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Family Law Flashcards

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1
Q

requirements for a valid premarital agreement

A

(1) in writing and signed;
(2) entered into voluntarily, meaning without fraud, duress, or overreaching;
(3) full and fair disclosure of the parties’ assets or proof that the party against whom the agreement is being enforced had independent knowledge of the assets;
(4) courts only examine (3) if the agreement is unconscionable
(5) some courts consider whether the economic provisions are fair and reasonable

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2
Q

marriage requirements

A

(1) license (failure to meet procedural requirements of a license will not invalidate a marriage);
(2) ceremony;
(3) no legal impediments (close relationships/bigamy);
(4) capacity.

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3
Q

common law marriage (requirements)

A

a valid common law marriage requires three things:

(1) consent to marry, which includes having capacity and a lack of legal impediments; and
(2) cohabitation; and
(3) the couple holding themselves out publicly as spouses.

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4
Q

recognition of common law marriages in states that have abrogated common law marriages

A

If a valid common law marriage is formed in one state, it will generally be regarded as valid even in those states that do not recognize common law marriage

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5
Q

tenancy by the entirety

A

if spouses take title to real estate jointly, a tenancy by the entirety is presumptively created. A tenancy by the entirety includes a right of survivorship, and one spouse cannot convey or encumber the property without the consent of the other spouse

upon dissolution of the marriage, tenants by the entirety become tenants in common

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6
Q

doctrine of necessaries

A

the doctrine of necessaries can be used to make one spouse liable to third parties for the other spouse’s purchases for necessary expenses, such as food, clothing, and health care

this is founded on the principle that during marriage, each spouse has an obligation to support the other

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7
Q

alienation of affection

A

(1) spouses in marriage with love and affection;
(2) love and affection destroyed; and
(3) 3rd party CAUSED love and affection to be destroyed

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8
Q

criminal conversation

A

when one spouse has sexual relations with a third person, the other spouse may have a cause of action against the third person for criminal conversation

for these claims, only the existence of a valid marriage and the act of adultery need to be proven; the spouses may have even been living apart at the time of the act

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9
Q

prior marriage that was not successfully ended before the marriage in question

A

the subsequent spouse has two possible arguments:

(1) the strong presumption that the latest marriage is valid; and
(2) if the prior marriage is later terminated by divorce, annulment, or death, continued cohabitation validates the second marriage under the Uniform Marriage and Divorce Act

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10
Q

voidable marriage

A

a voidable marriage is valid until declared null

one of the spouses may bring an action to have the marriage annulled

no collateral attacks are permitted, and sometimes only the party who suffered the impediment can bring the action to annul

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11
Q

jurisdiction over a divorce

A

only one of the parties needs to be domiciled (that is, resident with an intent to remain) in the jurisdiction

most states set a minimum residency period (for example, 90 days) before an action may be filed

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12
Q

multiple states having jurisdiction over a divorce

A

the multiple states could proceed until one court renders a judgment causing the other to lose subject matter jurisdiction

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13
Q

T/F: To determine financial issues (like property rights and support), the court must have personal jurisdiction over the defendant

A

TRUE

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14
Q

recognition of decree

A

As long as ONE OF THE PARTIES was domiciled in the state that granted the divorce, the decree is recognized as valid in all other states

provisions of the decree relating to property rights, spousal support, child support, and other financial issues are given full faith and credit ONLY IF the court had personal jurisdiction over the defendant

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15
Q

comity

A

courts are likely to recognize foreign divorce decrees if one party was domiciled in the country rendering the judgment

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16
Q

mediation

A

the court may refer the parties to a divorce action to court-approved mediation

a mediator is a neutral party who helps the divorcing parties work through issues such as child support, custody, and visitation

any decision reached MUST BE the decision of the parties…and NOT the decision of the mediator, who may not advocate for either party or coerce a party to make a decision

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17
Q

mediator’s duties

A

mediators must:

(1) explain the mediation process;
(2) explain the right to independent counsel to the parties;
(3) ensure that the parties have enough information for informed decision-making;
(4) remain impartial and disclose any potential bias; and
(5) control for any power imbalance between the parties

mediator misconduct may result in the court setting aside the agreement

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18
Q

“no fault” divorce

A

this usually requires a showing that:

(1) both spouses agree that the marriage is irretrievably broken (irreconcilable differences);
(2) the parties have been living apart for a specified and continuous period of time; and
(3) both parties agree that they are now incompatible and can no longer be married

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19
Q

fault grounds

A

adultery: generally, the filing spouse presents circumstantial evidence of opportunity and inclination

willful desertion (or abandonment): this requires an unjustified departure from the marital home for a specified period with no intent to return

extreme physical or mental cruelty

voluntary drug addition or habitual drunkenness commencing after the marriage

insanity

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20
Q

defense to no-fault divorce

A

generally, one spouse may claim that a reconciliation restarted the clock for living separate and apart

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21
Q

fault-based divorce defenses

A

collusion (an agreement between the spouses to simulate grounds for divorce or to forgo raising a valid defense)

connivance (willing consent to the other spouse’s misconduct

condonation (forgiveness of marital offenses with full knowledge of the wrongs)

recrimination (arises when the party seeking the divorce is ALSO guilty of misconduct for which a divorce may be granted)

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22
Q

equitable division of marital property

A

each spouse takes their separate property, and the court only divides the property acquired during the marriage

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23
Q

two-step process in property division

A

classification: determination of what is marital property and what is separate property;
division: make an equitable division of the marital estate no matter how the property is titled

(equitable division does NOT NECESSARILY mean equal)

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24
Q

T/F: property division decrees are modifiable

A

FALSE

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25
Q

separate property

A

generally, in a divorce, each spouse takes their separate property

separate property includes property owned before marriage, property acquired by gift or inheritance, etc.

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26
Q

marital property

A

marital property is all other property acquired during the marriage

some jurisdictions use the date of separate as the end of the marital estate, and others use the date of the filing for divorce

marital property includes property acquired during the marriage; earnings; employment benefits, pensions, and stock options earned DURING MARRIAGE

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27
Q

commingling

A

separate property may become marital property through commingling

the separate property is “inextricably intertwined” with marital property or with the separate property of the other spouse to the extent that it can no longer be traced

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28
Q

transmutation

A

the separate property is treated in a way that evidences an intention for the property to be marital property (for example, placing separate property in the names of both spouses)

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29
Q

improvement of separate property with marital funds or the effort of a spouse

A

when separate property is improved by the use of marital funds or the effort of a spouse, courts generally hold that the property remains separate property, but most jurisdictions grant the marital estate or nonowning spouse reimbursement for the value added to the separate property

30
Q

permanent periodic spousal support

A

permanent periodic spousal support is paid regularly (for example, monthly) to support a spouse who has neither the resources nor the ability to be self-sustaining

modification: can be increased, decreased, or terminated upon proof of “substantial change of circumstances”

31
Q

lump sum alimony

A

a lump sum payment is a fixed amount payable either all at once or via a series of payments

this is NOT MODIFIABLE

32
Q

rehabilitative spousal support

A

rehabilitative spousal support consists of periodic payments for a limited time to enable a spouse to gain skills to become self-supporting

it can be ordered along with permanent periodic or lump sum alimony

modification: this can be increased, decreased, or terminated upon proof of a substantial change in circumstances

33
Q

reimbursement spousal support

A

reimbursement spousal support is occasionally awarded to a spouse who supported the other spouse while the latter obtained a professional license or degree

this is treated as a contract right and thus NO MODIFICATION is available

34
Q

the two primary considerations when deciding spousal support

A

needs of the claimant; and the ability of the other spouse to pay

35
Q

termination of spousal support

A

periodic spousal support terminates upon the remarriage of the recipient spouse or the death of either spouse

lump sum and reimbursement support is not modifiable and survives death

36
Q

modification of marital agreements by the court

A

if the divorce decree states that the separation agreement is MERGED into the decree, or if the specific provisions of the agreement are repeated in the decree, the whole agreement assumes the status of the court judgment, is enforceable as such, and can be modified by the court

