Family Law Flashcards
1
Q
Breach of promise to marry
A
Rare
Tort damages: mental anguish, costs, loss of reputation (punitive is rare); return of gift due conditioned on marriage for incompleteness – failure of condition of marriage
2
Q
Antenuptual (premarital) Agreement
Purpose
Requirements
A
Uniform premarital Agreement Act – Most States have adopted
Agreement to keep property separate
- Signed (by party to be bound)
- Writing
- voluntary
- Full & fair disclosure of property
- Consideration: entry into marriage
Spousal support: Against public policy to dissalow spousal support if spouse ise dependent on state
Property division: fair & reasonable (Unconscionability determined at time of contract
Child: not enforced
Additional considerations:
- UPAA – if proof of unconscionability: Full disclosure of assets or independent knowledge of assets (know what you are waiving)
- Some look to fairness – ie whether both sides had lawyers review
3
Q
Effect of lawyer on prenup
A
If both sides have lawyer present, liess likely to find overreaching – will generally enforce
4
Q
Effect of void marriage on prenup
A
Will be enforced only to the extent necessary to avoid an inequitable result
5
Q
Can you waive spousal support?
Child support?
A
Yes – unless renders dependent spouse a public charge
Not bound by provisions regarding children (sometimes void – sometimes subject to judicial review)
6
Q
What type of law applies in prenup?
A
- By contract OR
- Most significant connections OR
- Where executed
7
Q
Requirement for marriage
A
- License (some have waiting period/ test for diseases)
- Ceremony w/ authorized officiant
- No legal impediment
a. Too closely related (ascendants, descendants, siblings, aunts/nephews, half and sometime step)
b. Bigamy (already married to someone else) – there is a strong presumption latest marriage is valid
c. Capacity to consent – mental ability (understand & voluntarily agree) to consent at time of ceremony; age (18, parental or judicial consent)
8
Q
Failure of license
A
Does not invalidate marriage – public policy to not nullify wedding based on licensing issue
9
Q
Common law marriage
A
Only some states allow – will recognize valid CL marriage from state entered into
Valid wedding without marriage or ceremony if:
1. Consent to marry (not just cohabit)
2. No legal impediment (capacity to consent, not too closely related, bigamy)
3. Cohabitation
4. Hold selves out as spouses
10
Q
Marriage by estoppel/putative marriage
A
Protect innocent spouse who entered into invalid marriage.
11
Q
Rights in marriage
A
Property rights
Obligation to support – doctrine of necessaries
Spousal abuse orders
12
Q
Property rights
A
Most property acquired during marriage is marital property that court has broad discretion to distribute
During marriage spouse, each spouse controls property in own name
Title not dispositive at divorce as to whose property is whose
13
Q
Doctrine of necessaries
A
Spouses can be collected against for care given to other spouse for necessary
14
Q
Spousal abuse orders
A
Can be granted ex parte to protect victim spouse from abuse
Usually lasts for a short period of time, then other spouse can come in and dispute before court determines whether to make official
15
Q
Tortious Interference with marriage – 2 torts
A
Claim against Third party for interference with marriage
Alienation of affection: 3rd party alienating affection
1. Parties in valid marriage (actual affection)
2. Affection destroyed
3. Defendant’s actions caused destruction of love & affection
4. Show Damages – Damages: punitive dmgs allowed
Criminal Conversation:
1. Valid marriage
2. Adultery (need not be directly proven)
Damages: same as alienation
Loss of consortium – due to injuries from defendants’ negligence
16
Q
Constitutional Right to privacy in the family
A
Constitutional lright of privacy is implicit in the concept of Due Process. The following are protected:
Marry, procreate, use/sell contraceptives, abortion, live together, educate children outside schools, care, custody, control of children
17
Q
Annulment
A
Declares a marriage invalid because of impediment that existed at tiem of marriage making it void/voidable
18
Q
Jurisdiction for annulment
A
If no annulment statute in that state: heard by equity court
State of domicile of either party
Many states: place of celebration of marriage
19
Q
Void marriage
A
Bigamy, too closely related
- Marriage is utter nullity
- Subject to collateral attack (ie probate proceedings)
- Can be brought even after death of one spouse
20
Q
- Void marriage: attack by who?
