Family Law Flashcards
** Alimony
** Has one spouse become ECONOMICALLY DEPENDENT on the other due to the marital relationship?
- Purpose: ensure an adequate income stream for presons whose economic dependency RESULTED from the marriage
Sum of money paid from one spouse to another (spousal support, maintenance). Can award more than one type. Court has great deal of discretion.
1. Permanent
- Rehabilitative
- Lump sum
- Reimbursement
** Amount of child support
Based on need and ability to pay, but courts generally follow statutory guidelines based on number of children, ages, needs, and parents’ incomes
** Amount of spousal support
Court has wide discretion. Considers -
- Prior standard of living
- Duration of marriage
- Financial resources of both parties
- Time and training needed for recipient spouse to become employable
- Age/physical/emotional condition
- Ability of payor spouse to meet their needs
- Marital fault (generally not considered for property division)
Antenuptial (Pre-Marital) Agreements
- UPAA: Uniform Premarital Agreement Act; can agree to keep property SEPARATE, waive ALIMONY (unless unconscionable at the time of signing)
- Can waive ALIMONY unless it renders the dependent spouse a public charge (state/federal support)
- Courts NOT bound by provisions in the agreement re: children…no custody/child support
Requires -
1. Writing, signed by both spouses
2. Entered into voluntarily (no fraud, duress, overreach)
3. Full disclosure of assets or proof that parties had independant knowledge of the assets. - Need to know what they are waiving
- If the agreement was UNCONSCIONABLE…
4. (Optional) general fairness to parties, whether both parties had independant counsel
** Approaches Property Division
- Community Property: all property acquired during marriage is owned 1/2 by each spouse. Minority rule.
- Equitable division of all property (separate + marital)
- Equitable division of marital property (spouses keep separate property). Majority rule.
- Cannot be modified, unlike alimony
** Bigamy
If either party has a LIVING SPOUSE, the marriage is void.
- If a prior marriage was not successfully ended before the marriage in question, the subsequent spouse can argue
- The strong PRESUMPTION is that the marriage is valid
- If the prior marriage is later terminated by divorce, annulment, or death, continued CO-HABITATION validates the second marriage under the UMDA and similar statutes
** Can marriage agreements contain child custody/support provisions?
The court will NEVER enforce
- Some states void as against public policy
- Other states subjected to judicial review
Child support
Parents have duty to provide for their children based on their ability to pay and the needs of the child
- Child support guidelines exist
- Majority: income shares model, depends on number of children and parents’ income
Common law marriage
Does not require license or ceremony. Some states do not recognize, but will recognize valid common law marriages from other states. Requires all of -
- Capacity to consent
- Consent to marry (not merely cohabit)
- Actual cohabitation
- Hold selves out as spouses
- Common last name
- Joint bank account
- Telling others in the community they are married
- Joint tax return, health insurance
Consequences of adoption
- Termination of bio parents’ rights and obligations
- Creation of adoptive parents’ rights and obligations
- Some states: child may still inherit from bio parent
Custody awards
- Joint custody
- Joint decision making (legal)
- Joint physical custody
- Primary legal / physical
- Shared = 50/50 - Sole custody
- Favor of one parent if there is strong evidence that it’s in the BIOC
- Other parent will be entitled to reasonable visitation with child, unless harm to child is present - Custody to the non-parent
- Bears burden of proof to show harm to child, general parental unfitness
- Will conduct BIOC if burden is met
Custody dispute between biological parent and a third party
In a custody dispute between a parent and a non-parent, the dispute does not turn on the BIOC alone; the court must give great weight to the interests of the natural parent
- The natural parent has a right to raise her child, and absent voluntary relinquishment, the natural parent is entitled to custody unless it is shown that the parent is unfit
- Goes to third party only under special circumstances, e.g., parent leaves a young chlid with a third party for years and later wants to regain custody
** Deciding whether Joint Custody is available
A court will detemrine child custody based on the BIOC. Factors include -
- The fitness of both parents
