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Bar Prep Countdown > Family Law > Flashcards

Family Law Flashcards

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1
Q

Premarital Agreement

A

Valid devices to resolve disputes between spouses in the event of divorce and a means for estate planning in the event of death.

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2
Q

In most states, a premarital agreement will be invalidated when . . .

A

there is a court finding of either

(1) procedural unfairness in the making of the agreement; OR
(2) substantive unfairness in the agreement itself

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3
Q

Subject Matter of Premarital Agreements

A

Permissible:
Property division
Waiver of alimony

Not permissible:

Children - invalid to limit the obligation of a parent to support their minor children during or after the marriage (goes against public policy)

Sexual Relations - provisions dealing with the frequency of sex and child bearing are not enforceable

NOTE: The sexual relations provision is permitted under the UPAA (Uniform Premarital Agreement Act).

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4
Q

Legal Requirements for a Formal Marriage

A

(1) issuance of a marriage license; and

(2) solemnization of the marriage by a state-authorized official

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5
Q

Common-Law MArriage

A

Outlawed in MOST states, but generally recognized if performed validly in another state:

(1) capacity to marry
(2) present intent to be married
(3) Cohabitation
(4) Consummation of the marriage; and
(5) Holding out as a married couple

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6
Q

Legal Impediments to Marriage

A

(1) Nonage
(2) Consanguinity and Affinity
(3) Lack of Consent
(4) Prior Marriage Still in Force

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7
Q

Legal Impediments to Marriage - Nonage

A

Either party under 14 –> marriage is prohibited

Either party between age 14-18 –> Need consent of parent/guardian

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8
Q

Legal Impediments to Marriage - Consanguinity and Affinity

A

Marriage is not allowed between blood relatives (whole or half blood) who are ancestor-descendant, brother-siter, and uncle-niece or aunt-nephew

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9
Q

Legal Impediments to Marriage - Lack of Consent

A

(1) Mental incapacity - inability of a party to consent to marriage due to mental incapacity or infirmity will render the marriage valid
(2) Fraud - lack of consent to the marriage because of fraud (per tort definition)

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10
Q

Legal Impediments to Marriage - Prior Marriage still in Force

A

Cannot enter into another valid marriage ULESS

(1) former spouse has died; OR
(2) prior marriage was judicially terminated

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11
Q

Annulment

A

Judicial declaration that the marriage is invalid

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12
Q

Void Marriage

A

Void marriages have no legal effect and cannot be recognized

Bases:

(1) Bigamy
(2) Incest

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13
Q

Voidable Marriage

A

Voidable marriages are valid until and unless the aggrieved party obtains an annulment.

Once the aggrieved party has died –> Marriage cannot be voided.

Bases:

(1) Non-age
(2) Impotence of spouse
(3) Temporary lack of capacity (e.g., drunkenness)
(4) Mental incompetence

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14
Q

Presumption of Marital Legitimacy

A

Children born to, or conceived by, a married woman are PRESUMED to be children of the husband.

This presumption can be rebutted by clear and convincing evidence that the husband is not the father. (usually through DNA evidence)

But the father may also be estopped from denying paternity in certain instances.

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15
Q

Actions Brought by the Putative (thought-to-be) Father

A

Majority Rule: Unmarried father has max 2 years to establish his paternity when his alleged child has a presumed father.

Uniform Parentage Act: Provides presumption of paternity IF the man and the child’s natural mother

(1) marry after the child’s born and the man voluntarily asserted his paternity (such as by agreeing to be named as child’s father on birth certificate); OR
(2) for the first 2 years of child’s life, resided in the same household with the child and the man openly held out the child as his own

Can be rebutted ONLY by genetic testing introduced in a paternity proceeding.

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16
Q

Child Support Action Brought By or For a Child

A

Most states allow paternity action to be brought:

(1) before the child turns 18; and
(2) during the life of the putative father

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17
Q

Parental Rights - Custody and Control

A

A parent who is living, competent , and has not been found unfit is entitled to custody of the minor child and to direct her education and medical care.

Non-parent seeking custody or visitation rights over a child with LIVING parents? –> significant deference must be given to a legal parent’s objection to visitation

This usually requires a finding of parental unfitness or harm to the child for the non-parent to seek custody.

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18
Q

Standard for Determining Custody and Parenting Time Allocation Between the Parties

A

Best interests of the Child!

Relevant factors:
(1) Wishes of the child as to his custodian

(2) Interaction and interrelationship of the child with his parents, siblings, and any other person who may significantly affect the child’s best interest; and
(3) Mental and physical health of all individuals involved

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19
Q

Parental Obligation of Support

A

A parent’s obligation to support a child ends when the child:

(1) Reaches the age of majority (18 in most states) OR
(2) Is legally emancipated

20
Q

Factors for emancipation

A

(1) Financial independence
(2) Maturity
(3) Marriage
(4) Having children of their own
(5) Ability to support themselves

21
Q

Divorce Proceedings - Jurisdiction

A

Subject-Matter JX - Established if one spouse is domiciled in the state when the action is filed

Personal JX - Court must have personal jurisdiction over D to enter/enforce any decrees in personam (e.g., order imposing child support)

22
Q

Fault-Based Grounds for Divorce

A

(1) Desertion
(2) Adultery
(3) Impotence
(4) Cruelty
(5) Felony conviction (>1 yr of incarceration)
(6) Intoxication or excessive use of addictive drugs

23
Q

No-Fault Divorce

A

Requires proof that

(1) marriage is irretrievably broken / irreconcilable differences between spouses AND there is no reasonable prospect of reconciliation; and
(2) parties have been separated for a definitive period of time

24
Q

Property Division - Majority Rule

A

Equitable distribution

25
Q

Martial Property

A

Property jointly owned and jointly acquired through the labor of the parties

Property acquired DURING marriage is presumed to be marital property

26
Q

Separate Property

A

(1) Property owned before marriage,
(2) acquired after dissolution of marriage,
(3) excluded by premarital agreement, or
(4) acquired by gift or inheritance to one spouse

27
Q

Classification of Increased value of separate property?

