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MEE GMW > Family Law > Flashcards

Family Law Flashcards

1
Q

Ceremonial marriage requires

A
  • a license
  • a ceremony solemnized by an authorized officiant
  • no legal impediments to marriage (not too closely related/no prior undissolved marriage)
  • capacity to consent at the time of marriage
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2
Q

Common-law marriage requires

A
  • Consent to marry (capacity and lack of legal impediments)
  • Cohabitation
  • Spouses hold themselves out publicly as spouses
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3
Q

A marriage is void (invalid) when:

A

failed to meet the essential requirements of a legal marriage.

ie. bigamy (living spouse) and consanguinity (too closely related)

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4
Q

Marriages are voidable based on:

A
  • issues of consent
    • non-age, incurable physical impotence, lack of capacity, duress, fraud if it involves an essential element

Marriage is valid until declared null, and can be ratified by continued habitation after removal of the impediment.

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5
Q

What are the grounds for a fault divorce?

A
  • adultery
  • desertion/abandonment
  • cruelty
  • drug addiction/habitual drunkenness
  • insanity
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6
Q

What are the defenses to a fault divorce?

A
  • Collusion: agreement between spouses to simulate grounds for divorce
  • Connivance: willing consent to other spouse’s misconduct
  • Condonation: forgiveness of the offense with full knowledge
  • Recrimination: party seeking divorce is also guilty of misconduct
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7
Q

What are they types of alimony?

A
  • Permanent Periodic
  • Lump Sum
  • Rehabilitative
  • Reimbursement
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8
Q

Jurisdiction in child support cases

A

Under the Uniform Interstate Family Support Act

Original jurisdiction: where the first petition under UIFSA is filed or where first petition is objected to and second petition is filed in child’s home state.

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9
Q

Jurisdiction to enforce child support order

A

Court that issued the order, or another state if: direct enforcement or registration.

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10
Q

Jurisdiction to modify child support order

A

Court that has continuing and exclusive jurisdiction to modify.

Unless no party resides in the state or the parties consent to jurisdiction elsewhere.

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11
Q

What is the duration of a child support order?

A
  • Child reaches age of majority
  • Death of child
  • Emancipation
  • Termination of parental rights
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12
Q

Under the Uniform Child Custody Jurisdiction and Enforcement Act, what courts have jurisdiction to enter child custody orders?

A

The primary test is the home state: where child resides or was child’s home state within the past 6 months and a parent continues to live in that state.

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13
Q

What is the standard for determining child custody?

A

Best interest of the child

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14
Q

When does an unwed biological father have a Due Process protections re: child?

A

When he demonstrates a commitment to the responsibilities of parenthood

  • parents married after birth
  • father holds child out as biological child
  • father consents to be named on birth certificate
  • father formally acknowledges paternity
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15
Q

Are provisions of a separation agreement regarding child support and custody binding on a court?

A

No

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16
Q

Requirements of a valid premarital agreement

A
  • in writing, signed
  • entered into voluntarily
  • full and fair disclosure of the parties’ assets or proof that a party had independent knowledge of the assets
  • some courts consider whether fair and reasonable
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17
Q

Does the failure to meet the procedural requirements of a license invalidate a marriage?

A

No.

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18
Q

What is an annulment?

A

A backward-looking doctrine for void or voidable marriages.

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19
Q

Doctrine of necessaries

A

makes one spouse liable to 3rd parties for other spouse’s purchases for necessary expenses (food, clothing, health care)

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20
Q

What is the effect of an annulment?

A

The marriage is set aside. Children are presumed to be marital children. Courts attempt to place parties in their pre-marriage condition.

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21
Q

Jurisdiction in divorce

A

Jurisdiction where 1 spouse is domiciled, EXCEPT financial issues - the court must have personal jurisdiction over the defendant.

Multiple cases can proceed until one court enters judgment.

22
Q

Elements of no-fault divorce

A
  • Proof of irreconcilable differences
  • Parties are living apart for specified and continuous period of time (90 days to 18 months)
  • Incompatibility
23
Q

Defenses to no-fault divorce

A

Reconciliation (spouses not living separately)

24
Q

Two steps of property division

A
  1. Classification as marital or separate property
  2. Division of only marital property
25
Q

Separate property

A
  • Property owned before the marriage
  • Property acquired by gift/inheritance
  • Property acquired in exchange for separate property
  • Income and appreciation of separate property
  • Pain and suffering, personal damages
  • Property acquired after an order of legal separation
26
Q

Marital property

A
  • Property acquired during the marriage
  • Earnings
  • Employment benefits/pensions/stock options
  • Lost wages during marriage
  • Reimbursement for medical bills paid with marital property
  • Recover for damages to marital property
27
Q

What is commingling?

