Family Law Flashcards
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FRAUDULENT INDUCEMENT TO MARRY
If the consent of either party to a marriage was fraudulently obtained, the marriage will be void from the time its invalidity is declared by a court.
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PREMARITAL GIFTS CONDITIONED ON MARRIAGE
Under the traditional rule, a gift conditioned on marriage (e.g., the engagement ring) was returned to the donor if the donor was NOT at “fault” for the break-up. Under the modern view, such gifts are returned to the donor regardless of fault.
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CONTRACTS RESTRAINING OR PROMOTING MARRIAGE
Contracts that restrain or promote marriage are disfavored because the right to marry is a fundamental right. Complete restraints on the right to marry are invalid; however, partial restraints may be valid if they are reasonable under the circumstances.
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BIGAMOUS MARRIAGE
NO state recognizes the validity of a bigamous marriage (being married to more than one person at the same time). However, there are two marriage saving doctrines that apply to bigamous marriages:
- Under the Uniform Marriage and Divorce Act (UDMA), an invalid marriage (e.g., a bigamous marriage) may be validated upon the removal of the impediment (e.g., an earlier marriage). The marriage becomes valid as of the date that the impediment is removed.
- Under the presumption of validity, the last of several marriages will be presumed to be valid. This presumption may only be rebutted with strong evidence that the prior marriage still persists.
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SAME-SEX MARRIAGE
The Supreme Court has determined that same-sex marriage is a constitutional right. Therefore, same- sex marriage is permitted in every state.
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INCESTUOUS MARRIAGE
Marriages determined to be incestuous (marriages between relatives) are treated as void. Jurisdictions are fairly evenly split regarding whether cousins may marry. Under the UDMA, persons may NOT marry their:
- Ancestors or descendants;
- Siblings (regardless of whether whole/half blood or adoption); OR
- Uncles, aunts, nieces, or nephews.
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UNDERAGE MARRIAGE
In nearly every state, persons must be 18 years of age to marry.
However, some states allow 16 or 17 year olds to marry with parental consent or judicial approval.
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PHYSICAL INCAPACITY AND MARRIAGE
A marriage is voidable if one party is physically unable to consummate the marriage and the other party was unaware of the problem at the time of solemnization.
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FRAUDULENT MARRIAGE
A marriage is voidable for fraud if a party makes a material misrepresentation that affects the essentials of the marriage (e.g., concealing impotency, concealing a pregnancy by another, lying about religious beliefs).
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MARRIAGE REQUIREMENTS
A valid marriage requires that:
- The parties obtain a marriage license prior to the solemnization ceremony;
- The marriage is solemnized by a ceremony that is conducted by an authorized clergyman or judge; AND
- Both parties consent.
MED
COMMON LAW MARRIAGE
Most states have abolished common law marriage. In jurisdictions that recognize common law marriage, the proponent of the marriage must prove that the parties:
- Cohabitated (i.e., lived together) for the statutory period;
- Held themselves out as married; AND
- Intended to be married.
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PREMARITAL CONTRACTS
Most states will enforce a premarital agreement as a valid contract if it is:
- In writing and signed by both parties;
- Executed after full disclosure of the property and financial obligations of both parties; AND
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Voluntary - courts will consider the following factors to determine whether an agreement was voluntary:
- The presence of independent legal counsel;
- The length of time between the agreement and the marriage;
- The sophistication of the parties; AND
- The presence of other pressing reasons to proceed with the marriage (e.g., a pregnancy).
b) Under the Uniform Premarital Agreement Act (UPAA), the party against whom enforcement is sought must prove that the agreement was:
(1) NOT voluntary; OR
(2) Unconscionable when it was executed AND that he or she did not receive or waive fair and reasonable disclosure AND did not have, or reasonably could not have had, an adequate knowledge of the other’s assets and obligations.
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CHILD CUSTODY IN PREMARITAL CONTRACTS
Most courts decide custody according to the best interests of the child at the time of the custody hearing, regardless of any premarital agreements.
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CHILD SUPPORT IN PREMARITAL CONTRACTS
Parents have an absolute obligation to support their children. A premarital contract CANNOT adversely affect a child’s right to support under any circumstance. Such agreements are NOT binding on the court and are unenforceable.
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SPOUSAL SUPPORT IN PREMARITAL CONTRACTS
Premarital agreements that limit a spouse’s support during marriage are generally void as against public policy.
In some jurisdictions, premarital agreements that limit a spouse’s support after the marriage ends are void as against public policy.
