Family Law Flashcards
Full Faith and Credit for Child Support Orders Act (“FFCCSOA”)
Under the Full Faith and Credit for Child Support Orders Act, full faith and credit must be given to another court’s child support order if: (1) the court had jurisdiction over the matter and the parties, and the parties had reasonable notice and an opportunity to be heard.
Parental Kidnapping Prevention Act (“PKPA”)
Under the federal Parental Kidnapping Prevention Act (“PKPA”), a state may 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 jurisdiction.
–Under the Supremacy Clause of the U.S. Constitution, the federal law prevails over any contrary state law.
Jurisdiction for the Modification of Existing Child Custody Decree
Under the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”), which has been adopted by nearly every state, the court that made the initial custody determination has continuing, exclusive jurisdiction over the matter until that court determines that:
(1) neither the child nor the parents continue to reside in the issuing state, or
(2) the child no longer has a significant connection with the issuing state and substantial evidence relating to the child’s care, protection, training, and personal relationships is no longer available in the state.
Note: Only the issuing state can decide if this test has been met.
How does removal of a child from the jurisdiction affect the custody order?
Removal of a child from the jurisdiction is a substantial, material change of circumstances warranting modification of the custody order.
What will the court consider in fashioning a custody and visitation schedule?
The court will follow the best interest of the child standard in fashioning a custody and visitation schedule. Generally, courts consider: the wishes of the parents; the wishes of the child; the relationship of the child with each parent; the child’s adjustment to home, school, and community; and the mental and physical health of the parties involved.
–Note: A parent’s removal of a child to another state in violation of a custody order also will likely weigh against the parent retaining custody. The parent should ask for a modification before taking the child to another state and show the court why such a move is in the child’s best interest.
Antenuptial (Premarital) Agreements
Premarital contracts are valid contracts that address the rights of the parties upon divorce or death. The marriage is sufficient consideration to support a premarital contract.
Under the Uniform Premarital Agreement Act (“UPAA”), which has been adopted by a majority of the states, these agreements can cover the disposition of property in the event of death or divorce; the making of a will, trust, or other arrangement to carry out the provisions of the agreement; the choice of law governing construction of the agreement; and any other matter not in violation of public policy or criminal statute.
Can parties make agreements regarding alimony?
Generally, parties can make agreements regarding alimony (also known as spousal support), but a court may find the provision unenforceable if it leaves the disadvantaged spouse a public charge.
Can parties make agreements regarding child custody and support in premarital agreements?
These provisions never bind the court. In some states, custody and child support provisions are void as against public policy, while in others they are subject to judicial review.
Requirements for Validity of Premarital Agreements
For a premarital contract to be enforceable, most courts require the following:
(1) The contract be in writing and signed;
(2) The agreement must be entered into voluntarily (e.g., w/o fraud, duress, or overreaching);
(3) If agreement is unconscionable, then the court will examine if there was a full and fair disclosure of the parties’ assets or proof that the party against whom the agreement is being enforced had independent knowledge of the assets.
(4) Some courts consider whether the economic provisions were fair and reasonable.
Note: Although not required, if both parties are represented by independent counsel, courts are far less likely to find overreaching and refuse to enforce the contract.
Marriage Requirements
(1) License - Most states require persons intending to marry obtain a license; some states require that each party obtain certificate from physician stating that the party is free from particular communicable diseases; most states also require a waiting period between getting the license and having the ceremony [varies by state, often 48-72 hours].
(2) Ceremony w/ authorized officiant - Generally, a marriage must be solemnized by a ceremony w/ an authorized officiant; states vary on who can perform marriage ceremonies.
(3) No legal impediment - Can’t be too closely related; can’t be married to someone else [bigamy].
(4) Capacity to consent - At the time of the ceremony, the parties must have the mental ability to consent. The parties must understand their actions and voluntarily agree to them. (under the influence of drugs/alcohol, fraud, duress, coercion, or force may invalidate a marriage)
Note: Age is also a consideration for consent. Both parties must be of the age of majority, usually 18. A 16- or 17-year-old usually needs parental consent to marry, and younger parties require judicial consent.
Common Law Marriage
A valid common law marriage requires three things:
(1) Consent to marry (includes having capacity and a lack of legal impediments);
(2) Cohabitation
(3) The couple holding themselves out publicly as spouses.
