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Bar Prep > Family Law > Flashcards

Family Law Flashcards

1
Q

** Alimony

A

** 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

  1. Rehabilitative
  2. Lump sum
  3. Reimbursement
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2
Q

** Amount of child support

A

Based on need and ability to pay, but courts generally follow statutory guidelines based on number of children, ages, needs, and parents’ incomes

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3
Q

** Amount of spousal support

A

Court has wide discretion. Considers -

  1. Prior standard of living
  2. Duration of marriage
  3. Financial resources of both parties
  4. Time and training needed for recipient spouse to become employable
  5. Age/physical/emotional condition
  6. Ability of payor spouse to meet their needs
  7. Marital fault (generally not considered for property division)
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4
Q

Antenuptial (Pre-Marital) Agreements

A
  • 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
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5
Q

** Approaches Property Division

A
  1. Community Property: all property acquired during marriage is owned 1/2 by each spouse. Minority rule.
  2. Equitable division of all property (separate + marital)
  3. Equitable division of marital property (spouses keep separate property). Majority rule.
    - Cannot be modified, unlike alimony
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6
Q

** Bigamy

A

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

  1. The strong PRESUMPTION is that the marriage is valid
  2. 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
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7
Q

** Can marriage agreements contain child custody/support provisions?

A

The court will NEVER enforce

  • Some states void as against public policy
  • Other states subjected to judicial review
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8
Q

Child support

A

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
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9
Q

Common law marriage

A

Does not require license or ceremony. Some states do not recognize, but will recognize valid common law marriages from other states. Requires all of -

  1. Capacity to consent
  2. Consent to marry (not merely cohabit)
  3. Actual cohabitation
  4. Hold selves out as spouses
    - Common last name
    - Joint bank account
    - Telling others in the community they are married
    - Joint tax return, health insurance
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10
Q

Consequences of adoption

A
  1. Termination of bio parents’ rights and obligations
  2. Creation of adoptive parents’ rights and obligations
  3. Some states: child may still inherit from bio parent
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11
Q

Custody awards

A
  1. Joint custody
    - Joint decision making (legal)
    - Joint physical custody
    - Primary legal / physical
    - Shared = 50/50
  2. 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
  3. Custody to the non-parent
    - Bears burden of proof to show harm to child, general parental unfitness
    - Will conduct BIOC if burden is met
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12
Q

Custody dispute between biological parent and a third party

A

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
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13
Q

** Deciding whether Joint Custody is available

A

A court will detemrine child custody based on the BIOC. Factors include -

  1. The fitness of both parents
  2. Whether the parents agree on joint custody
  3. the parents’ ability to communicate and cooperate regarding the wellbeing of the child
  4. the child’s preference (depends on age)
  5. level of involvement of each parent
  6. geographic proximity of the parents’ homes
  7. effect joint custody will have on child’s psychological development

** Courts often award custody to the primary caregiver

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14
Q

Declining Jxn over Child custody

A

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

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15
Q

** Enforcement of spousal support / alimony

A
  1. Contempt
  2. Judgment
  3. Seizure of real estate
  4. Attachment of wages
  5. Order to pay attorney’s fees
  6. Other methods under UIFSA

Child support: also wage withholding

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16
Q

Equitable Division

A

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,
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17
Q

Factors considered for alimony

A

** Primarily: needs of claimant spouse, ability of other spouse to pay

  1. Standard of living during marriage
  2. Duration of marriage (short, less economic dependence)
  3. Age and physical and emotional condition of both parties
  4. Financial resources of each party
  5. Contribution of each party to the marriage (wages and home-making)
  6. Time needed to obtain education/training for finding employment (rehabilitative award?)
  7. Ability to meet own needs and pay support
  8. Some jurisdictions, marital fault (majority)
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18
Q

Granting Child custody

A

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)

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19
Q

** Grounds / Defenses for fault-based Divorce

A

GROUNDS

  1. Adultery
  2. Desertion
  3. Extreme cruelty (mental / physical)
  4. Voluntary drug addiction
  5. Habitual drunkenness
  6. Insanity

DEFENSES

  1. Denial of grounds
  2. Collusion (agreement to fake)
  3. Connivance (adultery)
  4. Condonation (foregiveness of martial offenses)
  5. Recrimination
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20
Q

** Grounds / Defenses for No-Fault Divorce

A

GROUNDS

  1. Irretrievable breakdown of the marriage
  2. Living separate and apart

DEFENSES: denial of grounds, haven’t lived apart for the required amount of time

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21
Q

** Grounds for reduction of alimony

A

Self-induced reduction in income by the payor spouse is not sufficient to have spousal support reduced
- E.g., spouse quits their job

