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Family Law Flashcards

1
Q

FL law

A

governed by state law

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2
Q

Constitutional Rights of Marriage

A

fundamental right

can’t palce burden on directly getting married but can place burdens on indirect burdens (time + circumstacnes of marriage)

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3
Q

to be married Each individual must

A 
CARS 
capacity to consent 
be of marriageable age 18 but w/ judicial or parental consent 14-18
not closely related to other person 
be single
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4
Q

How to become married

A

license
solemnization by judge or member of clergy
not under duress or under the influence

if there is mistake parties are married so long as they are eligible to be married and good faith belief that they were

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5
Q

CL Marriage

A

capacity to enter into marital contract
present agreement to be married
cohabitation
holding out marital relationship to community

burden is clear and convincing evidence by party asserting the marriage

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6
Q

Recognition of marriage

A

marriage valid under law of place in which it was contracted will be valid unless violates strong public policy of state that it has the most significant relationship to the spouses & marriage

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7
Q

Bigamy

A

void from beginning
presumption that the most recent marriage valid
removal of impediment by divorce will render subsequent marriage valid

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8
Q

Gifts in contemplation of marriage

A

most gifts valid as long as donor intends to make git, delivery, acceptance

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9
Q

Engagement Rings

A

Majority- donor gets ring back if couple doesn’t get married
Minorty- look at fault for breakdown of marriage to determine who should possess ring

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10
Q

Right to Own Property

A

CL- married woman’s identity swallowed up in her husband’s identity- married woman couldn’t own property

Maried Woman’s Property Acts- restored property rights to women; court can’t overrule spending decisions of spouse to her own earnings

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11
Q

Support Obligations

A

marriage creates mutual support obligations

Creditor who furnished necessaries to H/W may sue spouse of the purchaser to recover debt

nonintervention principle- deny support when couple living together

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12
Q

Family Privacy Doctrine

A

intact families treated by courts as private matter that should be resolved at home (spending, premarital agreements when still married + living together)

Doesn’t extend to endangering a child

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13
Q

Spousal Immunity

A

CL- spouses can’t sue 1 another

Modern- abolished by most states

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14
Q

Intra-family Tort Immunity

A

CL- members of a family can’t sue 1 another

Modern- abolished

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15
Q

Marital Rape

A

CL- rape w/in marriage not punishable

Modern- generally punishable, bus some states punish to lesser degree or under different statute

look @ 2 factors: coupel is separated and if consent

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16
Q

No Fault Divorce

A

all states have
spouse doesn’t need to show fault to obtain divorce

show irreconcilable differences and/or minimum period of separation(year or less)
separation doesn’t need to be consensual and 1 spouse believing it can fixed is not defense

no defenses

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17
Q

Fault Based Divorces

A

2/3 have

Bases: adultery, desertion w/out reasonable cause, cruelty, addition, mental illness, felony conviction
*proving fault can increase alimony or property division award
look at financail misconduct and marital misconduct

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18
Q

Defenses to fault based divorce

A

collusion- agree that one committed wrong to get divorce
connivance (P facilitated commission of marital wrong
Condonation- spouse forgives marital wrong
Recrimination- both spouses guilty of fault

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19
Q

Annulment

A

marriage never existed b/c void or voidable (FIND)
Fraud but must go to essentials of marriage
inability to consummate marriage (no sex)
not allowed by law (bigamy, age, incest)
duress

erases marriage by making it invalid from date of inception

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20
Q

Void

A

invlaid from start

couple never married

bigamy incest

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21
Q

Voidable

A

marriage valid until spouse brings action to invalidate must be imedpiment liek ffraud duress a ttime of marriage and ratification waiting too long is a defense

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22
Q

Putative Spouse Doctrine

A

spouse can seek divorce like remedies when annulment granted as long as marriage ceremony and good faith beleief in validity of marriage

