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Family Law Flashcards

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1
Q

When is spousal support awarded?

A

Spousal support (a.k.a. “maintenance” or “alimony”) can be awarded if a spouse’s separate property is insufficient for maintenance

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2
Q

Discretion, purpose, and terms of spousal support

A

Discretion — courts have significant discretion in determining whether and to what extent to award spousal support; needs are determined under the totality of the circumstances
Purpose — ensures sufficient income for a spouse who became economically dependent, in whole or in part, due to the marriage relationship
Terms — can be awarded short-term or indefinitely, and as a lump sum or periodic payments

(might be issued during marriage if separation, but likely not otherwise bc violates doctrine of non-intervention)

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3
Q

What are the relevant factors in determining spousal support?

A

FACES

F - Financial resources of each party

A - Ability of the spouse paying support to meet their own needs

C - Contribution of each party to the marriage including 3 Cs: childcare, career support of the other spouse, contributions to the home, etc.

E - time necessary for the party seeking support to obtain Employment (including education and training)

S - Standard of living established during the marriage

*Marital fault — marital fault (e.g., infidelity) is not a relevant factor in most states

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4
Q

Child support guidelines & formulas

A

Guidelines & formulas — each state has guidelines to determine the proper amount of child support owed

Most jurisdictions have adopted an income-shares model,
which uses the combined net income of both parents to determine the child support amount.

Guidelines are usually based on a formula that considers: IN ASH

I - parent’s Incomes

N - Number of children

A - their Ages

S - Special needs

H - Healthcare needs

  • Rebuttable presumption that the amount calculated pursuant to the child-support guidelines is correct
  • If the court decides to deviate from the amount set forth under the guidelines, it must set forth specific findings explaining and supporting the deviation
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5
Q

What is the duration of child support obligations?

A

Child support obligations generally last until the child reaches the age of majority or is otherwise emancipated

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6
Q

Visitation rights and child support

A

Custodial parents cannot deny visitation rights based on a parent’s failure to make child support payments

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7
Q

Child support modification jurisdiction

A

Modification and enforcement of interstate child support is governed by the Uniform Interstate Family Support Act (UIFSA)
• UIFSA applies when the obligor or child resides in a jurisdiction different from the one in which the original order was issued
- Under the UIFSA, the state that issued the initial child support order has continuing exclusive jurisdiction to modify the child support order

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8
Q

Types of child custody

A

Legal
Physical
Joint

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9
Q

Child custody - legal custody

A

right to make major decisions affecting the child’s life

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10
Q

Child custody - physical custody

A

possession and control of the child

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11
Q

Child custody - joint custody

A

can be either or both of:

    • Parents share decision-making but child lives with one parent
    • Child divides time between each parent’s home
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12
Q

What are the factors in deciding a child custody arrangement?

A

In determining custody, courts focus on the child’s best interests, looking at multiple factors, including:

PANIC

P- Parent’s wishes

A - child’s Adjustment to home, school, and community

N - ability and willingness of each parent to provide for child’s Needs

I - Interaction and Interrelationship of child w parents, siblings, and others who affect the child’s best Interests; and

C - Child’s wishes (given more weight if child is older, but significantly less weight for young children, i.e., under age 8)

  • courts must give special weight to a fit parent’s rights to 3Cs
  • A minority of the jurisdictions apply the best-interests-of-the-child standard in all custody cases, even those between a parent and a third party.
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13
Q

Parental visitation rights

A

When one parent is granted sole physical custody, the other parent is entitled to visitation

Exception — visitation rights may be denied if court determines it would endanger the child’s wellbeing

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14
Q

Non-parent visitation rights

A

May be given visitation rights if: SOB

i. The non-parent has a Substantial relationship with the child;
ii. Non-parent visitation is in the child’s Best interests; and
iii. A fit parent does not Object

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15
Q

What is the requirement for modifying a support or custody decree?

A

Once a court enters a decree regarding spousal support, child support, or child custody, the decree generally is only modifiable upon a showing of a significant change in circumstances

Significant change in circumstance required — standards differ slightly for each, but if modification arises on the exam, look for and note any significant change in circumstances

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16
Q

What are the requirements for modifying a spousal support award?

