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
marital or economic fault in dividing property
fault of either party is irrelevant in determining distribution of marital property but economic misconduct (i.e., dissipation of assets) is considered
property division obligations after death
do not terminate at death of obligor-spouse and may be enforced against estate
property acquired before marriage but paid for after
majority: property should be apportioned b/t separate and marital estates in proportion to contribution of separate and marital funds to pay for the property
minority: inception of title and allow reimbursement remedy
modification of property division award
can be modified only if exceptional circumstances exist
types of spousal support
- permanent periodic spousal support: paid regularly to support spouse who has neither resources or ability to be self-sustaining
duration: indefinite
modification: can be increased, decreased, or termianted upon proof of sub change in circumstances
termination: upon death or remarriage of receiving spouse - lump sum: fixed amount payable either all at once or via series of payments
duration: specified time period; can be installments or in one lump sum
modification: none. this is treated like k right and is binding
termination: survives death of either spouse - rehabilitative spousal support: periodic payment for limited time to enable spouse to gain skills to become self-supporting
duration: specified time period
modification: sub change in circumstances
termination: upon death or remarriage of receiving spouse - reimbursement: payable all at once or in series to re-pay a spouse who supported the other while the other obtained professional license
duration: specified period/lump sum
modification: none - contract right
termination: survives death of either spouse
spousal support
purpose is to maintain standard of living and limit any unfair economic effects of a divorce
Under UMDA, support is only awarded if the spouse lacks sufficient property and is unable to support himself/herself through employment or is the custodian of a child with condition where the spouse cannot seek employment
modification is same as standard in child support
determining the amount of spousal support
consider financial resources, time necessary for obtaining job, standard of living during marriage, duration of marriage, age and emotional/physical condition, and ability of spouse paying support
some states consider fault
child support obligation
legal obligation to pay child support regardless of whether child was wanted
child support guidelines
federal law requires state to set guidelines that account for all earning and income of the non-custodial parent and are based on specific and descriptive and numeric criteria
college: some states require support for college education, but child may lose the right to payment if the child does not follow obligot-parents reasonable instructions
majority: child support obligations terminate upon death, but deceased estate remains liable for past due payment
modification of child support
majority/Uniform Marriage and Divorce Act: support may be modified when there is a substantial and continuing change in circumstances making the prior order unreasonable
some courts will not permit modification if the change was anticipated or voluntary - other courts will permit a modification if spouse acted in good faith
courts cannot retroactively modify support orders
modification of support order from another state
Uniform Interstate Family Support Act (UIFSA) courts must give full faith and credit to support orders from other states
UIFSA says a court cannot modify a child support order of another state unless
1. the court has jxn to issue an order and
2. either
all parties do not reside in the issuing state or
each party has consented in writing to jxn in another state
an issuing state has continuing, exclusive jxn over an order if
the state is still the residence of one party or
all parties consent in record or open court
child custody determination
best interest of child standard: courts determine child custody based on best interest of the child. gives discretion to court based on consideration of wishes of parents and child, age, finances, new partners in parent life, child relationship, history of domestic violence, etc.
court cannot award or deprive custody based on parent lifestyle, values, or religious beliefs but it may take into account if such behavior endangers the child
sexual behavior of parent, alone, cannot be used to deny custody
parent v. third party custody decision
fit legal parent is given preference and it is presumed that such custody is in best interest of child. in some states, this presumption may be rebutted if detrimental to child. the court must give great weight to parent determination of what’s best for child (constitutionally protected parental rights)
a court will only grant custody to third-party upon a showing of special circumstances, i.e., abuse, neglect, abandonment, mentally incompetent, or parent surrender
joint custody
only granted for parents who can cooperate
presumption of parental fitness
parents are presumed fit to care for children
may be rebutted by clear and convincing evidence of conduct endangering the child
parental visitation rights
parents not granted custody are entitled to reasonable visitation rights unless the court finds (after hearing) that visitation would seriously endanger the child’s health or wellbeing
visitation may be modified by the court if it serves the best interest of the child
payment of child support is independent from the right to visitation - interference with visitation does not suspend the obligation to pay child support
third party visitation rights
a court must give great weight to parents choice of what is best for child
some states permit visitation to third party who have substantial relationship with child (de-facto parent) when in best interest of the child but the third party must overcome a presumption that parent is acting in best interest AND show that denial of visitation poses risk of harm to the child
relocation
a court will permit custodial parent relocation with child if it is made in good faith and its in best interest of child
court will balance benefit of relocation vs. effect on visitation
modification of child custody order
allowed if substantail change in circumstances - cannot be retroactively modified
the court that had jxn over the original order usually retains continuous and exclusive jxn to make modifications but exceptions under PKPA and UCCJEA
