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Family Law Flashcards

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1
Q

Marriage involves

A

parties who are capable of consent, the exchange of consideration in the form of mutual promises, and the imposition of rights and obligations.

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2
Q

How is a marriage contract modified or terminated?

A

state intervention

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3
Q

What are the two types of marriage?

A
  1. ceremonial (statutory)
  2. common law
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4
Q

What does a ceremonial marriage require?

A

A license.

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5
Q

Requirements to get a license for a ceremonial marriage?

A
  1. Age – 18 (if under 18 you need parental consent)
  2. Waiting period (may be waived)
  3. Medical testing
  4. Expiration date
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6
Q

When is a marriage license not issued?

A
  1. one of the parties is married to someone else
  2. parties are too closely related
  3. parties entered into marriage as a sham OR
  4. parties incapable of understanding
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7
Q

solemnization

A

most states require that any ceremony solemnizing the marriage be performed in front of at least 2 witnesses

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8
Q

common law marriage

A

parties:
1. agree they are married
2. cohabit as married AND
3. hold themselves out as married

No ceremony and no license

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9
Q

recognition of common law marriages

A

Most states have abolished, but will recognize common law marriages entered into in jurisdictions that still recognize them.

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10
Q

common law marriage: legal and mental capacity

A

must be old enough and not too closely related, they must understand the nature of the act.

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11
Q

common law marriage: intent

A

parties must show they intended to enter into the marriage, must be evidenced by words in the PRESENT TENSE

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12
Q

heartbalm actions

A

If marriage failed to take place, the jilted party was permitted to file a civil suit based on damaged reputation. These actions have been abolished.

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13
Q

How can a valid marriage be terminated?

A
  1. Annulment
  2. Divorce
  3. Death
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14
Q

Annulment

A

Voids a marriage and declares it as never been valid.

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15
Q

Divorce

A

Terminates a valid marriage

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16
Q

Annulment action involves two types of relationships

A
  1. Void
  2. Voidable
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17
Q
  1. Void Marriage
A

Treated as if it never happened.

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18
Q

What are reasons void marriages?

A
  1. Prior Existing marriage
  2. Incest
  3. Mental incapacity
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19
Q

Void marriage: Prior existing marriage

A

Latter marriage is void, but if parties had a good faith belief the marriage was valid, some states allow the marriage to become valid once the impediment is removed.

  1. Enoch Arden - defense to bigamy if good faith believe previous spouse was dead
  2. presumption latest marriage is valid
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20
Q

void marriage: incest

A

incest is marriage or sexual relations between people related within the prohibited degree of kinship.

All states prohibit blood relationships and half prohibit first cousins. Most prohibit half blood and adoption.

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21
Q

void marriage: mental incapacity

A

a person must be able to understand the nature of the marriage contract, and its duties and responsibilities.

lucid = valid

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22
Q
  1. Voidable marriage
A

Marriage is valid until one spouse seeks to legally void the marriage.

Must be a judicial decree to dissolve the marriage.

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23
Q

What are the grounds for a voidable marriage?

A
  1. Age
  2. Impotence (naturally and incurably impotent and other party didn’t know)
  3. Intoxication (under influence of drugs/alcohol, CANNOT live together or ratify after the ceremony)
  4. Fraud, Misrepresentation, Duress, Coercion, or Force (based on present facts)
  5. Lack of intent (joke)
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24
Q

Equitable distribution of property in an annulment. Party seeking annulment has right to:

A

-request equitable distribution of property
-sometimes spousal support
-child support/custody
-attorneys fees/related costs

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25
Q

children of an annulled marriage are

A

marital children

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26
Q

divorce

A

legal dissolution of a marriage

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27
Q

divorce: residency

A

most states have residency requirement that requires at least ONE of the parties to be a resident of the state

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28
Q

divorce: grounds for divorce

A
  1. Fault
  2. No-fault
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29
Q

no fault divorce

A

Every jurisdiction recognizes
Requires a party to allege the marriage is “irretrievably broken and no prospect of reconciliation”

-some states require parties to be separated for period of time
-only defense is to deny the ground for divorce, but this won’t prevent the divorce

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30
Q

fault divorce: what are the grounds?

A
  1. Adultery
  2. Cruelty
  3. Desertion
  4. Habitual Drunkenness
  5. Bigamy
  6. Imprisonment
  7. Indignity
  8. Institutionalization
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31
Q

fault divorce: adultery

A

voluntary sexual intercourse with someone other than your spouse.