A

SUM: Substantial, unanticipated, material

Changing a support award requires a substantial, material, and unanticipated change in either party’s circumstances

Self-induced changes — generally will not justify modifying a support order (e.g., party cannot voluntarily take a lower-paying job and get reduced support obligations)

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17
Q

What are the requirements for modifying a child support order?

A

child support orders are modifiable based on a substantial change in circumstances that affects either:

    • The needs of the children, or
  • -The ability of the parent to pay

Self-induced changes — same rules as for spousal support

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18
Q

What are the requirements for modifying a child custody order?

A

Modification of a child custody order requires the parent to show a substantial, material change in circumstances

Courts will not change a custody order unless the change is in the child’s best interests

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19
Q

Child support orders - jurisdiction

A

full faith and credit is given to child support orders issued in other states as long as the issuing court had proper jx and the parties had reasonable notice and an opportunity to be heard

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20
Q

Modifying child support orders - jurisdiction

A

The issuing court has continuing exclusive jx to modify the order if the child or one of the parties resides in-state and have for the last six months (unless parties have moved out of state but consent to the issuing court’s ongoing jx) or was the child’s home state in the past six months, and the child is absent from the state, but a parent (or guardian) continues to live in the state

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21
Q

What is an annulment?

A

Annulment is a judicial declaration that the marriage was invalid due to some impediment at the time of marriage and, therefore, never occurred

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22
Q

What is the requirement for a marriage to be annuled?

A

A marriage can be annulled if it is void or voidable (a distinction that varies by state)

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23
Q

What are the grounds for annulment?

A

considered voidable unless otherwise noted:

PICNIC

  • P: bigamy or Polygamy — marriage is considered void
  • I: Incurable physical impotence — inability to have normal sexual relations
  • C: Consanguinity — marriage is considered void
  • N: Non-age — one spouse under statutory age at the time of marriage
  • IC: Incapacity to consent — lack of capacity to consent to marriage can be due to:
    • Mental incompetence (did not understand due to, e.g., mental infirmity, drugs, alcohol)
    • Fraud or duress
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24
Q

Spousal support during annulment

A

many states allow for temporary support during the annulment suit, although fewer states allow for spousal support following an annulment

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25
Q

Annulment - division of property

A

most courts attempt to divide property in such a way that puts parties in the position they were in before the marriage commenced

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26
Q

What effect does a divorce have on a marriage?

A

A divorce decree terminates the marriage relationship

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27
Q

Fault vs no-fault divorce

A

traditionally, divorce required proof of fault (i.e., permitted only if one party was at fault); while some states retain fault grounds, every state offers a form of “no-fault” divorce, which is what is discussed unless otherwise noted

28
Q

What are the grounds for divorce?

A
  • Irretrievably broken (a.k.a. “irreconcilable differences”) — most common ground and the only ground in some states (in such states, the two additional factors below are merely evidence of an irretrievably broken marriage)
  • Living separate — parties have been living separate and apart for a given time (usually 6 months to one year)
  • Incompatibility
29
Q

Defenses to divorce

A

defenses to divorce exist in some states, but a court will not force a marriage to continue if one party wants a dissolution

30
Q

What is separation?

A

a legal parting that does not terminate the marriage

  • Not a divorce and does not terminate marriage; parties cannot remarry
  • Parties seek to have rights regarding property, spousal support, custody, child support, etc. determined in a separation proceeding
  • Can become an absolute divorce in some states at the request of the parties after a specified period of time
31
Q

Which courts have jurisdiction over marriage actions?

A

Jx over marriage actions is vested in state courts

32
Q

Which courts have jurisdiction over an annulment?

A

a state where either party is domiciled has jx to enter an annulment decree

Most states also give jx to the court in the state where the marriage was entered into and recognized

33
Q

What is the residency requirement for divorce?

A

to establish jx over a divorce, one or both parties must be domiciled in the jx where the action is brought
— Some states require a minimum durational residency before the action can be filed; designed to prevent forum shopping

34
Q

Divorce and the Full Faith and Credit Clause

A

under the Constitution’s FFCR, a divorce decree obtained in one state is recognized in other states as long as one or both parties was domiciled in the state that granted the decree

35
Q

Who has jurisdiction over marital property?

