family law Flashcards
marriage requirements
- consent from both parties (some states require parties participate in a ceremony and sought some benefits of marriage; others require parties to consent to obligations of marriage)
- marriage license
- ceremony (solemnized by judicial officer or church)
common law marriage
requires spouses to live together for certain period, legally able to marry, have present agreement that they are married, and hold themselves out as being married
valid common law marriage creates rights and obligations identical to a ceremonial marriage
if common law marriage is validly obtained in another state, other states will uphold it
bigamous marriage
a person cannot be married to more than one person at the same time
- marriage is not valid if entered into when one of the parties is still married (before dissolution of an earlier marriage)
marriage can be saved under
equity doctrine: creates 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 terminated)
enforceability of premarital agreement
premarital agreements are enforceable unless procured by fraud, duress or coercion
Uniform Premarital Agreement Act (UPAA)
agreement must be in writing and signed by both parties
no consideration required
not enforceable under UPAA if:
- involuntarily (fraud, duress, coercion) OR
- unconscionable when executed and before execution the spouse was (i) not provided fair disclosure of property/financial obligations (ii) did not waive disclosure or (iii) did not have or could not have had knowledge of such information
involuntary factors: presence of independent legal counsel, length of time b/t wedding and signing, ability to understand agreement, and other reasons for proceeding with the marriage
child custody and support premarital agreement
not binding on court, and any provision that adversely affects a child’s right to support is unenforceable
if an agreement is not in child’s best interests, a court may order a parent to pay an amount reasonable or necessary for the child’s support
spousal support premarital agreement
UPAA: permitted, but not enforceable if it makes spouse eligible for public support (welfare) - court may order support to extent necessary to avoid eligibility
some states: invalid against public policy
premarital agreements eliminating fundamental marital duties and allocating financial responsibility
spouses may agree on any matter not in violation of public policy or criminal law
may allocate financial responsibilities but its not binding on third-parties
agreements that limit spousal support during marriage are generally void against public policy
married womens property acts
women retain full rights to their property after marriage
mutual support during marriage
all state recognize a marital duty of support b/t spouses
doctrine of nonintervention: prohibits the court from intervening in an ongoing marriage to resolve internal financial disputes
payment of 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 (non-debtor spouse may be liable to extent the debtor spouse is unable to pay)
jurisdiction in marital or divorce actions
state courts have SMJ
ex parte divorce: may be maintained without personal jxn over absentee spouse only if plaintiff-spouse is domiciled of rendering state
majority states have a durational residency requirement
a court can not determine out of state property rights or rights to support unless it has jxn over BOTH parties - thus, they can issue divorce, but cannot determine property division unless the property is located in the state or they have jxn over both parties
divisible divorce: one spouse can terminate the marriage (ex parte divorce) in one proceeding and reserve other issues for a later proceeding
jurisdiction child custody & adoption
court must have SMJ to issue or modify a child custody order - PJ or physical presence of a party or child is not necessary for court order (but jxn is needed over D-spouse to enforce the order)
primary test: home state jxn – court has jxn to enter or modify child custody or support if the state is the child home or was the child home within the past 6 months and child is absent from state, but someone acting as parent is present in state
uniform child custody jurisdiction and enforcement act (UCCJEA)
court may decide child custody only if it has
- home state jxn (most important): childs home state or where child lived with parent for 6+ months immediately before action was filed, child is absent from state AND parent or acting parent is still present in the sate
- significant connection jxn: no home state, child and at least one parent have significant connection to the state, and substantial evidence in the state exists
- more appropriate forum jxn: all other courts decline to exercise jxn b/c this court is a more appropriate forum
- emergency jxn: child is physically present in the state and the child is abandoned or its an emergency to protect the child
- no other state jxn: no other state has jxn
parental kidnapping prevention act (PKPA) and adoption matter jxn are the same as UCCJEA
annulment
invalidates a marriage based on
- lack of capacity
- bigamy
- consanguinity (marriage b/t family members) or
- underage at the time of marriage (voidable by the underage spouse)
fraud
exists when spouse made a misrepresentation prior to marriage on essential and vital part of the marriage (sex/procreation) and the marriage would not been consented to if the other spouse had been made aware
waived if spouse continues to cohabitate after discovering the facts underlying the fraud
fraud is usually not granted for misrepresentations concerning character or finances
no fault divorce
must show that both spouses agree that marriage is irretrievably broken, parties have been living apart for certain period of time, and parties agree they are now incompatible
one spouse thinking marriage can be saved is generally insufficient to prevent divorce if the other spouse has no intention of reconciliation
grounds for divorce fault based
cruel and inhuman treatment adultery abandonment for set period of time habitual drunkenness or drug addiction insanity
setting aside divorce settlement agreement
may be set aside if mediator misconduct or its substantially unfair and the result of fraud, duress, overreaching, or coercive conduct
setting aside separation agreement
invalid if unconscionable or was the result of fraud
division of property
- majority - equitable division of marital property: marital assets are divided among the spouses by equitable distribution; separate property is not divided
- community property: all property acquired during marriage is deemed owned by 1/2 each spouse and all property brought into the marriage or acquired by gift is separate property
- equitable division of all property: all property owned by either spouse, whether acquired before or after marriage is divided
professional degree
majority: not marital property, but allowed reimbursement for any support provided to spouse to obtain degree
