Family law Flashcards
Explain the rule regarding the enforcement of premarital agreements.
In many states, a premarital agreement is enforceable if there has been full disclosure, the agreement is fair and reasonable, and it is voluntary. The agreement must be in writing and signed by the party to be charged.
Under the UPAA, which applies here, the party against whom enforcement is sought must prove (1) involuntariness or (2) both unconscionability at the time of execution and lack of disclosure and adequate knowledge of the other’s assets and obligations. Thus, a court may not refuse to enforce a premarital agreement based on substantive unfairness unless it also finds lack of adequate disclosure or knowledge. Full disclosure requires disclosure of all income, assets, and liabilities of both parties.
Entering into a contract voluntarily generally means there was no fraud, duress, or misrepresentation. Courts consider factors such as time-pressure, the parties’ previous business experience, and the opportunity to be represented by independent counsel. A party’s insistence on the agreement as a condition to marriage is not considered duress.
Explain the rule regarding the distribution of property at divorce
Most states, follow a system of equitable distribution upon divorce. The objective of the equitable-distribution system is to order a fair distribution of all marital property, taking into consideration all of the circumstances between the parties. In most states, all property acquired during the marriage is marital property and subject to equitable distribution. Whether the appreciation in nonmarital property will be subject to equitable distribution will depend on whether the appreciation can be attributable to spousal labor.
Note: In most states, property acquired by one spouse after separation but before divorce is marital property
Explain the factors a court will consider in determining the equitable distribution of marital property.
Courts consider a number of factors in determining the equitable distribution of marital property. Some of the relevant factors in this case include the length of the marriage, the age, health, earning potential, and needs of both spouses, the value of separate property, the spouses’ standard of living, and economic circumstances of each spouse at the time of divorce.
Explain the rule regarding separation agreements when can they be invalidated
Separation agreements can be invalidated, in whole or in part, if the court makes a finding of fraud or unconscionability. A contract is unconscionable when it is so unfair to one party that no reasonable person in the position of the parties would have agreed to it. The contract or part of the contract at issue must have been offensive at the time it was made. Unconscionability may also be applied to prevent unfair surprise.
When can awards for separation of property be modified?
When can awards for spousal support be modified?
Though a support award can be modified subsequent to a divorce decree, the property division award cannot be modified. Unlike support awards, which are subject to changing circumstances, the division of the marital assets was determined based upon known facts and circumstances as they existed at the time of divorce.
Spousal support awards can be modified based upon a significant change in a party’s circumstances.Spousal support is an obligation of one party to provide financial support to the other after a divorce. Courts can modify a spousal support order based on a significant change in circumstances. Property division, on the other hand, is a one-time award of assets based on equity at the time of divorce. Because this property division is essentially frozen in time at the time of divorce, it cannot be modified post-divorce.
Can a court modify a child-support obligation based on a parents later learned “nonpaternity of Child.”
Traditionally, courts have been loath to modify an established parent-child relationship, citing the child’s best interest as reason to deny admission of evidence of non-paternity or to deny a motion to disestablish paternity.
However, some states have recently recognized the interests of erroneously identified fathers. Should the court be in a jurisdiction that allows erroneously identified fathers to offer proof of non-paternity, the motion might succeed.
When can a court modify an existing child support custody order?
Modification of child support orders is governed by the Uniform Interstate Family Support Act (UIFSA). Under UIFSA, a state court does not have jurisdiction to modify an order of child support rendered by a court of another state if the original state has continuing, exclusive jurisdiction. This rule applies unless the parties, including the child, no longer reside in that state or the parties expressly agree to another state’s jurisdiction.
Can a state court modify a property settlement related to divorce is a domestic relations issue?
State courts have subject matter jurisdiction over domestic relations issues. A petition to modify a property settlement related to divorce is a domestic relations issue. Unlike child support, UIFSA does not apply to divorce related property disputes so those jurisdictional rules do not limit the state’s jurisdiction. The court may exercise personal jurisdiction over an individual if that person is voluntarily present in the state and served with process while there.
Can a court retroactively modify child support?
Although a modification to child support may be made for the period while the cause of action is pending, states cannot retroactively modify child support before the date of service of process.
When will court modify a child support order?
Generally, a state may prospectively modify a child support order when there is a substantial change in circumstances regarding the child’s needs or the parent’s financial situation. The parent requesting the modification has the burden of showing a substantial change in circumstances such as a significant decrease in income. However, when a parent voluntarily changes his employment, a reduction in income alone is not sufficient proof of substantial changes in circumstances. The courts will consider the parent’s earning capacity and other factors surrounding the change before deciding whether to modify the support order.
How can courts hearing family disputes establish subject-matter jurisdiction?
A court hearing a family-related dispute must generally have both subject-matter jurisdiction and personal jurisdiction. Most states have residency requirements to establish subject-matter jurisdiction.
How does a court establish jurisdiction to hear child custody issues?
Most states have adopted the Uniform Child Custody Enforcement and Jurisdiction Act (“UCCJEA”). The purpose of the UCCJEA is to prevent jurisdictional disputes with courts in other states on matters of child custody and requires the court to have subject-matter jurisdiction. In an initial custody determination, a court has subject-matter jurisdiction to enter custody orders if the state is the child’s home state.
A state is the “home state” when (i) the child has lived with a parent or guardian for at least six consecutive months prior to the custody proceeding or (ii) the state was the child’s home state in the past six months and the child is absent from the state, but one of the parents (or guardians) continues to live in the state.
Note: A court can decline jurisdiction if the party has wrongfully removed a child from another state.
In such a situation, when there is no home-state jurisdiction, the UCCJEA permits a court to enter or modify an order if (i) the child and at least one parent have a significant connection with the state, and (ii) there is substantial evidence in the state concerning the child’s care, protection, training and personal relationships.
When can the court have jurisdiction to resolve issues of property in a divorce?
Under the doctrine of divisible divorce, a court may have sufficient jurisdiction to grant a divorce, but lack such jurisdiction with respect to other divorce-related matters, such as property division, without personal jurisdiction over the other spouse. A court may not exercise personal jurisdiction over a defendant unless the defendant has minimum contacts with the state in which the court sits and the exercise of jurisdiction would be fair and reasonable.
Explain the fault-based grounds for divorce
How do you prevail on a cruelty ground?
Fault grounds for divorce include adultery, cruelty, desertion, habitual drunkenness, bigamy, imprisonment, indignity, and mental disorder.
To prevail on the grounds of cruelty, most jurisdictions require that the plaintiff demonstrate a course of conduct by the other party that is harmful to the plaintiff’s physical or mental health and that makes the continued cohabitation between the parties unsafe or improper. The conduct of the defendant must be serious and typically cannot be based on one isolated incident. The majority of jurisdictions permit divorces on the basis of cruelty in cases of physical abuse, while only some permit it in cases of only emotional abuse or mental cruelty
What will a court consider in determining custody?
Physical custody is the right to have the child reside with the parent and provide for routine daily care and control of the child.
The standard for determining child custody is the best interests and welfare of the child. In addition, courts can consider who the primary caretaker of the child was during the marriage and the separation, and prior to the divorce, as factors in determining who should have custody. Nearly every jurisdiction requires the court to consider the presence of domestic violence between the parties when awarding custody and some jurisdictions have created rebuttable presumptions in favor of the nonabusive spouse.
Most courts will also consider the wishes of the child if the court can determine that the child has a sufficient maturity to express a preference. Although age is not the sole factor in determining whether a child should be consulted, it is considered by the court. If children are consulted, the court evaluates the reasons behind the preference.