Note: No license or ceremony is required. Common law marriages have been abolished in most states. However, if it’s formed in one state, it will generally be regarded as valid even in those states that do not recognize common law marriage.
Marriage by Estoppel
This is an equitable remedy for an invalid marriage. In some states, the putative spouse can acquire all of the rights of a legal spouse.
Tenancy by the Entirety
In many states, if spouses take title to real estate jointly, a TBE is presumptively created. This includes a right of survivorship, and one spouse cannot convey or encumber the property w/o the consent of the other spouse.
–Upon dissolution of the marriage, TBEs become TICs.
Marital Property
Most property acquired during marriage is marital property no matter how titled. Upon dissolution of the marriage, the court has broad discretion regarding the equitable distribution of this property.
Spouse’s Obligation to Support
During marriage, each spouse has an obligation to support the other. The doctrine of necessaries can be used to make one spouse liable to third parties for the other spouse’s purchase for necessary expenses, such as food, clothing, and health care.
Also, principles of agency may require that one spouse be held liable to a third party for the other spouse’s authorized purchases.
Note: W/ regard to suits between spouses in general, many states have abolished interspousal immunity, retaining exceptions only for highly private activity (e.g., marital privileges and consensual acts) and simple domestic negligence.
Spousal Abuse Orders
Every state has laws protecting the victims of domestic abuse, both within and outside of a marriage. All 50 states allow a battered spouse to seek some form of protective order against a violent spouse.
Initially, protective orders can be granted ex parte (w/o notice to the other spouse) and can last from one month to several years depending on the jurisdiction.
Alienation of Affection
These are claims against a third party for interference w/ the claimant spouse’s marriage. These actions have been abolished in most states.
Alienation of Affection: (1) evidence of genuine love and affection between validly married spouses; (2) evidence that the love and affection was alienated or destroyed; (3) proof that D’s actions caused the loss of love and affection; and (4) damages.
–Adultery is NOT required.
Criminal Conversation: (1) existence of a valid marriage; (2) the act of adultery.
–When applicable, litigants bring both the Alienation of Affection claim + Criminal Conversation claim in the same suit
Family Privacy
Generally, the internal affairs of a family cannot be regulated by the courts. Under most circumstances, families have the right to privacy in their homes and freedom from governmental interference in their domestic affairs.
Parents have the authority to make decisions about most matters concerning the upbringing of their child, but certain state interests (e.g., prevention of abuse and neglect, compulsory education) take precedence over parental autonomy.
–Note: Right to privacy is implicit in the concept of “liberty” and protected by the Due Process Clause. B/c privacy is a fundamental right, any regulation of it (other than abortion area) is invalid unless it’s necessary to achieve a compelling government interest.
Annulment
An annulment is a backward-looking doctrine that declares a marriage invalid b/c an impediment that existed at the time of the marriage makes it legally void or voidable. Once an annulment decree has been entered, the parties are treated as though they were never married.
Void Marriage
Is invalid, an utter nullity, b/c it failed to meet the essential requirements for a legal marriage. No subsequent act can ratify a void marriage.
–Parties may walk away from a void marriage w/ no legal action, but an annulment action is usually brought to determine property distribution and child custody.
–Any interested party may seek annulment of a void marriage, and the marriage is subject to collateral attack by third parties (even after the death of one of the parties) (e.g., the IRS).
–Note: If the impediment causing the marriage to void is removed (e.g., a spouse from a prior valid marriage dies), the Uniform Marriage and Divorce Act (“UMDA”) and some state statutes provide that the marriage becomes valid if the parties continue to cohabit. Other states do not allow validation, holding that the marriage remains void and the parties need to marry after the impediment is gone.
–Key examples of void marriages include: Bigamy (if either party has a living spouse); Consanguinity (marriage between parties too close related).
In considering a void marriage, what arguments does a subsequent spouse have in situations where a prior marriage was not successfully ended before the marriage in question?
Two possible arguments:
(1) the strong presumption that the marriage is valid; and
(2) if the prior marriage is later terminated by divorce, annulment, or death, continued cohabitation validates the second marriage under the Uniform Marriage and Divorce Act (“UMDA”) and similar statutes.
–Note: States generally presume that the most recent marriage is valid, and a party must overcome the presumption by strong evidence that the prior marriage subsists.
Voidable Marriage
A voidable marriage is valid until declared null. However, b/c of an impediment that existed at the time of the marriage, one spouse may bring an action to have the marriage annulled.
