines to determine the proper amount of child support owed by a non-custodial parent. These guidelines must:
(1) consider the income of the non-custodial parents
(2) provide for the child’s healthcare needs; AND
(3) be based on a specifically descriptive numeric criteria
Child support - duration
Child supports obligations generally last until the child reaches the age of majority or is otherwise emancipated
Child support - education expenses
Some states require support for the child continuing education. In some states a child may lose their support if the child fails to follow the obligor parent’s reasonable instructions
Modification of child support
in most states child support can only be modified where there is a substantial change in circumstances of either party making the prior order unreasonable
- some courts will not permit a modification of child support if the change in circumstances was anticipated and voluntary
- The state that originally issues the child support order has continuing exclusive jurisdiction to modify the order so long as the state remains the residence of the obligee, child or obligor
Modification of child support - Federal Law
Federal Law:
(1) Bars courts from retroactively modifying child support orders; AND
(2) Requires state to give full faith and credit to child support awards from other states
Child custody - Best interests standard
Courts determine custody based on the best interests of a child.
General factors include:
1) the needs of the child for a meaningful relationship with both parents
2) The ability and willingness of the parents to actively perform their functions as mother and father for the child’s needs
3) The interaction and interrelationship of the child with parents, siblings, and any other person who may affect the child’s best interests
4) The child’s adjustment to the child’s home, school, and community
5) The mental and physical health of all involved individuals
6) The intention of either parent to relocate the principal residence of the child;
7) wishes of the child’s parents as to custody AND
8) The wishes of the child as to the child’s custodian
Modification of child custody
In order to modify child custody order, the parent must show that:
1) Circumstances have substantially changed; AND
2) The modification would be in the child’s best interest