- Whether the parents agree on joint custody
- the parents’ ability to communicate and cooperate regarding the wellbeing of the child
- the child’s preference (depends on age)
- level of involvement of each parent
- geographic proximity of the parents’ homes
- effect joint custody will have on child’s psychological development
** Courts often award custody to the primary caregiver
Declining Jxn over Child custody
Must decline if there is already a proper proceeding elsewhere, unless the court would defer to the new new, and the new state can exercise deferred jxn, or if the person who wants jxn is engaged in unjustifiable conduct
- May decline if it determines it is an inconvenient forum
** Enforcement of spousal support / alimony
- Contempt
- Judgment
- Seizure of real estate
- Attachment of wages
- Order to pay attorney’s fees
- Other methods under UIFSA
Child support: also wage withholding
Equitable Division
Divide in kind or by contribution. Trial court has great deal of discretion. Not subject to modification; consider any fact that goes to equity including:
- Duration of marriage: if short, back to to pre-marital circumstances
- Income, employability
- Age, health
- Overall financial picture
- Children
- Alimony
- Contribution of spouses to marriage (taking care of home is just as important as earning)
- Economic fault: can result from marital fault…e.g., paying for mistress’s apartment / gifts, gambling losses,
Factors considered for alimony
** Primarily: needs of claimant spouse, ability of other spouse to pay
- Standard of living during marriage
- Duration of marriage (short, less economic dependence)
- Age and physical and emotional condition of both parties
- Financial resources of each party
- Contribution of each party to the marriage (wages and home-making)
- Time needed to obtain education/training for finding employment (rehabilitative award?)
- Ability to meet own needs and pay support
- Some jurisdictions, marital fault (majority)
Granting Child custody
Includes legal and physical custody.
Legal = decision making authority
Physical = caring for child
Trial court has great deal of discretion.
“BEST INTEREST OF THE CHILD” (BIOC)
Factors include
- Wishes of the parents (care custody control of child)
- Preference of the child (under 8, not mature enough choose. Over 12, great weight. Exceptions)
- Relationship of child to parents, siblings, and others involved with parents. E.g., keeping step-siblings together, unsavory characters
- Child’s adjustment to home, school, and community
- Mental and physical health of the parties
- Primary caregiver (cannot have gender preferences)
** Grounds / Defenses for fault-based Divorce
GROUNDS
- Adultery
- Desertion
- Extreme cruelty (mental / physical)
- Voluntary drug addiction
- Habitual drunkenness
- Insanity
DEFENSES
- Denial of grounds
- Collusion (agreement to fake)
- Connivance (adultery)
- Condonation (foregiveness of martial offenses)
- Recrimination
** Grounds / Defenses for No-Fault Divorce
GROUNDS
- Irretrievable breakdown of the marriage
- Living separate and apart
DEFENSES: denial of grounds, haven’t lived apart for the required amount of time
** Grounds for reduction of alimony
Self-induced reduction in income by the payor spouse is not sufficient to have spousal support reduced
- E.g., spouse quits their job
Improvement of Separate Property
Court will grant marital estate reimbursement for value added (by one or both spouses)
- E.g., husband inherits property (separate). If his labor improves the property, increase benefits marital estate.
- If just because of outside influence, like market, is not.
Jxn for child custody
Governed by UCCJEA: Uniform Child Custody Jxn and Enforcement Act
Jxn for divorce
Only one of the spouses must be domiciled
- Residency period may give spouse presumption of domicile
- 2 states may have jxn over divorce if both spouses file in their respective states; not a first to file issue. Whichever court renders divorce FIRST renders the other moot.
Jxn for initial award of child custody
- Child’s Home state: where child has lived with parent for at least 6 consecutive months
- Was home state within 6 months, child is absent from that state, but parent still lives in the state
- If no home state, court can assume jxn if child has signficant connection to state and there is substantial evidence of the child’s wellbeing in the state (Significant Connection/Substantial Evidence)
- Can assume deferred jxn by default or if another state refuses to exercise jxn
Jxn over a divorce action
ONE of the parties must be a bona fide resident of the jxn where the action is brought.
