Family Law Flashcards
Do you have to return gifts conditioned on marriage? (ex engagement ring)
Yes
What act governs prenups?
The Uniform Premarital Agreement Act
It has been adopted by a majority of states
Can prenups make agreements regarding alimony?
Yes, but a court may find the provision unenforceable if it leaves the disadvantaged spouse a public charge
Do child custody and support provisions in prenups bind the court?
No! Never!
What is required for a prenup to be enforceable?
- It must be in writing and signed
- It must be entered into voluntarily
- There must be a full and fair disclosure of the parties’ assets or proof that the party against whom the agreement is being enforced had independent knowledge of the assets (courts only look at this factor if the agreement is unconscionable)
- Some courts consider whether the economic provisions are fair and reasonable
If a prenup does not contain a choice of law provision, what law governs?
The law of the state where it was executed or the law of the state with the most significant relationship to the parties
What is required for a marriage?
- Marriage license
- Ceremony with authorized officiant
- No legal impediments to marriage
- Capacity to consent
Does the failure to meet the procedural requirements of a license invalidate a marriage?
No
What are the legal impediments to marraige
- Too closely related (some states let first cousins marry)
- Bigamy
What does a valid common law marriage require?
- Consent to marry, including capacity and a lack of legal impediments
- Cohabitation
- The couple holding themselves out publicly as spouses
What is marriage by estoppel or putative marriage?
An equitable remedy that some states use to protect an innocent party who acted in good faith when entering into an invalid marriage
Tenancy by the Entirety
In many states, if spouses take title to real estate jointly, a tenancy by the entirety is presumptively created.
Includes a right of survivorship, and one spouse cannot convey or encumber the property without the consent of the other spouse. Upon dissolution of the marriage, tenants by the entirety become tenants in common
The Doctrine of Necessaries
One spouse can be liable to third parties for the other spouse’s purchases for necessary expenses, such as food, clothing, and healthcare
Can protective orders be granted ex parte?
Yes
What are the torts for interference with a marriage?
- Alienation of affection
- Criminal conversation
Alienation of Affection
When a third party diverts the affection of one spouse of that the other is deprived of a marital relationship.
Elements:
- Evidence of genuine love and affection between validly married spouses
- Evidence that the love and affection was alienated or destroyed
- Proof that the defendant’s actions caused the loss of love and affection
These actions have been abolished in many states
Criminal Conversation
Elements
- Existence of a valid marriage
- The act of adultery
Has been abolished in most states
Parental Constitutional Rights
- Right to educate their children outside the public schools
- The right fo parents to decide issues concerning the care, custody, and control of their children
Annulment
A backward-looking doctrine that declares a marriage invalid because an impediment existed at the time of the marriage that makes it legally void or voidable
When is a marriage void?
- Bigamy or polygamy
- Consanguinity
Who may seek annulment of a void marriage?
Any interested party
What arguments can the second spouse make if the prior marriage was not successfully ended?
- There is a strong presumption that the latest marriage is valid
- If the prior marriage is later terminated by divorce, death, or annulment, continue cohabitation validates the second marriage
Who can bring a cause of action for a voidable marriage?
Only the spouses
What issues make a marriage voidable?
- Nonage (under age spouse)
- Incurable physical impotence
- Lack of capacity
- Duress
- Fraud
Can nonage be remedied?
Yes- the underage spouse may ratify the marriage by continuing in the relationship after reaching the statutory age
Are the children of an annulled marriage marital children?
Yes
Division of property following an annulment
Court attempts to place the parties in their pre-marriage position and usually gives each party that property to which they have legal or equitable title
How is jurisdiction over a divorce decided?
Only one of the parties need to be domiciled in the jurisdiction. Most states set a minimum residency period before the action may be filed
If multiple states have jurisdiction over a divorce, what happens?
The proceedings can occur simultaneously, but whichever renders a judgment first wins
What must be shown for a no-fault divorce?
- Both spouses agree the marriage is irretrievably broken (aka irreconcilable differences)
- The parties have been living apart for a specified and continuous period of time
- Both parties agree they are now incompatible and can no longer be married
What are the grounds for a fault-based divorce?
- Adultery
- Willful desertion (doesn’t count if fleeing abuse)
- Extreme physical or mental cruelty
- Voluntary drug addiction or habitual drunkenness commencing after the marriage
- Insanity
Defenses to a fault-based divorce
- Collusion (spouse agree to simulate grounds for divorce)
- Connivance (willing consent to the other spouse’s misconduct)
- Condonation (the forgiveness of marital offenses with full knowledge of the wrongs and resumption of marital relations)
- Recrimination (when the spouse seeking the divorce is guilty of misconduct for which the divorce may be granted)
What are the three approaches to division of property upon divorce?
- Community property
- Equitable division of all property
- Equitable division of marital property
Community property
All property acquired during the marriage is deemed owned one-half by each spouse, and all property brought into the marriage or acquired by gift or bequest is separate property
Equitable division of all property
The court divides all property owned by either spouse, whether acquired before or after the marriage
Equitable division of marital property
Each spouse takes their separate property and the court only divides the property acquired during the marriage
THIS IS THE MAJORITY APPROACH
Steps for property division
- Classification: determine what is marital property and what is separate property
- Division: make an equitable division of the marital estate no matter how the property is titled
What is separate property
- Property owned before marriage
- Property acquired by gift or inheritance
- Property acquired in exchange for separate property
- Income and appreciation of separate property
- Pain and suffering awards
- Personal damages
- Property acquired after an order of legal separation that includes a final disposition of property
What is marital property
- Property acquired during the marriage
- Earnings
- Employment benefits, pensions, and stock options
- Lost wages
- Reimbursement for medical bills incurred and paid with marital property
- Recovery for damages to marital property
How can separate property become marital property?