Under the Uniform Premarital Agreement Act (UPAA), modification or elimination of spousal support is permitted so long as such provisions do not make the former spouse eligible for public support.
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MARITAL PROPERTY RIGHTS
Under the common law’s unity theory of marriage, the legal identity of the wife disappeared and the husband controlled virtually all of the property.
Today, both spouses retain full rights to their own property during and after marriage.
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NECESSARIES DOCTRINE
At common law, husbands were legally responsible for supporting their wives. Under the necessaries doctrine, the wife could purchase necessaries (e.g., food, clothing, shelter, etc.) on credit and charge them to her husband. The creditor who furnished the necessaries to the wife could then recover fair market value for the goods or services even though the husband did not enter into the contract.
Today, most states have modified the necessaries doctrine holding both spouses liable to creditors for necessaries purchased by the other spouse.
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ANNULMENT
Annulment is a judicial declaration that a marriage never existed and was invalid from when the parties entered into it. A marriage can be annulled if it is void or voidable. Common grounds for an annulment include:
- Lack of capacity to consent at the time of the marriage;
- Lack of capacity to physically consummate the marriage by sexual intercourse;
- Underage minors without parental consent or judicial approval; AND
- Marriages prohibited by law.
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RATIFICATION DEFENSE
Ratification may be a defense to an annulment action involving voidable marriages. A void marriage (e.g., bigamy or incest) can never be ratified. Generally, ratification occurs when the party seeking annulment fails to bring the annulment action within a reasonable amount of time after discovering the defect.
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DIVORCE
Every state has adopted a form of no-fault divorce. Common grounds for a no-fault divorce are:
- A minimum duration of separation (usually 6 months to 1 year); AND/OR
- Irreconcilable differences.
NOTE. Some states require both a separation and irreconcilable differences, while others only require one or the other
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ANNULMENT JURISDICTION
Under the majority view, a state where either party is domiciled has jurisdiction to enter an annulment decree. Ex parte annulments (an annulment action where only one party is appearing before the court) are allowed in the state where either party is domiciled.
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DIVORCE JURISDICTION
Under the Full Faith and Credit Clause, a divorce validly granted in one state is entitled to full faith and credit in other states. Generally, a divorce is valid and must be recognized by other states if the petitioning party:
- Was domiciled in the state that granted the divorce; AND
- Provided adequate notice of the proceeding to the other spouse.
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PROPERTY DIVISION AT DIVORCE
At divorce, courts divide marital property between spouses pursuant to state law. Some states follow the community property approach; however, most states have adopted the equitable distribution approach for division of property at divorce. The analysis is relatively similar under both approaches:
- Categorize the property as separate or marital; THEN
- Determine an equitable distribution of the marital property between the spouses.
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CATEGORIZATION OF PROPERTY AS SEPARATE OR MARITAL
Generally, marital property includes all property acquired during the marriage that is not separate property. Separate property includes:
- All property acquired by either spouse before the marriage;
- All property acquired by a spouse during marriage by gift, bequest, devise, or descent;
- All property either spouse acquires with the proceeds of the spouse’s separate property; AND
- All passive appreciation of separate property.
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EQUITABLE DISTRIBUTION OF MARITAL PROPERTY
Once the court categorizes the property as either separate or marital, the court will then equitably distribute the marital property between both spouses. Courts are afforded significant discretion in determining the equitable distribution of martial property at divorce. General factors include:
- The income, property, and liabilities of each party;
- The duration of the marriage;
- The obligations for support arising out of a prior marriage;
- The lifestyle each spouse is accustomed to; AND
- The contributions made by each spouse toward the accumulation of marital property.
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MODIFICATION OF PROPERTY DIVISION AT DIVORCE
Generally, courts may NOT modify a property division award (whether it results from a divorce settlement agreement or judicial determination) UNLESS exceptional circumstances exist (e.g., fraud).
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SPOUSAL SUPPORT ELIGIBILITY
Under the UDMA, a spouse is eligible for spousal support if the spouse seeking support:
- Lacks property sufficient for his or her reasonable needs and is unable to support himself through appropriate gainful employment; OR
- Is the custodian of a child such that it would be inappropriate for him to work.
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MODIFICATION OF SPOUSAL SUPPORT
In most states, a spousal support order can only be modified when there is a substantial change in circumstances of either party making the prior order unreasonable. Under the UDMA, a modification of spousal support is allowed only upon a showing of changed circumstances so substantial and continuing to make the terms unconscionable.
Some courts will NOT permit a modification of spousal support if the change in circumstances was anticipated or voluntary.