37
Q

uniform interstate family support act

A

provides methods of enforcement and guidelines for modifications of support orders issued in other states

38
Q

original jurisdiction

A

original jurisdiction to enter a child support order is proper where the first petition under UIFSA is filed

another state can exercise jurisdiction ONLY IF

(1) the second petition is filed BEFORE the time to answer the first has expired
(2) the petitioner objected to jurisdiction in the first action
(3) the second state is the CHILD’S HOME STATE

39
Q

jurisdiction to enforce child support orders

A

the court that initially issued the order has jurisdiction to enforce, and UIFSA helps parties enforce orders in other states

40
Q

another state can enforce a child support order in two ways…

A

(1) direct enforcement: allows the obligee to mail the order to the obligor’s out-of-state employer, automatically triggering withholding unless there is a timely objection; and
(2) registration: UIFSA also provides for registration of a support order with another state; the issuing state sends the order to the state where the obligor resides; it is registered and filed as a foreign judgment, and then the order is subject to the same enforcement procedures as if the order had been issued in that state

41
Q

jurisdiction to modify child support orders

A

generally, the court that issues the controlling child support order has continuing and exclusive jurisdiction to modify it

the role of a court in another state is only to enforce the original order unless NO PARTY RESIDES IN THE ISSUING STATE or the parties consent to jurisdiction elsewhere

42
Q

when child support is modifiable

A

child support is modifiable based on a substantial and continuing change of circumstances affecting the needs of the child or the ability of the parent to pay, such as changes in employment, the growth of the child, inflation, income, retirement, or disabling illness

a voluntary reduction in income WILL NOT be a ground for modification

43
Q

Full Faith and Credit for Child Support Orders Act

A

full faith and credit must be given to the child support orders of a court in another state

44
Q

T/F: Past due installments of support can be retroactively modified

A

FALSE

45
Q

Uniform Child Custody Jurisdiction and Enforcement Act

A

the purposes of this cat are to avoid jurisdictional dispute regarding child custody and visitation, promote interstate cooperation, and facilitate the interstate enforcement of custody and visitation orders

46
Q

a court’s jurisdiction to initially enter OR to modify a child custody or visitation order…

A

a court has jurisdiction to initially enter or modify a child custody or visitation order if the state…

(1) is the child’s home state; OR
(2) was the child’s home state within the past six moths and the child is absent from the state, but a parent or person acting as a parent (that is, a guardian) continues to live in the state

47
Q

child’s home state

A

a child’s home state is the state in which the child lived with a parent for at least 6 consecutive months immediately before the commencement of the proceeding

48
Q

when the “home state” rule does not apply

A

a court has jurisdiction to enter or modify a child custody or visitation order if NO OTHER STATE has or accepts home state jurisdiction AND

(1) the child and at least one parent have a significant connection with the state; and
(2) substantial evidence concerning the child is available in the state

49
Q

another state’s ability to modify an existing decree

A

the original ISSUING COURT has continuing exclusive jurisdiction

another court can only exercise jurisdiction IF:

(1) no child or parent continues to reside in the issuing state or
(2) the child no longer has a significant connection with the issuing state and substantial evidence relating to the matter is no longer available in that state

only the issuing state can decide if this second test is met

50
Q

the effect of unjustifiable conduct in jurisdiction

A

a court may decline to exercise jurisdiction to enter or modify child custody if the party seeking to invoke the court’s jurisdiction has engaged in unjustifiable conduct (for example, a parent wrongfully taking the child from another state)

51
Q

awarding custody and visitation standard

A

the standard applied in awarding custody and visitation is the BEST INTEREST OF THE CHILD

factors considered:

(1) wishes of the parent
(2) wishes of the child
(3) child’s relationship with the parents and those associated with the parents
(4) child’s adjustment to the home, school, and community
(5) parties’ mental and physical health
(6) the primary caregiver of the child

52
Q

T/F: Sole physical custody to one parent almost always means the other may not visit the child.

