Family Law Flashcards
Common Law Marriage
Priority: High
A common law marriage creates marital rights and obligations identical to a statutory marriage. To achieve a common law marriage, a couple must:
1. live together for a specified period of time
2. be legally able to marry
3. have a present agreement that the two parties are married
4. hold themselves out as married
- Must be recognized by other states even if they do not have common law marriage
Premarital Agreements: Enforceability
Priority: High
Generally, premarital contracts are like any other contract and are enforcable unless induced through fraud, duress, or coercion.
Under the Uniform Premarital Aggreement Act, the contract must be in writing and signed by both parties. However, the agreement will not be enforceable unless:
1. it was voluntary
2. it is not unconsionable considering the pre-signing disclosures provided and/or waived
Child custody and support provisions are not binding on the court and any provision that adversely affects a child’s right to support is unenforceable.
Jurisdiction: Marital/Divorce & Support Actions
Priority: High
Ex-parte divorce proceedings do not need PJ over absent spouse if the plaintiff-spouse is domiciled in the rendering state. Valid divorces in any state must have the full faith and credit provided from all states.
Economic or child support issues require a court to have PJ over the defednant-spouse in order for the judgement to have full faith and credit.
Jurisdiction: Child Support and Adoption Matters
Priority: High
A court must have SMJ in order to issue or modify a child custody order. PJ over the child is not required for the home state to make a child-custody determination, but PJ over the defednant-parent is required.
Under the Uniform Child Custody Jurisdiction and Enforcement Act, a court has jurisdiction to decide custody only if it has one of the following:
1. Home State = child’s home state for at least 6 consecutive months
2. Sigificant Contacts = (1) there is no home state; (2) the child and at least one parent have significant connections to the state; (3) substantiaal evidence in teh state must exist regarding the child’s care, protection, training, and personal relationships
3. More Appropriate Forum = When home state and significant contacts states decline to exercise jurisdiction.
4. Temporary Emergency = child is physically present in the state and has been abandoned or its necessary in an emergency to protect the child
5. No Other Jurisdiction = when no other state has any of the above jurisdictions
- Wrongfully taking a child from a state cannot be later used as a foundation for establishing a new home state.
Division of Property: Marital vs Separate Property
Priority: High
All marital property is divided equally between the divorcing spouses. Separate property remains with the spouse that has title.
Marital Property = All property that is not properly classified as separate property acquired during the course of the marriage.
Separate Property
1. property acquired before marriage
2. gifts and bequests to each spouse individually during marriage
3. property spouses agree is separate property
4. passive appreciation of assets in above categories
Spousal Support
Priority: High
A spouse may seek a court order granting spousal support if he/she lacks sufficient property to provide for her/his reasonable needs; and is unable to support him/herself through employment or is the custodian of a child under circumstances where the spouse cannot seek employment.
The amount of spousal support will be determined by relevant factors such as:
1. financial resources of teh party seeking support
2. the time necessary for the spouse to obtain an appropriate job
3. standard of living established during marriage
4. duration of the marriage
5. age and physcial and emotiona condition of the spouse seeking support
6. ability of the sposue paying support to meeting thier needs while supporting the other spouse
Child Support
Priority: High
A biological parent is legally responsible for a child, whether the child was intended or wanted by the parent. Federal law requires states to develop guidelines that:
1. take into consideration all earnings and income of the non-custodial parent
2. are based on specific descriptive and numeric criteria to compute the support obligation.
Modification of Child Support
Priority: High
Child support orders can only be changed if there is a substantial and continuing change in circumstances of either the payor or payee spouse, which makes the previous order unreasonable. If the change was voluntary or anticipated, it will not modify the order unless done in good faith.
Child Custody and Visitation
Priority: High
Courts determine child custody arrangements according to the best interests of the child test. The following factors are included in the broad discretion of the court:
1. wishes of the parents
2. wishes of the child (older children)
3. age, financial well-being, and mental/physical health of each parent
4. existance of new individuals in each parent’s life
5. effect custody will have on the child’s ability to foster relationships with extended family
6. history of domestic violence
7. stability of the child’s home and school environments
8. anything else the court deems equitable to evaluate
Child Custody: Parents vs Third-Party Custodian
Priority: High
Courts presume the best interest of the child is to be in the custody of a parent. This presumption can be rebutted only by showing that the custody of a parent would be detrimental to the child. Usually courts will only grant custody to a third party by showing sepcial circumstances (abuse, negelect, abandonment, mentally incompetent, or surrender)
Unmarried Cohabitants
Priority: High
An express agreement between cohabitants is enforceable so long as it was not based on the exchange for sexual relations. Courts may also consider implied contracts and will assert an implied-in-fact contract for comingled funds.
Unmarried Parents & Their Children
Priority: High
There is a presumption that a child born into a marriage is the product of the husband. This presumption can be rebutted by showing infertility, lack of access, or genetic testing.
Unmarried husbands can establish paternity through:
1. birth certificate
2. legal presumptions
3. signed voluntary acknolwedgement
4. paternity suit
5. geneitc testing
6. holding a child out as own and a substantial relationship