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CHILD SUPPORT
Parents have an absolute obligation to support their children. Federal law requires every state to provide guidelines to determine the proper amount of child support owed by a non-custodial parent. These guidelines must:
- Consider the income of the non-custodial parent;
- Provide for the child’s healthcare needs; AND
- Be based on specifically descriptive numeric criteria.
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MODIFICATION OF CHILD SUPPORT
In most states, a child support order can only be modified when there is a substantial change in circumstances of either party making the prior order unreasonable. Under the UDMA, a modification of child support is allowed only upon a showing of changed circumstances so substantial and continuing to make the terms unconscionable.
Some courts will NOT permit a modification of child support if the change in circumstances was anticipated or voluntary.
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CHILD CUSTODY
Generally, courts determine child custody based on the best interests of the child. Courts consider multiple factors to determine what custody order will serve the child’s best interests. General factors include:
- The needs of the child for a meaningful relationship with both parents;
- The ability and willingness of the parents to actively perform their functions as mother and father for the child’s needs;
- The interaction and interrelationship of the child with parents, siblings, and any other person who may affect the child’s best interests;
- The child’s adjustment to the child’s home, school, and community;
- The mental and physical health of all involved individuals;
- The intention of either parent to relocate the principal residence of the child;
- The wishes of the child’s parents as to custody; AND
- The wishes of the child as to the child’s custodian.
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PARENTAL VISITATION RIGHTS
When one parent is granted custody of a child, the other parent is usually always entitled to visitation rights UNLESS the court determines that visitation would seriously endanger the child’s wellbeing.
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THIRD PARTY CHILD VISITATION RIGHTS
In a minority of states, courts may order visitation for a nonparent if:
- The nonparent has a substantial relationship with the child; AND
- The visitation is in the child’s best interests.
- In order to be constitutional, great weight must be given to the parent’s wishes in regard to the nonparent when determining the best interests of the child.
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JOINT CUSTODY
When parents are awarded joint custody, they BOTH participate in decision-making regarding the upbringing of the child. Generally, a court must determine that joint custody is in the child’s best interests in order to award the parents joint custody.
MED
MODIFICATION OF CHILD CUSTODY
In order to modify a child custody order, the parent must show that:
- Circumstances have substantially changed; AND
- The modification would be in the child’s best interests.
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CUSTODIAL PARENT’S RELOCATION OF THE CHILD
Most courts will permit a custodial parent to move with the child if:
- The motives for moving are NOT vindictive; AND
- The move is in the child’s best interests.
Some courts balance the impact on the noncustodial parent’s visitation rights against the benefits of the move to the child and the custodial parent
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MEDIATION OF CUSTODY DISPUTES
In some states, a court has authority to order mediation of custody disputes. In others, mediation is mandated by statute under certain circumstances.
The mediator must attempt to reach a settlement that is in the best interests of the child. However, a settlement agreement may be set aside for mediator misconduct.
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UNMARRIED COHABITANTS EXPRESS CONTRACTS FOR ECONOMIC SHARING
In most states, an express agreement (written or oral) between unmarried cohabitants to share property or otherwise engage in forms of economic sharing is enforceable, so long as the economic sharing is NOT intended as payment for sexual services. However, some states refuse to recognize such contracts between unmarried cohabitants as against public policy.
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UNMARRIED COHABITANTS IMPLIED-IN-FACT CONTRACTS FOR ECONOMIC SHARING
Some states allow unmarried cohabitants to seek a remedy for economic sharing based on an implied-in-fact contract theory. An implied-in- fact contract is formed by the conduct of the parties rather than express statements (e.g., commingling funds).
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ESTABLISHING PATERNITY BETWEEN MAN AND CHILD
Under the Uniform Parentage Act (UPA), the father-child relationship is established between a man and a child by:
- An effective acknowledgement of paternity by the man UNLESS the acknowledgement has been rescinded or successfully challenged;
- A valid adoption of the child by the man; OR
- An adjudication of the man’s paternity.
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PARENTAGE PRESUMPTION UNDER THE UPA
Under the Uniform Parentage Act (UPA), a man is presumed to be the father of the child if:
- He and the child’s mother are or have been married to each other and the child is born during the marriage, or within 300 days after the marriage is terminated;
- Before the child’s birth, he and the child’s mother attempted to marry each in apparent compliance with law, although the attempted marriage is or could be declared invalid, and the child is born during the invalid marriage or within 300 days after its termination; OR
- While the child is under the age of majority, he receives the child into his home and openly holds out the child as his own.