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22
Q

Improvement of Separate Property

A

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.
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23
Q

Jxn for child custody

A

Governed by UCCJEA: Uniform Child Custody Jxn and Enforcement Act

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24
Q

Jxn for divorce

A

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.
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25
Q

Jxn for initial award of child custody

A
  • 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
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26
Q

Jxn over a divorce action

A

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
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27
Q

** Jxn over Child Support Order

A

Under the Full Faith and Credit to Child Support Orders Act, FFC must be given to a child support order if -

  1. The court had JURISDICTION over the MATTER and
  2. The PARTIES had reasonable notice and an opportunity to be heard
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28
Q

Jxn over Child Support Orders

A

Uniform Interstate Family Support Act (UIFSA) has been adopted in every state

  • Original jxn
  • Jxn to enforce
  • Jxn to notify
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29
Q

Jxn over division of marital property / alimony / distribution of assets

A

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?
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30
Q

Jxn over spousal support, marital property division

A

When money/property is at stake, court must have PJ over spouse

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31
Q

Jxn to Enforce Child Support

A
  • 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)
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32
Q

Jxn to Modify Child Support

A

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

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33
Q

Law that governs premarital agreement

A

Parties agree on state law. - If not, state law with most significant connection to party / state where executed

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34
Q

** Lump sum alimony

A

* 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
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35
Q

Marital Property

A
  1. Property acquired during marriage (certainly cuts off by date of divorce)
  2. Earnings
  3. Employment benefits
  4. Lost wages
  5. Reimbursement for medical bills paid with marital property
  6. Damage to marital property
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36
Q

Marriage requirements

A
  1. License
    - Medical certificate, sometimes
    - Waiting period between license, ceremony
    - Defect in license will NOT invalidate marriage
  2. Marriage ceremony with authorized authorized officiant
  3. 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)
  4. 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)
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37
Q

Modification of Custody

A

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’
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38
Q

Modification of existing decree of child custody

A

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
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39
Q

Modification of Spousal Support

A

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

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40
Q

** Modification of spousal support / child support

A

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)
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41
Q

Original jxn for child support

A

To enter a child support order; first to file petition
- second state can exercise jxn if the second petition is filed before answering first petition and petitioner objected to jxn in first response AND second state is child’s HOME STATE (where child has lived with parent for 6 months)

42
Q

Permanent Alimony

A

Permanent Periodic Support: for rest of life until they re-marry or die. Can be increased/decreased/terminated with showing of good cause.

** Will be set out in $$ increments

43
Q

Property acquired before marriage but paid for during marriage

A

If paid for with marital funds, most courts will divide up the property between separate and marital interests in proportion to the contribution of separate and marital funds used to pay for property.

44
Q

Property acquired before marriage, paid for after marriage

A

Split. Majority, apportioned to separate/marital based on contribution of funds.
- Inception of Title: owning spouse keeps, but reimbursement remedy for non-owning spouse who won’t acquire separate property

45
Q

** Rehabilitative alimony

A

Support used to rehab spouse so that her earning capacity will increase, won’t be financially dependent on other spouse, e.g., helping to pay for degree.

  • Can be awarded with lump sum and periodic support
  • Duration is for specified period to gain skills / education
  • Modifiable upon substantial change in circumstances

** Will be set out in periodic payments

46
Q

** Reimbursement Alimony

A

One spouse paid for the other to get a degree during marriage

  • Can be awarded with other forms of alimony
  • Reimburse spouse for financial contributions for education or training that increased spouse’s earning power and spouse didn’t enjoy benefit of increased earning power
  • Can be paid in lump sum or installment
  • Contract right that can be enforced against party’s estate
  • Non-modifiable, survives the death of either spouse
47
Q

Requirements for adoption

A
  1. Termination of bio parents rights
    - CONSENT required unless rights already terminated or being unreasonably withheld against BIOC
    - Must get consent of unwed father if have taken parental responsibility
  2. Creation of adoptive parents’ rights
    - Sometimes adoptee may need to consent
    - Home studies may be used
    - Payment of money is prohibited (pregnancy expenses can be paid)
    - Bio parents can seal or have open adoption
48
Q

Rights of unwed fathers w/r/t adoption

A

Generally, a child may not be adopted without consent of both biological parents.