PKPA: court may modify if it had jxn to make initial determination and the issuing state either no longer has jxn or declined to exercise jxn
UCCJEA: a court may modify an order from another state if it had jxn to issue initial order and either
issuing state determines it no longer has jxn
issuing state determine that the current state is more appropriate or
the court determines that all parties do not reside in issuing state
division of property unmarried co-habitants
party who has title retains sole ownership of the property unless
- agreement b/t cohabitants otherwise (express or implied) or
- equitable remedy theory applies (3 types)
- resulting trust: title in one party’s name, but another party gave money to acquire the property with intent to have ownership
- constructive trust: one party obtained title through wrongful conduct
- quantum merit: one party is unjustly enriched by the services provided by another
* either party may bring an action to partition jointly held property
agreements for division of property b/t cohabitants
express (oral/written) - enforceable except if based on sexual relations
implied - court may find implied-in-fact agreement if parties comingled funds during relationship
putative spouse doctrine
protects the financial interest of a person who
- entered into a void/voidable marriage and
- believed in good faith (obj standard) that the marriage was valid
a putative spouse is entitled to the same marital property rights as a legal spouse
establishing paternity child
birth certificate
legal presumption (child born during marriage is presumed child of husband)
when unmarried parents voluntarily sign an acknowledgement of paternity
unmarried biological father successfully challenges presumption
paternity suit or
paternity by estoppel - held himself out as father and paid support/assumed parental responsibilities
if paternity is established, that person is responsible for child support obligations
unmarried biological father rights
protected under DP only if father assumed parental responsibilities AND est a substantial parent-child relationship
entitled to notice of adoption if his right is protected under DP clause or he acted consistently with state guidelines for the putative father registry
right to control child upbringing
fundamental right and gov’t cannot interfere
exceptions:
may limit rights and decisions when it jeopardizes health or safety of child (i.e., lifesaving medical treatment) or has potential for significant social burden (spread of contagious diseases)
education –> children must attend school at least through 8th grade
medical care –> parental consent required unless emergency or where prescribed by statute (some states do not honor refusal based on religion)
vaccination mandate is within state power as condition for school admission
intrafamily suits and immunity
common law: spouses could not sue each other and parent-child suits were not allowed
modern: intrafamily immunity is abolished
loss of consortium claims
intended to compensate a spouse for loss of the other spouse’s companionship, sexual relations, and affection
only available to married couples
consent to adoption
both parents consent generally required
non-marital child: father consent only required when he assumed parental duties
consent of parent is not required when the parent has surrendered child to an adoption agency, is incompetent due to mental illness, abandoned child or permanently neglected child (legal termination of parental rights)
consent for adoption cannot be withdrawn after the adoption decree is entered
but consent may be withdrawn prior to the adoption decree if in best interests of the child
child custody determination follows UCCJEA jxn
visitation for biological parents after adoption
maj: biological parents lose visitation rights after adoption
some states: permitted if in best interest of child
artificial insemination father
husband presumed legal father if he consented to insemination in writing and a medical doctor performed the procedure
sperm donor rights are severed unless the donor is also husband
surrogacy agreements
states that allow them: req approval of court, be accompanied by child welfare agency home study unless waived, voluntary, provision for healthcare costs at birth, not limit right of surrogate in healthcare decisions, reasonable consideration
can be terminated any time before embryo transfer
some states: surrogacy is not allowed, and the agreement is void against public policy
traditional defenses to fault divorce grounds
collusion: agreement b/t the spouses to simulate grounds for divorce or to forgo raising a valid defense
connivance: willing consent by one party to the other spouse’s misconduct
condonation: the forgiveness of marital offenses with full knowledge of their commission
recrimination: party seeking the divorce is also guilty of misconduct for which divorce may be granted
marital property vs. separate property
separate property includes property acquired before marriage, gifts and bequests (even during marriage), property that spouses agreed will be separate property, and passive appreciation of assets - an increase in value due to passage of time
marital property is all other property acquired during marriage including active appreciation (caused by effort of a spouse) and future expectancies, even if payment will not be received until after marriage ends
separate property may become marital property if it is inextricably mingled to extent that it can no longer be traced or is treated in a way that evidences an intention for the property to be marital property
accrual of marital property:
some states: ends upon permanent separation
others: ends upon final divorce
distribution amount depends on duration of marriage, age, earning capacity, lifestyle, income, and separate property of each
types of spousal support
- permanent periodic spousal support: paid regularly to support spouse who has neither resources nor ability to be self-sustaining
- rehabilitative spousal support: periodic payments for limited time to enable a spouse to gain skills to become self-supporting
- lump-sum: nonmodifiable, fixed amount payable either all at once or broken down into a series of payments
- reimbursement spousal support: awarded to spouse who supported the other spouse while the other obtained professional degree or license
steps of adoption
- termination of biological parents rights
2. creation of new legal parent-child relationship
