Family Law Flashcards
Marriage Requirements
- Consent of both parties;
- marriage license;
- ceremony
Common Law Marriage
- Consent of parties to act as if married
- cohabitation of parties
- holding out as if they are married
Some states don’t allow common law marriages, but most states recognize them as valid
Defenses to Marriage
- Bigamy
- No consent
- Underage
- Consanguinity
Divorce
Grounds for divorce
- Cruel and inhuman treatment
- adultery
- abandonment for certain amount of time
- habitual drunkenness
- no-fault
Annullment
- lack of capacity (fraud, duress, mental incapacity);
- bigamy
- consanguinity
- underage
Jurisdiction of Divorce
PJ is not required over both parties to grant a divorce, just over the requesting party if they are a domiciliary of the state
PJ is required over defendant-spouse if the issue involves economic or child custody/support issues
Division of Property Pursuant to Divorce
In most states, spouses keep their separate property and equitably divide up the marital property
Factors to determine marital property division include;
- length of marriage;
- age of spouses
- earning capacity;
- lifestyle;
- income
Most states allow reimbursement to spouse who supported the other spouse while they were working towards earning a professional degree
Division order cannot be modified unless extreme circumstances
Separate property includes: 1) property before the marriage; 2) inheritances; and 3) gifts to the spouse in particular
Spousal Support
spousal support is meant to maintain a spouse’s standard of living until they are able to support themselves or remarry
Premarital agreements regarding spousal support are usually enforceable and are considered if they were entered into voluntarily with full disclosure of each party’s financial worth
only allowed if:
- spouse lacks sufficient property; and
- is unable to support themselves through employment or takes of a child with a condition that makes them unable to seek employment
Can be modified if there are unanticipated circumstances that are substantial and continuing
Courts tend to not interfere or intervene in ongoing marriages regarding spousal support within the marriage
Alimony can be lump-sum; periodic; permanent; or temporary
Child Support
a biological parent is legally obligated to pay child support
modification only allowed in cases of substantial and continuing changes in circumstances
modification is only proactively allowed
UIFSA states that courts must give full faith and credit to support orders from other states
Only the state that granted child custody is allowed to modify the child custody award unless: 1) no party lives in that state anymore; or 2) both parties consent to the other state’s jurisdiction
Child Custody
Child custody is determined by the best interests of a child
Best interests of the child include:
- wishes of the parents and mature children;
- age of child;
- financial health of each parent;
- effect on child’s relationship with family, community;
- stability of home and school environment;
- history of bad behavior of parents; etc.
Parents are presumed to be fit to care for their children, so third parties are typically not considered for custody unless they can prove that the parents are a bad fit to care for the child
Third parties may be given visitation rights (pursuant to parent’s choice of child’s best interest) if they have a substantial relationship with the child
Child Custody Order
UCCJEA governs child custody and requires all states give full faith and credit to custody orders
Child custody order may only be modified by a court with exclusive, continuing jurisdiction.
Jurisdiction for child custody:
- Home state jurisdiction (child’s home state or child has lived in the state with a parent/guardian for at least 6 months prior to the proceeding);
- Significant Connection jurisdiction (no home state; child and at least one parent have significant conection to state; substantial evidence of connection to state)
- More appropriate forum jurisdiction (all other courts decline to exercise jurisdiction and this court is appropriate)
- Emergency jurisdiction (child is physically present in state and they have been abandoned or there’s an emergency to protect the child)
- No other state jurisdiction
Unmarried Parents and their Children
An unmarried woman’s child must establish paternity with their biological father in order to obtain support, either by birth certificate; voluntary acknowledgment; paternity by estoppel
Parent, Child, and the State
The right to raise your child and control their upbringing is a fundamental right. The government may limit that right and decisions regarding it when the right 1) jeopardizes the health or safety of the child; or 2) has a potential for significant social burden
Emergency medical care cannot be refused by the parent
Vaccination mandates are within a state’s police power and does not violate the Constitution
Children can sue their parents for torts against them
Adoption
Adoptions sever the biological parent’s rights and duties regarding the child
both parents’ consent required for adoption unless they surrendered the child or abandoned or neglected them – consent can’t be revoked after the child’s been adopted
UCCJEA determines jurisdiction and governs adoptions
Children cannot be sold – but those who want to pay someone for a child may pay for the medical costs incurred in the process
