Family Law Flashcards
Premarital Agreement
Valid devices to resolve disputes between spouses in the event of divorce and a means for estate planning in the event of death.
In most states, a premarital agreement will be invalidated when . . .
there is a court finding of either
(1) procedural unfairness in the making of the agreement; OR
(2) substantive unfairness in the agreement itself
Subject Matter of Premarital Agreements
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).
Legal Requirements for a Formal Marriage
(1) issuance of a marriage license; and
(2) solemnization of the marriage by a state-authorized official
Common-Law MArriage
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
Legal Impediments to Marriage
(1) Nonage
(2) Consanguinity and Affinity
(3) Lack of Consent
(4) Prior Marriage Still in Force
Legal Impediments to Marriage - Nonage
Either party under 14 –> marriage is prohibited
Either party between age 14-18 –> Need consent of parent/guardian
Legal Impediments to Marriage - Consanguinity and Affinity
Marriage is not allowed between blood relatives (whole or half blood) who are ancestor-descendant, brother-siter, and uncle-niece or aunt-nephew
Legal Impediments to Marriage - Lack of Consent
(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)
Legal Impediments to Marriage - Prior Marriage still in Force
Cannot enter into another valid marriage ULESS
(1) former spouse has died; OR
(2) prior marriage was judicially terminated
Annulment
Judicial declaration that the marriage is invalid
Void Marriage
Void marriages have no legal effect and cannot be recognized
Bases:
(1) Bigamy
(2) Incest
Voidable Marriage
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
Presumption of Marital Legitimacy
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.
Actions Brought by the Putative (thought-to-be) Father
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.
Child Support Action Brought By or For a Child
Most states allow paternity action to be brought:
(1) before the child turns 18; and
(2) during the life of the putative father
Parental Rights - Custody and Control
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.
Standard for Determining Custody and Parenting Time Allocation Between the Parties
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
Parental Obligation of Support
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
Factors for emancipation
(1) Financial independence
(2) Maturity
(3) Marriage
(4) Having children of their own
(5) Ability to support themselves
Divorce Proceedings - Jurisdiction
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)
Fault-Based Grounds for Divorce
(1) Desertion
(2) Adultery
(3) Impotence
(4) Cruelty
(5) Felony conviction (>1 yr of incarceration)
(6) Intoxication or excessive use of addictive drugs
No-Fault Divorce
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
Property Division - Majority Rule
Equitable distribution
