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Family Law Flashcards

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1
Q

What does a valid Marriage require?

A
  1. Consent from both parties;
  2. A marriage license; AND
  3. That the marriage is solemnized in a ceremony (by a judicial officer or church).

Priority: Low

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2
Q

How is a Common Law Marriage formed?

A

When the spouses:

  1. Live together for a specified amount of time;
  2. Are legally able to marry;
  3. Have a present agreement that the two parties are married; AND
  4. Hold themselves out as being married.

*Most states will honor a valid common law marriage established in another state.

Priority: HIGH

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3
Q

How may a Bigamous Marriage be saved?

A

Equity Doctrine: A strong presumption that the most recent marriage is valid.

Uniform Marriage and Divorce Act: An invalid marriage may be validated by the removal of an impediment (i.e. termination of an earlier marriage).

Priority: Medium

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4
Q

Under the UPAA, a Premarital Agreement is NOT enforceable if a spouse proves what?

A

Either:

  • The agreement was made involuntarily (fraud, duress, coercion); OR
  • It was unconscionable when executed AND before execution the spouse was not:
    • Provided fair disclosure of property/financials;
    • Did not waive disclosure in writing; AND
    • Did not have knowledge of such information.

Priority: HIGH

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5
Q

What factors will be considered to determine if a Premarital Agreement was made voluntarily?

A
  1. Presence of independent legal counsel;
  2. Length of time between the date of agreement and the wedding;
  3. The party’s ability to understand the agreement; AND
  4. Other reasons for proceeding with marriage (i.e. pregnancy).

*A party’s insistence on signing the agreement as a condition to marriage DOES NOT render it involuntary.

Priority: HIGH

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6
Q

Are provisions in a marital agreement regarding child support/custody binding?

A

NO, they are not binding.

*Additionally, any provisions that adversely affects a child’s right to support is unenforceable.

Priority: HIGH

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7
Q

Under UPAA, are modifications or eliminations of spousal support in a Premarital Agreement permitted?

A

Yes, BUT such provisions will not be enforced if doing so will make the spouse eligible for public welfare.

*In some states, such provisions are invalid as against public policy.

Priority: Medium

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8
Q

May an ex-parte divorce action be maintained without personal jurisdiction over the absentee spouse?

A

YES, if the plaintiff-spouse is a domiciliary of the rendering state.

*Many states have Durational Residency Requirements – specifies the amount of time a spouse must live in the state before he/she can bring a divorce action.

Priority: HIGH

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9
Q

What is a Divisible Divorce?

A

It allows one party to terminate the marriage in one proceeding, and reserves other issues (property division, spousal support) for another proceeding.

*It occurs when a court has personal jurisdiction over the marriage (the res) to maintain a divorce action, BUT not over the defendant spouse to maintain an economic or custody action.

Priority: HIGH

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10
Q

Under the UCCJEA, when does a court have Home State Jurisdiction?

A

Either:

  1. Child’s home state; OR
  2. Where (i) child lived with a parent for 6+ months immediately before action was filed, (ii) child is absent from state, and (iii) parent or acting parent is still present in the state.

Priority: HIGH

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11
Q

Under the UCCJEA, when does a court have Significant Connection Jurisdiction?

A

If:

  1. No home state;
  2. Child and at least one parent have a significant connection to the state; AND
  3. Substantial evidence in the state exists.

Priority: HIGH

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12
Q

Under the UCCJEA, when does a court have More Appropriate Forum Jurisdiction?

A

When:

All other courts decline to exercise jurisdiction because this particular court is a more appropriate forum.

Priority: HIGH

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13
Q

Under the UCCJEA, when does a court have Temporary Emergency Jurisdiction?

A

When the:

  1. Child is physically present in the state; AND
  2. Child is abandoned or it’s an emergency to protect the child.

Priority: HIGH

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14
Q

Under the UCCJEA, when does a court have No Other State Jurisdiction?

A

When:

No other state has jurisdiction.

Priority: HIGH

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15
Q

What grounds must be established for a court to grant an Annulment?

A

One of the following:

  • Lack of capacity (fraud, duress, mental incapacity);
  • Bigamy;
  • Consanguinity (marriage between close family members); OR
  • Spouse was underage at the time of the marriage.