A
Can be attacked collaterally (ie IRS, insurance) or by either party
21
Q
- Void marriage: Remedy
A
Depends on state: Remove impediment +
- some states require remarriage after resolution of impediment
- other states allow cohabitation
22
Q
Voidable marriage
A
Something affected party’s consent: nonage, capacity, duress, fraud affecting essential element of marriage (ie pregnant by another person), incurable impotence
Valid until declared null
No collateral attack/ cannot be brought after death of a spouse
23
Q
- Voidable marriage: attack by who?
A
parties (sometimes only by person who lacked consent)
24
Q
- Voidable marriage: remedy
A
Ratification by continually living together
25
Effect of an annulment
Children: Set aside as if never existed except as to children
Spousal support: permitted in some states; prohibited in others
Property: set in pre-marriage state
26
Jurisdiction for divorce
FF& C if sister state has proper jurisdiction & decree is valid
Jurisdiction: one spouse is domiciled (presence + intent) for minimum period (usually 90 days)
First state to renders divorce first renders the other state moot
As long as one party is domiciled in state/foreign country, decree is recognized as valid in all other states & given full faith & credit
27
Divisible divorce doctrine
Ex parte (control over one spouse) divorces generally can serve to grant only divorce
28
Jurisdiction for property
- Property in rendering state OR
| - PJ over Defendant
29
Applicability of mediation
Any decision must be the decision of the parties NOT the mediator
Mediator must: explain process, right to independent counsel, provide enough info for informed decision making, remain impartial & disclose potential bais, control for power imbalance
Misconduct may result in court setting aside
30
Grounds for divorce
No fault or Fault
31
No Fault
Dissolution without regard to marital fault
Types of no fault divorce:
1. agreement by both spouses that there are irreconcilable differences
2. Living separate & apart for specified time (unilateral (longer time) or bilateral (shorter)) – usually 90 days to 18 months continuously living apart
3. Incompatibility
32
Fault Divorce
- Adultery (ooportunity + inclination)
- Desertion for time period – unjustified departure from marital departure with no intent to return
- Cruelty
- Habitual drunkenness or drug abuse after marriage
- Mental Insanity
33
How to show adultery
Prove by circumstantial evidence
1. Opportunity
2. Inclination
34
Defenses to no-fault divorce
Denial that marriage is irretrievable broken
| Reconciliation (clock restarts) – spouses begin living togheter again
35
Defenses to fault divorce
Collusion – parties simulate grounds for default
Connivance – P consents to other’s bad behavior
Condonation – spouse has knowledge and forgives
Recrimination – P cannot get divorce because they committed fault
36
Legal Separation
Permitted on same grounds as divorce
Effect: still married but can decide attendant issues like property division, spousal/child support
Can be enlarged to divorce if requested by parties
37
Types of Property Division
Community Property
Equitable division of all property
Equitable division of marital property
38
- Community property
All property acquired during marriage is owned ½ by each spouse
39
- Equitable division of all property
Court divides all property owned by either spouse whether acquired before or after marriage
40
- Equitable division of marital property
Each party takes separate property + property obtained during marriage is separated
41
Property division Steps
1. Classify property (separate or marital) – titled property is not dispositive
2. Division of marital property only (Division is equitable. Not equal.)
42
What is considered marital property
Property acquired during marriage unless acquired through gift, bequest, devise or descent
43
Can property division orders be modified?
No.
44
Separate Property
Owned before marriage
Acquired by gift or inheritance during marriage
Acquired in exchange for property in exchange for separate property
Income & appreciation of separate property
Pain & suffering awards/ future/loss wages
Personal damages
Acquired after legal separation if court divided property
45
Marital property
Acquired during marriage (consider date of separation or date of divorce)
Earnings
Employee benefits (retirement, etc.)