NOTE. A presumption of paternity under the UPA may only be rebutted by clear and convincing evidence. Generally, there is a very high burden on challenging paternity because society favors the family relationship. Some courts even have the authority to exclude valid evidence that would rebut the presumption if
rebutting the presumption would be contrary to the child’s best interests.
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EQUITABLE ESTOPPEL OF PARENTAGE DENIAL
Under equitable estoppel, a man who is not the biological father will be estopped from denying paternity if:
- He has held himself out as the father; AND
- Paid support.
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LEGITIMATION BY PETITION
Legitimation is a legal action brought by a biological father to establish his rights concerning his child born out of wedlock. To establish his rights, the father may file a petition seeking to legitimate his child. Generally, the father must show that he has:
- Assumed parental responsibilities; AND
- Established a substantial parent-child relationship.
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LEGITIMATION BY MARRIAGE
The marriage of the mother and biological father renders the nonmarital child legitimate so long as the father recognizes the child as his child. Upon valid legitimation, the father stands in the same position as any other parent regarding parental and custodial rights with respect to the child.
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PARENTAL CONSENT FOR CHILD’S MEDICAL PROCEDURES
A doctor who performs surgery on a minor child without a parent’s consent is liable in tort, UNLESS any of the following exceptions apply:
- Emergency situations;
- Public health concerns; AND
- Children near the age of majority undergoing relatively minor medical procedures.
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PARENS PATRIAE
Under the parens patriae authority of the state, a state can intervene to protect children when their parents deny them needed medical care. In order to decide whether the medical care is needed, courts will:
- Examine whether a condition is life threatening or whether it can be postponed until the child reaches the age of majority; AND
- Weigh the risks and benefits of the treatment.
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INTER-SPOUSAL IMMUNITY
Historically, spouses could not sue each other in tort. Today, most jurisdictions have abolished inter-spousal immunity.
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PARENT-CHILD IMMUNITY
Historically, minor children could not sue their parents in tort. Today, most jurisdictions have abolished parent-child immunity. In jurisdictions that still have parent-child immunity, there is usually an exception for willful or wanton conduct as opposed to mere negligence.
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LOSS OF CONSORTIUM CLAIMS
Loss of consortium is a claim in damages intended to compensate a spouse for loss of companionship, sexual relations, or affection. Damages for loss of consortium are typically only available to the legally recognized spouse of the injured party.
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PARENTAL RIGHT TO DIRECT CHILD’S UPBRINGING
Parents have a fundamental right to direct their child’s upbringing, which includes a right to control their child’s religious education. Generally, courts will not interfere with parental decisions regarding their child’s upbringing and education UNLESS the child’s wellbeing is endangered.
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ADOPTION
Adoption is a statutory procedure that terminates the rights of the biological parents and establishes the rights of the adoptive parents. In most states, the biological parents lose the right to visit their child after the adoption. However, some states will permit visitation if it is in the child’s best interests.
MED
PARENTAL CONSENT IN ADOPTION
Generally, the consent of BOTH parents is required to place a child up for adoption. However, if the child is born out of wedlock, consent of the father is only required when he has assumed parental responsibility. Moreover, an unwed father who knew of his child’s pending birth is NOT entitled to notice of the adoption if he did not take steps to establish a parent-child relationship with the child.
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ADOPTION CONSENT CHALLENGES
A biological parent may challenge the validity of his/her consent to an adoption on the ground that his/her consent:
- Was procured by fraud or duress; OR
- Failed to comply with statutory formalities.
- Some states require two witnesses to consent to an adoption. Most states declare pre-birth adoptions invalid (e.g., a mother cannot give consent for an adoption until 72 hours after birth in some states).
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REVOCATION OF CONSENT TO ADOPTION
Generally, there are three different statutory approaches to a biological parent’s revocation of valid consent to an adoption:
- Consent is revocable until the final adoption decree is entered with the court;
- Consent is revocable at the court’s discretion up to a specified amount of time so long as the revocation is in the child’s best interests; OR
- Absent fraud or duress, consent is NOT revocable.
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ARTIFICIAL INSEMINATION
Generally, if a mother is married, the mother’s husband is presumed to be the father of a child born from artificial insemination if:
- He consented in writing; AND
- A medical doctor performed the procedure.
Most states extinguish any parental rights the sperm donor may have as the biological father of the child upon successful artificial insemination.
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SURROGACY ARRANGEMENTS
Some states hold parties that enter into a surrogacy contract criminally liable. Other states treat surrogacy contracts as void against public policy without imposing criminal liability. Still, other states permit surrogacy contracts so long as the birth mother is given a period of time to change her mind after the child is born.
