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MEE subjects > Family Law > Flashcards

Family Law Flashcards

1
Q

Requirements for validity of a prenup?

A
  • contract must be in writing and signed
  • agreement must be entered into voluntarily, meaning without fraud, duress, or overreaching
  • must be 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
    • under UPAA, courts only examine this if agreement is unconscionable
  • some courts consider whether the economic provisions are fair and reasonable
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2
Q

Which agreements in a prenup are not binding?

A

child custody and support provisions

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3
Q

What is the effect of a prenup if the marriage is found to be void?

A

The agreement is enforceable only to the extent necessary to avoid an inequitable result

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4
Q

What is required for a legal marriage?

A

(1) license, (2) ceremony with authorized officiant, (3) capacity to consent, and (4) no legal impediments

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5
Q

What are the legal impediments to marriage?

A
  • too closely related (ascendants, descendants, siblings, aunt/uncle, niece/nephew)
  • prior undissolved marriage to a living spouse
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6
Q

capacity to consent

A
  • must have mental ability to consent at time of the ceremony
    • must understand actions and voluntarily agree to them
  • must be of age of majority
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7
Q

requirements for common law marriage

A

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

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8
Q

What is marriage by estoppel (putative marriage)?

A

an equitable remedy that some states use to protect an innocent party who acted in good faith when entering into an invalid marriage

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9
Q

What is the obligation to support?

A

During marriage, each spouse has an obligation to support the other. The doctrine of necessities 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. Principles of agency may also apply.

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10
Q

What is required to prove alienation of affection?

A

(1) genuine love and affection between validly married spouses, (2) alienation or destruction of the love and affection, (3) caused by defendant’s actions.

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11
Q

What is required to prove criminal conversation?

A

(1) valid marriage and (2) adultery between the defendant and the spouse

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12
Q

What is an annulment?

A

A doctrine that declares a marriage invalid because an impediment existed at the time of the marriage makes it legally void or voidable. The parties are treated as though they were never married.

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13
Q

Who may seek annulment of a void marriage?

A

any interested party

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14
Q

What happens if and impediment that causes a void marriage is removed?

A
  • Some state statutes provide that the marriage becomes valid if the parties continue to cohabit
  • other states don’t allow validation, and marriage remains void and parties need to marry
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15
Q

What will cause a marriage to be void?

A
  • bigamy or polygamy (strong presumption that the most recent marriage is valid that must be overcome with strong evidence)
  • consanguinity
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16
Q

Who may annul a voidable marriage?

A

One of the spouses

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17
Q

What causes a marriage to be voidable?

A
  • nonage
  • incurable physical impotence (not inability to have children)
  • lack of capacity
  • duress
  • fraud

*may be ratified once impediment is removed

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18
Q

What is the effect of annulment on children?

A

The children are considered marital children. Support and custody are handled the same way as divorce action.

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19
Q

How does the court divide property after annullment?

A

Courts attempt to place the parties in their pre-marriage position, and usually give each party that property to which they have legal or equitable title

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20
Q

Residency requirements for divorce

A
  • only one party needs to be domiciled in the jurisdiction
  • most states have minimum residency period
  • to determine financial issues (property rights and support), court must have PJ
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21
Q

What is required for a “no-fault” divorce?

A
  • both spouses agree marriage is irretrievably broken (irreconcilable differences);
  • parties have been living apart for a specified and continuous period of time; or
  • both parties agree they are now incompatible and can no longer be married
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22
Q

What are the usual fault grounds for divorce?

A
  • adultery - circumstantial evidence of opportunity and inclination. Corroboration often required.
  • willful desertion (abandonment) - unjustified departure from the marital home for a specified period with no intent to return
  • extreme physical or mental cruelty
  • voluntary drug addiction or habitual drunkenness commencing after marriage
  • insanity
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23
Q

Defenses to no-fault divorce

A

only defense is to deny the existence of one of the grounds for divorce

*the fact that one spouse thinks the marriage should be saved and does not agree it has broken down is generally insufficient to prevent a divorce if the other spouse believes the marriage can’t be saved and is not interested in continuing the marriage

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24
Q

Defenses to fault-based divorce

A
  • collusion - agreement between the spouses to simulate grounds for divorce
  • connivance - willing consent to the other spouse’s misconduct (usually limited to adultery)
  • condonation - the forgiveness of marital offenses with full knowledge of the wrongs. Resumption of marital relations after forgiveness is key
  • recrimination - party seeking divorce is also guilty of misconduct
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25
Q

Legal Separation

A

Order that does not terminate the marriage but allows parties to have rights regarding property, spousal support, custody, and child support adjudicated.

If the court permanently divides marital property, then any after acquired property is separate property.

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26
Q

What are the three approaches to property division?