A

If increase is due to passive appreciation –> increase belongs to separate property

If increase is due to labor of the parties –> increase belongs to marital proeprty

28
Q

Mixed Character, Commingled, or Transmuted Property?

A

If separate property can be traced to its source and its character is proved as
either separate or marital, treat it as such

29
Q

Classification of Marital Residence

A

If purchased prior to marriage + marital earnings were used to pay off mortgage and build equity in house –> can be both separate property and
marital property, and reimburse marital estate for mortgage payments

30
Q

Classification of Pension/Retirement Accounts

A

Accumulated during the marriage are subject to equitable distribution, whether the accounts are vested or unvested.

(1) Vested: Employee has a definitive and presently legal right to the asset
(2) Unvested: Some contingency must occur, such as working for the employer a certain number of years before legal entitlement attaches

BUT premarital contributions or post-separation increases are not subject to equitable distribution

31
Q

Classification of Stock Options

A

Options granted to a spouse during marriage are marital property

32
Q

Classification of Debt

A

Debt incurred DURING marriage = marital debts

Debt incurred before/after marriage = Separate debt of the spouse who incurred the debt

33
Q

How is marital property valued?

A

Determined at the date the parties separate

34
Q

Equitable Distribution - Factors

A

(1) Length of marriage;
(2) Standard of living during the marriage;
(3) Contributions (monetary and non-monetary) of each party during the marraige
(4) Current financial circumstances of each party

35
Q

Types of Alimony / Spousal Maintenance

A

(1) Periodic - certain amount paid at set intervals, usually monthly

This obligation generally continues until the recipient dies, remarries, or the court modifies the order

(2) Lump sum - fixed amount – CANNOT be modified
(3) Rehabilitative - Awarded for a limited period of time, until the recipient spouse can become self-supporting by entering the work force

36
Q

Uniform Marriage and Defense Act - Alimony

A

Can be made ONLY if the spouse seeking alimony:

(1) lacks sufficient property to provide for his/her reasonable means; and

(2) EITHER
(a) is unable to support himself through employment OR
(b) spouse is unable to work due to taking care of a child with special needs

37
Q

UMDA - Alimony - Factors for Alimony

A

(1) Parties’ respective financial resources and needs;
(2) Contributions each spouse has made to the marital relationship (financially or non-monetary) AND
(3) Length of marriage

38
Q

Modifying Alimony

A

Most jurisdictions place a heavy burden on the party requesting the change and require a substantial change in circumstances that rendered the original award
unreasonable and unfair

39
Q

Terminating Alimony

A

Alimony generally terminates

(1) after a specified period of time;
(2) on the death of either spouse; OR
(3) automatically on remarriage or cohabitation

40
Q

Child Support

A

Child support is owed by both parents.

Parent with custody is presumed to provide.

Order is entered against non-custodial parent.

41
Q

Calculating Child Support

A

Most states use child-supporting guidelines, a mathematical formula based on the income of parents.

If the court deviates from the guidelines, the court must give a written explanation.

42
Q

Modifying Child Support

A

Party must show a substantial and continuing change in circumstances making the prior order unreasonable

43
Q

Uniform Interstate Family Support Act (UIFSA) - Child Support

A

Once a state has issued a child support order consistent with the jurisdiction requirements of the UIFSA, that state’s court has continuing, exclusive jurisdiction over the order so long as:

(1) The child or any party still resides in the issuing state; and
(2) All of the parties do not consent to change jurisdiction to a new state

NOTE: State with continuing, exclusive jurisdiction over the order is the only state that can modify the order unless jurisdiction is lost

44
Q

Uniform Child Custody Jurisdiction and Enforcement Act

A

Under the UCCJEA, a state court can adjudicate over matters impacting a child if it has jurisdiction over the child (don’t need jurisdiction over respondent spouse).

State X has jurisdiction over child:

▪ If State X is “home state” – has the child lived in State X since birth or at least the last 6 months?

▪ If no home state, does State X have significant connections to the child?

▪ If no home state and State X does not have significant connections, is State X
nevertheless the most appropriate forum for the matter?

▪ If no to all three, is State X the default jurisdiction?

45
Q

UCCJEA - Valid child-custody determination –> what happens after?

A

The state has exclusive jurisdiction over the determination until:

▪ A court determines that neither child nor the child and one parent have a significant connection with the state and substantial evidence is no longer available in the state regarding the child’s welfare; or

▪ A child or both parents move out of the state

46
Q

Uniform Interstate Family Support Act - Modification prospectively or retroactively?

A

A court can modify a support order retroactively only from the date of service of the modification motion.

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