  • Whether consent of an unwed father is needed depends on his involvement with the child.
  • No right to block adoption if not actively involved or unfit parent
  • If an unwed father demonstrates commitment to parenthood by participating in child rearing, relationship is protected by due process. Consider
    1. Whether parents lived together / father visited regularly
    2. Whether father admitted paternity
    3. Whether father paid child support
    4. Whether father had any responsibility for supervision, education, protection, or care of child
49
Q

Separate property

A
  1. Owned before marriage
  2. Property acquired by gift or inheritance
  3. Property acquired in exchange for separate property
  4. Income and appreciation of separate property
  5. Pain and suffering awards (personal injury)
  6. Personal damages (future medical, lost wages)
  7. Property acquired after legal separation
50
Q

Steps of property division

A
  1. Classification of property: classify each asset as marital or separate property
  2. Equitable division of marital property
    - Title does not matter!
    - Does not necessarily mean equal!
51
Q

Stock from before marriage

A

Was the increase in value of the stock due to marital funds or labor?

52
Q

Terminating spousal support

A

Permanent periodic terminates if -
1. Recipient remarries
2. Either spouse dies
3. Most jxns: either spouse cohabits with another
Must go to court to prove, cannot automatically stop paying
Lump sum survive death, are not modifiable

53
Q

** Termination of child support

A

Terminates upon emancipation of child by age or by TPR

54
Q

** Termination of spousal support

A

Periodic (permanent / rehabilitative) terminates at death or remarriage

55
Q

Visitation

A

Person is not granted custody

  • Mutually exclusive with custody
  • Parental visitation: denial is rare. Will give supervised visitation unless harm will result to the child.
  • Nonparent visitation: 3d parties can seek visitation. Applies in extraordinary circumstance, e.g., parents are going through divorce, one has died, can seek visitation if in BIOC. (c.f. harm for custody). Parents still have constitutional right to make decisions for child.
  • The Supreme Court has held that as long as a parent is fit, that parent’s determination as to the appropriateness of third-party visitation must be given special weight. A judget may not override a fit parent’s decision regarding third-party visitation merely because she feels a better decision could be made or visitation would be in the BIOC
56
Q

Void marriage

A

Parties fail to meet an essential requirement of marriage.

  • E.g. too closely related, bigamy
  • Utter nullity. No legal action needed. Can be attacked by 3d party (e.g. IRS), after death of one of the parties
  • May or may not be valid after impediment is removed by continuing to live together (if not, requires re-marriage)
  1. Bigamy
  2. Consanguinity
  3. Nonage (some states)
57
Q

Voidable marriage

A

Some event or condition affects the adequacy of the party’s CONSENT

  • E.g., nonage, capacity, duress, fraud
  • Valid until declared null
  • Can only be attached by parties, not 3d parties (sometimes only by person suffering from lack of consent) / after the death of one of the parties
  • Can be remedied by continuing to live together after the marriage (RATIFIED)
  1. Nonage (most states)
  2. Incurable physical impotence
  3. Lack of capacity
    - Mental
    - Duress
    - Fraud (including misrepresenting ability to have children)
58
Q

** Which awards of spousal support are modifiable?

A

Permanent periodic and rehabilitative spousal support are prospectively modifiable upon a substantial change of circumstances, including death or remarriage.

Lump sum and reimbursement are non-modifiable

59
Q

Alienation of Affection

A

Requires

  1. Genuine love and affection b/w spouses in VALID marriage
  2. Love and affection was alienated/destroyed
  3. Defendant’s actions CAUSED loss of love and affection (will often claim marriage was falling apart anyway)

Does NOT require
- Adultery, sometimes in-laws have been sued

Punitive damages are available in most jxns

60
Q

Annulment

A

Defective marriage that is legally void or voidable
- Cf. valid marriage, then have to get a divorce

61
Q

Assisted Reproduction

A

UPA: Uniform Parentage Act; has not been widely adopted

  • Maternity: woman who gives birth = mother unless there is a valid surrogacy agreement or adjudication (e.g., for adoption)
  • Paternity: husband who is married to a woman who has child through assisted conception is father, unless lack of consent within 2 years of birth
  • Egg and sperm donors are not parents, though sperm donor may have rights to child if he agrees ahead of time with mother
62
Q

Breach of promise to marry

A

Very rare; like a contracts claim, but a tort

  • Actual damages (e.g., wedding preparation)
  • Mental anguish / loss of reputation
  • Punitive damages are available
63
Q

Can a spouse prevent the divorce?