- Plaintiff’s residence alone is sufficient to confer jxn
- States may set a residency requirement
** Jxn over Child Support Order
Under the Full Faith and Credit to Child Support Orders Act, FFC must be given to a child support order if -
- The court had JURISDICTION over the MATTER and
- The PARTIES had reasonable notice and an opportunity to be heard
Jxn over Child Support Orders
Uniform Interstate Family Support Act (UIFSA) has been adopted in every state
- Original jxn
- Jxn to enforce
- Jxn to notify
Jxn over division of marital property / alimony / distribution of assets
Generally, a court cannot determine out-of-state property rights or rights to support unless it has jxn over BOTH parties
- C.f., Ex parte can grant the DIVORCE, but not distribute property
- Limited exception for marital property within the state
- Contacts with the state?
Jxn over spousal support, marital property division
When money/property is at stake, court must have PJ over spouse
Jxn to Enforce Child Support
- Original court that issued child support order
- Direct enforcement: allows obligee to mail child support order to employer in another state and employer withholds wages
- Registration: child support order is registered in another state and can be enforced there. Full faith and credit under the Full Faith and Credit for Child Support Orders Act (FFCCSOA)
Jxn to Modify Child Support
Substantial and continuing change of circumstance
- Court that entered valid child support order exercises “CONTINUING EXCLUSIVE JURISDICTION” to modify it unless no parties reside in that state / consent to jurisdiction elsewhere
** Under the PKPA, state may NOT modify a custody order if one of the parties continues to reside in the issuing state, and, under the state’s laws, the court continues to have and does not decline jxn
Law that governs premarital agreement
Parties agree on state law. - If not, state law with most significant connection to party / state where executed
** Lump sum alimony
* Specified as a TOTAL amount on the exam
Present value of permanent periodic support
- Can be paid over time or all at once
- Not modifiable / survives death of either spouse
- Binding on payor’s estate
Marital Property
- Property acquired during marriage (certainly cuts off by date of divorce)
- Earnings
- Employment benefits
- Lost wages
- Reimbursement for medical bills paid with marital property
- Damage to marital property
Marriage requirements
- License
- Medical certificate, sometimes
- Waiting period between license, ceremony
- Defect in license will NOT invalidate marriage - Marriage ceremony with authorized authorized officiant
- Absence of legal impediment to wed
- Too closely related (ascendants, descendants, siblings, aunt/uncles, whole or half blood relatives. Adoption / step-relations.) First cousins can marry in certain states.
- Being married to someone else (bigamy) - Capacity to consent
- Mental ability to consent at the time of the ceremony
- Age: 18; consent for 16-17; judicial consent for under 16 (pregnancy)
Modification of Custody
Can always be modified because the hallmark consideration is BIOC
- SUBSTANTIAL AND MATERIAL CHANGE OF CIRCUMSTANCE that affects CHILD’s wellbeing…if child is flourishing, unlikely to change
- BoP on party seeking
- Must affect CHILD’s wellbeing…not just parents’
Modification of existing decree of child custody
Issuing state exercises continuining exclusive jxn to make modification (until no one lives in the state or there is no connection to the state)
- Only if no parent continues to reside there / child no longer has significant connection with state and there is no evidence can another court modify
- Issuing state must decide there is not enough connection
Modification of Spousal Support
Permanent periodic / Lump sum: yes, upon showing of substantial changes in circumstance (ability to pay, needs of spouse)
- Voluntarily reduction in income will not trigger modification of alimony
** Modification of spousal support / child support
Substantial change in circumstances regarding
- The needs of the recipient spouse or payor spouse’s ability to pay (alimony)
- The needs of the children or ability to pay (child support)