Family Law Flashcards
1
Q
Premarital Agreements
A
- Premarital agreements are enforceable unless procured by fraud, duress, or coercion.
- The UPAA (majority) requires that agreement must be in writing and signed by both parties.
- NOT Enforceable under UPAA(IU) if:
-
Involuntarily(I OUT) (fraud, duress, coercion); OR
- presence of independent legal counsel;
- length of time between agreement and wedding(embarassment & financial loss from cancelling wedding);
- ability to understand the agreement; and
- other reasons for proceeding with the marriage (i.e. pregnancy).
-
Unconscionable(FWK) when executed AND before execution the spouse was:
- not provided fair disclosure (of property/financial obligations);
- did not waive disclosure in writing; or
- did not have (or could have) knowledge of such information.
-
Involuntarily(I OUT) (fraud, duress, coercion); OR
- Child custody/support provisions cannot bind a court and most likely unenforceable.
- Spousal support provision permitted but not enforceable if it makes spouse eligible for public welfare.
2
Q
Division of Property
A
- Equitable Division Approach (most states)→marital assets are divided among the spouses by equitable distribution; separate property is NOT divided.
-
Separate Property(BGAP) includes:
- Property acquired before marriage;
- Gifts and bequests (even if during marriage)(inheritance);
- Property that spouses agreed will be separate property; and
- Passive appreciation of assets – an increase in value due to a passage of time.
-
Marital Property(AF) = ALL OTHER property acquired during the marriage, including:
- Active appreciation – caused by the effort of either spouse; and
- Future expectancies, even if payment will not be received until after the marriage ends.
-
Separate Property(BGAP) includes:
-
Distribution of Marital Property – All marital property is pooled, and then divided among the spouses (no matter how title is held). The court considers various factors to determine distribution amounts.
- Factors (DALIES)→Duration of marriage, Age of spouses, Lifestyle, Income, Earning capacity, Separate property of each spouse.
-
Accrual of Marital Property:
- Some States→ends upon permanent separation.
- Most States→ends upon a final divorce decree.
- Community Property Approach: Marital property is divided exactly in half
- Minority Approach: Divides all property owned by spouses equitably.
- Professional degrees are not marital property.
3
Q
Modification of a Property Division Award
A
A property division award can be modified ONLY IF exceptional circumstances exist (i.e. fraud, duress).
For jx over modification, court needs PJ.
UIFSA does not apply here.
Usually will not be modified so that parties can move on with their lives. Substantial change in circumstance is not enough.
4
Q
Right to Control Child’s Upbringing
A
- Is a fundamental right and govt generally cannot interfere.
- Exceptions – The govt. MAY LIMIT parental rights & decisions when it:
- jeopardizes the health or safety of the child (e.g. lifesaving medical treatment is needed); OR
- has a potential for a significant social burden (e.g. spread of a preventable contagious illness).
- Education is up for the parent to decide but all children must attend school until 8th grade.
- Medcial care: parental consent is required except in emergencies or by statute.
- Some states do not honor parent’s refusal of treatment based on religious beliefs. Weigh risk and benefits.
- Vaccination required for school admissions does not violate Constitution.
5
Q
Common Law Marriage
A
- Elements(LACH):
- an agreement between two parties;
- be legally able to marry;
- cohabitation; AND
- hold themselves out as being married
- Regarded as valid marriage in other states even if abolished in the other state.
6
Q
Bigamous Marriage
A
- A marriage is NOT valid if entered into when one of the parties is still married (before the dissolution of an earlier marriage).
- BUT, a marriage may be saved under:
- Equity Doctrine→creates a strong presumption that the most recent marriage is valid (rebuttable if evidence shows first marriage was not dissolved).
- UMDA→marriage may be validated upon removal of impediment (i.e. earlier marriage is terminated).
7
Q
Duties During Marriage
A
- Women retain full rights to their property after marriage.
-
Mutual Support: All states recognize a marital duty of support between spouses.
- But, the Doctrine of Nonintervention DOES NOT allow a court to intervene in an ongoing intact marriage to resolve internal disputes about family support, finances, and expenditures.
-
Payments for Necessities: A spouse is liable to creditors who have provided necessities (food, clothing, shelter) to the other spouse.
- Medical Expenses→deemed necessities in some states (a non-debtor spouse may be liable to the extent the debtor spouse is unable to pay).