Lost wages (replaces earnings)
Reimbursement for what would have been paid by marital property
Gift – consider intent of party giving it
46
Comingling
Separate property can become marital property if inextricably intertwined
47
Transmutation of separate property
Separate property can become marital property based on intent of party (ie buying home with gift of inheritance and creating joint title)
48
Improvement of separate property by efforts/marital estate
Court will grant marital estate credit or reimbursement
49
Property acquired before marriage but paid for after marriage
Depends;
Maj: property apportioned based on contribution of funds
Min: reimburse for ½ of marital funds paid out
50
Pensions
Contribution made during the marriage is marital
51
Professional license or degree
Not subject to division – compensate with alimony usually
52
Tax consequences
Property division is not a taxable income
53
Court’s considerations for equitable division of marital property
Anything: age, education, background, duration, present income/employability, standard of living, source of funds, health of parties, assets, debts, libailities, needs, custody of mior children, alimony, opportunity to acquire future income & assets, contriution to marital assets, contribution as homemaker, economic fault
54
Alimony
Purpose is to ensure adequate income stream for spouse whose economic dependency resulted from marital relationship.
Sum paid to the economically dependent spouse
Court is vested with significant discretion
55
Types of alimony
Permanent Periodic Support: until death/marriage – awarded to spouse with neither resources/ ability to be self-sustaining
- Can be modified upon proof of substantial change of circumstances
- Terminates on death/ remarriage
Lump Sum Support: present value of perm. Periodict support – not changeable
- Cannot be modified
- Survives death of either spouse
Rehabilitative support: rehab spouse so they can earn (obtain )– can be granted in conjunction with other alimony
- Can be modified upon proof of substantial change of circumstances
- Terminates on death/ remarriage
Reimursement support: granted to spouse who supported spouse through professional license/ degree; can be granted in conjunction – pay a lump sum for recipient’s degree if recipient paid for giver’s degree during marriage
- Cannot be modified
- Survives death of either Spouse
56
Alimony considerations
Standard of living
Duration of marriage
Age
physical and emotional condition of both parties
Financial resources of each party (ie cost of children?)
Contribution of each party to marriage
Time needed to obtain education or training
Aility to pay support ot meeot own needs
Fault in divorce
57
Fault & divorce
Courts vary on if alimony is based on marital fault
58
Modification of Spousal support
Permanent Periodic & rehabilitative: modificable upon substantial and continual change in circumstance (change in income or increased needs) – voluntary reduction in income is insufficient
Lump Sum/ Reimbursement : no
59
Termination of spousal support
Death of either
Cohabitation
Remarriage
60
Tax consequences of spousal support
Non taxable event in 2019
| Before 2019 – spousal supports and deductable & income to recipient– follow old rule
61
Separation agreement
Contract that address financial issues from separation
Entered into after marriage
Requires consideration
Voluntary
Knowledge of all assets
Can waive alimony/ equitable distribution of property
Can agree to custody & child support (court not bound by child support if not in best interest)
62
Modifciation fo separation agreement
Depends on if merged into divorce agreement
If court merges separation agreemet into divorce decree – has status of court judgement – court can modifiy
If not submitted to court, not modifiable by court, only through contract law
63
Contracts of cohabitants
Enforced by court unless sex is the only consideration
| Usually agree to separation of property/financial assets
64
Child support guidelines
Determines the value of child support
65
Standard for paying child support
Amount determined by child support guidelines - court can deviate
Formula Ensures consistency and predictability in child support orders
- Parent’s ability to pay
- Need of child
- Support must be paid even if no visitation
If court deviates from guideliens must make finding of fact justifying deviation
66
Majority approach for determining pmnt of child support
Income shares model
Number of children
Income of parents (pay based on % earned)
Court can add costs for insurance, other expenses
Refer to child support guidelines for the amount
67
Duration of child support
Age of majority,m deathj of child, emancipation of child, termination of parental rights
Can extend to end of high school
68
Child support & visitation
Visitation will not be withheld because of failure to pay child support
69
Jurisdiction over child support
| - Original Jurisdiction
Uniform Interstate Family Support Act governs jurisdiction
Original jurisdiction:
- first petition filed OR
- 2nd jurisdiction if filed before time to answer 1st has expired, Petitioner objected to jurisdiction and 2nd is child’s home state
70
Jurisdiction over child support
| - Jurisdiction to enforce
Courts give full faith and credit to child support orders
1. Court that initially issued order OR
2. Direct enforcement: obligee may mail child support order to obligor’s employer in another state & they can withhold wages
3. Registration: registration of child support order with another state – order is registered & subject to same enforcement procedures as if issued in that state.
