Family Law Flashcards
Separation agreement enforceability (NOT marital agreement)
The court will generally enforce separation agreements unless it is unconscionable or based on fraud. As in any contract, the parties must enter into a separation agreement voluntarily. Courts consider factors such as time-pressure, the parties’ previous business experience, and the opportunity to be represented by independent counsel.
Premarital agreement enforceability
(1) in writing and signed by both parties
(2) full disclosure by both parties
(3) voluntary - factors include lawyers, length of time between the agreement and the marriage, sophistication of the parties, other pressures to get married quick
What terms are unenforceable in a premarital contract?
Child custody, child support
When is a spouse eligible for spousal support?
Can’t support themselves OR is the custodian of a child + would be inappropriate for them to work
What factors do courts consider in awarding spousal support?
Financial resources of moving party, duration of marriage, standard of living during marriage, ability of paying spouse to meet needs of both
How is a father-child relationship established?
(1) man says he is dad
(2) adoption
(3) adjudication of paternity
paternity estoppel
Man can’t deny that he is father if:
(1) holds himself out as father AND
(2) paid child support
Common law marriage recognition
In general, marriages are valid where they took place and are recognized in all other states. If a marriage violates a particularly strong public policy of the domicile of either party, however, it will be invalid. It is likely that if two individuals who reside in a state permitting common-law marriage meet that state’s requirements for establishing a common-law marriage, recognition of the marriage does not violate public policy.
CL marriage
Common-law marriages are valid when the parties: (i) agree that they are married; (ii) cohabit as married; and (iii) hold themselves out in public as married.
Putative father doctrine
The U.S. Supreme Court has held that the right of an unwed father to object to an adoption cannot be denied if the father has demonstrated that he is committed to fulfilling the responsibilities of parenthood. On the other hand, some jurisdictions have created adoption registries for the purpose of determining the identity and location of putative fathers and providing notice in the event of an adoption. A putative father’s failure to register within a statutorily prescribed period of time constitutes a waiver of his right to notice of the adoption and irrevocably implies his consent to the adoption. However, termination in this fashion typically applies only to cases in which the father and child never developed a relationship.
UCCJEA jx
Under the UCCJEA, a court has subject matter jurisdiction to preside over custody hearings and either enter or modify custody or visitation orders if the state is: (i) the child’s home state (the state in which the child has lived with a parent or guardian for at least six consecutive months prior to the custody proceeding, or since birth, if the child is less than six months old), or (ii) was the child’s home state in the past six months and the child is absent from the state, but one of the parents (or guardians) continues to live in the state.
Intact families
When it comes to disputes of intact families, courts typically treat such matters as private ones that should be resolved within the home. Unless and until the parties separate, courts will refuse to decide such disputes.
Ct intervene to protect child b/c religious nutjob parent
A parent has a right to raise her child as she sees fit. This right extends to decisions relating to the religious upbringing of a child. However, under the theory of parens patriae, a court can intervene to protect a child when medical treatment contradicts religious beliefs and such treatment is required to prevent serious harm to the child’s health. In those situations, a child can be declared neglected and the medical treatment ordered.
Spousal support rule statement
Spousal support is the obligation of one party to provide the other with support in the form of income. It is awarded in a divorce if one spouse cannot provide for his own needs with employment. At common law, a husband was obligated to support his wife, and the duty was enforceable under the necessaries doctrine. A necessary item was something suitable to the parties’ station in life, including medically necessary care. Most jurisdictions have modified the necessaries doctrine to apply equally to both spouses, and often refer to them as “family expense” statutes. This spousal support obligation is limited by the common law doctrine of nonintervention, which disallows judicial intervention in an intact family. Courts have relied on the nonintervention principle to deny a support petition when the couple is living together.
Parent by estoppel (de facto parent)
Generally, a parent is in the best position to care for a minor child, unless the parent is determined unfit. Legal parents are presumptively entitled to custody of their children in cases against third parties unless it can be established that the legal parent is unfit or that awarding custody to the legal parent would be detrimental to the child. If a natural parent has had little or no contact with a child, or if the child has lived with the third party for an extended period of time, then courts have employed the terms “parent by estoppel” and “de facto parent” to get around the presumption.