A

Is both spouse’s consent required?
- The fact that one spouse thinks the marriage should be saved and does not agree that it is broken down is generally insufficient to prevent a divorce judgment if the other spouse believes the marriage cannot be saved and is not interested in continuing the marriage

64
Q

Channels of adoption

A
  1. Agency: licensed agents act as intermediary to facilitate adoption
  2. Private: done with lawyers
65
Q

Cohabitation Agreement (for unmarried persons)

A

Contracts between unmarried cohabitants will be enforced if sexual relations are not the only consideration for the contract

  • E.g., oral vows to take certain actions
  • Giving up career, taking care of home is valid consideration
  • Usually agree to division of earnings, property rights
  • Sometimes courts find an implied contract in property, trust (former partners, now cohabitants)
66
Q

Commingling

A

Separate property can become marital if inextricably intertwined
- E.g., mixed in bank account that pays marital expenses

67
Q

Criminal conversation

A
  1. Valid marriage
  2. Adultery

Same damages as alienation

68
Q

Defenses to Divorce

A

No fault: reconciliation. Resets the clock.
Fault:
- Collusion: simulating the grounds for divorce
- Connivance: plaintiff consents to other spouse’s misconduct. E.g., swingers
- Condonation: forgiveness. Must have knowledge of offense.
- Recrimination: plaintiff also committed fault, unclean hands.

69
Q

Duration of child support

A
  • Age of majority (usually 18) [may allow to continue past if they are still attempting to get their high school degree, if child disabled]
  • Death of child
  • Emancipation of child
  • Termination of parental rights
70
Q

Effect of annulment

A

Set as aside as if it never happen.

  • Child support will still be awarded
  • Spousal support may still be awarded
  • Property, treat as if never marriage, place back in pre-marriage state
71
Q

Enforcement of Child support awards

A
  • Civil or criminal contempt proceedings
  • Intercepting federal tax refund
  • Forfeiture of licenses
  • Seizures of property
  • Wage withholding
72
Q

Enforcement of custody awards

A
  • Contempt
  • Habeas corpus
  • suits in equity
  • Out of state decrees will be enforced if certified copy filed with clerk of court
73
Q

Fault Divorce

A
  • Adultery (other spouse had sex with someone else). 1) opportunity (e.g., working late, out to dinner with someone else), 2) inclination (propensity), requires corroboration
  • Desertion (abandonment): unjustified departure from marital home with no intent to return. Usually must ask to come back home, refuses.
  • Cruelty (physical or mental). Mental usually requires pattern/practice
  • Habitual drunkenness or drug abuse commencing AFTER the marriage
  • Insanity

May impact ALIMONY

74
Q

Gestational Agreements

A

Surrogacy agreements
1. Genetic surrogate: carries child using her own egg
2. Gestational: carries the embryo of someone else
Gestational mother, her spouse (if she is married) and intended parents must enter into agreement
- In writing and approved by court
- Must be voluntary
- May provide healthcare money
- Surrogate must be able to make her own medical decisions
- Any consideration must be reasonable
- Not affected by marriage / divorce
- May terminate before embryo transfer
- If unenforceable, gestational mother is mother regardless of biology
- Intended parents must file order of parentage with court

75
Q

Gifts in contemplation of marriage

A

E.g., engagement ring
The gift is subject to the CONDITION of the marriage. If marriage does not occur, gift is not complete.
- Depends on the type of gift given

76
Q

Grounds for Divorce

A
  1. No Fault
  2. Fault
77
Q

Kidnapping

A

State and federal crime if they travel against all lines

  • PKPA, Federal Parental Kidnapping Prevention Act; even though child custody orders are not final, full faith and credit shall be given to them
  • Jxn: emergency jxn can be permanent
  • International Parenting Kidnapping Prevention Act; Hague Convention. If wrongfully removed to foreign country, can bring the child back to the US if law is applicable.
78
Q

Legal Separation

A

Usually permitted on same grounds as divorce.

  • Still married
  • Courts can divide property when legal separation is granted / after acquired property remains separate
  • If no final disposition at separation, will divide property then
79
Q

Marriage by estoppel / Putative Marriage

A

Equitable remedy for invalid marriage; protect the innocent party to the invalid marriage / entered marriage in good faith
- E.g., party marries someone who is still in love with someone else

80
Q

Modification of Child support Order

A

Substantial and continuing change of circumstance that impacts needs of child, ability of parents to pay
- Voluntary reduction in income is not grounds

81
Q

Modifying separation agreement

A

Depends on whether the agreement is merged into the divorce decree
- Submit agreement to the court, becomes part of divorce degree and CAN be modified
- If not merged, it is still a contract and CANNOT be modified
** Child issues can always be modified!

82
Q

No Fault Divorce

A

Spouse does not want to LITIGATE fault; fault may still exist. During separation, still married.

