Family Law Flashcards
Common Law Marriage Req’s
CACH
Capacity to enter into a marital K; Agreement to be married (present); Cohabitation; & Holding out a marital relationship
Recognition of Common Law Marriages
If a couple is common law married in a state that recognizes it, other states will recognize the marriage too.
Exception to recognition of marriage?
A marriage valid under the law of a place in which it was contracted will be valid elsewhere UNLESS it violates a strong public policy of the state that has the most significant relationship to the spouses and the marriage
Bigamy
A bigamous marriage is VOID from the start. BUT can be saved by: (1)a there is a presumption that the most recent marriage is the valid one; and (2) removal of the impediment (e.g., by divorce) will render a subsequent marriage valid.
End of marriage
Virtually all-states are no-fault divorce states. Some states recognize fault-based grounds too. Annulment is also recognized for frauds and other reasons.
When determine child custody and support, what is examined?
Generally, custody of the child is determined by BIOC (best interests of the child)
What factors to look at for BIOC?
E.g., wishes of the child’s parents, the child’s primary caretaker, the mental and physical health of all individuals, the interrelationship of the child and parents, stability and whether there is any domestic violence.
When does a biological parent get parental rights?
If the biological parent is involved in the child’s life
Custody modifications
custody can be modified ONLY if there is a SUBSTANTIAL CHANGE of circumstances. Generally, the change must be unforeseen at the time of the initial judgment
Child Support guidelines
All states employ numerical guidelines and establish a rebuttable presumption that the award that results from applying the guidelines is correct. The guidelines must be applied in all cases, regardless of the parents’ marital status.
Analyze factors like income and earnings of the parents, the number of children and their ages, and any special needs of the children.
Modification of child support
in order to obtain a modification of a future support obligation, the petitioner must show a SUBSTANTIAL CHANGE in circumstances making the prior order UNREASONABLE. (e.g., voluntary reduction in income is unreasonable; some apply multi-factor test including good faith)
NOTE: Heavy burden
Retroactive modification of child support
CANNOT be modified retroactively UNLESS fraud or other compelling circumstances.
Relocation of parent and child
Generally, a move sought in GOOD FAITH that will serve the child’s best interest will ordinarily be approved.
Relocation’s impact on visitation?
The court will balance the impact on visitation by the noncustodial parent against the benefits of the move to both the children & the custodial parents.
Different views: some states place the burden on the relocation parent & some put the burden on the objecting parent.
Rights of parents and other
Decisions by a FIT parent must be given some deference (including decisions regarding medical care BUT can be limited if parents’ decision jeopardizes the health or safety of the child)
When does the father have rights?
Generally, biological fathers have rights if involved in the child’s life. The state may make the parent exercises his rights within a specific time (e.g. two years)
Rights of a parent when another person wants to adopt a child
an involved parent who demonstrates a “full commitment to the responsibility of parenthood” will likely be able to succesfully oppose an adoption petition by another and is entitled to notice of such proceedings.
Third-party rights
Custody in the parent is presumed to be in BIOC.
To rebut: 3rd party who wants custody MUSt prove that the parent is UNFIT or that granting custody to the parent would be HIGHLY DETRIMENTAL to the child. Thus, any third-party visitation or custody statute MUST give special weight to the parent’s determination of the child’s best interest.
Property division by court
marital property is divided at divorce but separate property remains the property of the owning spouse.
Marital property
Marital property is property acquired during the marriage.
Separate property
BIG
Separate property includes: property acquired BEFORE the marriage; an INHERITANCE; or a GIFT to one party.
Note: most states do not count professional degrees earned during the marriage as marital property.
Division based on premarital agreement
a court will enforce a premarital agreement so long as it is VOLUNTARILY made, SUBSTANTIVELY FAIR, and if FULL DISCLOSURE of assets and obligations was made.
Child custody or support based on premarital agreement
Court will NOT enforce a preamarital agreement regarding either of these IF it is not BIOC
What 3 factors will a court look at when considering to grant spousal support?
Alimony requires a viewing of these three factors: (1) financial resources and needs; (2) marital contributions; and (3) marital duration.
Some states look to spousal misconduct, one spouse’s support for the other’s education OR training.
Court has SUBSTANTIAL DISCRETION in choosing to award alimony.