A

a court does not have jx to determine rights to property located outside the state or support decrees unless it has jx over both parties

36
Q

What are the approaches to property division?

A
  1. equitable division of marital property property and

2. community property

37
Q

What is the standard for community property division?

A

all property acquired during marriage is considered owned 50-50 by each spouse; all property owned prior to marriage or acquired by gift or inheritance is separate property

38
Q

What is the standard for equitable property division?

A

each spouse takes their separate property and the court divides property acquired during marriage on an equitable basis
—- Most popular approach — assume this approach for MEE purposes unless provided otherwise

39
Q

How do courts approach property division?

A

Categorize property — classify property as marital or separate

Determine equitable distribution of marital property — distributed between spouses based on relevant factors (Note — if asked to divide marital property, make sure to discuss the approach and how it works, then how the relevant factors will influence how the court would divide the property)

40
Q

Modification of property distribution decrees

A

property distribution decrees are generally not modifiable in most states

41
Q

What is categorized as separate property?

A

Remember: B GPA

  • B: Before marriage — property acquired before marriage by either spouse
  • G: by Gift or bequest — property acquired by gift, bequest, devise, or descent (i.e., family money) during marriage by either spouse
  • P: separate Property Proceeds — property acquired with separate property proceeds by either spouse
  • A: Appreciation b/c of time — appreciation of separate property due to passage of time (as opposed to efforts of either spouse)
42
Q

What is considered marital property?

A

generally includes all property acquired during marriage that is not separate property, regardless of who holds title

PAP smear: Pension, Appreciation, Professional license or degree

  • Pensions — portion earned by one spouse during marriage is considered marital property
  • Appreciation b/c of effort — appreciation of separate property due to efforts of either spouse is usually marital property
  • Professional license or degree — in some states reimbursement may be ordered if one spouse provided support that contributed to the other spouse’s degree or license
43
Q

What is commingled property

A

separate property that is inextricably mingled with marital property or separate property of the other spouse can become marital property

44
Q

How do courts determine equitable distribution?

A

Factors — courts look at all relevant factors concerning how marital property was accumulated and each party’s needs going forward, including: DIP CAN SHOW

D - Duration of the marriage;
I - Income, educational/vocational skills, employability of each party;
P - Provisions for custody of minor children;

C- Contributions made by each spouse towards accumulation of marital property (including contributions to the home/household);
A - Assets, debts, and liabilities of the parties;
N - Needs of the parties;

S- Standard of living during the marriage;
H - Health of the parties;
O- Obligations for support arising out of a prior marriage; and
W - Whether distribution is in lieu of alimony/spousal support

*marital fault of either spouse (e.g., infidelity) is not a relevant factor

45
Q

What is a premarital agreement?

A

Premarital agreements are Ks that provide for distribution of assets upon divorce or death in a way that varies from what the law would otherwise require

Marriage is considered sufficient consideration to support the K

46
Q

What statute provides rules for premarital agreements?

A

Uniform Premarital Agreement Act (“UPAA”) — adopted by most states; provides rules as to what parties may include in the K

47
Q

What are the requirements for a premarital agreement to be valid?

A
  1. Writing — must be in writing to satisfy Statute of Frauds (“SoF”)
  2. Voluntariness — must be entered into voluntarily (i.e., without fraud, duress, overreach)
  3. Full & fair disclosure — both parties must fully and fairly disclose their financial worth
48
Q

May a premarital agreement be amended?

A

may be revoked or amended by written agreement signed by both parties; amendment is enforceable without consideration

49
Q

Will courts enforce premarital agreements?

A

courts strictly scrutinize premarital Ks
- Scrutiny focuses on voluntariness and full and fair disclosure requirements, as well as whether terms are unconscionable
- Whether parties were represented by legal counsel may be a factor, and is required in some states
(child custody provisions are not binding and are void in some states)

50
Q

What factors create a void marriage?

