Family Law Flashcards

Question

Alimony Considerations

Answer 1

During marriage, spouses have a duty to support one another. Prevailing concerns are the needs of the claimant spouse and the ability of other spouse to pay. 1. Marital fault (most jx) 2. Std. of living 3. Duration of marriage 4. Age 5. Phys and emotional condition 6. Financial resources of each party as they leave the marriage (property division typically calculated before or after) 7. Time needed to obtain education or training 8. Ability of payor spouse to meet own needs Post 2019: Not a taxable event, Pre-2019 awards can be brought in compliance through modification.

Answer 2

Voluntary reduction of income is **insufficient** to alter award. Lump sum awards are NOT modifiable BUT do survive death. For permanent periodic support: * Cohabitation of recipient (most jx) * Remarriage of recipient * Death of either spouse

Answer 3

Deals w/ financial issues arising from separation. * Entered into after marriage * Enforceable if supported by consideration * Reqs. full disclosure of assets and fairness * Must be voluntary * Full access to assets that will be given up * Can waive alimony and equitable distribution of property * Can agree on custody and child support (BUT ct. not bound) Modification: * If incorporated into divorce decree → modifiable * Not submitted to court → not incorporated (but contract remedies available)

Answer 4

* Generally, contracts btw cohabitants are enforceable UNLESS sex is the only consideration. * Valid consideration might be giving up a career, taking care of the home, etc. * Usually, parties are agreeing to a division of earnings and property rights. * Some states find an implied contract (e.g., partnership or constructive trust) in order to award property in the absence of an agreement. This can also be used to address the rights of reconciled ex-spouses who did not remarry.

Answer 5

* Both parents have a **duty to support** the child based on the (1) child's needs and (2) parents' ability to pay * Courts have less discretion in favor of **consistency** and **predictability** * Usu. lasts until: * Child turns 18 (some states extend until child completes high school or for disabled children) * Death of Child * Emancipation * Original Jx. over the order where: * First petition is filed * Second petition is filed (1) before time to answer the first petition has expired, (2) petitioner objected to jx, AND (3) second jx is child's home state * Jx. to Enforce: * Ct. that initially issued order has continuing disorder * Direct enforcement - essentially wage garnishment * Registration - Child support order in state A is registered in state B and subject to enforcement there (indicates that payor has been in contempt) * States are req. to give full faith and credit to awards from other states.

Answer 6

* Majority approach * Both parents contribute to percentage of the child support necessary to sustain all children proportionate to their income. * Child support is owed regardless of whether visitation has been granted

Answer 7

* **Substantial/material and continuing change** of circumstances affecting the needs of the child of the ability of the parents to pay. * Voluntary decrease of income is NOT justification. * Not a taxable event * Jx. to Modify: Continuing and exclusive jx. retained by ct. that originated the order UNLESS **no parties reside** in the state AND the parties **consent** to jx elsewhere.

Answer 8

* Can be enforced through BOTH civil and criminal proceedings * Wide array of remedies available, including: * interception of fed. tax refund * forfeiture of licenses (e.g., to drive, hunt, practice med. or law) * Seizure of property * Withholding of wages

Answer 9

Initial Award of Custody * Child's **home state** determines original jx. * Home state is where: * child has lived w/ (custodial?) parent for at least 6 mos. * child was living in the past 6 mos. and (non-custodial?) parent continues to live there * seems like child can only have one * If child has **no home state**, ct. can assume jx. IF child: * Has a **significant connection** to the state AND * there is **substantial evidence of the child's well-being** in the state * A state can assume jx by default or deferred jx if another stated defers jx or no state will assume jx

Answer 10

* Issuing state exercises continuing, exclusive jx * Another state can have exclusive jx ONLY if: * No parent or child continues to reside in the state * Child no longer has a sig. connection to the state * NB. ONLY the issuing state can determine whether its continuing jx is proper

Answer 11

Courts MUST decline IF there is a **proper proceeding elsewhere** UNLESS: * Originating ct. would defer the new state AND the new state can exercise deferred jx OR * The person who wants to exercise jx. has engage in unjustifiable conduct (e.g., non-custodial parent took child to new state to get custody there) Courts *may* decline jx. if the forum would be inconvenient.

Answer 12

Any state may exercise temporary emergency jx if child is phys. present in the state AND: * Has been abandoned OR * It's necessary to protect the child, a sibling, or parent from abuse

Answer 13

Legal custody = decision-making power, *compare* phys. custody Non-exhaustive Factors: * Parent's wishes * Child's preference (8 or younger: too young to be honored; 12+ ok) * Relationship to siblings and other members of the household * Adjustment to home, school, and community * Parties' mental and phys. health * Primary caregiver Judges have a lot of discretion! Gender preferences NOT allowed.

