Family Law Flashcards
Family Law Acronyms: UMDA
UPAA
UIFSA
PKPA
UCCJEA
UMDA- Uniform Marriage and Divorce
UPAA- Uniform Premarital Agreement Act
PKPA: Parental Kidnappying Prevention Act
UCCJEA- Uniform Child Custody Juridiction and Enforcement Act
Common Law Marriage
requires the spouses:
- live together for a specified amount of time
- be legally able to marry
- have a present agreement that they are married; AND
- hold themselves out to be married.,
*
Premarital Agreements: Enforceability
Enforceable under UPAA if:
- in writing and signed by both parties
not enforceable if:
- involuntary (fraud, duress or coercion)
- unconscionable AND before execution, spouse was not provided fair disclosure of property/ financial obligations; did not waive disclosure in writing; or did not have knowledge of such information.
Premarital Agmt: Child Custody
not binding on a court and any provision that adversely affects a child’s right to support is unenforceable.
if an agmt is not in childs best interest, court may order parent to pay an amount reasonable or necessary for the child’s support.
Premarital Agmt: Spousal Support
UPAA permits it but is not enforceable if it makes the spouse leigible for public support (welfare)
Jurisdiction in marital/Divorce Actions
- ex parte divorce: may be maintained w/o pj over the absentee spouse only if plaintiff spouse is domicilary of the rendering state. (most states have a residency requirement)
- child custody: must have pj over defendant spouse
- divisible divorce: on spouse can terminate marriage in one proceeding and reserve other issues for later.
Jurisdiction in Child Custody Matter
court must have smj to issue or modify child custody order.
UCCJEA: Home State Jurisdiction for Child Custoy matter
court may decide child custody only if it has:
- child’s home state; or
- where child livid with a parent for 6+ months immediately before action waws filed; child absent from state and parent or acting parent is still present in the state.
UCCJEA: Significant Connection Jurisdiction
a court may decide child custody if it has:
- no home state
- child and at least one parent hav e a significant connection to the state AND
- sinstantial evidence in the state exists.
UCCJEA: More Appropriate Forum Jurisdiction
court may decide child custody if all other courts decline to exercise jurisdiction because this particule court is a more appropriate forum.
UCCJEA: Emergency Jurisdiction
child physically present in the state AND abandoned or its an emergency to protect the child.
UCCJEA: No other state Jurisdiction
when no other state has jurisdiction.
PKPA Jurisdictions
the same jurisdictional definition as UCCJEA.
Home State, Signficant Connections, More Appropriate Forum, Emergency Jurisdiction, Emergency Jurisdiction, or No other State Jurisdiction.
Adoption Matter Jurisdictions
Are the same as UCCJEA
Home State, Signficant Connection, More Appropriate Forum, Emergency Jurisdiction, or No Other State Jurisdiction
Division of Approach: Equitable Division
marital assets are divided among the spouses by equitable distribution
Division of Property: Separate Property
includes:
- property acquired before marriage
- gifts and bequest (even if in marriage)
- property that spouses agree will be separate property; and
- passive appreciation of assets (increase in value due to the passing of time)
Division of Property: Marital
all other property acquired during marriage include active appreciation (increase in value by effort of spouse); and future expectancies
Distribution of Marital Prop
marital prop is pooled and divided among spouses. distrinution is based on factors.
factors: duration of marriage, age, earning capacity, lifestyle, income, separate property od each spouse.
Accural of marital property
some states: ends upon permanent separation
other states: ends upon a final divorce decree.
Spousal Support:
maintenance or alimony, maintains a spouses standard of living anf limit unfair effects of divorce.
When is spousal support awarded under UMDA
only awarded if:
- lacks sufficient property AND
- is unable to support him/herself through employment OR is the custodian of a child with a condition where the spoise cannot seek employment.
How does court consider determing amount of spousal support
- financial resources
- time necessary for obtaining a job
- standard of libing durign mariation
- duration of marriage
- age and physical conditon
- ability of the spouse paying support
** minority of states will consider fault or marital misconduct.
How do you terminate spousal support
terminates upon death of obligor spouse.
Modifying spousal support
show change circumstances so substantial and continuing as to make the terms unconscionable.
Child Support: parents legal obligation
a bio parent is legally obligated to pay child suport (regardless if child intended or wanted)
Child support guidelines
fed law requires guidelines that
- take into account all earnings and income of the non-custodial parent AND are based on specific descriptive and numeric criteria.
Educational Expense
some states require support for college/ continuing education byt a child may lose the right to payments if the child does not follow the obligor-parent reasonable instruction.
Termination of Child Support
- most stateS: terminateupon death but deceased’s estate remains liable for past due payments.
- some states: obligation does not terminate. allows access to deceased’s estate to fulfill future payments.
Modification of Support
only when there is a substantial and continuing change in circumstances making the prior order unreasonable.
some courts may not permit a modification if the change was anticipated or voluntary. others may in good faith.
cannot retroactively modify support orders.
UIFSA and Modification
UIFSA: courts must give full faith and credit to support orders from other states.
cannot modify a child support order of another state unless:
- court has jurisdiction to issue an order AND
- either
- all parties do ont reside in the issuing state. or
- each party has consented in writing to jurisdiction in another state.
Issuing State:
has continuing, exclusive jurisdiction over an order if
- state is still the residence of one partty or
- all parties consent ina record or in open court.
best interest of child standard: child custody
determine child custody based on the best interest of the child.
- court cannot award or deprive custody based on a parent’s lifestyle, values, or religious beliefs but can take it into account if endangers the child.
Parent vs. Third party custody
a fit legal parent is given preference, and it’s presumed that such custody is in the best interests of the child.
- in some state rebutted if detrimental to the child. court must give geat weight to a parents determination of whats best for the child.
court will only grant custody to a third party upon showing a special circumstances (abuse, neglect, abandonment, mentally incompentent, parent surrendered the child.)
unmarried: agmt between cohabitants
an agreement for division of property between unmarried cohabitants may be express or implied.
- express: oral or written: enforceable except if based on sexual relations.
- implied: court may find an implied in fact agmt if the parties comingled funds during the relationship.
Paternity
can be established by:
- birth certificate
- legal presumption - if born during marriage presumed marital child but can be rebutted.
- unmarried parent voluntarily sign an acknowledgement of paternity.
- paternity suit and or
- paternity by estoppel - held himself out as the father and paid support
paternity confirmed = child support obligations.
adoption
severs bio legal rights and responsibility to child.
some states: inheritance rights of the child are not terminated if adopted by a blood relative.
consent to adoption
both parents consent general
non marital child: father required when he assumed parental responsibilities
consent not required when: parent surrendered; parent is incompetent due to mental illness; child abandoned; permanently neglected the child.
**consent cant be w/d after adoption decree.
