Family Law Flashcards
When is a premarital agreement enforceable?
A premarital agreement is enforceable if there has been a full disclosure, the agreement is fair/reasonable, and it is voluntary. It must be in writing and signed by the party to be charged.
Under the UPAA, what must a party show in order to avoid enforcement of a premarital agreement?
The party against whom enforcement is sought must prove (1) involuntariness or (2) both unconscionability when executed and lack of disclosure/adequate knowledge of the other’s assets and obligations. The modern trend is to enforce unfair agreements so long as there was full disclosure.
(Note: Full disclosure = all income, assets, and liabilities of both parties)
For premarital agreements: what does voluntary mean, and what factors will the court consider?
Voluntariness means there was no fraud, duress, or misrepresentation. Courts consider factors such as time-pressure, previous business experience, and the opportunity to be represented by independent counsel.
What is equitable distribution and how does it work?
The goal of equitable distribution is a fair distribution of all marital property under all circumstances between the parties. In most states, all property acquired during the marriage is marital property subject to equitable distribution. Appreciation in nonmarital property can also be considered marital when attributable to spousal labor.
How do you classify property acquired after separation but before divorce?
In most states, property acquired after separation but before divorce is still considered marital property.
What factors does the court consider in determining equitable distribution?
(Hint: Broad)
Some factors the court may consider for equitable distribution include: length of marriage; age, health, and earning potential; needs of both spouses; value of separate property; standard of living; overall economic circumstances.
Can a separation agreement be invalidated? If so, under what circumstances?
Yes. Separation agreements may be invalidated (in whole or in part) if the court makes a finding of fraud or unconscionability. This is the case when, at the time it was made, it was so unfair to one party that no reasonable person would have agreed to it.
Can a property division award be modified? If so, under what circumstances?
No. The division of marital assets is determined based upon the circumstances at the time of divorce, and it cannot be modified due to any change in circumstances.
Can a spousal support award be modified? If so, under what circumstances.
Yes. Spousal support awards can be modified based upon a significant change in a party’s circumstances (such as death, remarriage, or cohabitation) that was not contemplated at the time the award was made.
Can a child support award be modified? If so, under what circumstances?
Yes. A child support award can modified upon a showing of a substantial change in circumstances in either the child’s needs or the parent’s financial situation. This includes factors such as: change in job/income (but not if voluntary), remarriage, increased income, or decreased health.
Can non-paternity be established after entry of the divorce decree as grounds to modify the child support award?
Traditionally, courts have been loath to modify an established parent-child relationship and will deny admission of evidence of non-paternity or deny motion to disestablish paternity.
Some states, however, will allow erroneously identified fathers to offer proof of non-paternity. In that case, it may be grounds to modify the child support award if it constitutes a substantial change in circumstances.
(Note: Likely NOT a substantial change if father knew of non-paternity when support was originally awarded)
What governs jurisdiction over child support modifications, and how does it work?
Modification of child support orders is governed by UIFSA. Under UIFSA, a state court does not have jurisdiction to modify if the original state has continuing, exclusive jurisdiction. This rule applies unless the parties, including the child, no longer reside in that state OR they expressly agree to another state’s jurisdiction.
Do state courts have subject matter jurisdiction over domestic relations issues?
Yes. State courts have SMJ over domestic relations issues (e.g., modification of a property settlement). Unlike child support, UIFSA does not apply to divorce related property disputes so those jurisdictional rules do not limit the state’s jurisdiction. The court may exercise personal jurisdiction if that person if voluntarily present in the state and served process while there.
Can a child support modification be made retroactively?
No. Modifications of child support may be made while the cause of action is pending, but states cannot retroactively modify child support before the date of service of process.
For child support orders: Who has the burden of showing a substantial change? Is a decrease in income a substantial change?
The parent requesting modification has the burden of showing a substantial change in circumstances such as a significant decrease in income. However, when a parent voluntarily changes employment, reduction in income alone is not sufficient proof of substantial change. The courts will consider earning capacity and other factors (good faith, promotion opportunities, etc).
When does a court have jurisdiction to grant a divorce?
A court hearing a family-related dispute must generally have both subject matter jurisdiction and personal jurisdiction. Most states have residency requirements to establish subject matter jurisdiction (e.g. 6 months). The court will have personal jurisdiction over anyone personally filing for divorce in that state.
What governs jurisdiction of child custody disputes?
The UCCJEA has been adopted by most states and aims to prevent jurisdictional disputes over child custody matters. In an initial custody determination, the court has SMJ to enter custody orders if the state is the child’s home state (child has lived with parent/guardian there for at least 6 months prior). A court can decline jurisdiction if the party has wrongfully removed a child from another state.
What is the doctrine of divisible divorce?
Under the doctrine of divisible divorce, a court may have sufficient jurisdiction to grant a divorce, but lack such jurisdiction over other divorce-related matters (e.g., property division) because of a lack of personal jurisdiction over the other spouse. The other spouse must have minimum contacts for the court to exercise PJ.
What are the fault grounds for divorce?
Fault grounds for divorce include adultery, cruelty, desertion, habitual drunkenness, bigamy, imprisonment, indignity, and mental disorder.
Cruelty requires P to show a harmful course of conduct that makes continued cohabitation unsafe or improper. The conduct must be serious and typically cannot be based on a single isolated incident. Only some jurisdictions permit cruelty-based divorce for emotional abuse.
What is physical custody, and what standard governs custody determinations? What are some factors the court will consider?
Physical custody is the right to have the child reside with the parent and provide for routine daily care and control of the child. The standard for determining child custody is the BEST INTERESTS AND WELFARE OF THE CHILD.
Courts will consider who the primary caretaker was during marriage. Also, the presence of domestic violence will be considered, and some jurisdictions have a rebuttable presumption in favor of the nonabusive parent.
Under the UCCJEA, what are the two bases of jurisdiction to award child custody?
- A court has home state jurisdiction if the state is (i) the child’s home state and has been the home state for a period of six months; or (ii) was the home state in the past six months (child is absent but a parent still lives there).
- If NO state is the home state, significant connection jurisdiction applies – (i) the child and at least one parent have a significant connection with the state and (ii) there is substantial evidence in that state concerning the child’s care, protection, training, and relationships.
Note: If for some reason neither of these apply, a court with appropriate connections will have default jurisdiction (as a fallback).
Just so it is burned into your memory, what is the standard for determining child custody again? Can the child express a preference?
BEST INTERESTS OF THE CHILD
Most courts will consider the wishes of the child if the child is of sufficient maturity to express a preference (age is not the sole factor here). If the child is consulted, the court will evaluate the reasons behind the preference.
What is the primary fundamental right to remember in family law?
Fit parents have a fundamental right to the care, custody, and control of their children, and state courts must give special weight to a fit parent’s decisions on these matters.
Note: Any statute that abrogates this right (e.g., by giving grandparents custody when there is still a fit parent) is likely unconstitutional.
Will State B recognize a common law marriage valid entered into in State A?
In general, marriages are valid where they took place (conflict of laws rule) and are recognized in all other states unless it violates a strong public policy of the other state (e.g., bigamy, incest).