A

FALSE

The other parent is almost always entitled to reasonable visitation

53
Q

T/F: A natural parent has a constitutional right to raise their child.

A

TRUE

54
Q

T/F: Visitation cannot be withheld because of arrearages.

A

TRUE

55
Q

Nonparental Visitation

A

The United States Supreme Court has stated that if a parent is fit, their wishes on nonparent visitation are constitutionally protected and must be given “special weight.”

a judge may not override a fit parent’s decision regarding third-party visitation merely because it would be in the best interest of the child

56
Q

modification of custody decrees (test)

A

the burden of proof is on the party seeking the change

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

57
Q

relocation

A

relocation statutes address a change int he child’s primary residence

statutes generally require notice to the other parent and a court hearing to determine whether relocation is permitted

most courts allow the custodial parent to move out of the state with the child if relocation is in the child’s best interest, the move is motivated by a benefit to the family, and it is not intended to thwart the relationship with the other parent

58
Q

Parental Kidnapping Prevention Act

A

full faith and credit must be given to another state’s custody or visitation determination if the Act’s jurisdictional requirements are met

if the child is removed from the original state, the custodial parent must file the custody order in the new jurisdiction and seek enforcement to obtain a writ of habeas corpus from that jurisdiction

59
Q

constitutional limitations on discrimination against nonmarital children

A

distinctions between marital and nonmarital children are subject to intermediate scrutiny (that is, they must be substantially related to an important governmental interest)

60
Q

effect of a finding of parentage

A

once there’s a finding of parentage, that person has rights to custody and visitation in addition to a duty to pay support

61
Q

presumption of parentage

A

typically, the mother’s husband is presumed to be the father of a child if the child is born during the marriage or within 300 days of the marriage’s termination

62
Q

rebutting the presumption of parentage

A

most states refuse to terminate an established parent-child relationship, especially after the passage of some time, even if the husband can prove that he is not the child’s biological father

rebutting the presumption of marriage in states that allow is generally requires CLEAR AND CONVINCING EVIDENCE

63
Q

unwed fathers and paternity

A

the child is the lawful child of an unwed father only if:

(1) the parents married after the child’s birth;
(2) the father holds the child out as his;
(3) the father consents to being named on the birth certificate; and
(4) there is a court order establishing paternity

64
Q

termination of parental rights generally

A

parents may voluntarily relinquish their rights to their children (often done in preparation for adoption)

because the right to raise one’s children is a fundamental constitutional right, parents must have due process before their rights can be terminated INVOLUNTARILY (this includes the right to counsel, including the right to appointment of counsel)

65
Q

evidentiary requirements for grounds of termination

A

grounds for termination must be proved by clear and convincing evidence

66
Q

grounds of involuntary termination

A

infliction of serious physical harm to the child;
abandonment;
neglect or deprivation;
failure to provide support;
mental illness or retardation so severe as to make the parent incapable of caring for the child; and
parental unfitness (conduct by the parent that seriously harms the child physically or psychologically)

67
Q

due process considerations for a nonconsenting parent to adoption (voluntary waiver of parental rights)

A

a nonconsenting parent is entitled to notice of the hearing and an opportunity to be heard

68
Q

consent of unmarried fathers in prospective adoptions

A

in deciding whether an unwed father can veto a prospective adoption, the court considers the level of the father’s involvement with the child, such as whether he lived with and cared for the child, visited the child regularly, admitted paternity, or paid child support

a father of a nonmarital child who has never attempted to establish a legal or personal relationship with that child has no right to notice prior to the adoption of the child by others

69
Q

consent of the adoptee

A

often, prospective adoptees over a certain age (usually 12 or 14) must also consent to their own adoption

70
Q

home studies, investigation, and court approval

A

most states require that there be an investigation of the suitability of the proposed adoption, and approval of the adoption by the court

this may be waived for relative adoptions

71
Q

payment of money for adoptions

A

most states prohibit the payment of money to the natural parents other than medical costs related to the pregnancy

72
Q

venue for adoption

A

most states require that the person seeking to adopt be a resident of the county where the petition is filed

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