Answer 14

* Joint * Sole (usually w/ visitation rights to the other parent) * Custody to 3P req. showing of parents' unfitness of harm; heavy burden * Total denial of visitation is rare * Non-parental visitation, usu. for grandparents, outlined in statute by every state * Std. is not harm, but **“extraordinary circumstances”**

Answer 15

* Can always be sought because of the BIOC std. * Predicated on **substantial and material change** of circumstances affecting the child's well-being (don't be tricked by vast improvements in *parent's* well-being unrelated to child's custody) * Some state have time reqs. provided no harm will result to child from waiting * Primary parent MUST give notice of relocation and opportunity to be heard to secondary parent

Answer 16

* Contempt proceedings * Habeas action * Equitable options * Certified copies of out-of-state decrees * Kidnapping Statutes * Federal (in addition to state) crime if state lines are crossed * Federal Parental Kidnapping Prevention Act (PKPA) mandates that states give full faith and credit to another state's custody order even though orders are *not* final judgments. * NB. There is an int'l PKPA and a Hague Convention on Child Abduction

Answer 17

* Have constitutional protections - intermediate scrutiny * Parentage action can be brought to establish biological relationship * Once established, parent has rights (e.g., visitation) and duties (e.g., to support) * Also used for inheritances * Presumption of parentage: * Husband of mother presumed to be father of child born w/in 300 days of termination of marriage * **Clear and convincing** evidence needed to rebut presumption, where allowed * Some states disallow rebuttal where doing so would not be in BIOC EVEN if biological paternity is disproven

Answer 18

Unwed fathers can establish parental rights by: * Marrying child's mother * Holding child out as his own * Consenting to being so named on the birth certificate * Acknowledging paternity (usu. in formal doc before a notary, witness, etc.) * Court order resulting from parentage action Unwed fathers have custody rights protected by the DPC as long as they exhibit **parental responsibility** (i.e., providing supervision, education, care or support; acknowledging paternity).

Answer 19

* Available in every state * Statutes of limitations are tolled during the minority of the child * Evidentiary burdens vary (preponderance → clear & convincing) * Types of evidence allowed varies (typically, blood tissue sampling but some states allow testimony)

Answer 20

May be voluntary or not. Parental unfitness and mental health considered. Happens when child has been: * Abandoned * Neglected * Unsupported * Subjected to serious phys. harm (living in household in which another resident has been) Generally, one parent CANNOT seek to terminate the rights of the other. Instead, they should seek sole custody w/o visitation.

Answer 21

Generally, goal is to keep child w/parents and have involuntary removal of the child from the parental home be temporary. However, adoptions provide options where that is not possible and in other circumstances (e.g., voluntary removal): * Agency adoptions (coordinated through agency) * Private adoptions (facilitated by lawyers) Requirements: * Termination of bio. parents' rights * Creation of adoptive parents' rights * At ages 12-14, states begin to require **child's consent** * Homes studies to evaluate suitability (may be waived if adoption by relative) * No payment apart from, possibly, pregnancy expenses * Adoption records are generally sealed unless bio. parent consents

Answer 22

* Uniform Parentage Act (UPA) not widely adopted * Woman who births child considered mother UNLESS there's a valid gestation or surrogacy agreement (some states allow compensation for surrogacy) * Under UPA, presumption of paternity for husband of woman who used assisted conception UNLESS he proves lack of consent w/in 2 yrs of child's birth * Egg and sperm donors are NOT considered parents. * Sperm donors may have parental rights if agreement reached with mother before birth * Posthumous conception * Full inheritance rights w/written parental consent

Answer 23

* Genetic: woman who is not intended parent uses her own gametes * Gestational: woman who is not intended parent does NOT use her own gametes * Most states only allow GESTATIONAL surrogacy that is: * In a writing **approved by the court** * Accompanied by home study (unless waived) * Makes provisions for healthcare costs until birth * Does not limit the rights of the surrogate to make healthcare decisions * Ensures that any consideration provided to the surrogate is reasonable * Termination: Any of the parties can terminate the agreement before embryo transfer. Separation or divorce of intended parents does NOT terminate (in and of itself?). * Results of Agreement: If agreement fails → gestational mother is considered mother regardless of biology; agreement succeeds → intended parents must file a notice of birth and the court will issue an order of parentage