8
Q
Jurisdiction in Martial/Divorce Actions
A
- State courts have SMJ
- Court does not need jx over both spouses to terminate marriage.
- If plaintiff spouse is domiciled in the forum state or if the state has some other equivalent long-term connection between at least one of the parties to the marriage, then that court has jx to dissolve P’s marriage.
- Unless the court has jx over defendant spouse, it may not issue binding property division or support order.
9
Q
Modification/Enforcement of Child/Spousal Support Orders
A
- Jx is proper in the state in which the first action for support under UIFSA is filed. The court that issues the the controlling child support order generally has continuing exclusive jx to modify the order if:
- at least one party still resides; or
- parties have consented on record
- Other courts can only enforce original order, can modify only when it has jx to issue order (PJ) AND:
- the parties no longer reside in the issuing state; or
- the parties consent on record to the nonissuing court’s jx to modify the order.
- A support order can only be modified when there is a substantial & continuing change in circumstances making the prior order unreasonable or unconscionable.
- Some courts will NOT permit a modification if the change was anticipated or voluntary. Other courts will permit a modification if the spouse acted in good faith.
- Courts CANNOT retroactively modify support orders.
10
Q
Setting Aside Divorce/Separation Agreement
A
-
Divorce Settlement Agreement→may be set aside if:
- mediator misconduct; OR
b) it’s substantially unfair and the result of fraud, duress, overreaching, or coercive conduct.
- mediator misconduct; OR
-
Separation Agreement→Invalid if:
- unconscionable; OR
- was the result of fraud.
- Some states, a wife’s failure to tell husband that he might not be child’s biological father is considered fraud.
11
Q
Spousal Support (Alimony)
A
- When Awarded under UMDA – only awarded if the spouse:
- Lacks sufficient property; AND
- Is unable to support him/herself through employment or is the custodian of a child with a condition where the spouse cannot seek employment.
- Determining the Amount – Relevant factors a court will consider (DA FAST):
- financial resources;
- time necessary for obtaining a job;
- standard of living during marriage;
- duration of marriage;
- age and physical/emotional condition; and
- the ability of the spouse paying support.
- A minority of states will also consider marital misconduct or fault.
- Termination – Spousal support obligations terminate upon the death of obligor spouse.
12
Q
Child Custody - Jurisdiction
A
- Court MUST have subject matter jurisdiction to issue or modify a child custody order.
- Personal jurisdiction or physical presence of a party or child is NOT necessary.
- UCCJEA:
- Home State Jurisdiction:
- child’s home state; OR
- where child lived with a parent for 6+ months immediately before action was filed, child is absent from state, and parent or acting parent is still present in the state.
- Significant Connection Jurisdiction:
- no home state;
- child and at least one parent have a significant connection to the state; AND
- substantial evidence in the state exists.
- Emergency Jurisdiction:
- child is physically present in the state; AND
- child is abandoned or it’s an emergency to protect the child.
- No Other State Jurisdiction: when no other state has jurisdiction.
- Home State Jurisdiction:
13
Q
Custody - Best Interest of the Child (BIC)
A
- Courts determine child custody based on the best interests of the child.
- Gives great discretion to the court.
- Courts will evaluate various factors(ONWARDS):
- the wishes of the parents and mature children;
- age, financials, health of each parent;
- new partners in each parent’s life;
- effect custody will have on a child’s relationship with extended family;
- history of domestic violence;
- stability of home and school environment;
- and any other relevant factor.
- A court CANNOT award/deprive custody based on a parent’s lifestyle, values, or religious beliefs.
- BUT, it may take into account if such behavior or conduct endangers the child.
- A parent’s sexual behavior (by itself) CANNOT be used to deny custody.
14
Q
Custody - Parent vs Third Party
A
- A fit legal parent is given preference, and it’s presumed that such custody is in the best interests of the child.
- Third party must prove that custody to parent is detrimental to the child and parent is unfit.
- The court MUST give great weight to a parent’s determination of what’s best for the child (as parental rights are Constitutionally protected).
15
Q
Third-Party Visitaion Rights
A
- A court MUST give great weight to parent’s choice of what is best for the child. Parental rights are Constitutionally protected (due process).
- Some States permit visitation to third-parties who have a substantial relationship with the child (a de-facto parent) when in the BIC.
- BUT, the third-party must: (1) overcome a presumption that the parent is acting in the BIC; AND (2) show that a denial of visitation poses a risk of harm to the child.
