Family Law Flashcards
Best interest of the child
standard applied to issues involving children
Marriage requires
license and ceremony by judge, state official, religious organization, or marriage party
Restrictions: lineal relation, already married, under the influence, mentally incapacitated, under 16, age 16-18 with parental consent
Common law marriage
living together as married prior to 1/1/2005
“holding themselves out”
Annulment
Either party may have marriage declared void
VOID: 3rd party can challenge for 60 days if bigamy, incest, or age is issue
VOIDABLE: event affects adequacy of consent (intoxication, mental state)
equitable dist. available
factors: length, children
Grounds for Divorce
Fault based grounds and No Fault grounds
Requirements for Divorce
Need subject matter jurisdiction, personal jurisdiction, venue, and grounds
Personal Jurisdiction for Divorce
Court only needs personal jurisdiction over 1 party for divorce
Need personal jurisdiction over both for support, custody
Based on domicile: residence plus intent to remain
Must have PA domicile for 6 months
Fault base Grounds for divorce
Only need one party consent
adultery, cruelty, desertion(1 yr), bigamy, imprisonment(18 months), indignities, institutionalization(18 monts prior/18 months after)
No Fault Grounds for Divorce
Marriage is “irretrievably broken” and “no prospect of reconciliation”
Mutual consent - Court can grant after 90 days
Unilateral consent - lived separate and apart for 1 year
Equitable Distribution
All marital property distributed based on statutory factors.
Marital Property
All property acquired after the marriage
Increase in value to separate property
EXCEPT: acquired by gift, inheritance, after separation, veterans benefits
Separate Property
Acquired before marriage OR
Excluded by agreement, acquired by gift except gifts made by marriage partner, inheritance, after separation, veterans benefits, award or settlement for cause of action from before marriage
Transmutation and Commingling
transmutation – marital property made separate based on intent of parties
commingling – separate property made marital due to “inextricably mingled”
Spousal Support
paid to “economically disadvantaged” spouse
Court weighs factors (need and fault)
periodic – indefinite, ends on death/remarriage, not deductible or taxable by either party
lump-sum – useful for complete severance of ties;
rehabilitative – (favored) – periodic payment for specified time, to aid until no longer economically disadvantaged
Four types of Spousal Support
- Periodic
- Lump-sum
- Rehabilitative
- Alimony Pendente Lite
Alimony Pendente Lite
automatically granted
Assists disadvantaged spouse with costs during separation
Marital Agreements
Basic contract principles apply
Court will enforce if full disclosure of finances, fair and reasonable, and voluntary
Child Support
Right that belongs to children.
Both parents legally required to support.
PA uses the income share approach by looking at both parent income.
PA uses standard guidelines. Modification is high standard-requires material and substantial
Ends when child turns 18 or graduates high school
Tax consequences: tax neutral (not income, not deductible)
Paternity
Marriage intact : irrebuttable presumption
Marriage not intact: presumption can be overcome but court will determine if doctrine of paternity by estoppel applies
Doctrine of Paternity by Estoppel
Court declares paternity for best interest of child
Child Custody
Best interest of child - presumes parents are best unless unfit
Court looks at 16 statutory factors to determine
Legal custody
right to make major decisions
Physical Custody
physical placement of the child
primary – having child the majority of the time
partial – having the child less than majority
Jurisdiction for Custody
Partial Custody
Any fit, non-custodial parent unless negative impact on physical/mental health of child.
Grandparent custody
Relationship began with parental consent, willing to assume responsibility, child at risk
Third Party Visitation
Court may give when long-standing relationship exist
Grandparents may seek when parent deceased, marriage dissolved, or child resides with them
Guardian Ad Litem
Guardian Ad Litem (GAL) attorney appointed for child, advocate for child preference, paid for by parties
Relocation of parent when custody involved
Can occur if all parties agree or court agrees. Must give 60 day notice
Adoption
Legal action that extinguishes parental relationship
Adopted children have all rights of biological children.
Children over age of 12 must consent
Protection from Abuse
Protection from Abuse (PFA) – courts have broad discretion to grant relief
Hearing within 10 days, PFA can last 3 years
Against intimate partner or family member
Violation of PFA – court’s contempt power
