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MEE Decks > Family Law > Flashcards

Family Law Flashcards

1
Q

If marriage doesn’t take place, gifts conditioned on marriage must…

A

Be returned (ex/ engagement ring)

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2
Q

For a premarital contract to be enforceable, most courts require:

A
  • Writing and signed
  • Entered into voluntarily
  • Full and fair disclosure of the parties’ assets
  • Some courts consider whether economic provisions are fair and reasonable
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3
Q

What is required for a marriage?

A 
License (won't invalidate marriage if not there)
Ceremony w/ authorized officiant
No legal impediments:
-Not closely related 
-no prior undissolved marriage 
Capacity to consent
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4
Q

What is required for a valid common law marriage?

A
  • Consent to marry
  • Cohabitation
  • Couple holding themselves out publicly

*note abolished in most states, but if formed in one usually regarded valid in another than doesn’t recognize

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5
Q

What is annulment?

A

Declares marriage invalid because an impediment that existed at the time of marriage makes it legally void or voidable (once entered, treats parties as though they were never married)

  • Only way to defend an action to annul is to deny the existence of the defect
  • Children of annulled marriage are marital children
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6
Q

What is a void marriage?

A

Invalid, because it failed to meet the essential requirements for a legal marriage

Examples: bigamy/polygamy, consanguinity (too closely related)

*Cannot be ratified; subject to collateral attack

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7
Q

What is a voidable marriage?

A

Valid until declared null; typically occurs when some type of event or condition affects the adequacy of a party’s consent; can be remedied by continued habitation after removal of impediment

Ex/ nonage (under age), incurable physical impotence, lack of capacity, duress, fraud

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8
Q

What state has jurisdiction over a divorce?

A
  • Only one of the parties need to be domiciled in the state
  • Multiple states can have jurisdiction over a divorce
  • To determine financial issues (PROPERTY RIGHTS), court must also have PJ over D
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9
Q

Must decree of divorce be recognized in non-granting state?

A

Yes - 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 relating to property, spousal support and child support are given FF&C only if the court had PJ over D

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10
Q

What are the duties of a mediator?

A
  • Explain mediation process
  • Explain right to indep cousel
  • Ensure parties have enough info for informed decision-making
  • remain impartial and disclose any potential bias
  • Control for any power imbalance between the parties
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11
Q

What is a no-fault divorce?

A

Most states allow for divorce without showing of marital fault, requires showing that:

  • Both spouses agree that the marriage is irretrievably broken (irreconcilable differences)
  • Parties have been living apart for specified and continuous period of time
  • Both parties agree they are no incompatible and no longer want to be married
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12
Q

What are the usual fault-based grounds for divorce?

A
  • Adultery
  • Abandonment
  • Extreme physical or mental cruelty
  • Voluntary drug addiction or habitual drunkenness after marriage commenced
  • insanity
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13
Q

What defenses are available to no-fault divorce? Fault-based divorce?

A

No-fault: only defense is to deny one of the available grounds

Fault: (rarely used)

  • Collusion
  • Consent to other spouse’s misconduct
  • Forgiveness of marital offenses with full knowledge of the wrongs
  • Recrimination
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14
Q

What is the effect of a legal separation?

A

Does not terminate the marriage, but the parties can have all their right regarding prop, spousal support, custody, and child support adjudicated

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15
Q

What is the most common approach to property division upon divorce?

A

Equitable division of marital property: each spouse takes their separate property, and the court only divides the property acquired during marriage

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16
Q

What is considered separate property?

A
  • Prop owned before marriage
  • acquired by gift or inheritance
  • acquired in exchange for separate property
  • income and appreciation of separate property
  • pain and suffering awards
  • personal damages
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17
Q

What is considered marital property?

A

All other property

  • property acquired during the marriage
  • earnings
  • employment benefits, pensions, and stock options
  • lost wages
  • reimbursement for medical bills
  • recovery for damages to marital property
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18
Q

How can separate property become marital property?

A
  • Commingling: sep property is inextricably intertwined with marital property
  • transmutation: sep property treated in a way that shows an intention for it to be marital property
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19
Q

How is property acquired before marriage but paid for after treated?

A

-Courts are split but majority view is that property should be apportioned between separate and marital estates in proportion to the contribution of separate and marital funds to pay for the property

20
Q

What factors are considered in equitable division of marital property?

A
  • age, education, background, and earning capabilities of both parties
  • duration of marriage
  • standard of living during the marriage
  • present incomes of both spouses
  • source of money used to purchase the property
  • needs of parties
  • health of parties
  • child custody provisions
21
Q

What is alimony? What are the four types?

A

Defined: spousal support paid to an economically dependent spouse

1) permanent periodic - spouse has no resources or no ability to be self-sustaining
2) Lump sum
3) Reimbursement - spouse supported other while they gained license or degree
* can’t be modified
4) rehabilitative - periodic payments for a limited time to enable a spouse to gain skills to become self-supporting
* can be modified

22
Q

What factors should court consider when awarding alimony?

