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mee > Family Law > Flashcards

Family Law Flashcards

1
Q

Valid marriage

A
  • Consent—both parties agree
  • Capacity—parties are legally capable of consent
  • Compliance with legal formalities
    • License
      • Age—meet minimum age (usually 18 years old) or have parental consent
      • Waiting period between the license and ceremony
      • Premarital medical testing required by some states but results cannot block issuance
    • Ceremony—most require solemnization by an officiant with two witnesses present

Note: Same-sex couples may marry in all states; all states and federal government must recognize an out-of-state same-sex couple due to FFCC

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2
Q

Common law marriage

A

Marriage without a ceremony and/or license

  • Consent—both parties must agree they are married
  • Capacity—both parties must have the capacity to consent (i.e., old enough and not too closely related)
  • Present intent to be married
  • Cohabitation—both parties must live together as married spouses
  • Holding out—both parties must hold themselves out as married in public

Note: relatively few states will grant a common law marriage, but almost all states will recognize a common law marriage validly entered into elsewhere

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3
Q

Annulment

A

Voids a marriage as if it was never validly formed.

  • Property distribution:
    • A party seeking annulment may request an equitable distribution of property and in some states, spousal support;
    • Once completed, the property distribution may not be modified
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4
Q

Void marriages

A

Marriage null from its inception due to specific grounds

  • Bigamy: Enoch Arden statute can make the marriage voidable if the parties in good faith but incorrectly believed the previous spouse died, so long as any additional requirements (e.g., divorce) are met
  • Incest or consanguinity
  • Incapacity
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5
Q

Voidable marriage

A

A marriage that is valid until declared void after a challenge by one of the spouses

  • Grounds: underage, impotence, intoxication, fraud or duress, lack of intent, or bigamy based upon error about death
  • Validation: voidable marriages can be validated once the impediment is removed (e.g., underage spouse stays in marriage after reaching age of consent) or ratified (e.g., marriage is consummated despite lack of intent)
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6
Q

Separation Agreement

A

An agreement made while planning for divorce

  • Contract principles apply; consideration is provided by the mutual promises
  • Enforceable so long as not unconscionable or based on fraud
  • Merges with the divorce decree
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7
Q

Limited divorce

A

AKA “divorce from bed and board”

  • Recognized in most states but rarely used (usually for religious reasons)
  • Parties live apart and remain legally married but the court can resolve support and property issues
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8
Q

Divorce

A

A decree that terminates a marriage relationship

  • No-fault divorce
  • Fault grounds
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9
Q

Faults for divorce

A

Traditionally, the only way to get divorced was to plead fault by spouse.

  • Grounds: Adultery, cruelty, desertion (abandonment), habitual drunkenness,
    bigamy, imprisonment, indignity, institutionalization
  • Defenses include recrimination, unclean hands, connivance (consent to the marital wrong), condonation, collusion, provocation, insanity, consent, justification

Note: marital fault is usually irrelevant for division of property and child custody arrangements (exception: marital fault entailed significant economic impact (e.g., gave gifts to a mistress)

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10
Q

No-fault divorce

A
  • More common justification for divorce today (issued in all states)
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11
Q

Jurisdictional issues (divorce)

A
  • In order for a state to grant a divorce, at least one of the parties must be a resident of the state
  • Divorce decree will be given FFC in other states, so long as state that issued decree had proper jurisdiction
  • Divisible divorce: when a court has PJ over only one spouse
    • That court can issue a divorce decree (subject to FFC)
    • Court will lack jurisdiction over property, support, and custody issues
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12
Q

Prenuptual (premarital) agreements

A
  • Applicable law: Uniform Premarital Agreement Act (UPAA) followed by many states
    • To resolve a conflict of laws regarding enforceability, apply the law of the state with the most significant relationship to the agreement and subsequent marriage
  • Enforceability:
    • Full and fair disclosure of the assets and obligations (if not, argue unconscionability)
    • Terms are fair and reasonable considering the wealth, age, and health of the parties;
      • Modern courts will generally find terms fair so long as agreement will not leave a spouse dependent upon public assistance
    • Voluntary (e.g., no fraud, duress, or undue influence).
      • Consider: time pressure to sign the agreement, prior business experience, and opportunity to consult independent counsel
  • Modification: The parties may include a clause to prevent modification of the agreement, but a court may always modify child support provisions
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13
Q

Separation/Settlement Agreements

A

Parties define property, custody, and support issues pending divorce. Type of agreement depends upon state law and the length of the separation.