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23
Q

legal seperation

A

marriage doesn’t end; coupel seperates and rights determined by court

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24
Q

Custody

A

best interest of child

Factors
Child preference- mature enough to express preference considered; some states let this control, discard or weigh it
parent’s religious faith- not considered, but can take into account parent’s ability to provide for physical/mental needs
other factors relevant to child- marital affair won’t be considered unless affects welfare of child
meaningful contact with both parents- spend time w/ both at least through visitation presumption

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25
Q

physical custody

A

right of aprent to have child live with them

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26
Q

legal custody

A

decision making power of a parent

27
Q

Joint Custody

A

able & willing cooperate with one another in making decisions for their child

parental conflcits taken into consideration

28
Q

sole custody

A

1 parents has sole/legal custody granted when parent is unfit

29
Q

modifying custody

A

substantial change in circumstances and must be unforeseen at time of judgment

30
Q

UMDA Uniform Marriage and Divorce Act

A

authorizes modification within 2 years of initial decree only if reason to believe child’s present environment may seriously endanger physical, mental, moral, or emotional health

31
Q

Child Support Guidelines

A

federal legislation requires all states employ numerical child support guidelines and establish rebuttable presumption that award results from applying guidelines correctly

income of parents, # of children, ages, special needs of children

Retroactive change forbidden absent fruad

32
Q

Modification of Child Support

A

substantial change in circumstances needed to obtain modification (significant involuntary reduction of income)
Voluntary reduction- some courts refuse to modify and some look at if party had good faith

nonpaternity of child isn’t enough to satisfy new decree if the child only has a relationship with the 1 dad

33
Q

unpaid child supprot

A

amount of unpaid may not ordinarily be modified

34
Q

length of child support

A

18 stop paying unless child can’t support themselves b/c of disability or still in high school

some states requie divorced parent to pay for college of a child over 18 but if child disobeys reasonable commands parent can terminate support

35
Q

Relocation of parent + child

A

move sought in good faith and wills serve child’s best interest will be granted
court balances impact on visitation by noncustodial parent against benefits of move to child and parent

1 view- BOP on relocating parents to show move is BIC
2 view- BOP on objecting parent to show move doesn’t serve child’s best interest
3 view- some states allow move unless vindicitive

36
Q

decisions by parents

A

fit parent must be given some deference so statutes that give fit parent no special weight is unconstitutional

include: religious upbringing medical care bur rights are limited to if decision will jeopardize health and safety of child

37
Q

Bio father’s rights

A

bio father who has significant relationship with bio child has substantive due process right in relationship

state can make dad exercise rights in certain time frame

38
Q

rights of a father when a 3rd party wants to adopt their child

A

involved father who demonstrates full commitment to the responsibilities of parenthood will likely to be able to successfully oppose an adoption petition by another person and is entitled to notice of such adoption proceedings

minimally involved state will not grant the unmarried right to veto

dad abandons child, child can be adopted without consent

39
Q

two tests for child abandonment

A

Subjective- courts that follow this test require proof that parent subjectively intended to terminate the relationship
Objective- courts that follow this test took at whether the parent has acted in way that indiciate intent to maintain a parent child relationship

40
Q

CL Presumption of Parenthood

A

mother was married at time she gave birth husband is presumed father

41
Q

Rights of bio parents w/ adoption

A

adoption order is complete and final transfer of parental rights must consent to adoption

revoked if fraud or not in BIC prior to entry of final adoption decree

42
Q

Dissolution of Adoption

A

undo adoption
Traditional Rule- won’t dissolve for any reason
Modern rule- allow dissolution in special circumstances like mental or physical illness (length of realtionship, needs, parent’s motives)

43
Q

Equitable Adoption

A

no formal adoption but child is equitbaly adopted if parent/child aassume roles without formal confirmation matters for inheritance

44
Q

Artifical insemination

A

UPA- states child conceived by artificial inseminations by donor is legal child of the mother’s husband if he consented in writing and performed by medical professional

