Family Law Flashcards
When will a marriage license NOT be issued
If the party is already married
If they are too closely related
If the marriage is a sham
if they are incapable of understanding the act of marriage due to drugs/alcohol
4 requirements of common law marriage
- Capacity to marry
- cohabitation
- conduct- act as married to public
- consent
What is the majority view for distribution of marriage property
equitable distribution of all MP NOT 50/50, Take into consideration circumstances of all parties
How is marital property and separate property divided
Marital property is divided equally. Separate property remains property of owning spouse
MP continues to accrue until divorce is final
Examples of separate property
Anything acquired by gift, descent or devise during marriage
Anything acquired before marriage
How can Separate Property be transformed into MP
if marital funds or efforts are used to increase the equity
what is marital property
wages!
And anything NOT acquired by gift, descent, or devise during marraige
If a spouse buys a house BEFORE marriage and during the marriage the spouse uses their wages to pay the mortgage, is the house MP or SP
At divorce the other spouse is entitled to MP share of the value of the house
What are the types of alimony/spousal support
1)permanent alimony- after LONG marriage
2) limited duration alimony- for short marraige
3) rehabilitative support- until spouse gets job/educ
4) reimbursement alimony - to compensate for $ sacrifices during marriage
What is ex parte divorce
where a state can grant divorce to spouse domiciled in that state even if no PJ over the other spouse.
But w/o PJ, can’t address property distribution or child/spousal support
Basic principles of child support
Both parents are legally required to support minor kids
Parents can’t bargain away child support payments in settlement agreements
Can visitation rights be denied for non payment of support
NO
What obligations accrue once paternity is established
Dad has right to custody and visitation.
Dad also has duty to support the kid
What does the uniform interstate Family support act govern
when a state has PJ over out of state parent to enforce or establish child support
When will a state have Jx over out of state parent
if out of state parent is
1) served in that state or consents to service
2) resided with kid in that state in the past
3) may have conceived child in that state
When is a child support modification allowed
when there is a substantial change in the circumstances in the child’s needs or in the parents’ financial situation.
Can child support be modified retroactively
No
What state can modify a child support order?
ONLY THE ORIGINAL STATE CAN MODIFY THE ORDER
Types of child custody
legal- right to make health, education, religion decisions
physical- right to live w parent, provide daily care
Joint- neither parent has superior rt to make decisions
DEFAULT Jurisdiction under UCCJEA to make decisions about child custody?
default= home state of the child. the home state can enter or modify custody visitation orders if it is the kid’s state for the last 6 month or if kid left in last 6 months but parent still lives there.
Uniform Child Custody Jurisdiction Enforcement Act
if there is no home state jurisdiction for the child, what is used to determine jurisdiction for child custody determination
Significant connection jurisdiction- where at least one parent and kid have significant connection.
What standard is considered for child custody
Best interest of the child
What factors are considered for child custody
Best interest of kid, who was primary caretaker of kid during marriage, child’s preference
Courts do NOT consider race or religion
Do parents have a constitutional right to visitation
Yes
When may a court deny visitation
if it would endanger kid’s physical, mental, emotional health
Can an unwed bio dad get visitation?
Unwed bio dad has substantive due process right to have contact but ONLY when they demonstrate commitment to parenting like participating in child rearing and providing monetary support
what must a custodial parent show for relocation
Legal and reasonable purpose for relocation.
Ct will consider best interest of kid, relationship b/ non relocating parent and kid, age/needs of kid, kid’s preference, quality of life for relocating parent and kid
To show a prenup is unenforceable, what must you show
A premarital agreement is enforceable if there has been full disclosure, the agreement is fair and reasonable, and it is voluntary
party’s insistence on the agreement as a condition to marriage is not considered duress.
what limits are there on parental authority
if med treatment contradicts parent’s religious belief, ct can intervene to protect kid when med care is necessary.
States can require vaccinations and refuse to admit kids who fail to receive them
Grounds for VOIDABLE marriage
1-Age- minor or parent can seek annulment
2- impotence
3- intoxication- UNLESS parties cohabitate after marriage
4- fraud- but need to stop living together when find out about fraud
5- lack of intent- but if consumed-> no annulment
Can a property division award be modified
No
3 ways marriage can be terminated
- divorce
- annulment
- death
Grounds for fault based divorce
Adultery
Abuse
Abandonment
Habitual drunkenness
Bigamy
Imprisonment
Institutionalization for mental health with no prospect of discharge or rehab
What grounds for fault based divorce is consent a defense
Adultery and abandonment
If someone claims a marriage is voidable based on a fault based claim what can you argue
Unclean hands- i.e both parties were adulterers
Laches, estoppel
does the fault ground for the divorce change a marital property award
No
requirements for a marriage license
meet the age requirements
fulfill the waiting period
complete premarital testing
marry before expiration date
grounds for a VOID marraige
bigamy
incest
mental incapacity
Factors a ct may consider when determining spousal maintenance
-financial resources
- std of living
-time to find job/training
-length of marriage
-contribution to marraige
age/health of parties
Marital misconduct
Factors to determine equitable distribution of marital property
- length of marriage
# prior marriages
economic circumstances
age, health, earning potential, needs
contribution to education/career of other
income
medical needs
custody of kids
when is spousal support modifiable
When deemed permanent AND show significant and continuing change in circumstance in needs of dept spouse or financial ability of other spouse
effect of cohabitation on spousal support
may be modified- b/c decreased need
if a husband is not the bio dad, may he be required to pay support for his wife’s child?
Under doctrine of equitable estoppel- if there is
1) representation by the dad that he would provide for the kid
2) mom relied on representation
3) mom suffered economic detriment b/c of reliance
what can be used to determine paternity
blood test, prior statements by deceased family members, medical testimony, d’s acknowledgment, and physical resemblance in some states
what is amt of child support typically based on
Income, retirement benefits, ss income, capital gains
requirements for prenup or marital agreement to be enforceable
1) full disclosure of assets
2) fair and reasonable terms
3) voluntary
4) in writing
5) signed by party to be charged
what is most imp requirement for marital contract
FULL DISCLOSURE
what can NOT be in prenup
Anything related to child support or child custody
what determines choice of law for prenup
substantial relationship test- whatever state has substantial relationship to agreement and subsequent marriage
are retirement benefits separate or marital property
Marital except for portion acquired before marriage
are personal injury benefits separate or marital property?
2 approaches
1) if injury is during marriage, PI benefits are MP
2) divides PI benefits:
lost wages/med expenses= MP
pain and suffering= SP
loss of consortion= SP to non injured spouse
in cases involving property and divorce where there is a conflict of laws- property in one state, divorce in another, what laws do you apply
Apply the law of the state where the property is located not where the divorce is- to determine what happens with the property
Home state rule
Under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), a court has subject matter jurisdiction to preside over custody hearings and either enter or modify custody or visitation orders if the state is: (i) the child’s home state and has been the home state for a period of six months; or (ii) was the child’s home state in the past six months and the child is absent from the state, but one of the parents (or guardians) continues to live in the state.
if there is no home state…
when there is no home-state jurisdiction, the UCCJEA permits a court to enter or modify an order if (i) the child and at least one parent have a significant connection with the state, and (ii) there is substantial evidence in the state concerning the child’s care, protection, training and personal relationships.
what must you have in every family law essay
“in the best interests of the child”
act that controls child custody
UCCJEA- Uniform child custody Jurisdiction and enforcement act.
Could a spouse get cash proceeds from another’s law or professional license
no, most states do not treat a professional license as a distributable marital asset/ property interest
