Family Law Flashcards
Common Law Marriage
to establish a common law marriage the proponent must show capacity to enter into a martial contract, present agreement to be married, cohabitation, and hold out a marital relationship.
Recognition of Marriage
a marriage valid under the law of the place in which it was contracted will be valid elsewhere unless it violates a strong public policy of the state that has the most significant relationship to the spouses and the marriage.
Bigamy:
A bigamous marriage is void from the beginning.
But there are two marriage-saving doctrines for the new spouse: (1) there is a presumption that the most recent marriage is valid, and (2) removal of the impediment (e.g., by divorce) will render a subsequent marriage valid.
End of Marriage
Virtually all states are no-fault divorce states. Some states recognize fault-based
grounds too. Annulment is also recognized for fraud and other reasons.
Custody Determinations
custody is determined by looking at the best interest of the child.
This typically requires looking at factors such as
- the wishes of the child’s parents,
2, the child’s primary caretaker,
- the mental and physical health of all individuals,
- the interrelationship of the child and parents,
- stability, and
- whether there is any domestic violence.
Custody Modifications
Custody can be modified only if there is a substantial change in circumstances.
Generally, this change must be unforeseen at the time of the initial judgment.
Child support guidelines:
all states employ numerical guidelines and establish a rebuttable presumption that the award that results from applying the guidelines is correct.
The guidelines must be applied in all cases, regardless of the parents’ marital status.
Factors for Child Support
- like income and earnings of the parents, 2. the number of children and their ages, and
- any special needs of the children.
Modification of Child Support
In order to obtain a modification of a future support obligation, the petitioner must show a substantial change in circumstances making the prior order unreasonable.
- If the change is a reduction in income, and it was voluntary, some courts will not
modify it; some will under a multi-factor test—e.g., examine if the party acted in good faith, among other factors.) - This is a heavy burden.
- Child support cannot be modified retroactively unless there was fraud or other compelling circumstances.
Relocation
Generally, a move sought in good faith that will serve the child’s best interest will ordinarily be approved.
-The court will balance the impact on visitation by the noncustodial parent against the benefits of the move to both the child(ren) and the custodial parent.
There are a few different views (which you should mention if applicable): some states place the burden on the relocating
parent and some put it on the objecting parent.
Rights of a parent when another person wants to adopt a child:
an involved parent who demonstrates a “full commitment to the responsibilities of parenthood” will likely be able to successfully oppose an adoption petition by another and is entitled to notice of such proceedings.
Third Party Rights (Custody)
Custody in the parent is presumed to be in the best interest of the child. To
rebut this, a third party who wants custody must prove that the parent is unfit or that granting custody to the parent would be highly detrimental to the child.
Division of property by court:
in a majority of states, marital property is divided at divorce but separate property
remains the property of the owning spouse.
Marital Property:
property acquired during the marriage.
Separate Property (mnemonic=BIG)
- property acquired before the marriage,
- an inheritance, or
- a gift to one party.
Most states don’t count professional degrees earned during the
marriage as marital property.
Division of Property based on premarital agreements
A court will enforce a premarital agreement so long as
- it is voluntarily made,
2, substantively fair, and
3, if full disclosure of assets and obligations was made.
A court will not, however, enforce a premarital agreement regarding child custody or support if it is not in the best
interest of the child.
Duration and Extent of Alimony
can be permanent, temporary, or granted in a lump sum.
Factors for Alimony
- the parties’ financial resources and needs,
2, marital contributions, and
3, marital duration.
Some states also look at spousal misconduct, one spouse’s support for the other’s education or
training, etc.
The trial court has substantial discretion in choosing to award alimony.
Purpose of Alimony
to maintain a spouse’s standard of living and limit and unfair economic effects of divorce.
Modification and termination of alimony
Alimony awards may be modified if a court finds there has been a substantial change in circumstances making the prior award unreasonable.
-This must be an
unanticipated change.
-Alimony usually terminates if a spouse dies or gets remarried. In some states,
cohabitation will reduce or terminate alimony.
Which court may dissolve a marriage:
The court does not need jurisdiction over both spouses to terminate a marriage. If the 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 jurisdiction to dissolve the plaintiff’s marriage.
Which court may issue a property division order:
unless the court has jurisdiction over the defendant spouse, it may not issue a binding property division or support order.
Child Support Jurisdiciton
The state that originally issued a child support order has continuing exclusive jurisdiction to modify that order if the state remains the residence of the obligee, the child, or the obligor, and at least one of the parties does not consent to the jurisdiction of another forum.
Child Custody and Jurisdiction - Home State Test
The “home state” has exclusive jurisdiction to modify a custody decree.
A “home state” is a state where the child has lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of the child custody proceeding.
A home state continues to have exclusive jurisdiction to issue a custody order for
six months after a child leaves the state, so long as a parent, or person acting as a parent, still lives in the home state.
Child Custody and Jurisdiction - The Significant Connections Test
if a child has no home state, a state may exercise jurisdiction based on
(1) “significant connections” with the child and at least one parent and
(2) the existence of “substantial evidence” relating to child custody in the forum jurisdiction.
Child Custody and Jurisdiction - Emergency jurisdiction or default jurisdiction
if no other state has or exercises jurisdiction, this test applies.