A
  • Consanguinity — people who are too closely related are prohibited from marrying each other
  • Bigamy/polygamy — no person may marry who has a prior undissolved marriage to another living spouse
    Exceptions:
    — Removal of impediment — under the Uniform Marriage & Divorce Act (“UMDA”), a bigamous marriage can be validated upon the removal of the impediment (i.e., when the prior marriage is terminated)
    — Presumption of validity — under the presumption of validity, the last of several marriages is presumed valid, which may be rebutted by evidence that the prior marriage(s) still persist
51
Q

What is a marriage?

A

Marriage is the legal union of two individuals; the law imposes various legal obligations and liabilities on the parties

52
Q

What are the requirements for marriage?

A

Procedural and state-of-mind requirements

53
Q

What are the procedural requirements for marriage?

A

most states require both a license and solemnization (i.e., ceremony)

  1. License — obtained from appropriate govt.-designated licensing officer prior to solemnization; then
  2. Solemnization — conducted by an authorized clergy member or judicial officer
    - License must be completed/signed by person who solemnized the marriage and filed with the appropriate govt. office
    »> Creates a public record of the marriage
54
Q

What are the state of mind requirements for marriage?

A

Both parties must consent to marriage, meaning they each intended to take on the obligations of marriage

  • Factors — in evaluating consent, courts look at:
    »> Capacity — parties must have capacity to understand and agree to their actions (e.g., one under the influence of drugs or alcohol may lack capacity to enter into marriage)
    »> Intent — parties must intend to enter a marriage relationship on their own free will (i.e., fraud, duress, coercion, etc. will negate the consent requirement)
55
Q

What is a common law marriage?

A

In a common law marriage, a couple is legally considered married without having registered or performed legal requirements for marriage (abolished in most states)

56
Q

What are the requirements for a common law marriage?

A
  1. Consent — exchange of consent between two people;
    »» Must be consent to be in a permanent, exclusive relationship; agreement to cohabitate alone is insufficient
  2. Cohabitation; and
  3. Holding out publicly as spouses living together — e.g., joint bank account, same last name, telling people they are married
57
Q

Must states recognize common law marriage?

A

though largely abolished, if a valid common law marriage is formed under one state’s laws, it is regarded as a valid marriage in other states, even those where common law marriage is illegal

58
Q

Void marriage v. voidable marriage

A

Void - —treated as if it never happened; does not need to be judicially dissolved; not legally recognized for any purpose
- Ex: Prior existing marriage, incest, mental incapacity

Voidable—valid until a judicial decree dissolves the marriage
- Ex: age, impotence, intoxication, fraud, duress, or lack of intent

59
Q

How does a court get jurisdiction over an out of court parent for child support?

A

A court obtains personal jurisdiction over an out-of-state parent pursuant to a long-arm provision in the Uniform Interstate Family Support Act (UIFSA)

60
Q

Different child support calculation models

A

• Income-shares model—a child should receive the same proportion of parental income as if the parties continued to live together (most states)

• Percentage-of-income model—determines the minimum amount of child support by using a percentage of the supporting (i.e., noncustodial) parent’s net income,
determined by the number of children supported

61
Q

Parent by estoppal

A

If a natural parent has had little or no contact with a child, or if the child has lived with the third party for an extended period of time, then courts have employed the terms “parent by estoppel” and “de facto parent” to get around the presumption that a natural parent is the best fit for the child.

62
Q

Parent vs 3d party custody

A

The standard for determining child custody is the best interests and welfare of the child. Generally, a parent is in the best position to care for a minor child, unless the parent is determined unfit. Legal parents are presumptively entitled to custody of their children in cases against third parties unless it can be established that the legal parent is unfit or that awarding custody to the legal parent would be detrimental to the child.

63
Q

Significant connection jurisdiction

A

In such a situation, when there is no home-state jurisdiction, the UCCJEA permits a court to enter or modify an order if (i) the child and at least one parent have a significant connection with the state, and (ii) there is substantial evidence in the state concerning the child’s care, protection, training and personal relationships.

64
Q

What are the rights of a fit parent?

A

Care, custody, control

65
Q

What are the rights of an unwed father regarding adoption?

A

The U.S. Supreme Court has held that the right of an unwed father to object to an adoption cannot be denied if the father has demonstrated that he is committed to fulfilling the responsibilities of parenthood.

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