Priority: Low

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16
Q

What are the five grounds for Divorce?

A

Divorce grounds:

  1. Cruel and Inhuman Treatment
  2. Adultery
  3. Abandonment for a Set Amount of Time
  4. Habitual Drug Addiction or Drunkenness
  5. A “No Fault” Divorce (Irretrievable Breakdown)

Priority: Medium

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17
Q

When may a Separation Agreement be set aside?

Divorce Settlement Agreement?

A

Separation Agreement: If it’s unconscionable OR the result of fraud.

Divorce Settlement Agreement: If (a) mediator misconduct; OR (b) agreement was substantially unfair and the result of fraud, duress, overreaching, or coercive conduct.

*Settlement agreements may be set aside for mediator misconduct if: failure to be impartial, disclose conflicts, or fully inform the participants about the law and their rights.

Priority: Medium

18
Q

Division of Property

What does Separate Property include?

A

It includes:

  • Property/assets acquired prior to marriage;
  • Gifts/bequests to an individual spouse during marriage;
  • Property which spouses agree will be separate; AND
  • Passive appreciation of assets for any of the above.

*Each spouse’s separate property will NOT be subject to equitable distribution.

Priority: HIGH

19
Q

Division of Property

What does Marital Property include?

A

It includes:

All property acquired during the marriage, regardless of whose name is on the title of the property.

Most states also consider active appreciation (appreciation caused by the effort of one or both of the spouses) as Marital Property.

*Generally, fault is IRREVELANT to the division of marital property.

Priority: HIGH

20
Q

Division of Property

Are Professional Degrees/Licenses deemed Marital Property subject to equitable distribution?

A

NO, in most states.

However, reimbursement is generally required for any support provided by a spouse that contributed to the other spouse’s education or licensing.

*A minority of states treat a professional degree/license as marital property.

Priority: Medium

21
Q

Division of Property

Do courts consider marital or economic fault for the division of property?

A

Marital Fault is generally irrelevant.

BUT, most courts will consider Economic Misconduct (i.e. dissipation of assets).

Dissipation occurs during the breakdown of the marriage when a spouse uses marital property for the sole benefit of himself for a purpose unrelated to the marriage.

Priority: Medium

22
Q

Spousal Support

Under the Uniform Marriage and Divorce Act (UMDA), the court may order Maintenance when?

A

If the spouse seeking maintenance:

  1. Lacks sufficient property to provide for their reasonable needs;
    * *AND**
  2. Is either unable to support themselves through employment OR is the custodian of a child whose condition makes it so they cannot seek work.

Priority: HIGH

23
Q

Spousal Support

What factors will a court weigh when determining the amount of Spousal Support?

A
  1. The party’s financial resources;
  2. The time necessary to obtain an appropriate job;
  3. The standard of living established during the marriage;
  4. The duration of the marriage;
  5. The age and physical condition of the seeking spouse;
  6. The ability of the spouse paying, to meet their needs, while still supporting their ex-spouse.

*Support obligations terminate upon death of the obligor spouse.

Priority: HIGH

24
Q

Child Support

What kind of State Child Support Guidelines are required by federal law?

A

Guidelines that:

  1. Take into consideration ALL earnings and income of the non-custodial parent;
    * *AND**
  2. Are based on specific descriptive and numeric criteria to compute the support obligation.

Priority: HIGH

25
Q

Modification of a Child/Spousal Support Order

Most States

vs.

UMDA

A

Most States: ONLY when there is a substantial & continuing change in circumstances of either the payor or payee spouse making the prior order unreasonable.

UMDA: ONLY allowed upon a showing of changed circumstances so substantial and continuing as to make the prior terms unconscionable.

Priority: HIGH

26
Q

Under UIFSA, child/spousal support orders from other states CANNOT be modified unless what occurs?

A
  1. The court has jurisdiction to issue an order; AND
  2. Either:
  • All of the parties do not reside in the issuing state;
  • *OR**
  • Each party has consented in writing to jurisdiction in another state.

Priority: HIGH

27
Q

What is the standard for determining Child Custody?