A
  • community property: all property acquired during marriage is deemed owned one-half by each spouse, and ll property brought into the marriage or acquired by gift or bequest is separate
  • equitable division of all property: court divides all property owned by either spouse, whether acquired before or after the marriage
  • equitable division of marital property (majority): each spouse takes their separate property, and court only divides property acquired during the marriage
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27
Q

What is included in separate property?

A
  • property owned before marriage
  • property acquired by gift or inheritance
  • property acquired in exchange for separate property
  • income and appreciation of separate property
  • pain and suffering awards
  • personal damages
  • property acquired after an order of legal separation that includes a final disposition of property
28
Q

What is included in marital property?

A

all property acquired during marriage that is not separate

  • property acquired during the marriage
  • earnings
  • employment benefits, pensions, and stock options (even if not exercised or vested until after divorce)
  • lost wages
  • reimbursement for medical bills incurred and paid with marital property
  • recover for damages to marital property
29
Q

What are the ways that separate property can become marital property?

A
  • commingling: 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
  • transmutation: separate property is treated in a way that evidences an intention for the property to be marital property (e.g., placing in names of both spouses)
30
Q

Property division:

improvement of separate property with marital funds

A

courts generally hold that the property remains separate property, but the marital estate or the nonowning spouse is reimbursed for the value added to the separate property

31
Q

Property division:

property acquired before marriage but paid for after

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 fund to pay for the property.

other states focus on inception of title and allow reimbursement

32
Q

Property division:

pensions

A

portion of a pension earned during a marriage is marital property

33
Q

Property division:

professional license or degree

A

a professional license or educational degree is not distributable property, but some jurisdictions use alimony to compensate supporting spouses for their contribution during the other spouse’s education or training

34
Q

What factors will the court consider in dividing property equitably?

A

*note: trial court given a great deal of discretion

  • age, education, background, and earning capabilities
  • duration of the marriage, and whether any prior marriages
  • standard of living during marriage
  • present incomes of both parties, skills, and employability
  • source of money used to purchase property
  • health of the parties
  • assets, debts, and liabilities of the parties
  • needs of the parties
  • child custody provisions
  • whether distribution is in addition to, or in lieu of, alimony
  • parties’ opportunity to acquire future income and assets
  • parties’ contribution to the acquisition or enhancement of the existing marital assets
  • parties’ contribution as a homemaker
  • economic fault
35
Q

Who is alimony paid to?

A

the economically dependent spouse

36
Q

types of alimony

A
  1. permanent period spousal support
  2. lump sum
  3. rehabilitative spousal support
  4. reimbursement spousal support
37
Q

Permanent periodic spousal support

A

support paid regularly to support a spouse who has neither the resources nor the ability to be self-sustaining

  • duration: indefinite
  • modification: upon proof of substantial change of circumstances
38
Q

lump sum support

A

A lump sum payment is a fixed amount payable either all at once or via a series of payments. This is often the present value of permanent periodic support

  • duration: specified time period
  • modification: none. treated like contract right
39
Q

rehabilitative spousal support

A

Consists of periodic payments for a limited time to enable a spouse to gain skills to become self-supporting

  • can be ordered along with periodic or lump sum payment
  • duration: specified time period, unless modified
  • modification: upon proof of substantial change of circumstances
40
Q

reimbursement spousal support

A

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

  • can be ordered along with permanent periodic or lump sum alimony
  • duration: specified time period
  • modification: none. treated as contract right
  • based on supporting spouse’s contribution, not value of license or degree
41
Q

Factors to be considered when awarding alimony

A

*note: court has great discretion

primary consideration: needs of the claimant and ability of the other spouse to pay

  • standard of living established during the marriage
  • duration of the marriage
  • age and physical and emotional condition 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 find appropriate employment
  • ability of payor spouse to meet their needs while paying spousal support
  • marital fault
42
Q

When may spousal support be modified?

A

When 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 reductio in income by payor is not enough to have support reduced

43
Q

When does periodic spousal support terminate?

A

remarriage of recipient spouse or death of either spouse

44
Q

What is a marital agreement?

A

An agreement between spouses who intend to remain married

  • usually alters or confirms marital rights or obligations during marriage or at separation, dissolution or death
45
Q

What is a separation agreement?

A

An agreement entered into after marriage under which the parties agree to live apart and resolve economic issues and custody rights (court is not bound by agreements concerning children)

  • must be voluntary
  • must have been a full and fair disclosure
  • must have consideration
46
Q

validity of contracts between unmarried cohabitants

A

valid unless the only consideration is sex

47
Q

general child support rules

A
  • both parents share equal duty to support their children
  • parents must pay for their children based on their ability to pay and the needs of the child
  • amount of award of support to custodial parent usually arrived at by reference to child support guidelines, which are based on number of children and parents’ income (courts can deviate, such as to include health insurance for children and cover extraordinary medical expenses)
48
Q

When does child support end?

