Family Law Flashcards
Invalidation of a Separation Agreement Based on Fraud or Unconscionability
All states authorize invalidation of a separation agreement, or a specific portion of such an agreement, based on a finding of fraud or unconscionability.
Factors can include non-representation of one side, asset nondisclosure, Has to be MORE THAN just a bad deal,
Is a Support Award Modifiable after a Divorce Decree
Yes. Support Awards are long term and can be modified to reflect present changes.
Is a Property-Division Award Modifiable after a Divorce Decree?
NO! Regardless of whether the property-division award resulted from a judicial decision or a divorce settlement. Property awards are based on equitable divisons of the marital property AT THE TIME of the Divorce (not a forward looking principle)
Modification of a Support Award in a Divorce Decree
In all states, a spousal-support award may be modified based on a change in a party’s circumstances. Most courts require that such a change be substantial. More importantly, a change in circumstances that is anticipated may not serve as a basis for modification of a support order.
Do Step Children Create new Legal Obligations that could lead to the modification of a support award
No
Termination of an Established Parent-Child Re nship
Courts are typically reluctant to do so. Some courts have found that a prior legal judgment, such as the divorce decree terminating Husband’s and Wife’s marriage, bars the introduction of nonpaternity evidence based on application of res judicata or collateral estoppel principles. Other courts have relied on the equitable doctrines of estoppel and laches to achieve the same result. Moreover, some courts have simply cited the child’s best interest, without relying on any specific legal principle, as justification either for denying permission to introduce evidence of nonpaternity or for denying a petition to disestablish paternity. However, in recent years, a number of courts have placed greater emphasis on the interests of erroneously identified fathers. Some states have also adopted new paternity disestablishment legislation that places greater emphasis on the interests of erroneously identified fathers. however, some courts have allowed motions to modify a child-support order in a divorce decree on the basis of nonpaternity, even when that issue was litigated in the original action, reasoning that a motion to modify is a direct attack on the judgment, not a collateral attack, and therefore is not barred by res judicata principles
Common Law Marriage Recognition Principles
Under accepted conflict-of-laws principles, a marriage is valid under the law of the place in which it was contracted is valid elsewhere unless it violates a strong public policy of the state which has the most significant relationship with the spouses and the marriage. Courts in states that do not recognize common law marriage have consistently held that, if a man and woman were domiciled in a state that permits common law marriage and their conduct met the requirements of that state’s law for establishing such a marriage, recognition of the marriage does not violate a strong public policy.
Common-Law Marriage Elements
To establish a common-law marriage, the proponent must show: (1) capacity to enter a marital contract, (2) a present agreement that the two parties are married, (3) cohabitation, and (4) “holding out” a marital relationship to the community.
Fundemental Right of Parenthood in Family Law
When an unwed father demonstrates a full commitment to the responsibilities of parenthood by ‘[coming] forward to participate in the rearing of his child,’ his interest in personal contact with his child acquires substantial protection under the [Fourteenth Amendment’s] Due Process Clause. Interpreting this standard, the U.S. Supreme Court has held that a father who lived with his children and their mother and held the children out as his own is entitled to a hearing to demonstrate his parental fitness before his parental rights may be terminated. State courts have typically held adoption-consent statutes that would deny a veto right to a father who has done everything in his power to establish a full relationship with his child are unconstitutional as applied in such a case.
Proper Jurisdiction for Child Custody Battle
Under the Uniform Child Custody Jurisdiction and Enforcement Act, which has been adopted in 48 states, a child’s “home state” has exclusive jurisdiction to issue an initial custody decree. UCCJEA § 201(a)(1). A “home state” is a state where the child has lived with “a parent, or a person acting as a parent, for at least six consecutive months immediately before the commencement of a child-custody proceeding.” Id. § 102(7). A “child-custody proceeding” includes a “proceeding for . . . termination of parental rights.” Id. § 102(4). A home state continues to have exclusive jurisdiction to issue an initial custody order even if the child is absent from the state when a custody petition is brought, so long as no more than six months has elapsed since the child’s departure from the jurisdiction and “a parent or person acting as a parent continues to live in” the home state. Id. § 201(a)(1). The “[p]hysical presence of, or personal jurisdiction over, a party or a child is not necessary . . . to make a child-custody determination.”
Pre-Nuptial Agreement
Ante-nuptial or pre-marital agreements must be procedurally and substantially
fair at the time of the agreement. The substance of the agreement–the amount a party
receives upon dissolution–must be fair and equitable at the time of the signing. The
procedural requirements–that a party must be able to consult his or her own attorney,
must have time to consider the agreement, and must not be subject to undue pressure–
are also required. Normal contractual rules such as fraud, duress, mutual mistake,
unconscionability, etc. still apply. A court may also strike provisions of a pre-marital
agreement if it would cause substantial hardship upon one of the parties.
When does Marital Property Shut Off
When dissolution is filed (not at seperation)
How can Pre-Marital Property Become Marital Property?
One such way is by gift of one spouse to the other (or to the marriage). Another is by active accrual; i.e.,
where the parties active work toward the increasing of the value of the investment. Any property acquired or earned during the marriage is marital property, with few exceptions (by will, devise, or gift).
Employment Income and Bonuses or any increase in property value as a result of employment $ during a marriage
Marital Property
Tracing Accounts in a Divorce
Proving how much $ was created with marital assets vs. separate property
