Family Law Flashcards
A premarital agreement is enforceable if:
(1) it is fair and reasonable,
(2) it is voluntary, and
(3) it is in writing signed by the party to be charged
Clauses relating to child support and custody are unenforceable.
To determine whether a premarital agreement is voluntary, courts consider factors such as:
Time pressure, the parties’ previous business experience, and the opportunity to be represented by independent counsel.
*A party’s insistence on the agreement as a condition to marriage is not duress
In most states, property acquired during marriage is considered ____, while property acquired prior to marriage, by gift, or inheritance is ____.
marital property, separate property
Separate property is not subject to division at divorce, but ____________________ usually depends on whether the property can be attributable to spousal labor
classification of the appreciation of separate property
What is the standard for determining child custody and support?
The best interest and welfare of the child
What factors will a court consider in determining the best interests and welfare of the child?
Ability to financially support the child, relationships with family members, general familial stability, child’s preference (if sufficiently mature), and who is the primary caretaker
Common Law Marriage is valid if the parties:
(1) have the mental capacity to enter into a marriage,
(2) agree that they are married,
(3) cohabit, and
(4) hold themselves out in public as married
*If a couple is common law married in a state that recognizes it, other states will recognize it too
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
A court has subject matter jurisdiction under the UCCJEA when:
(i) the state is the child’s home state as has been for a period of six months, or
(ii) was the child’s home state in the past six months and is absent, but one of the parents continues to live in the state
*If the child has no home state, a state may exercise jurisdiction based on: (1) significant connections with the child and at least one parent, and (2) the existence of substantial evidence relating to child custody in the forum jurisdiction
Spousal support is:
the obligation of one party to provide the other with support in the form of income
- Court will consider financial resources and needs, marital contributions, and marital duration
The common law doctrine of nonintervention:
disallows judicial intervention in an intact family (used to deny a support petition when spouses live together)
A fit parent has:
a fundamental right to the care, custody, and control of his children - HOWEVER, if a parent’s decisions will jeopardize the health or safety of the child or have the potential for significant social burdens then a parent’s power is limited
States are permitted under their police powers to:
require vaccinations and refuse admission to public school for students who fail to receive required vaccinations
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
Custody Modifications
Custody can be modified only if there is a substantial change in circumstances
Child Support Modifications
In order to obtain a modification for a future support obligation, petitioner must show a substantial change in circumstances making the prior order unreasonable
- most courts will not modify due to voluntary reduction in income
- Will never modify retroactively
Rights of Parents and Others
- Decisions by fit parent must be given some deference
- Generally, biological fathers have rights (use em or lose em)
- Involved parent who demonstrates full commitment to responsibilities of parenthood will likely be able to oppose an adoption petition successfully
- Custody in the parent is presumed to be in the best interest of the child
- Third party who wants custody must prove parent is unfit or that granting custody to parent would be highly detrimental to child
Modification/Termination of Spousal Support
May be modified if court finds a substantial change in circumstances making prior award unreasonable
- terminates upon death or remarriage
- may be reduced if cohabitat with another
Which court may dissolve a marriage?
If P is domiciled in forum state or the state has some other equivalent long-term connection between at least one of the parties to the marriage, then the court has jurisdiction to dissolve the marriage
Which court may issue a property division order?
Unless the court has jurisdiction over the defendant spouse, it may not issue a binding division or support order
Jurisdiction to Modify Child Support Order
According to the UIFSA, once an order is registered, it may be enforced by any state
*Issuing court has continuing exclusive jurisdiction to modify that order if the state remains the residence of the obligee, the child, or the obligor and at least one of the parties does not consent to the jurisdiction or another forum