A
  • *NEEDs of claimant and ABILITY of spouse to pay
  • standard of living established during the marriage
  • duration of marriage
  • age and physical/emotional conditions of the parties
  • financial resources of the parties
  • contribution of each party to the marriage
  • time needed for the party seeking support to obtain training necessary to get appropriate employment
  • ability of payor spouse to meet their own needs while paying alimony
  • marital fault (not always)
23
Q

When (and what kind) can spousal support be modified?

A

[only periodic]
May be modified if there is a substantial change in circumstances regarding the needs of the recipient spouse or the ability of the payor spouse to pay
**self-induced reduction in income by payor is insufficient

24
Q

When will periodic spousal support be terminated?

A

Upon the remarriage of the recipient spouse or death of either spouse

lump sum and reimbursement not modifiable and survives death of either spouse

25
Q

What is a marital agreement?

A

An agreement between spouses who intend to remain married that alters or confirms their rights or obligation

26
Q

What is a separation agreement?

A

Agreement entered into after marriage which the parties agree to lie apart and resolve economic issues
-must be voluntary and full & fair disclosure, and consideration

27
Q

Are contracts between unmarried cohabitants valid?

A

Express contracts regarding earnings and property rights are generally valid and will be enforced

Unenforceable if sex is only consideration

28
Q

When does the duty to support a child cease?

A

-Child reaches age of majority (18)
=Death
-emancipation
-termination of parental rights

29
Q

Who has jurisdiction over child support orders?

A

Uniform Interstate Family Support Act (UIFSA) provides methods of enforcement and guidelines for modification of support orders issued in a different state

Original jurisdiction = where first petition under UIFSA was filed

Another state only if: second petition is filed before time to answer first expired, petitioner objected, second state is the child’s home state

30
Q

What court has jurisdiction to enforce a child support order?

A

Court that initially issued the order

Another state can enforce if:

  • Direct enforcement
  • Registration

**To modify: court that issues has continuining and exclusive jurisdiction

31
Q

When will a child support order be modifiable?

A

Based on substantial and continuing change of circumstances affecting the needs of the child or ability of the parent to pay

  • changes in employment
  • growth of child
  • inflation
  • income (voluntary reduction doesn’t count)
  • disabling illness

Under FF&C, and Credit for Child Support Orders Act, full faith and credit must be given to child support orders in another state

32
Q

What act governs child custody?

A

UCCJEA - uniform child custody jurisdiction and enforcement act

33
Q

When does a court have jurisdiction to initially enter or modify a child custody or visitation order?

A
  • Child’s home state = state in which child lives with parent for at least consecutive months before the proceeding
  • Was child’s home state within past 6 months and child is absent from state but a parent continues to live there
34
Q

When does the home state rule not apply?

A

If no other state has or accepts home state jurisdiction and:

  • Child and at least one parent have a significant connection with the state
  • There is substantial evidence concerning the child is available in the state
35
Q

What court can modify an existing child support order?

A

-Issuing court has continuing exclusive jurisdiction
-Another state only if:
No child or parent continues to reside in issuing state
Child no longer has significant connection with the issuing state

36
Q

What are the broad categories of child custody?

A
  • Legal = right to make major decisions affecting the child’s life
  • Physical= actual possession and control of the child
37
Q

What standard is applied in awarding custody and visitation?

A

Best Interest of the Child, consider:

  • Wishes of the parents
  • Child’s preferences
  • Child’s relationship w/ parents, siblings, and others involved with parents
  • child’s adjustment to home, school, and community
  • parties mental and physical health
  • who has been child’s primary caregiver
38
Q

What factors are considered when determining if joint custody is appropriate?

A
  • Fitness of both parents
  • Whether parents agree on joint custody
  • parent’s ability to communicate/cooperate concerning the child’s well-being
  • Child’s preference
  • level of involvement of both parents in child’s life
  • geographical proximity of the two homes
  • the similarity/dissimilarity of the homes
  • the effect of the award on the child’s psychological development
39
Q

When will sole custody be awarded?

A

If there is strong evidence that demonstrates it is in the best interest of the child; if granted, other parent almost always entitled to reasonable visitation with the child

40
Q

Can custody orders be modified? When/how?

A

Always modifiable - burden of proof is on the party seeking the change

Modified only if there has been a substantial and material change in circumstances affecting the child’s well-being

Child’s best interest is the overriding concern

41
Q

What is required for child’s relocation?

A

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

42
Q

What is the Parental Kidnapping Prevention Action (PKPA)?

A

-FF&C must be given to another state’s custody or visitation determination if the Act’s jurisdictional requirements are met

43
Q

What is the presumption of parentage?

A

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

44
Q

When is a child the lawful child of an unwed father?

A
  • Parents married after child’s birth
  • Father holds the child out as biological child
  • Father consents to be named on the birth certificate
  • Father formally acknowledges paternity
  • Court order establishing paternity

Unwed fathers are protected by the DP clause and can have rights to custody if they have demonstrated parental responsibility

45
Q

What are some grounds for involuntary termination of parental rights?

A
  • Infliction of serious physical harm on the child
  • Abandonment
  • Neglect or deprivation
  • Failure to provide support w/o justifiable cause
  • Mental illness or retardation
  • parental unfitness

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