A
  • child reaching age of majority
  • death of child
  • emancipation of child
  • termination of parental rights
49
Q

original jurisdiction over child support

A
  • original jurisdiction is proper where the first petition is filed
  • another state can exercise jurisdiction only if: (1) second petition before time to answer first has expired; (2) petitioner objected to jurisdiction in first action; and (3) second state is child’s home state
50
Q

What are the ways a state can enforce another state’s child support order?

A

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

  • direct enforcement: obligee can mail order to obligor’s out-of-state employer, triggering withholding unless timely objection
  • registration: issuing state sends order to the state where obligor resides. It is registered and filed as foreign judgment, and the order is subject to same enforcement procedures as that state’s orders

*issuing court also has jurisdiction to enforce

51
Q

What court has jurisdiction to modify a child support order

A

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

Another state can only modify if no party resides in the issuing state or the parties consent to jurisdiction elsewhere.

52
Q

When may a child support order be modified?

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.

  • examples: 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.
53
Q

What court has jurisdiction to enter or modify a child custody or visitation order?

A
  • home state jurisdiction: (1) child’s home state, or (2) was the child’s home state within past six months and child is absent from state, but a parent continues to live in the state
    • home state = state in which the child lived with a parent for at least six consecutive months immediately before the commencement of the proceeding
  • When home state does not apply: (i) no other state has or accepts home state jurisdiction; (ii) child and at least one parent have a significant connection with the state; and (iii) substantial evidence concerning the child is available in the state
54
Q

What court has jurisdiction to modify an existing custody decree?

A
  • the issuing court has continuing exclusive jurisdiction
  • another state can only exercise jurisdiction if: (1) no child or parent continues to reside in issuing state or (2) the child no longer has a significant connection with issuing state and substantial evidence no longer available no longer available in that state
55
Q

When may a court exercise temporary emergency jurisdiction over a child custody case?

A

A court may exercise temporary emergency jurisdiction if the child has been abandoned or it is necessary in an emergency to protect the child because the child, sibling, or parent is subjected to or threatened with abuse.

56
Q

What factors are considered in awarding custody or visitation:

A

General standard: best interest of the child

  • wishes of the parents
  • child’s preference (above age 8, and more weight above 12)
  • child’s relationship with parents, siblings, and other involved with parents
  • child’s adjustment to home, school, and community
  • parties’ mental and physical health
  • who has been the child’s primary caregiver (if balanced, will go with this person)
57
Q

Factors in considering appropriateness of joint custody

A
  • The fitness of both parents
  • Whether the parents agree on joint custody
  • The parents’ ability to communicate and cooperate concerning the child’s well-being
  • The child’s preference
  • The level of involvement of both parents in the child’s life
  • The geographical proximity of the two homes
  • The similarity or dissimilarity of the homes
  • The effect of the award on the child’s psychological development
  • The parents’ ability to physically carry out the joint custody order
58
Q

When will custody be awarded to a nonparent?

A
  • decision does not rest solely on the child’s best interest
  • natural parent has a constitutional right to raise their child
  • parent is entitled to custody unless the nonparent can show that it will result in harm to the child or that the parent is unfit
  • However, based on special circumstances (such as abandonment, neglect, or abuse), a court may find that the biological parent has lost the right to rear the child, and the nonparent should get custody.
59
Q

When may a court order nonparental visitation?

A
  • Nearly all states have statutes entitling some third parties (for example, grandparents) to visitation
  • applied when there are extraordinary circumstances, such as where the child’s parents have divorced or died
  • typically, a nonparent may seek visitation if it is in the best interest of the child, and the determinative factor is often the prior relationship between the child and the third party.
  • However, 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.
60
Q

When may a custody decree be modified?

A

substantial and material change in circumstances affecting the child’s well-being

61
Q

When is relocation with the child permitted?

A
  • Relocation 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 state with the child if (1) relocation is in the child’s best interest; (2) the move is motivated by a benefit to the family; (3) and it is not intended to thwart the relationship with the other parent.
62
Q

Establishing parentage of unwed fathers

A

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

  • The parents married after the child’s birth
  • The father holds the child out as his biological child
  • The father consents to be named on the birth certificate
  • The father formally acknowledges paternity or
  • There is a court order establishing paternity

*protection under due process clause and rights to custody require demonstrating parental responsibility, which includes acknowledgement of paternity as well as supervision, education, protection, care and support

63
Q

Involuntary termination of parental rights

A
  • 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
  • Grounds for termination must be proved by clear and convincing evidence
  • Grounds:
    • infliction of serious physical harm on the child, including sexual abuse
    • abandonment
    • neglect or deprivation
    • failure to provide support without justifiable cause
    • mental illness so severe as to make parent incapable of caring for the child
    • parental unfitness (conduct seriously harm child physically or psychologically)
64
Q

requirements for adoption

A

(1) termination of natural parents’ rights and (2) creation of new parental rights (also consent of adoptee if over a certain age)

65
Q

lack of consent of unmarried father prior to adoption

A
  • court will consider 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
  • newborn infant, depends on his manifestations of parental responsibility
  • 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.

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