  • Enforceability: same as prenuptual (full and fair disclosure, reasonable terms, voluntary)
  • Modification: as with prenuptual agreement, provisions related to child support and custody are modifiable by the court if the terms are not in the best interests of the child
  • Merger: the agreement will generally merge into the divorce decree
    • If not, enforcement will be through contract law rather than judgment enforcement
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14
Q

Jurisdictional requirements for division of marital property

A
  • SMJ and PJ over both spouses
  • SMJ usually requires residency in the state
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15
Q

Theories of property division

A
  • Equitable distribution (majority approach)
  • Community property (minority approach)
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16
Q

Community property approach

A

Minority approach to division of assets at divorce (c.f. equitable distribution)

  • Community property is split 50/50 and presumed to include all property acquired during marriage, including earnings of a spouse
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17
Q

Equitable distribution approach

A

Majority approach to division of property at divorce. Divides property “equitably,” but not necessarily “equally” (i.e., 50/50).

  • Factors affecting distribution include:
    • Length of the marriage
    • Health/age/income of the spouses
    • Contributions to education/child-rearing
    • Future needs
      Education
    • Non-marital assets
    • Child custody
    • Spousal support, and standard of living
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18
Q

Marital property and exceptions

A

Generally refers to any property acquired during the marriage and before the date of the final divorce degree.

  • Exceptions:
    • Property acquired by gift or inheritance (except gifts between spouses)
    • Property excluded pursuant to a valid agreement (prenup or separation agreement)
    • Property that a party has sold/granted/conveyed for value in good faith before separation
    • Property that was mortgaged or encumbered in good faith before final separation
    • An award or settlement payment that was received for any cause that accrued prior to marriage

Note: the party seeking to exclude as separate property bears the burden of showing that property is not marital

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19
Q

Modification of a property division decree

A

Not allowed for changed circumstances, and can only be set aside based on grounds such as fraud.

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20
Q

Governing federal acts

A
  • UPAA: prenups
  • UIFSA: child support
  • UCCJEA: child custody modification
  • UPA: assisted reproduction
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21
Q

Specific assets that are marital property

A
  • Retirement or pension benefits
  • Professional goodwill of a business developed during a marriage
  • Stock options acquired during the marriage (even if not exercised until after divorce)
  • Increases in value to separate property during the marriage
  • Improvement to marital property during the marriage

Note: how the property is titled is not relevant to determination of whether property is marital

22
Q

Specific assets that are never marital property

A
  • Professional license or degree (though spouse may be entitled for reimbursement to help acquire degree)
23
Q

Divisibility of personal injury awards

A
  • Marital property approach: considered marital property if cause of action occurred during the marriage
  • Separate and marital allocation approach:
    • Pain and suffering is separate property of injured spouse
    • Lost wages are marital property
  • Loss of consortium: separate property of uninjured spouse
24
Q

Spousal support

A

AKA maintenance or alimony. An obligation of one party to provide financial support to the other.

  • Arrangements: lump sum, permanent, limited, rehabilitative, reimbursement, and pendent lite (paid while divorce is pending)
    • Palimony for cohabitating but unmarried partners is largely unrecognized
  • Alimony obligations cannot be discharged in bankruptcy.
25
Q

Modification of spousal support order

A

Spouse seeking a change must prove substantial change in circumstances

  • Factors considered: death, remarriage (in some states), cohabitation, and retirement
    Voluntary change: when one’s income is reduced by a voluntary change (e.g., quits job), courts vary and may deny adjustment or allow if in good faith
    • Court can impute income if a
      spouse is voluntarily underemployed below earning capacity
26
Q

Child support

A

Generally, both parents are obligated to support their children until they reach age 18 or longer if the child is incapable of self-support; some states require support through college.

  • The right to child support belongs to the child, so contracts between parents that bargain away child support obligations are not enforceable
27
Q

Jurisdiction for enforcing a child support order

A

Full faith and credit requires that all states recognize child support decrees. Uniform Interstate Family Support Act (UIFSA) facilitates out-of-state enforcement.

  • Adopted in all 50 states
  • Allows long-arm PJ over non-resident parents to establish or enforce child support
28
Q

Standard for determination of child support and considered factors

A

Best interest of the child will govern.

  • Factors:
    • Ages and number of children
    • Unusual needs or expenses (e.g., special education, medical needs)
    • Support obligations of the parties
    • Assets of the parties
    • Standard of living
29
Q

Modification of a child support order

A
  • Permitted if the parent can prove a substantial change in circumstances regarding:
    • The child’s needs or
    • The parent’s ability to pay
  • Prospective modification only
  • Voluntary change in income: when one’s income is reduced by a voluntary change (e.g., quits job), court may deny adjustment or allow if in good faith;
    • Court can impute income if a
      spouse is voluntarily underemployed below earning capacity
30
Q

Jurisdiction for modification of a child support order

A
  • UIFSA establishes continuing exclusive jurisdiction of the original ordering state unless:
    • Neither parent nor child resides in that state, or
    • The parties consent

Note: Even if allowed to modify, a state may not modify a non-modifiable aspect of the original order

31
Q

Circumstances that terminate a child support obligation

A
  • Child reaches age of majority and is capable of self support (some states extend through college)
  • Emancipation
  • Marriage by the child
  • Termination of parental rights
  • Death of child or parent
32
Q

Remedies for non-payment of child support

A

Enforceable by out-of-state under UIFSA.