71
Jurisdiction over child support
| - Jurisdiction to modify
Jurisdiction to modify (substantial & continuing change of circumstance)
1. Originating court has continuing exclusive jurisdiction to modify UNLESS
2. No parties reside in that state OR
3. parties consent to jurisdiction elsewhere
72
Full Faith and Credit for Child Support Orders Act
Full faith & credit given to other court’s child support order if:
1. court had jurisdiction over matter & parties
2. parties had reasonable notice & opportunity to be heard
73
Where can you initiate child support/custody question
Under the Uniform Interestate Family Support Act, can initiate in another state a request that the state of original jurisdiction modify or enforce the ordered issued in the original jurisdiction court.
74
Child’s home state
Where child has lived with parent for 6 months
75
Test to modify child support
Substantial and continuing change of circumstances that affects need of child or parent’s ability to pay
76
Retroactive support
Support cannot be retroactively modified
77
Tax consequence of child support
Not taxable events
78
Enforcement of child support awards
Enforced through civil or criminal process
| Remedies: intercept fed tax refund, professional license revocation, wage withholding, property seizure
79
Child Custody Phrase
Court is vested with great deal of discretion looking to the best interest of the child
80
Jurisdiction of child custody
Uniform Child and Custody Jurisdiction and Enforcement Act (UCCJEA) determines state that initially orders or modifies
81
Jurisdiction - Initial award of custody
1. Child’s home state - was child’s home state for last 6 months & parent still lives there
No home state?
2. Significant connection, substantial evidence test: Significant connection with state & substantial evidence of child’s well being in the state
If none of the above, state can assume jurisdiction or by default if other state defers or if no state will exercise jurisdiction
82
Jurisdiction - Which court can modify custody orders?
1. Court making initial custody decision
2. Other court if initial court decides that:
a. No child/parent resides in that state OR
b. Child no longer has sig. connection & substantial evidence
Under federal Parental Kidnpaping Prevention Act:
- state cannot modify a custody order if one parent continues to reside in the issuing state and
- that state does not decline jurisdiction.
83
Jurisdiction: Parental Kidnapping Prevention Act
States must enforce custody order of other state if ordering state is home state.
84
Jurisdiction: Court must decline jurisdiction if:
Court must decline if:
- person seeking has engaged in unjustifiable conduct
- inconvenient forum – other is more appropriate
- proper proceeding elsewhere UNLESS court would defer to new state & new state can exercise deferred jurisdiction
85
Temporary emergency
If child is abandoned/ need to protect child, sibling, aprent : state where child is present may have jurisdiction to keep child safe
86
BIOC
Best Interest of the Child
wishes of parents (constitutionally protected right for care & custody of child)
child’s preference (under 8 – no weight, over 12 – significant weight)
relationship of child to parents, siblings others involved with parents
child’s adjustment to home, school community
parties metanl and physical health
primary caregiver
87
Types of custody
```
Joint custody (joint legal (decision making) or joint physical)
Sole custody: granted if strong evidence that in BIOC
Custody to nonparent (Rare b/c of constitutional rights)
```
88
Consideration for joint custody
Openly hostle = no joint custody
Fitness of parents,
Parents/children’s wishes (over 12 given great weight)
parents ability to agree on joint custody;
parents’ ability to communicate/ cooperate;
level of invovlemet of both parents;
geographic proximity of 2 homes;
similarity/dissimilarity of homes;
effect of child’s psychological development;
ability to physcailly carry out joint custody;
primary caregiver
89
Standard for Nonparent custody
Harm to child if custody to parents OR
| General parental unfitness (abandonment, neglect,t abuse, surrendienr custody)
90
Standard for nonparent visitation
Extraordinary circumstances
91
Visitation
Only for people without custody
Given unless harm to child
Nonparental visitation is granted under extraordinary circumstances (ie death or divorce of parent)
92
Modification of custody
Substantial and material change of circumstance affecting child’s BIOC (NOT PARENT)
Usually there is time limit before modification is permitted (to avoid too much change to child)
93
How are superior parental rights limited?