–No collateral attacks permitted
–Can be remedied (ratified) by continued habitation after the removal of the impediment, and ratification means the marriage cannot be annulled.
–Examples: Nonage (spouse under statutory age and married w/o required consent), capacity, duress, fraud can affect consent if it involves an essential element of marriage (e.g., misrepresentation as to ability or willingness to engage in sexual relations or bear children)
Effects of Annulment: Spousal Support
Generally, spousal support is NOT awarded in annulment actions, but it is available in some jurisdictions. Also, if spousal support from a previous marriage has been terminated by remarriage, it will not be reinstated following an annulment of that marriage.
Effects of Annulment: Children of Annulled Marriage
The children of an annulled marriage are marital children. Support and custody issues are handled in the same way as a divorce action.
Effects of Annulment: Division of Property
Courts attempt to place the parties in their pre-marriage position, and usually give each party that property to which they have legal or equitable title.
Jurisdiction for Annulments
In states w/o statutes on the subject, annulment actions are heard by the equity courts. Among states, the state of domicile of either of the parties has jurisdiction to hear the annulment action.
Many states also provide that the place of the celebration of the marriage also has jurisdiction. Annulment decrees rendered w/ proper jurisdiction are entitled to full faith and credit.
Jurisdiction for Divorce Proceedings
To have jurisdiction over a divorce, only 1 of the parties needs to be domiciled (resident w/ intent to remain) in the jurisdiction. Most states set a minimum residency period (e.g., 90 days) before an action may be filed.
–It is possible for multiple states to have jurisdiction over a divorce, and multiple cases could proceed until one court renders a judgment causing the other to lose subject matter jurisdiction. (renders the other proceedings moot)
To determine financial issues (e.g., property rights and spousal/child support), the court must have personal jurisdiction over D. If so, the court’s provisions of the decree are given full faith and credit (the decree is recognized as valid in all other states).
“No-Fault” Divorce
Most state divorce statutes provide for divorce w/o regard to marital fault. This usually requires a showing that:
(1) Both spouses agree that the marriage is irretrievably broken (a.k.a. irreconcilable differences);
(2) The parties have been living separate and apart from each other for a specified and continued amount of time (e.g., 90 days to 18 months);
(3) Both parties agree they are now incompatible and can no longer be married.
Fault Grounds for Divorce
(1) Adultery - The filing spouse may present circumstantial evidence of opportunity and inclination; corroboration is often required.
(2) Willful desertion (or abandonment) - This requires an unjustified departure from the marital home for a specified period w/ no intent to return.
(3) Extreme physical or mental cruelty
(4) Voluntary drug addiction or habitual drunkenness commencing after the marriage
(5) Insanity
Defenses to Divorce
No-Fault Divorce: The only defense is to deny the existence of one of the requisite grounds. One spouse may claim that a reconciliation restarted the clock for living separate and apart.
Fault-Based Divorce: Defenses are rarely used, but still exist:
–Collusion: An agreement between spouses to simulate grounds for divorce or to forgo raising a valid defense. In some states, this may prevent the granting of a divorce.
–Connivance: Willing consent to the other spouse’s misconduct (e.g., swingers) (think Gonskas)
–Condonation: The forgiveness of marital offenses w/ full knowledge of the wrongs. Resumption of marital relations after the forgiveness is the key. (think Paul + Crissy)
–Recrimination: Arises when the party seeking the divorce is also guilty of misconduct for which a divorce may be granted. (unclean hands)
Legal Separation
An order of legal separation (sometimes called a “divorce from bed and board”) does not terminate the marriage, but the parties can have all of their rights regarding property, spousal support, custody, and child support adjudicated in this proceeding.
–If the court permanently divides marital property, then any after-acquired property is separate property.
–A legal separation can usually be enlarged into an absolute divorce if the parties so request.
Approaches to Property Division Upon Divorce
There are 3 possible approaches:
(1) Community Property: All property acquired during the marriage is deemed owned 1/2 by each spouse, and all property brought into the marriage or acquired by gift or bequest is separate property.
(2) Equitable Division Of All Property: The court divides all property owned by either spouse, whether acquired before or after the marriage.
(3) Equitable Division Of Marital Property: Each spouse takes their separate property, and the court only divides the property acquired during marriage. (majority rule)