  • Civil contempt
  • Criminal contempt
  • Wage garnishment
  • Suspension of driver’s license
  • Withholding of tax refunds

Does not include: changes to child custody arrangement!

33
Q

Paternity

A

Father’s identity is sought to establish rights to support, custody, visitation.

  • Presumption of paternity applies when a child is born during a marriage
  • Evidence considered: blood test, medical testimony, acknowledgement by the defendant, physical resemblance
    • If father is indigent, court will pay for blood test
  • Estoppel: non-biological father cannot deny obligation if mother detrimentally relied on his support (promise + reliance + harm)
    • BUT, cannot be used to block true biological father from asserting his rights
34
Q

Child custody

A
  • Consists of both legal custody and physical custody, either or both of which can be shared under a joint custody agreement.
    • Legal: is the right to control decisions on major issues (e.g., health, education, religion)
    • Physical: is the right to physically reside with the child and provide daily care
    • Joint (favored): shared legal and/or physical determined in the best interests of the child
35
Q

Best interest of the child standard

A

The standard for child custody and child support determinations

  • Default: a parent is in the best position to care for a minor child, unless the parent is unfit
  • Factors:
    • Court may consider: the wishes of the child, which parent acts as primary caretaker, any domestic violence, or opinion of a guardian ad litem,
    • Court cannot consider race:
      religion, or (in most states) the sexual conduct of the parents (unless would detrimentally affect the child)
  • De facto parent: a third party with whom the child who has lived for an extended period of time can be considered a “de facto” parent to get around the presumption in favor of the
    natural parent who has had little or no contact with a child or is unfit
36
Q

Modification of a custody determination

A

The party seeking modification must prove a substantial change in circumstances; failure to pay child support is not a basis to modify an existing child-custody order

  • Time limit: some courts may impose a waiting period before modification will be considered
  • Relocation: the court will balance the policy to maintain frequent contact with both parents against the needs of an individual to relocate and seek employment
    • Standard applied when a parent requests to relocate a minor child varies by jurisdiction
    • Best interest of the child is the usual focus, though which parent carries the burden to prove what is or is not in the child’s best interest varies by jurisdiction
    • Modern trend is to allow relocation, but joint custody makes relocation difficult because courts may favor the non-moving parent
37
Q

Jurisdiction for Child Custody

A

UCCJEA (Uniform Child Custody Jurisdiction and Enforcement Act) adopted in nearly all states streamlines jurisdiction to avoid disputes and ease enforcement of child custody orders.

  • Once jurisdiction is established, that state will have exclusive jurisdiction to modify the order moving forward.
  • In descending order:
    • Home state jurisdiction
    • Significant-connection jurisdiction
    • Default jurisdiction
    • Temporary emergency jurisdiction
38
Q

Home state jurisdiction

A

A court has SMJ to enter or modify custody or visitation orders if it is the child’s home state.

  • Home state:
    • The state where the child has lived with a parent or guardian since birth or for at least six consecutive months prior to the proceeding; or
    • The state that was the child’s home state for the past six months and the child is absent from the state, but one of the parents continues to live in the state.
39
Q

Significant-connection jurisdiction

A

If no state has or accepts home state jurisdiction, a court with significant-connection jurisdiction can enter or modify an order.

  • Significant connection jurisdiction:
    • The child and at least one parent have a significant connection with the state; and
    • There is substantial evidence and amount of time in the state regarding the child’s care.
40
Q

Default jurisdiction

A

A state has jurisdiction by default when no other state has home-state nor significant-connection jurisdiction.