- Comingling- the separate property is inextricably intertwined with marital property
- Transmutation- the separate property is treated in a way that evidences an intention for the property to be marital property
Factors to Consider in Dividing Marital Property
- Age, education, background, and earning capabilities of both parties
- Duration of the marriage
- Standard of living
- Present incomes of both parties
- Source of the money used to purchase the porperty
- Health of the parties
- Assets, debts, and liabilities of the parties
- Needs of the parties
- Child custody provisions
- Whether the distribution is in addition to or in lieu of alimony
- Each party’s opportunity to acquire future income and assets
- Each party’s contribution to the acquisition or enhancement of the existing marital assets
- Each party’s contribution as homemaker
- Economic fault
Marital fault is generally NOT a consideration
Types of alimony
- Permanent periodic spousal support
- Lump sum
- Rehabilitative spousal support
- Reimbursement spousal support
Permanent spousal support
- Paid regularly to support a spouse who has neither the resources nor the ability to be self-sustaining
- Lasts indefinitely
- Can be modified upon proof of substantial change in circumstances
Lump Sum Spousal Support
- A fixed amount payable either all at once or via a series of payments
- Paid for a specified time period
- No modification
Rehabilitative Spousal Support
- Periodic payments for a limited time to enable a spouse to gain skills to become self-supporting
- Paid for a specified time period
- Can be modified based on substantial change of circumstances
Reimbursement Spousal Support
- Occasionally awarded to a spouse who supported the other spouse while the latter obtained a professional license or degree
- It can be ordered along with permanent periodic or lump sum alimony
- Paid for a specified period of time
- No modification
Factors Considered When Awarding Alimony
- Standard of living
- Duration of the marriage
- Age and physical and emotional condition of the parties
- Financial resources of the parties
- Contribution of each party to the marriage
- Time needed for the party seeking support to obtain the training necessary to find appropriate employment
- The ability of the payor spouse to meet their needs while paying spousal support
- Marital fault
Separation Agreement
An agreement entered into after marriage under which the parties agree to live apart and resolve economic issues and custody rights
What is required for a separation agreement?
- Agreement must be voluntary
- Must be a full and fair disclosure by both parties
- Consideration (can be found in the mutual promises of the parties)
What can parties waive in a separation agreement?
- Alimony
- Property division
- Parties can agree of child custody and support, but the court is not bound by this agreement
Is visitation impacted by child support?
No
When does the duty to support a child cease?
- The child reaches the age of majority
- Death of the child
- Emancipation of the child
- TPR
Note- may be indefinite for a severely disabled child
What law provides for enforcement and modification of child support orders issued in another state?
Uniform Interstate Family Support Act
Where is original jurisdiction to enter a child support order?
In the state where the first petition under UIFSA is filed. BUT, another state can exercise jurisdiction if
- The second petition is filed before the time to answer the first petition has expired
- The petitioner objected to jurisdiction in the first action
- The second state is the child’s home state
What state has jurisdiction to modify a child support order?
- The court that issues the controlling child support order has continuing and exclusive jurisdiction to modify it
- Another state can impact the order only if NO party resides in the issuing state or the parties consent to jurisdiction elsewhere
When is child support modifiable?
Based on a substantial and continuing change of circumstances affecting the needs of the child or the ability of the parent to pay
What state has jurisdiction to initially enter or modify a child custody or visitation order?
A state that
- Is the child’s home state
- Was the child’s home state within the past 6 months, and the child is absent from the state, but a parent or guardian continues to live in the state
What is a child’s home state?
The state where they have lived with a parent or guardian for at least 6 consecutive months
When does the home state rule not apply?
If no other state has or accepts home state jurisdiction and
- The child and at least one parent/guardian have a significant connection with the state AND
- Substantial evidence concerning the child is available in the state
What is the standard for awarding custody of a minor?
The best interest of the child
What factors are considered in determining the child’s best interest?
- The wishes of the parents
- Child’s preferences (not at all if child <8, significantly if child >12)
- Child’s relationship with parents, siblings, and others involved with parents
- Child’s adjustment to home, school, and community
- Parties’ mental and physical health
- Who has been the child’s primary caregiver
When is sole custody appropriate?
There is strong evidence that it is in the best interest of the child
Do biological parents have constitutional rights to raise their children?
Yes
When will custody awards be modified?
If there has been a substantial and material change in circumstances affecting the child’s wellbeing
What is the standard of scrutiny for distinctions between marital and nonmarital children?
Intermediate → substantially related to an important governmental interest
When is the child the lawful child of an unwed father?
- The parent’s married after the child’s birth
- The father holds the child out as his biological child
- The father consents to be named on the birth certificate
- The father formally acknowledges paternity OR
- There is a court order establishing paternity
What is the evidentiary standard for TPR?
Clear and convincing evidence
What act helps with child custody across state lines?
Uniform Child Custody and Jurisdiction Enforcement Act
