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BAR PREP HIGH > Family Law > Flashcards

Family Law Flashcards

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1
Q

Family Law Acronyms: UMDA

UPAA

UIFSA

PKPA

UCCJEA

A

UMDA- Uniform Marriage and Divorce

UPAA- Uniform Premarital Agreement Act

PKPA: Parental Kidnappying Prevention Act

UCCJEA- Uniform Child Custody Juridiction and Enforcement Act

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2
Q

Common Law Marriage

A

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.,
    *
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3
Q

Premarital Agreements: Enforceability

A

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.
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4
Q

Premarital Agmt: Child Custody

A

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.

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5
Q

Premarital Agmt: Spousal Support

A

UPAA permits it but is not enforceable if it makes the spouse leigible for public support (welfare)

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6
Q

Jurisdiction in marital/Divorce Actions

A
  • 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.
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7
Q

Jurisdiction in Child Custody Matter

A

court must have smj to issue or modify child custody order.

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8
Q

UCCJEA: Home State Jurisdiction for Child Custoy matter

A

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.
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9
Q

UCCJEA: Significant Connection Jurisdiction

A

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.
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10
Q

UCCJEA: More Appropriate Forum Jurisdiction

A

court may decide child custody if all other courts decline to exercise jurisdiction because this particule court is a more appropriate forum.

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11
Q

UCCJEA: Emergency Jurisdiction

A

child physically present in the state AND abandoned or its an emergency to protect the child.

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12
Q

UCCJEA: No other state Jurisdiction

A

when no other state has jurisdiction.

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13
Q

PKPA Jurisdictions

A

the same jurisdictional definition as UCCJEA.

Home State, Signficant Connections, More Appropriate Forum, Emergency Jurisdiction, Emergency Jurisdiction, or No other State Jurisdiction.

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14
Q

Adoption Matter Jurisdictions

A

Are the same as UCCJEA

Home State, Signficant Connection, More Appropriate Forum, Emergency Jurisdiction, or No Other State Jurisdiction

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15
Q

Division of Approach: Equitable Division

A

marital assets are divided among the spouses by equitable distribution

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16
Q

Division of Property: Separate Property

A

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)
17
Q

Division of Property: Marital

A

all other property acquired during marriage include active appreciation (increase in value by effort of spouse); and future expectancies

18
Q

Distribution of Marital Prop

A

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.

19
Q

Accural of marital property

A

some states: ends upon permanent separation

other states: ends upon a final divorce decree.

20
Q

Spousal Support:

A

maintenance or alimony, maintains a spouses standard of living anf limit unfair effects of divorce.

21
Q

When is spousal support awarded under UMDA

A

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.
22
Q

How does court consider determing amount of spousal support

A
  • 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.

23
Q

How do you terminate spousal support

A

terminates upon death of obligor spouse.

24
Q

Modifying spousal support

A

show change circumstances so substantial and continuing as to make the terms unconscionable.

25
Q

Child Support: parents legal obligation

A

a bio parent is legally obligated to pay child suport (regardless if child intended or wanted)

26
Q

Child support guidelines

A

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.
27
Q

Educational Expense

A

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.

28
Q

Termination of Child Support

A
  • 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.
29
Q

Modification of Support

A

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.

30
Q

UIFSA and Modification

A

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.
31
Q

Issuing State:

A

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.
32
Q

best interest of child standard: child custody

A

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.
33
Q

Parent vs. Third party custody

A

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.)

34
Q

unmarried: agmt between cohabitants

A

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.
35
Q

Paternity

A

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.

36
Q

adoption

A

severs bio legal rights and responsibility to child.

some states: inheritance rights of the child are not terminated if adopted by a blood relative.

37
Q

consent to adoption

A

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.

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