Family Law Flashcards
Describe how one court may have jurisdiction over another court’s child support order
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 the court had (i) jurisdiction over the matter and the parties, and (ii) the parties had reasonable notice and an opportunity to be heard.
How can one court enforce or modify another court’s child support order?
Under the Uniform Interstate Family Support Act (UIFSA), a court of State B may serve as an initiating tribunal to request the court of State A (where child support order was issued), which has continuing and exclusive jurisdiction over the support order, to enforce or modify the order issued in State A.
When can a state that did not have original jurisdiction over custody NOT modify a custody order?
Under the federal Parental Kidnapping Prevention Act (PKPA), a state may not modify a custody order if one of the parties continues to reside in the issuing state and, under that state’s laws the court continues to have and does not decline jurisdiction.
When does a court that made an initial custody determination no longer have jurisdiction over custody matters?
Under the Uniform Child Custody and Jurisdiction Enforcement Act (UCCJEA), the court that made the initial custody determination has continuing, exclusive jurisdiction over the matter until that court determines that: (i) neither the child nor the parents continue to reside in the state, OR (ii) the child no longer has significant connection with the state and substantial evidence relating to the child’s care, protection, training, and personal relationships is no longer available in the state.
When can a court modify a child custody order?
Generally, custody awards will be modified only if there has been a substantial and material change in circumstances affecting the child’s well-being. As always, the child’s best interest is the overriding concern. Child support cannot be modified retroactively, only proactively.
What does removal of a child from the jurisdiction where a custody order is in place constitute?
Removal of a child from the jurisdiction is a substantial, material change of circumstances warranting modification of the custody order.
What is the best interest of the child standard in awarding custody and visitation?
The standard applied in awarding custody and visitation is the best interest of the child. Generally, courts consider: (i) the wishes of the parents, (ii) the wishes of the child, (iii) the relationship of the child with each parent; (iv) the child’s adjustment to home, school, and community; and (v) the mental and physical health of the parties.
Divorce: Where is an action for divorce proper?
To establish jurisdiction over a divorce action, one of the parties must be a bona fide resident of the jurisdiction where the action is brought. States may set a minimum durational residency requirement, such as 90 days or one year, before the action can be filed. The plaintiff’s residence alone may be the basis for a state’s granting a divorce, regardless of whether there is personal jurisdiction over defendant.
Divorce: where is an action for division of marital property or child/marital support upon divorce proper?
Generally, a court cannot determine out-of-state property rights or rights to support unless it has personal jurisdiction over both parties. Thus, in an ex parte divorce (i.e. one where only the plaintiff is before the court), the court can grant divorce, but cannot award spousal support or divide out-of-state property.
Divorce: what is an exception for a court that does not have personal jurisdiction over one party to divide marital property?
There is a limited exception for marital property located within the state of the court that does not have personal jurisdiction over both spouses.
Divorce: Explain No-fault Divorces
Most states offer no-fault divorces that provide for a dissolution of a marriage, without regard to marital fault. No fault-divorces may be granted upon a showing that: (i) the marriage is irretrievably broken (irreconcilable differences or incompatibility) AND (ii) the parties have been living separate and apart for a specified period of time. EXTRA: The fact that one spouse thinks the marriage should be saved and does not agree that it has broken down is generally insufficient to prevent a divorce if the other spouse believes the marriage cannot be saved and is not interested in continuing the marriage.
Divorce: What is the main approach to dividing property upon divorce (out of the three)?
Generally, courts have the authority to order an equitable distribution/division of all marital property no matter how title is held.
Divorce: What is marital property?
All assets acquired during marriage are marital property unless acquired through gift, bequest, devise, or descent. Separate property may become marital property if it is inextricably mingled to the extent that it can no longer be traced or is treated in a way that evidences an intention for the property to be marital property.
Division of marital property: What happens when a gift is given to both parties (husband and wife)?
Courts look at a donor’s intent when a gift is given to both parties, and wedding gifts are classified as marital property.
Spousal Support: What is the purpose of spousal support?
The purpose of spousal support is to ensure an adequate income stream for a spouse whose economic dependency resulted from the marital relationship.
Spousal Support: What factors might a court consider in awarding spousal support? (7 factors, state at least 5)
(1) the duration of the marriage and the standard of living established during the marriage; (2) the age and physical and emotional condition of the parties; (3) the financial resources of the parties; (4) the contribution of each party to the marriage; (5) the time needed for the party seeking support to obtain the training necessary to find appropriate employment; (6) the ability of the payor spouse to meet his needs while paying spousal support; (7) marital fault (only in some states.
Spousal Support: What are the four types of spousal support?
(1) Permanent periodic spousal support, (2) Rehabilitative spousal support, (3) Lump sum payment, and (4) Reimbursement spousal support
Spousal Support: What is permanent periodic spousal support?
Paid regularly (monthly) to support a spouse who has neither the resources nor the ability to be self-sustaining.
Child Support: Explain child support and considerations
Child support is generally based on the child’s monetary need and the obligor’s ability to pay. Most states have guidelines that dictate a formula based on the number of children, their ages, their special needs, and the parents’ income. The court may deviate from the guidelines but must make findings of fact justifying the deviation.
