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Family Law Flashcards

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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

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2
Q

Antenuptual (premarital) Agreement
Purpose
Requirements

A

Uniform premarital Agreement Act – Most States have adopted
Agreement to keep property separate

  1. Signed (by party to be bound)
  2. Writing
  3. voluntary
  4. Full & fair disclosure of property
  5. 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

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3
Q

Effect of lawyer on prenup

A

If both sides have lawyer present, liess likely to find overreaching – will generally enforce

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4
Q

Effect of void marriage on prenup

A

Will be enforced only to the extent necessary to avoid an inequitable result

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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)

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6
Q

What type of law applies in prenup?

A
  1. By contract OR
  2. Most significant connections OR
  3. Where executed
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7
Q

Requirement for marriage

A
  1. License (some have waiting period/ test for diseases)
  2. Ceremony w/ authorized officiant
  3. 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)
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8
Q

Failure of license

A

Does not invalidate marriage – public policy to not nullify wedding based on licensing issue

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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

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10
Q

Marriage by estoppel/putative marriage

A

Protect innocent spouse who entered into invalid marriage.

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11
Q

Rights in marriage

A

Property rights
Obligation to support – doctrine of necessaries
Spousal abuse orders

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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

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13
Q

Doctrine of necessaries

A

Spouses can be collected against for care given to other spouse for necessary

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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

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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

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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

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17
Q

Annulment

A

Declares a marriage invalid because of impediment that existed at tiem of marriage making it void/voidable

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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

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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
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20
Q
  • Void marriage: attack by who?
A

Can be attacked collaterally (ie IRS, insurance) or by either party

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21
Q
  • Void marriage: Remedy
A

Depends on state: Remove impediment +

  • some states require remarriage after resolution of impediment
  • other states allow cohabitation
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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

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23
Q
  • Voidable marriage: attack by who?
A

parties (sometimes only by person who lacked consent)

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24
Q
  • Voidable marriage: remedy
A

Ratification by continually living together

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25
Q

Effect of an annulment

A

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

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26
Q

Jurisdiction for divorce

A

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

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27
Q

Divisible divorce doctrine

A

Ex parte (control over one spouse) divorces generally can serve to grant only divorce

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28
Q

Jurisdiction for property

A
  • Property in rendering state OR

- PJ over Defendant

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29
Q

Applicability of mediation

A

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

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30
Q

Grounds for divorce

A

No fault or Fault

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31
Q

No Fault

A

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

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32
Q

Fault Divorce

A
  • 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
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33
Q

How to show adultery

A

Prove by circumstantial evidence

  1. Opportunity
  2. Inclination
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34
Q

Defenses to no-fault divorce

A

Denial that marriage is irretrievable broken

Reconciliation (clock restarts) – spouses begin living togheter again

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35
Q

Defenses to fault divorce

A

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

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36
Q

Legal Separation

A

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

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37
Q

Types of Property Division

A

Community Property
Equitable division of all property
Equitable division of marital property

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38
Q
  • Community property
A

All property acquired during marriage is owned ½ by each spouse

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39
Q
  • Equitable division of all property
A

Court divides all property owned by either spouse whether acquired before or after marriage

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40
Q
  • Equitable division of marital property
A

Each party takes separate property + property obtained during marriage is separated

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41
Q

Property division Steps

A
  1. Classify property (separate or marital) – titled property is not dispositive
  2. Division of marital property only (Division is equitable. Not equal.)
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42
Q

What is considered marital property

A

Property acquired during marriage unless acquired through gift, bequest, devise or descent

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43
Q

Can property division orders be modified?

A

No.