41
Q

Exclusive continuing jurisdiction

A
  • A court that makes the initial ruling has exclusive continuing jurisdiction unless:
    • No home state jx: Neither the parents nor child reside in that state; or
    • No significant-connection jx: The child no longer has a significant connection to the state and any substantial evidence connected to the child is no longer available in the state.
42
Q

Circumstances in which a court may decline jurisdiction for purposes of entering/modifying a child support order

A
  • Court may decline jurisdiction if the forum is inconvenient based upon factors:
    • Occurrence of domestic violence
    • Length of time the child has lived in another state
    • Distance between the competing jurisdictions
    • Financial circumstances
    • Agreement of the parties regarding jurisdiction
    • Nature and location of the evidence
    • Familiarity of the court with the facts and issues, or
    • If a party has engaged in “unjustifiable conduct”
43
Q

Enforcement of out-of-state custody orders

A
  • Registration: another state’s order can be registered by providing a certified copy
  • Expedited enforcement: after a petition is filed, the respondent must appear on the first judicial day after service of the order; the petitioner will be awarded immediate physical custody unless the order was not registered or the order was stayed or modified
  • Parental Kidnapping Prevention Act (PKPA) also applies to custody disputes including visitation; requires that states give FFC to other states’ custody determinations so long as they conform with the act
44
Q

Parental visitation rights

A

There is a rebuttable presumption that the noncustodial parent should be granted reasonable visitation (parenting time) with a minor child

  • Denial of visitation is only allowed if it would seriously endanger the child’s physical, mental or emotional health.
  • Circumstances that are not grounds to modify/restrict visitation:
    • Failure to pay child support
    • Cohabitation of a custodial parent (including same-sex relations) unless it has an adverse impact on the child’s physical or emotional health
  • Modification: the party must prove a substantial change in circumstances;
  • Unwed biological father has a due process right to have contact with his child if he demonstrates a commitment to the responsibilities of parenthood (e.g., provides support)
45
Q

Visitation rights of third parties

A

A fit parent has a fundamental right to deny visitation to a nonparent (including
grandparents); statutes regarding nonparent visitation vary by state.

46
Q

(Involuntary) termination of parental rights

A
  • Procedure:
    • Only a court can terminate a parent’s fundamental right to take care of his child and only after taking procedural measures to promote family reunification
  • Grounds: parental rights cannot be terminated without clear and convincing proof of:
    • Abuse, abandonment, neglect, incapacity, abuse of a sibling, termination of rights over a sibling, or
    • Proof a child has been placed outside the home (not with a relative) for 15 of the past 22 months
47
Q

Adoption requirements

A

Adoption of a child may occur only after termination of the parental rights of the biological parent(s).

  • Involuntary Termination: requires a finding the parent has abandoned the parent-child relationship; the standard varies by jurisdiction
    • Subjective: whether the parent subjectively intended to abandon the relationship
    • Objective: whether the parent failed to act in a way that shows commitment to maintain the parent-child relationship
  • Voluntary Termination: the natural parent voluntary relinquishes parental rights; consent can be waived up until the final adoption decree is issued
    • Consent of unwed father is not required if the father fails to demonstrate a commitment to the responsibilities of parenthood, or (in states with a registry) fails to register as a putative father within the statutory timeframe
    • Consent of prospective adoptee is required for a child aged 14 years or older
  • Investigation by the court usually required prior to approving adoption
48
Q

Legal effect of adoption

A

Once the adoption decree is entered, adoptive parents have the same rights as biological parents and the adopted child has all the rights of a biological child.

49
Q

Reproduction technology

A

Uniform Parentage Age (UPA) has been adopted by some states, the act defines rules covering assisted reproduction, in-vitro fertilization (IVF) and gestational agreements (surrogacy)

  • Defined as: implanting an embryo or fertilizing an egg without intercourse
  • Maternity is determined by the woman who gives birth, even if she has no biological connection with the child
    • The husband (if any) of the woman giving birth is presumed to be the father unless he brings an action within two years to establish lack of consent
50
Q

Surrogacy

A

Occurs when a woman carries a pregnancy as a substitute for the intended parents who agree to parent the child

  • Consent of all parties is required
  • Agreements are not recognized in many states
  • States that do recognize gestational agreements require:
    • Court approval
    • Home study of the parents
    • Expenses and medical care of the surrogate, and
    • Reasonable payment to the surrogate
51
Q

Domestic violence protection

A

By statute, all states provide protection in the form of injunctive relief against physical violence committed against a household or family member

  • Procedure: the applicant must obtain an ex-parte order for TRO
    • After notice to defendant + a hearing, court may may grant permanent injunctive relief
  • Relief: In addition to an order prohibiting defendant’s further abuse and contact with the victim, the protection may include:
    • Exclusive possession of the residence for a time
    • Child custody
    • Support
52
Q

Rights of a child

A
  • Medical care:
    • Consent: parental consent is generally required for medical care. Exceptions:
      • Hospital can override lack of consent when the child’s life is at risk
      • Some states allow child to authorize an abortion, get birth control and/or treatment for sexually transmitted diseases
      • Religious beliefs of the parents may conflict with the best interests of the child; the court can intervene to protect a child when necessary to prevent serious harm to the child, declaring abuse or neglect to override the parent’s lack of consent
  • Emancipation:
    • A child who is self-supporting and no longer living with her parents may petition the court to become emancipated from her parents

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