FAMILY LAW Flashcards
Common Law Marriage
Common law marriage requires that parties: (1) cohabitated for statutory period; (2) held themselves out as married; and (3) intended to be married.
Bigamy
Bigamous marriage is void from beginning. But two marriage saving doctrines: (1) presumption that most recent marriage valid; and (2) removal of impediment will render subsequent marriage valid.
End of Marriage
Traditionally, divorce was only permitted if one party was determined to be at fault. Today, every state had adopted a form of no-fault divorce.
Premarital Agreements: Enforceability
Most states will enforce are primatial agreement as valid K if: (1) in writing signed by both parties; (2) executed after full disclosure of property and financial obligations of both parties; and (3) voluntary.
Courts consider following factors to determine whether voluntary: (1) presence of independent legal counsel; (2) length of time between agreement and wedding; (3) party’s ability to understand agreement; and (4) other pressing reasons to proceed with marriage.
Under UPAA, premarital agreement is not enforceable if: (1) agreement was not voluntary; or (2) unconscionable when executed and before execution spouse didn’t waive fair and reasonable disclosure and did not have (or reasonably could have had) knowledge of other’s assets and obligations.
Premarital Agreements: Child Custody & Support
Parents have an absolute obligation to support their children. A premarital contract CANNOT adversely affect a child’s right to support - such agreements are not binding on court and are unenforceable.
Marital Action Jurisdiction
State courts have subject matter jurisdiction over marital actions.
Under Full Faith and Credit Clause, a divorce validly granted in one state is entitled to full faith and credit in other states. Divorce is valid and must be recognized by other states if petitioning party: (1) was domiciled in state that granted divorce; and (2) provided adequate notice of proceeding to other spouse.
Division of Property: Martial vs. Separate Property
At divorce, some states follow a community property approach; however, most states follow the equitable division of marital property approach where martial assets are divided by equitable distribution among parties.
In divorce, court must divide property as separate property or marital property jointly owned by both spouses. Generally, court cannot divide separate property at divorce.
Separate property is all property: (1) acquired by either spouse before marriage (2) by a spouse during marriage by gift, bequest, devise, or descent; (3) by either spouse with the proceeds of spouse’s separate property; and (4) all passive appreciation of separate property (appreciation in value due to passage of time rather than efforts of spouse).
Marital property is all property acquired during marriage (regardless of who holds title) that is NOT separate property. Active appreciation (appreciation in value due to efforts of either spouse) of separate property is considered marital property.
Division of Property: Distribution
Once court categorizes property, court will then equitable distribute marital property between spouses based on following factors: (1) income, property, and liabilities of each party; (2) duration of marriage; (3) obligations for support from prior marriage; (4) lifestyle each spouse accustomed to; and (5) contributions made by each spouse towards martial property.
Division of Property: Professional License or Degree
In most states, professional degrees and licenses are considered separate property and not subject to distribution at divorce. However, reimbursement may be available for any support provided by spouse that contributed to other spouse’s degree or license.
Modification of Property Division Award
Property division award CANNOT be modified unless exceptional circumstances exist (i.e., fraud or duress).
Spousal Support
At divorce, spousal support awarded if spouse’s separate property is insufficient for their maintenance. Courts are afforded significant discretion in determining and examine a spouse’s needs under the totality of circumstances.
Under the UDMA, spouse is eligible for spousal support if spouse seeking support (1) lacks sufficient property to provide for reasonable needs; and (2) is unable to support themselves through employment or are custodian of child that would make it inappropriate for them to work.
The court considers the following factors to determine amount to award:
(1) financial resources of party seeking maintenance;
(2) time necessary for spouse to obtain work;
(3) duration of marriage;
(4) standard of living established during marriage;
(5) age and physical/emotional condition of spouse;
(6) ability of spouse paying support to meet own needs.
Spousal support may be modified in court finds a substantial change in circumstance making prior award unreasonable. Usually terminates if a spouse dies or gets remarried.
Child Support
Parents have an absolute obligation to support their children. Federal law requires states provide child support guidelines that (1) take into consideration all earnings and income of non-custodial parent; and (2) based on specific descriptive and numeric criteria.
Some states require support for continuing education. In such states, child may lose rights to payments if child DOES NOT follow parent’s reasonable instructions.
Modification of Child Support
In most states, child support order can only be modified when there is a substantial and continuing change in circumstances of either party making prior order unreasonable. Under the UDMA, modification of child support allowed only upon showing changed circumstances so substantial that makes terms unconscionable.
Some states will NOT permit modification if change was anticipated or voluntary, while other courts permit modification if obligor parent acted in good faith.
State that originally issued child support order has continuing exclusive jurisdiction to modify so long as state remains residence of obligee, obligor, or child.
Federal law bans courts from retroactively modifying child support orders and requires states to give full faith and credit to child support awards from other states.
Child Custody: Best Interests of Child Strandard
Courts determine child custody based on best interests of child. Courts consider following factors to determine:
(1) wishes of parents
(2) wishes of child
(3) age, financial well-being, and mental/physical health of parents;
(4) effect custody will have on child’s relationships with extended family;
(5) history of domestic violence by either party; and
(7) stability of child’s home and school environments.
When determining child custody between parent and third party, it’s presumed that custody with parent is in best interest of child.
Child Custody Modfications
Child custody order can only be modified if there is a substantial change in circumstances and modification is in child’s best interest.
State that issued child custody order has continuing exclusive jurisdiction to modify order so long as state remains residence of any party.