A

When separate property is inextricably intertwined

28
Q

What is transmutation?

A

Separate property becomes marital property if there is evidence of intention

29
Q

Property acquired before the marriage but paid for after is split . . .

A

between separate and marital property in proportion to the contribution of funds.

30
Q

Factors for equitable distribution of property

A
  • Duration of marriage
  • Distribution is in addition to or in lieu of alimony
  • Contribution to acquisition of existing assets
  • Economic fault
31
Q

Permanent periodic spousal support

A

Paid regularly to a spouse. Indefinite duration. Can be increased, decreased, or terminated.

32
Q

Lump sum alimony

A

Fixed amount payable at once or via a series of payments. For a specified period of time. Cannot be modified.

33
Q

Rehabilitative spousal support

A

Periodic payments for limited time to enable a spouse to gain skills to become self-supporting. For a specified period. Can be increased, decreased, or terminated.

*can be ordered with permanent periodic or lump sum

34
Q

Reimbursement spousal support

A

Awarded to a spouse who supported the other spouse while the latter obtained professional license/degree. Fixed sum, specific period. No modification.

*can be awarded with permanent periodic or lump sum

35
Q

Factors to consider in awarding alimony

A

OVERALL: needs of claimant and ability of other spouse to pay

  • Standard of living during marriage
  • Duration of marriage
  • Age and physical/emotional condition
  • Financial resources
  • Contribution of each party to marriage
  • Time needed to obtain education/training to find appropriate employment
  • Ability to meet needs while paying support
  • Marital fault
36
Q

Modification of spousal support

A

Permanent periodic or rehabilitative only.

Modified based on a substantial change in circumstances.

37
Q

Termination of spousal support

A

Remarriage of recipient spouse. or death of either spouse.

38
Q

Requirements of a separation contract

A
  • Voluntary
  • Full and fair disclosure by both parties
  • Consideration
39
Q

When can a child support order be modified?

A

Based on a substantial and continuing change of circumstances affecting the needs of the child or the obligor’s ability to pay.

40
Q

Under UCCJEA for child custody, if a child has no home state, jurisdiction exists where

A
  • the child and at least one parent have significant connection with the state
  • AND there is substantial evidence concerning the child available in the state
41
Q

What court can modify a child custody order?

A

A court with continuing and exclusive jurisdiction.

OR another state if no child/parent continues to reside there and the issuing state no longer has a significant connection

42
Q

When a court decline to exercise child custody jurisdiction?

A

Inconvenient forum or unjustifiable conduct.

43
Q

Best interest of the child factors

A
  • wishes of the parent
  • child’s preference (if over 12)
  • child’s relationship with parents, siblings, and others
  • child’s adjustment to home/school
  • the mental and physical health of all parties
  • the child’s primary caregiver
44
Q

Types of child custody

A
  • joint custody
  • sole custody
  • custody to nonparent
45
Q

Are child custody orders modifiable?

A

Yes, always - based on a substantial and material change in circumstances affecting the child’s well-being.

46
Q

Under the Parental Kidnapping Prevention Act,

A

full faith and credit must be given to another state’s custody or visitation determination if the Act’s jurisdictional requirements are met.

47
Q

Regulations affecting nonmarital children are subject to

A

intermediate scrutiny

48
Q

Termination of parental rights can occur:

A

voluntarily or involuntarily.

Termination is required for adoption.

49
Q

UIFSA rules (support)

A
  • Initial jurisdiction: first petition filed or first petition objected to and second filed in child’s home state
  • Enforcement: court that issued order, registration, direct enforcement
  • Modification: court that issued has continuing and exclusive jurisdiction
    • modifiable based on substantial and continuing change in circumstances affecting needs of child or ability of parent to pay
50
Q

UCCJEA rules (custody)

A
  • Initial jurisdiction: child’s home state OR significant connections test
  • Modification: court with continuing and exclusive jurisdiction
    • substantial and material change in circumstances
  • Decline jurisdiction if inconvenient forum or unjustifiable conduct
  • Relocation: notice to other parent and hearing
  • Also PKPA: full faith and credit to custody orders
51
Q

Child’s home state

A

The state in which the child lived with a parent (or a person acting as a parent) for at least six consecutive months

MEE GMW (8 decks)

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