44
Q

Separate Property

A

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
Q

Marital property

A

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
Q

Comingling

A

Separate property can become marital property if inextricably intertwined

47
Q

Transmutation of separate property

A

Separate property can become marital property based on intent of party (ie buying home with gift of inheritance and creating joint title)

48
Q

Improvement of separate property by efforts/marital estate

A

Court will grant marital estate credit or reimbursement

49
Q

Property acquired before marriage but paid for after marriage

A

Depends;
Maj: property apportioned based on contribution of funds
Min: reimburse for ½ of marital funds paid out

50
Q

Pensions

A

Contribution made during the marriage is marital

51
Q

Professional license or degree

A

Not subject to division – compensate with alimony usually

52
Q

Tax consequences

A

Property division is not a taxable income

53
Q

Court’s considerations for equitable division of marital property

A

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
Q

Alimony

A

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
Q

Types of alimony

A

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
Q

Alimony considerations

A

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
Q

Fault & divorce

A

Courts vary on if alimony is based on marital fault

58
Q

Modification of Spousal support

A

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
Q

Termination of spousal support

A

Death of either
Cohabitation
Remarriage

60
Q

Tax consequences of spousal support

A

Non taxable event in 2019

Before 2019 – spousal supports and deductable & income to recipient– follow old rule

61
Q

Separation agreement

A

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
Q

Modifciation fo separation agreement

A

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
Q

Contracts of cohabitants

A

Enforced by court unless sex is the only consideration

Usually agree to separation of property/financial assets

64
Q

Child support guidelines

A

Determines the value of child support

65
Q

Standard for paying child support

A

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
Q

Majority approach for determining pmnt of child support

A

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
Q

Duration of child support

A

Age of majority,m deathj of child, emancipation of child, termination of parental rights
Can extend to end of high school

68
Q

Child support & visitation

A

Visitation will not be withheld because of failure to pay child support

69
Q

Jurisdiction over child support

- Original Jurisdiction

A

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
Q

Jurisdiction over child support

- Jurisdiction to enforce

A

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
Q

Jurisdiction over child support

- Jurisdiction to modify

A

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
Q

Full Faith and Credit for Child Support Orders Act

A

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
Q

Where can you initiate child support/custody question

A

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
Q

Child’s home state

A

Where child has lived with parent for 6 months

75
Q

Test to modify child support

A

Substantial and continuing change of circumstances that affects need of child or parent’s ability to pay

76
Q

Retroactive support

A

Support cannot be retroactively modified

77
Q

Tax consequence of child support

A

Not taxable events

78
Q

Enforcement of child support awards

A

Enforced through civil or criminal process

Remedies: intercept fed tax refund, professional license revocation, wage withholding, property seizure

79
Q

Child Custody Phrase

A

Court is vested with great deal of discretion looking to the best interest of the child

80
Q

Jurisdiction of child custody

A

Uniform Child and Custody Jurisdiction and Enforcement Act (UCCJEA) determines state that initially orders or modifies

81
Q

Jurisdiction - Initial award of custody

A
  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
Q

Jurisdiction - Which court can modify custody orders?

A
  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
Q

Jurisdiction: Parental Kidnapping Prevention Act

A

States must enforce custody order of other state if ordering state is home state.

84
Q

Jurisdiction: Court must decline jurisdiction if:

A

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
Q

Temporary emergency

A

If child is abandoned/ need to protect child, sibling, aprent : state where child is present may have jurisdiction to keep child safe

86
Q

BIOC

A

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
Q

Types of custody

A 
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
Q

Consideration for joint custody

A

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
Q

Standard for Nonparent custody

A

Harm to child if custody to parents OR

General parental unfitness (abandonment, neglect,t abuse, surrendienr custody)

90
Q

Standard for nonparent visitation

A

Extraordinary circumstances

91
Q

Visitation

A

Only for people without custody
Given unless harm to child
Nonparental visitation is granted under extraordinary circumstances (ie death or divorce of parent)

92
Q

Modification of custody

A

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
Q

How are superior parental rights limited?

A

By voluntarily giving up custody

94
Q

Relocation statute

A

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
Q

Enforce child custody awards

A

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
Q

Kidnapping statue

A

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
Q

Nonmarital children

A

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
Q

Presumption of Parentage

A

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
Q

Establish Right of unwedded father

A

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
Q

Paternity suit

A

Statute of limitation tolled during minority of child
Proof: preponderance or clear & convincing

Proof: DNA or testimony sometimes

101
Q

Termination of parental rights & adoption

A

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
Q

Adoption

A

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
Q

Assisted reproduction

A

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
Q

Posthumous conception

A

If gamet provider consents in writing to be used after death, then child of deceased person is valid and full rights of inheritancfe

105
Q

Gestational agreement

A

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
Q

Interference w/ parent/child relationship

A
  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

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