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Family Law Flashcards

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1
Q

Discretion

A

Family law allows a lot of it and commons sense!!! Use it and acknowledge on your essay.

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2
Q

Breach of Promise to Marry

A

Rarely brought. Damages available to cover cost or preparation, mental anguish, and loss of reputation. Punitive damages available.

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3
Q

Gifts in Contemplation of Marriage

A

Must be returned if couple fails to marry. Courts look to the type of gift to determine whether it was given in contemplation of marriage (wedding ring is the quintessential one).

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4
Q

Antenuptial/Premarital Agreements

A

Can agree to:

  • Keep property separate
  • Waive spousal support (unless doing so would render spouse a public charge)
  • Matters of children (BUT courts are NOT bound)

Reqs.

  1. Signed writing
  2. Voluntary
  3. Full disclosure of all assets or individual knowledge of them (Under UPAA, must find agreement unconscionable first)
  4. General fairness (e.g., did both sides have a lawyer)

Generally, parties agree on what state law to apply. If not → state w/ most sig. rel. OR where the agreement was executed.

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5
Q

Marriage (Ceremonial Marriage)

A

Requires:

  1. License (NB. failure to comply will NOT invalidate marriage; some states req. medical certificate as prereq. to license)
  2. Authorized 3P officiant
  3. Absence of legal impediment to wed
  4. Capacity to consent (under 16 → judicial consent; 16 or 17 → parental consent)
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6
Q

Common Law Marriage

A
  1. Consent to marry
    1. No legal impediment
    2. Capacity
  2. Cohabitation
  3. Held out to community as married

NB. All states recognize validly formed CL marriage even if they don’t allow formation in their jx. Parties would have to get divorced to end the marriage.

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7
Q

Marriage by Estoppel (Putative Marriage)

A

Equitable remedy for invalid marriage. Allows adversely affected spouse to collect spousal benefits.

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8
Q

Tortious Interference w/Marriage (“Heart Balm” actions)

A

Not available in every state. Suit against 3P interferer. Damages are highly subjective, punitive damages available. Usually bring both claims together. Requires:

  1. Alienation of Affection
    1. Genuine love and affection existed btw. validly married spouses (low bar)
    2. Alienation or destruction of that affection (low bar)
    3. 3P is the cause (higher bar - 3P will say that the love and affection was already gone)
    4. NB. Adultery is NOT a prereq. (e.g., can be brought against in-laws)
  2. Criminal Conversation
    1. Valid marriage
    2. Adultery
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9
Q

Void Marriages (Annulment automatic)

A
  • Parties fail to meet an essential req. of the marriage
  • Utter nullity (no legal action req.)
  • Can be attacked by 3P
    • Presumption in favor of validity of most recent marriage
  • Variation as to whether continued cohabitation can remedy the marriage once the impediment is removed. UMDA → Yes
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10
Q

Voidable Marriage (Annulment optional)

A
  • Some type of event or condition affects the adequacy of the parties’ consent.
  • No collateral 3P attacks
    • Some states: Only the party whose consent was not freely given can bring the claim
  • Can be remedied by continuously living together (ratification)
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11
Q

Effects of Annulment

A
  • Different consequences than divorce in some jx
  • Marriage set aside as if it never existed
  • Some states: no spousal support
  • Cts. try to place parties in the same position they were prior to marriage
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12
Q

Domicile (generally)

A
  • Residency (reqs. range from 90 days to 6 mos.) + Intent to remain
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13
Q

Jurisdiction for Divorce and Separation

A
  • Only one spouse must be domiciled in the state
  • NB. Diff. std. for jx over financial matters: need personal jx
  • Concurrent divorce proceedings present no obstacle as completion of one renders the other moot
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14
Q

Grounds for No-Fault Divorce

A
  • Irreconcilable differences (bilateral)
  • Living separate* and apart for a specified time (generally, 80 days - 18 mos). If unilateral decision → longer time apart.
  • (some states) Incompatibility
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15
Q

Grounds for Fault Divorce

A
  1. Adultery, must show BOTH
    1. Opportunity
    2. Inclination
  2. Desertion (Abandonment)
    1. Unjustified departure from the marital home w/o intent to return (justified would be like in response to abuse)
    2. Typically, impacted spouse must have asked the other to stay and been met with a refusal
  3. Cruelty (phys. or mental), pattern or practice of abuse req.
  4. Substance abuse commencing after marriage
  5. Insanity
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16
Q

Defense to Divorce

A

No Fault:

  • Reconciliation

Fault

  • Collusion
  • Connivance (P spouse agreed to D spouse’s misconduct)
  • Recrimination (both P and D are guilty)
    • This is an absolute bar to fault divorce. Might be used to encourage no-fault divorce.
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17
Q

Defense to Divorce

A

No Fault:

  • Reconciliation

Fault

  • Collusion
  • Connivance (P spouse agreed to D spouse’s misconduct)
  • Recrimination (both P and D are guilty)
    • This is an absolute bar to fault divorce. Might be used to encourage no-fault divorce.
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18
Q

