Family Law Flashcards
Consent
Consent – Depends on the jurisdiction.
− Some States → if the parties participate in a ceremony AND sought some benefits of marriage.
− Other States → if parties consented to the obligations of marriage.
Premarital Agreements: Eliminating Fundamental Marital Duties & Allocating Financial Responsibility
Spouses may agree on any matter that is not in violation of (a) public policy, or (b) criminal law.
− May allocate financial responsibilities, but it’s NOT binding on third-parties.
− Agreements that limit spousal support during marriage → generally void as against public policy.
Doctrine of Nonintervention
A court CANNOT intervene in an ongoing intact marriage to resolve internal disputes about family support, finances, and expenditures.
Payment for Necessities –
A spouse is liable to creditors who have provided necessities (food, clothing, shelter) to the other spouse.
− Medical Expenses → deemed necessities in some states (a non-debtor spouse may be liable to the extent the debtor spouse is unable to pay).
Uniform Child Custody Jurisdiction & Enforcement Act (UCCJEA) – A court may decide child custody ONLY IF it has:
1) Home State Jurisdiction → (a) child’s home state OR (b) where child lived with a parent for 6+ months immediately before action was filed, child is absent from state, and parent or acting parent is still present in the state.
2) Significant Connection Jurisdiction → (1) no home state, (2) child and at least one parent have a significant connection to the state, AND (3) substantial evidence in the state exists.
3) More Appropriate Forum Jurisdiction → all other courts decline to exercise jurisdiction because this particular court is a more appropriate forum.
4) Emergency Jurisdiction → child is physically present in the state AND child is abandoned or it’s an emergency to protect the child.
5) No Other State Jurisdiction → when no other state has jurisdiction.
Economic or Child Custody/Support Issues
Economic or Child Custody/Support Issues → court MUST have personal jurisdiction over the defendantspouse.
Fraud - Marriage
Fraud → exists when:
1) a spouse made a misrepresentation prior to the marriage on an essential and vital part of the marriage (sex, procreation); AND
2) the marriage would not been consented to if the other spouse had been made aware.
*Waived if a spouse continues to cohabitate after discovering the facts underlying the fraud.
**Fraud is usually NOT granted for misrepresentations concerning character or financial situation.
Accrual of Marital Property Ends
− Some States → ends upon permanent separation.
− Other States → ends upon a final divorce decree.
Modification of a Property Division Award
– A property division award can be modified ONLY IF exceptional circumstances exist (i.e. fraud, duress).
Uniform Interstate Family Support Act (UIFSA): Enforcement & Modification
An Issuing State has continuing, exclusive jurisdiction over an order if:
a) the State is still the residence of one party; OR
b) all parties consent in a record or in open court.
Courts MUST give full faith and credit to support orders from other states.
Under UIFSA, a court CANNOT modify a child support order of another state unless:
1) The court has jurisdiction to issue an order; AND
2) Either:
a) all parties do not reside in the issuing state (obligor, obligee, child), or
b) each party has consented in writing to jurisdiction in another state.
Best Interest of the Child Factors
- The wishes of the parents and mature children;
- The age, financials, health of each parent;
- The new partners in each parent’s life;
- The effect custody will have on a child’s relationship with extended family;
- The history of domestic violence;
- The stability of home and school environment;
- And any other relevant factor.
NOT Best Interest of the Child Factors
A court CANNOT award/deprive custody based on a parent’s lifestyle, values, or religious beliefs.
− BUT, it may take into account if such behavior or conduct endangers the child.
− A parent’s sexual behavior (by itself) CANNOT be used to deny custody.
Modification of a Child Custody Order
The court that had jurisdiction over the original order usually retains continuous and exclusive jurisdiction to make modifications.
- PKPA Exception → A court may modify an order from another State if:
1) it had jurisdiction to make an initial determination; AND
2) the issuing State
a) no longer has jurisdiction, OR
(b) declined to exercise it. - UCCJEA Exception → A court may modify an order from another State if:
1) It had jurisdiction to issue an initial order; AND
2) Either:
a) the Issuing State determines it no longer has jurisdiction;
b) the Issuing State determines that the Current State is more appropriate; OR
c) the court determines that all parties do not reside in the Issuing State.
Property Rights of Unmarried Cohabitants
The party who has title retains sole ownership of the property UNLESS:
a) Agreement Between Cohabitants (2 types); OR
i. Express (oral or written) → unenforceable if based on sexual relations.
ii. Implied → court may find an implied-in-fact agreement if the parties comingled funds during the relationship.
b) Equitable Remedy Theory (3 types).
i. Resulting Trust – title in one party’s name, but another party gave money to acquire the property with intent to have
ownership.
ii. Constructive Trust – one party obtained title through wrongful conduct.
iii. Quantum Meruit – one party is unjustly enriched by the services provided by another
Paternity – May be established by:
a) Birth certificate;
b) Legal presumption;
- A child born during marriage is presumed to be the marital child of the husband (may be rebutted).
c) When unmarried parents voluntarily sign an acknowledgement of paternity;
d) An unmarried biological father’s successful challenge of a presumption;
e) Paternity suit; AND/OR
f) Paternity by estoppel – held himself out as the father and paid support (assuming parental responsibilities).
*If paternity is established, that person is responsible for child support obligations.
