Family Law Flashcards
(21 cards)
Division of business property
In general, all property acquired during marriage is marital property unless it is acquired through gift, bequest, devise, or descent. If all the funds used to start a business were marital funds, then the resulting business would be classified as marital property subject to equitable distribution by the court. Furthermore, any income earned from the business would also be subject to distribution as marital property.
Whether spousal support will be awarded.
The purpose of spousal support is to ensure an adequate income stream for the spouse whose economic dependency has resulted, at least in part, from the marital relationship. Some states will consider marital fault when awarding alimony. In others, alimony is not based on marital fault. When determining what type and how much support to award, the court considers: 1) the standard of liviing during the marriage; 2) the duration of the marriage; 3) the age and physical and emotional conditions of both parties; 4) the financial resources of each party; 5) the contribution of each party to the marriage; 6) the time needed to obtain education or training to enable either party to find appropriate employment; and 7) the ability of the payor spouse to meet his needs while paying spousal support.
Permanent spousal support.
Permanent spousal support is awarded to a spouse who has neither the resources nor the ability to be self-sustaining.
How much child support to award.
When the court calculates how much child support a spouse should pay, the court will look primarily at the monetary needs of the children and the ability for the spouse to pay. Most states have adopted specific guidelines to make such a calculation more uniform. States guidelines usually dictate a formula based on the number of children, their ages, any special needs of the children, and the parents’ income. In most states, the court may deviate from the guidelines but must make findings of fact justifying the deviation. Parents may also be ordered to purchase and maintain medical insurance for their children.
Can state grant a divorce without jurisdiction over one spouse?
To establish jurisdiction over a divorce action, one of the parties must be a bona fide resident of the jurisdiction where the action is brought. States may set a minimum durational residency requirement, such as 90 days or one year, before the action can be filed. The plaintiff’s residence alone may be the basis for a state’s granting a divorce, regardless of whether there is personal jurisdiction over the defendant.
May a court divide marital property if it does not have jurisdiction over both spouses or property?
generally a court cannot determine out of state property rights or rights to support unless it has jurisdiction over both parties. Thus, in an ex parte divorce, the court can grant the divorce but cannot award spousal support or divide out of state property. There is, however, a limited exception for property located within the state.
Can one spouse prevent a divorce?
Most states offer a no-fault divorce that provides for the dissolution of a marriage without regard to marital fault, generally upon the showing that the marriage is irretrievably broken and that the parties have been living separately for a specific period of time. The fact that one spouse thinks the marriage should be saved and does not agree that it has broken down is generally insufficient to prevent a divorce judgment if the other spouse believes the marriage cannot be saved and is not interested in continuing the marriage.
Distribution of property titled in only one spouse’s name.
As a general rule, the courts have the authority to order an equitable distribution of all marital property, no matter how title is held. All assets acquired during the marriage are deemed marital property, unless acquired through gift, bequest, devise, or descent. If property is acquired before the marriage, but paid for after the marriage with marital funds, most courts will apportion the property between separate and marital interests in proportion to the contribution of separate and marital funds used to pay for the property.
Enforceability of a premarital agreement.
A valid premarital agreement must be in writing, voluntary, signed by the party to be charged, and based on full and fair disclosure of each party’s financial worth. Entry into the marriage is sufficient consideration for a premarital agreement. Even if the court finds that a premarital agreement is enforceable as a whole, the court must still consider each individual provision to ensure that it is fair and does not violate public policy.
Property provisions in premarital agreements.
For a court to enforce a premarital property agreement, the agreement must contain fair and reasonable economic provisions for the claiming spouse. In determining whether the agreement is unconscionable, the court will look at whether the agreement was unconscionable at the time it was formed.
Waiver of spousal support in premarital agreement.
Spousal support is intended to ensure an adequate income stream for persons whose economic dependency has resulted at least in part from the marital relationship. It is against public policy to enforce a waiver of spousal support if to do so would leave a spouse dependent on the state.
Child custody provision in premarital agreement.
A court is not bound by child custody provisions in premarital agreements. Instead, the court will determine issues of child custody and child support based on the best interests of the child. When one parent seeks joint custody the court must consider whether joint custody is appropriate based on factors such as: the fitness of both parents; whether the parents agree on joint custody; the parents’ ability to communicate and cooperate concerning the well-being of the child; the child’s preference; the level of involvement of each parent; the geographic proximity of the parents’ homes; and the effect of joint custody award would have on the children’s psychological development. In addition, courts often award custody to the parent who has been the primary caregiver.
Child support in premarital agreement.
Parents have an equal duty to support their children that they cannot contract away.
Establishing a common law marriage.
The basic requirements to establish a common law marriage are capacity to enter into a marriage, an exchange of consent, cohabitation, and holding out publicly of living together as spouses.
Establishing a cohabitation contract.
Contracts between unmarried cohabitants will be enforced if sexual relations are not the only consideration for the contract.
Unwed father’s parental rights.
Generally, a child may not be adopted without consent from both of his biological parents. However, whether consent must be obtained from an unwed father depends on how involved the father was with the child. Unwed parents have the right to raise their own children. If an unwed father is part of the family unit that includes the child, the relationship between the father and child is protected by due process, provided that the unwed father has demonstrated a full commitment to the responsibilities of parenthood by participating in the rearing of his child. The court will consider whether the father shouldered any significant responsibility with respect to the daily supervision, education, protection, or care of the child. An unwed father who has never attempted to establish a legal or personal relationship with the child has no rights with respect to an adoption. An involved unwed father, on the other hand, has a right to block an adoption unless the unwed father is found to be an unfit parent. When weighing whether an unmarried father may veto an adoption the court will consider not only the factors listed above, but also whether the parents lived with each other and care for the child and whether the unwed father admitted paternity or paid child support.
Full faith and credit to ex parte divorce from sister court.
The general rule is that courts will give full faith and credit to divorce decrees of the courts of sister states if the sister state had proper jurisdiction and the decree is valid in the sister state. The jurisdictional requirement will be satisfied if one of the spouses is domiciled in the state granting the divorce. There is a rebuttable presumption that the state granting the divorce is the bona fide domicile of the plaintiff.
Right of a court exercising jurisdiction over an ex parte divorce to order division of marital property.
Under the doctrine of divisible divorce, an ex parte divorce generally can serve to grant only the divorce. An ex parte divorce decree has no effect on dispute over marital property, unless the property is located within the rendering state. Otherwise, such disputes can only be resolved by a court having personal jurisdiction over both of the parties.
Right of a court exercising jurisdiction over an ex parte divorce to resolve custody matters.
Under the uniform child custody jurisdiction and enforcement act (UCCJEA), a state may exercise jurisdiction if it is the home state of the child at the time the proceedings began or within six months of the proceedings and a parent still resides in the jurisdiction. A child’s home state is the state in which the child lived with a parent for at least six consecutive months prior to commencement of the proceedings.
Full faith and credit to custody order of court in an ex parte divorce when the facts suggest the parent has wrongfully taken the child from another state.
The federal parental kidnapping prevent act (PKPA) requires state to enforce a custody order of another state, but only if the state entering the custody decree had home state jurisdiction based on standards substantially similar to the UCCJEA.
Factors to be considered in awarding custody.
The standard to be applied in awarding custody is the best interests of the child. Generally, the factors to be considered in making this determination include: the wishes of the parents; the wishes of the child; the interrelationship of the child with his parents, siblings, and others; the child’s adjustment to home, school, and community; and the mental and physical health of all individuals involved.