By voluntarily giving up custody
94
Relocation statute
Relocation of child’s primary residence
Court consideration of relocation of child:
- Must give notice of move
- Consider child’s BIOC
- IF move is motivated by benefit to family
- Not to harm relationship with other parent
95
Enforce child custody awards
Contempt proceedings
Habeaus corpus (questions authority to have physical control of another)
Suits in equity
Out of state enforced if certified copy with clerk of court
96
Kidnapping statue
Federal Parental Kidnapping Prevention Act – requires full faith and credit to other state’s custody order (even if custody order is not final judgement)
International parental kidnapping prevention act & hauge convenction act: requires return of child in applicable countries
97
Nonmarital children
Out of wedlock has constitutional protections (intermediate scrutiny)
Parentage action brought ot settle paternal/maternity actions – important b/c person has right to custyy & ability to pay
98
Presumption of Parentage
Mother’s spouse presumed to be other parent
If born within 300 days of termination of marriage (if void or voidable marriage – presumption still stands)
Clear & convincting evidence must be used to prove not parent
Some states will still not disallow if child led to believe that person is their other parent
99
Establish Right of unwedded father
Right established by:
- Marrying child’s mother
- Holding out child as bio
- Consenting to be named on birth certificate
- Acknowledge paternity on formal document
- Court document
Parent has right under due process if they show parental resposnbiltiy (care/support)
100
Paternity suit
Statute of limitation tolled during minority of child
Proof: preponderance or clear & convincing
Proof: DNA or testimony sometimes
101
Termination of parental rights & adoption
Voluntarily termination
Involuntary termination: taken aware because child is in dangerous circumstance
- Court can terminate if infliction of serious physical harm
- Abandonment
- Neglect/deprivation
- Failure to provide support
- Mental health/ unfitness (fitness/psychological)
Cannot seek to terminate right of other parent only court can
102
Adoption
States always want to reunite parent & child
1. Termination of bio parent acts (voluntary or involuntary – cannot be unreasonably withheld against child’s BIOC)
2. Creation of new parents’ right – some states require consent of adoptee (homestudy) (Agency or Private)
3. No payment of money allowed unless adoption contemplated during pregnancy
4. Records are sealed unless bio parent allows
Some states allow child to inherit
103
Assisted reproduction
Uniform parentage act – most states have not adopted
Maternity established at birth unless valid surrogacy contract; or adjudication by court naming woman as mother
Paternity: husband of mother is father unless lack of consent within 2 years
104
Posthumous conception
If gamet provider consents in writing to be used after death, then child of deceased person is valid and full rights of inheritancfe
105
Gestational agreement
Carrier, mother, father enter agreement
Must be in writing
Approved by court
Homestudy unless waived
Voluntary by all parties
Healthcare costs of mother must be provided
No limit on woman’s right ot her body under constitution
Consideration must be reasonable
Can be terminated prior to transfer
If invalid, gestational mother is mother
Must file notice of birth after
Court will grant order of parentage
Some states concerned selling of child
Genetic surrogacy: bearer’s own gametes (usually not permitted)
Gestational surrogacy: bearer not related
106
Interference w/ parent/child relationship
1. tortious injury: child cannot recover against one who tortiously injures parent but parent can recover for child
2. intereference w/ custody: parent whose custody is interfered w/ may recover for abduction/ etnciement
3. Concealing info about newborn child’s birth/location liable for civil conspiracy