Separation

A
  • Parties are still married during separation
  • Legal separation available in some states on the same grounds as divorce
  • Separation allows division of property, allocation of spousal support, determination of child custody, etc.
  • After-acquired property remains separate IF there is an agreement as to division of property
  • NB. Spouse can stay on the other’s health insurance despite separation
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19
Q

Approaches to Property Division

A

Property distribution decrees are NOT subject to modification in any state. Property division is NOT a taxable event. Three main approaches:

  1. Community Property (all property acquired during the marriage is owned equally by each spouse)
  2. Equitable division of ALL property
  3. Equitable division of marital property (majority rule)
20
Q

Equitable Division of Marital Property

A
  1. Classification of Property (marital or separate)
  2. Equitable division (some states use the date of separation; others the date of filing). Several factors; major ones:
    1. Duration of the marriage
    2. Whether there will also be alimony
    3. Contribution to acquisition of assets and the home
    4. Economic fault (marital fault generally NOT considered, but the two can be entwined, e.g., renting an apt. for a lover)
21
Q

Marital Property

A
  1. Earnings (even in single-income household)
  2. Employment benefits (incl., contributions to pension made during marriage)
  3. Lost wages to replace earnings
  4. Reimbursements (medical bills only?) paid for w/ marital property
  5. Recovery for damages to marital property
22
Q

Separate Property

A
  1. Property owned before marriage + assets in retirement accounts
  2. Individual gifts, bequests, or inheritances regardless of when they were given
  3. “Proceeds” of separate property
  4. Pain and suffering awards, victim of crime compensation, future medical awards, and future lost wages
  5. Personal damages
  6. Property acquired after ct. has distributed property pursuant to a legal separation
  7. Professional Degree or License (BUT spouse’s contributions will be considered)
23
Q

Special Issues Affecting Classification of Property

A
  1. Separate property may become marital property IF:
    1. Commingling - cts. will try to trace the property
    2. Transmutation - parties demonstrated to make previously separate property marital (joint title often gives rise to a presumption of marital property)
  2. Improvement of Separate Property w/martial funds or efforts of either spouse → reimbursement to the marital estate for the value added
  3. Property acquired before marriage but paid for after: Property apportioned in accordance to contribution of funds (majority rule)
  4. (Contributions to) Pensions
24
Q

Four Different Types of Alimony (Maintenance, Spousal Support)

A

Possible but rare to be awarded more than one. Cts. have a great deal of discretion!

  1. Permanent Periodic
    1. Indefinite duration
    2. Terminated upon material change in circumstance that is not self-induced
  2. Lump Sum
    1. Present value of permanent periodic support
    2. Not modifiable
    3. Usu. for acrimonious divorces or elderly
  3. Rehabilitative
    1. Allows spouse to increase earning power
    2. Specified duration
    3. May be award w/ other types of support
    4. Modifiable upon substantial change of circumstances
  4. Reimbursement
    1. Reimburses spouse who contributed to other’s professional training, education, etc. yet did not enjoy the benefits of their contribution
    2. Lump sum or installment
    3. May be awarded w/other types
    4. Cannot be modified
    5. Contract right enforceable against other spouse’s estate
25
Q

Alimony Considerations

A

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.

26
Q

Modification of Spousal Support

A

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
27
Q

Separation Agreements

A

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)
28
Q

Contract Rights of Unmarried Couples

A
  • 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.
29
Q

Child Support (Heavily tested)

A
  • 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.
30
Q

Income Shares Model of Child Support (Heavily tested)

A
  • 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
31
Q

Modification of Child Support (Heavily Tested)

A
  • 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.
32
Q

Enforcement of Child Support Awards (Heavily Tested)

A
  • 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
33
Q

Child Custody (Heavily Tested)

A

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
34
Q

Modifying an Existing Child Custody Decree - Continuing Jx. (Highly tested)

A
  • 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
35
Q

Modifying an Existing Child Custody Decree - Declining Jx. (Highly tested)

A

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.

36
Q

Modifying an Existing Child Custody Decree - Temporary Emergency Jx. (Highly tested)

A

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
37
Q

Best Interest of the Child in Child Custody (Heavily tested)

A

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.

38
Q

Types of Child Custody

A
  • 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”
39
Q

Modification of Child Custody

A
  • 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
40
Q

Enforcement of Custody Awards

A
  • 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
41
Q

Non-marital Children (infrequently tested)

A
  • 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
42
Q

Establishing the Rights of an Unwed Father (Infrequently tested)

A

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).

43
Q

Paternity Suits (infrequently tested)

A
  • 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)
44
Q

Termination of Parental Rights (infrequently tested)

A

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.

45
Q

Adoption (infrequently tested)

A

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
46
Q

Assisted Reproduction (never before tested)

A
  • 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
47
Q

Gestational v. Genetic Surrogacy (never before tested)

A
  • 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

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