Family Law Flashcards
MARRIAGE REQUIREMENTS:
A valid marriage requires that:
- The parties obtain a marriage license;
- The marriage is solemnized by a ceremony that is conducted by an authorized cleric or judge; AND
- Both parties consent.
Common Law Marriage is valid if the parties:
(1) have the mental capacity to enter into a marriage,
(2) agree that they are married,
(3) cohabit, and
(4) hold themselves out in public as married
*If a couple is common law married in a state that recognizes it, other states will recognize it too
A premarital agreement is enforceable if:
(1) it is fair and reasonable,
(2) it is voluntary, and
(3) it is in writing signed by the party to be charged
Clauses relating to child support and custody are unenforceable.
To determine whether a premarital agreement is voluntary, courts consider factors such as:
(1) presence of independent legal counsel; (2) length of time between agreement and wedding; (3) ability to understand the agreement; and (4) other reasons for proceeding with the marriage (i.e. pregnancy).
*A party’s insistence on the agreement as a condition to marriage is not duress
Premarital Agreement:
Child Custody & Support
NOT binding on a court, and any provision that adversely affects a child’s right to support is unenforceable.
− If an agreement is NOT in the child’s best interests, a court may order a parent to pay an amount reasonable or necessary for the child’s support.
ANNULMENT
MARITAL ACTION JURISDICTION: Under the majority view, a state where either party is domiciled has jurisdiction to enter an annulment decree. Under the Full Faith and Credit Clause, a divorce validly granted in one state is entitled to full faith and credit in other states if the petitioning party:
Was domiciled in the state the granted the divorce;
AND
Provided adequate notice of the proceeding to the other spouse.
DIVORCE:
Today, every state has adopted a form of no-fault divorce. Common grounds for a no-fault divorce are:
- A minimum duration of separation; AND/OR
- Irreconcilable differences.
Jurisdiction: Ex Parte Divorce
may be maintained without personal jurisdiction over the absentee spouse ONLY IF plaintiff-spouse is domiciliary of the rendering state.
− Many States have durational residency requirements.
- Divisible Divorce→one spouse can terminate the marriage (ex parte divorce) in one proceeding, and reserve other issues for a later proceeding.
PROPERTY DIVISION AT DIVORCE
APPROACHES TO PROPERTY DIVISION AT DIVORCE: Some states follow the community property approach; however, most states have adopted the equitable distribution approach for division of property at divorce.
The analysis is relatively similar under both approaches:
- Categorize the property as separate or marital; THEN
- Determine an equitable distribution of the marital property between the spouses.
Division of Property
Equitable Division Approach (most states)
marital assets are divided among the spouses by equitable distribution; separate property is NOT divided.
Separate Property includes:
1) Property acquired before marriage;
2) Gifts and bequests (even if during marriage);
3) Property that spouses agreed will be separate
property; and
4) Passive appreciation of assets - an increase in value due to a passage of time.
Marital Property:
ALL OTHER property acquired during the marriage, including:
(1) active appreciation – caused by the effort of a spouse; and
(2) future expectancies, even if payment will not be received until after the marriage ends.
Accrual of Marital Property:
− Some States→ends upon permanent
separation.
− Other States→ends upon a final divorce
decree.
Which court may issue a property division order?
Unless the court has jurisdiction over the defendant spouse, it may not issue a binding division or support order
DISTRIBUTION: Once the court categorizes the property as either separate or marital, the court will then equitably distribute the marital property between both spouses.
General factors include:
- The income, property, and liabilities of each party;
- The duration of the marriage;
- The obligations for support arising out of a prior marriage;
- The lifestyle each spouse is accustomed to; AND
- The contributions made by each spouse toward the accumulation of marital property.
Rights of Unmarried Cohabitants:
Division of Property
The party who has title retains sole ownership of the property UNLESS:
a) Agreement Between Cohabitants (may be express or implied); OR
b) Equitable Remedy Theory
Division of Property
Agreements Between Cohabitants:
An agreement for division of property between unmarried cohabitants may be express or implied.
− Express (oral or written) → is enforceable except if based on sexual relations.
− Implied → court may find an implied-in-fact agreement if the parties comingled funds during the relationship.
Spousal support is:
the obligation of one party to provide the other with support in the form of income
Termination – Spousal support obligations terminate upon the death of obligor spouse.
Factors in Determining the Amount of spousal support
(1) financial resources; (2) time necessary for obtaining a job; (3) standard of living during marriage; (4) duration of marriage; (5) age and physical/emotional condition; and (6) the ability of the spouse paying support.
− A minority of states will also consider marital misconduct or fault.
Modification of Spousal Support and Child Support
May be modified if court finds a substantial change in circumstances making prior award unreasonable
- Some courts will NOT permit a modification if the change was anticipated or voluntary. Other courts will permit a modification if the spouse acted in good faith.
- Courts CANNOT retroactively modify support orders.
Uniform Interstate Family Support Act (UIFSA) –
Courts MUST give full faith and credit to support orders from other states.
Child Support:
Parent’s Legal Obligation
A biological parent is legally obligated to pay child support (whether or not the child was intended or wanted).
Paternity – May be established by:
a) Birth certificate;
b) Legal presumption (A child born during marriage is presumed to be the marital child of the husband (may be rebutted)).
c) When unmarried parents voluntarily sign an acknowledgement of paternity;
d) An unmarried biological father’s successful challenge of a presumption;
e) Paternity suit; AND/OR
f) Paternity by estoppel – held himself out as the
father and paid support (assuming parental
responsibilities).
*If paternity is established, that person is responsible for child support obligations.