A

The best interests of the child standard.

*This broad standard gives great discretion to the court.

Priority: HIGH

28
Q

Child Custody

What is the Parent vs. Third-Party custody preference?

A

Parental rights are Constitutionally protected.

As such, a fit legal parent is given preference, and it’s presumed that custody with a parent over a third-party is in the best interests of the child.

*A court will ONLY grant custody to a third-party upon the showing of special circumstances (i.e. neglect).

Priority: HIGH

29
Q

When may reasonable visitation rights be limited or reduced by the court?

A

If it finds that the visitation would seriously endanger the child’s physical, mental, moral, or emotion health. The court may modify a child visitation agreement whenever it’s in the best interests of the child.

*Interference of visitation rights by one parent DOES NOT suspend the other’s obligation to pay child support.

Priority: Low

30
Q

When are third-party visitation rights permitted?

A

When the third-party:

  1. Has a substantial relationship with the child;
  2. Overcomes the presumption that the parent is acting in the best interests of the child; AND
  3. Shows that the denial of visitation poses a risk of harm to the child.

Priority: Medium

31
Q

Child Custody

When may a Child Custody determination be modified?

A

ONLY when there is a substantial change in circumstances.

*Note, custody determinations cannot be retroactively modified.

Priority: Medium

32
Q

Child Custody

A state court retains continuous and exclusive jurisdiction to make modifications to the original Child Custody Order.

How may another state court modify the same order under PKPA and UCCJEA?

A

PKPA: If it had jurisdiction to make an initial determination AND the issuing state either no longer has jurisdiction or has declined to exercise it.

UCCJEA: If it had jurisdiction to issue an initial order AND either (a) the issuing state determines it no longer has jurisdiction or that the current state is more appropriate, or (b) the court determines that all parties do not reside in the issuing state.

Priority: Medium

33
Q

Agreements between Unmarried Cohabitants –Division of Property

Express vs. Implied Agreements

A

An express agreement is enforceable so long as it wasn’t based on sexual relations.

An implied agreement is also enforceable, BUT more difficult to prove.

Priority: HIGH

34
Q

What is the Putative Spouse Doctrine?

A

It protects the financial and property interests of a person who:

  1. Entered into a void or voidable marriage;
  2. Believing in good faith that the marriage was valid.

If applicable, the putative spouse is entitled to the same marital property rights as a legal spouse.

Priority: Low

35
Q

What is Paternity by Estoppel?

A

A male (who is not the biological father) will be estopped from denying paternity if he:

  1. Held himself out as the father; AND
  2. Paid support.

*If paternity by estoppel applies, he will be responsible for child support.

Priority: HIGH

36
Q

When is an Unmarried Father’s right to a relationship with his child protected under the Due Process Clause?

A

Its ONLY protected if the father:

  1. Has assumed parental responsibilities; AND
  2. Has established a substantial parental-child relationship.

The stronger the relationship, the stronger the protections.

Priority: Medium

37
Q

When is an Unmarried Father entitled to Notice of Adoption?

A

When:

  • His parental rights are protected under the Due Process Clause of the U.S. Constitution; OR
  • He acted consistent with the state’s guidelines for the putative father registry.

Priority: Medium

38
Q

Parental consent is required before medical care may be performed on a minor.

What are the exceptions?

A

In emergency situations OR where prescribed by statute.

Priority: Medium

39
Q

Adoption

Generally, the consent of both parents is required to place a child up for adoption.

When is the consent of a parent NOT required?

A
  1. If the child is non-marital, the consent of the biological father is only required when he has assumed parental responsibility.
  2. If the parent has:
    • Surrendered the child to an adoption agency;
    • Is incompetent due to mental illness;
    • Has abandoned the child without contact; OR
    • Has permanently neglected the child.

Priority: HIGH

40
Q

Under the Uniform Parentage Act (UPA), when is a husband presumptively the father of a child born through Artificial Insemination or In Vitro Fertilization?

A

If:

  1. He consented in writing; AND
  2. A medical doctor performed the procedure.

He will be deemed the legal father of the child even if he isn’t the biological father (the sperm donor’s rights are severed).

Priority: Medium

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