45
Q

Custody dispute between parent & 3rd party

A

custody to parent is presumed in the BIC to rebut 3rd party must show parent is unfit or granting custody to parent would be highly detrimental to the child

46
Q

Division of property

A

majority- marital property is divided at divorce but separate property remains the property of owning spouse
Minority- court divides all assets whenever acquired

47
Q

Marital Property

A

property acquired during marriage- just has to be before final divorce decree
Examples: wedding gifts, pension, stocks, business, lottery, debts acquired during marriage

48
Q

Separate Property

A

acquired before marriage, inheritance, gift

can become marital if marital funds or significant effort by owner-spouse during marriage enhances its value

49
Q

Professional Degree

A

rejected claim that professional degree or license is property subject to division at divorce minority say otherwise

50
Q

Equitable Division

A

property divided equitably and court will consider what is fair look at contribution, need, and marital duration
majority doesn’t consider fault

51
Q

Division based on premarital agreement

A

court enforces premairtal agreement so long as its voluntarily made, substantively fair, and if full disclosure of assets and obligations were made.

Involuntariness will be b/c of fraud, duress, and coercion, unconciousability, inadquate disclosure

insistence that someone signs does not establish involuntariness

won’t enforce agreement regarding child custody and or support

52
Q

Division based on settlement agreeemnt

A

court has freedom to reject, accept it with modifications

agreement can be set aside based on fraud, overreaching or duress that results in substantively unfair to one of the parties

spouses have fiduciary obligations when spouse is unrepresented by attorney

53
Q

Property division w/ unmarried couple

A

traditional- didn’t allow

modern- allow, don’t have to be in writing, can be oral to do right by oen another

54
Q

finality of property division

A

final and not be modified

55
Q

Award of Alimony

A

permeant- not generally awarded unless long marriage and there was long-term gap between economic prospects; end at death or remarriage
temporary- rehabilitive awarded to get someone back on their feet
lump sum- fixed and final can’t be modified

56
Q

Requirements for alimony award by trial judge

A 
parties' financial resources and needs
marital contributions 
marital duration 
misconduct 
support for the other's education + training 
lack capacity to self support

substnaial discretion to choose award

57
Q

Modification of alimony

A

not final and can be modified by showing substantial change in circumstances that was unanticipated

58
Q

Termination of alimony

A

death
specified time lasped
re marirage

59
Q

Which court can dissolve marriage

A

if P domciled in state or state has some other long term connection between at least 1 ofthe parties then court has jurisdicition to dissolve marriage

60
Q

what court can issue property division

A

unless court has jurisdiction over D spouse it cannot issue a binding order affecting personal rights, divisible

61
Q

what court determines child custody and support

A

court must have PJ over nonresident parent

UIFSA govern child support- registered order issued another state enforceable in same manner and subject to same procedures as order issued by tribunal state. File enforcement petition to have decree enforced in another state

modification must be made by court who originally issued b/c they have exclusive jurisdiction to modify

UCCJEA- home state has exclusive jurisdiction to modify custody, home state where child lived with parent or person acting as parent for at 6 m months before commencement, if no home state then state that has significant connection with child and at least 1 parent and existence of substantial evidence relating to custody in forum

62
Q

PKPA Parental Kidnapping Prevention Act

A

state can’t modify custody oder issued by another state if child or contestant continues to reside in issuing state and issuing state’s court doesn’t decline jurisdiction.

must give full faith & credit to custody decrees from sister state but only if they had jurisdiction

63
Q

What court determines adoption rights

A

state that domicile of adoptive parents can enter adoption decree
Traditional- state has strong connection with child and if susbtantial evidnece concerning case is present
UCCJEA- child & 1 contestant have singifcant conenction w/ state

64
Q

Which state law governs enforceability of premarital contracts

A

law of state where K executed or

law of state w/ most signficant relationship to parties and the transaction

practice sets (10 decks)

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