  • Irreconcilable differences, generally requires agreement
  • Living separate and apart for a specified time period. May be unilateral or bilateral; usually longer period for unilateral.
  • Incompatibility
83
Q

Non-marital Children

A

Children born out of wedlock receive constitutional protections (intermediate scrutiny)

84
Q

Parentage Action

A

Establishes biological relationship for maternity, paternity
- Once there is a finding of parentage, that parent has rights / duties

85
Q

Paternity Suit

A

Usually unwed mother suing for child support

  • Once established, custody and visitation
  • SOL tolled during the minority of the child. Available at least until child reaches 18.
86
Q

Pensions

A

Marital property if earned during marriage.
- Contributions made during marriage belong to marital estate.

87
Q

Posthumous Conception

A

Children conceived after death of parent

  • Frozen sperm / eggs
  • If a gamete provider consents in writing that it can be used after death, will be considered child of deceased parents with full rights. Full benefits / rights
88
Q

Presumptions of Parentage in marriage

A
  • Mother’s husband / born within 300 days of termination [death / divorce] of marriage (conceived during marriage), even if during void / voidable marriage
  • Requires C&C evidence to disprove
  • Some states, even with DNA evidence, will keep paternity for BIOC
89
Q

Professional License or Degree

A

Not marital property
- Will usually be considered in award of ALIMONY. Compensate spouse for putting spouse through school

90
Q

Recognition of marriages in other states

A

If a marriage was valid where entered, it will be recognized by other states as well

91
Q

Relocation and Child Support

A

Changing child’s primary residence

  • States have statutes that require notice to other parent, opportunity to be heard
  • Courts will consider BIOC to decide whether to permit child’s relocation and whether the move will benefit the family. Cannot be intended thwart the relationship with the other parent.
92
Q

Rights and Duties of the Spouse

A
  1. Property: title is not dispositive. Marriage gives spouses right to property
  2. Obligation to support
    - Doctrine of Necessaries: makes spouse liable to third parties for other spouse’s purchase of necessary expenses
  3. Spousal abuse orders
    - Victim is entitled to protective order against other spouse
    - Can be granted ex parte (without notice to other spouse)
  4. Tortious interference with marriage: claims against a 3d party who interferes with marriage
    - Alienation of affection
    - Criminal conversation
93
Q

Separation Agreeements

A

Agree to deal with all financial issues arising because of their separation.

  • Entered into after marriage
  • Enforceable if supported by consideration
  • Can waive alimony and equitable distribution of property
  • Unlike prenup…CAN agree on custody and child support, but the court is not bound
94
Q

Tax consequences

A

Spousal support is non-taxable after 2019
- If entered into pre-2019, spousal support has tax consequences, unless it has been modified to comport with new rule (deductable/income)

95
Q

Tax consequences

A

Award of property is not a taxable event

96
Q

Tax Consequences of Child Support Order

A

Payments are not taxable events

97
Q

Temporary emergency jxn for child custody

A

Court may exercise temporary emergency jxn to protect the child

  • Regardless of home state / significant connection
  • Child is present in state and has been abandoned / necessary to protect them / sibling / parent from abuse. Jxn for period of time to keep child safe.
98
Q

Temporary v. Permanent Alimony

A

Is their economic dependency a result of the marital relationship?
“The purpose of spousal support is the ensure an adequate income stream for the spouse whose economic dependency has resulted, at least in part, from the marital relationship.”
- Some states consider marital fault
- Permanent: awarded to spouse who was neither the resources nor the ability to be self-sustaining (unemployable)
- Are they receiving anything else in the marital settlement?

99
Q

Termination of Parental Rights and Adoption

A
  1. Voluntary
  2. Involuntary Termination: dangerous, unsupportive circumstances. STATE can intervene.
    - serious physical harm on child, other children in household
    - abandonment
    - neglect, deprivation, failure to provide support without cause
    - mental health of parent that results in inability to care for child
    - parental unfitness (physical or psychological, e.g., drug abuse)
    Generally, cannot seek to terminate the rights of the other child…can do no custody / visitation amongst themselves.
    Goal: Place the child in a home where the child can be cared for
    - Not to remove the child permanently. Find a suitable home for child while parent gets back on track
100
Q

Transmutation of Separate Property

A

Separate can become marital based on intent of the parties
- E.g., used for down payment on home in held jointly. Presumed to be a gift to marital estate.

101
Q

Unwed Fathers

A

Establish rights by -
1. after birth of child, father marries child’s mother
2. holds child out as bio child
3. consents to putting name on birth cert
4. acknowledging paternity (notary / formal document)
5. Court order
Protected by due process, can have right to custody if they demonstrate parental responsibility, i.e., supervising, education, care, support, acknowledging paternity

102
Q

When can a court split up a couple’s property?

A
  1. Married
  2. Cohabitation agreement

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