Must be shown that the party had
1) the opportunity AND
2) the inclination to commit adultery

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32
Q

fault divorce: cruelty

A

plaintiff must show a course of conduct that is 1) harmful to the plaintiff’s physical/mental health AND 2) that makes continued cohabitation unsafe or improper

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33
Q

fault divorce: desertion

A

one spouse, without cause or consent of other spouse, voluntarily leaves the marital home with the intent to remain apart on a permanent basis

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34
Q

fault divorce: habitual drunkenness

A

ground for divorce if the frequent habit of getting drunk is what causes impairment in the marital relationship.

-NO requirement to be an alcoholic
-More than occasional level of drunkenness is required

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35
Q

fault divorce: bigamy

A

-also grounds for annulment
-one party in marriage knowingly entered into a prior legal and existing marriage before entering into the current marriage

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36
Q

fault divorce: imprisonment

A

imprisonment of one spouse for a specified period of time

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37
Q

fault divorce: indignity

A

one spouse exhibits negative behavior toward the other that renders the spouse’s condition intolerable and life burdensome.

Includes: vulgarity, habitual laziness, neglect, abusive language, humiliating treatment, sexually deviant behavior, serious temper tantrums or violence, and malignant ridicule.

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38
Q

fault divorce: institutionalization

A

grounds for divorce if spouse’s insanity or serious mental condition results in her being confined to mental institution for specified period of time and no reasonable prospect of discharge/rehabilitation

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39
Q

what do defenses apply to in divorce?

A

only apply to FAULT based divorce and must be affirmatively pleaded

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40
Q

what are the defenses to a fault based divorce?

A
  1. Recrimination / unclean hands
  2. Connivance
  3. Condonation
  4. Collusion
  5. Provocation
  6. Insanity
  7. Consent
  8. Justification
  9. Religion
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41
Q

defense to fault based divorce: recrimination/unclean hands

A

recrimination: both spouses have committed a martial wrongdoing of like conduct

unclean hands: plaintiff’s own actions/behavior is questionable

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42
Q

defense to fault based divorce: connivance

A

consent to or participation in the marital wrong, usually adultery (allowing or benefitting from spouse’s prostitution)

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43
Q

defense to fault based divorce: condonation

A

forgiveness of a spouse. There must be knowledge of the misconduct, forgiveness, and resume marital relations.

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44
Q

defense to fault based divorce: collusion

A

both spouses conspired to fabricate grounds for divorce

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45
Q

defense to fault based divorce: provocation

A

misconduct is provoked by the moving party

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46
Q

defense to fault based divorce: insanity

A

valid defense when one spouse does not know the different between right and wrong

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47
Q

defense to fault based divorce: consent

A

defense to desertion or adultery

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48
Q

defense to fault based divorce: justification

A

may be established if one party left the home because of the other’s misconduct. This is a defense to desertion.

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49
Q

defense to fault based divorce: religion

A

a litigant that challenges a divorce on religious grounds will FAIL in all jurisdictions

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50
Q

Limited divorce

A

recognized in most jurisdictions but rarely used. Parties do not sever the marital tie and are still considered legally married, but they are permitted to live apart. Often used for religious or medical reasons.

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51
Q

Finalizing divorce

A

Many states don’t finalize a divorce until a specified period of time has elapsed.

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52
Q

Mediation

A

neutral, court-approved mediator assists both parties with spousal, child support, custody, and visitation issues.

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53
Q

What are the two methods of division of property?

A
  1. Community property
  2. Equitable distribution
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54
Q

Community property

A

marriage is a partnership, requires equal distribution of marital property

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55
Q

equitable distribution

A

fair distribution of all marital property, considering all circumstances between the parties.

MOST STATES follow this.

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56
Q

Marital property

A

all property acquired during the marriage is marital property and subject to equitable distribution

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57
Q

Exceptions to marital property

A

Property treated as separate property:
1. Property acquired before the marriage
2. Property excluded by the parties’ valid agreement (prenup or postnup)
3. Property acquired by gift or inheritance
4. Property sold, granted, or conveyed in good faith before date of final separation
5. Property mortgaged or encumbered in good faith before date of final separation
6. Any settlement or award received for cause of action that accrued before the marriage.

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58
Q

Factors in distribution of marital property

A
  1. length of marriage
  2. prior marriage
  3. age, health, earning potential, earnings
  4. contribution to education
  5. needs for future acquisitions
  6. income, medical, retirement of both spouses
  7. homemaking, child-rearing services
  8. value of separate property
  9. reduction in valuation of marital property by one spouse
  10. standard of living
  11. economic circumstances of each spouse at time of divorce
  12. custodianship of any minor children
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59
Q

marital property: professional license/degree

A

Not a distributable property interest, but courts may view as increased earning capacity

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60
Q

marital property: retirement/pension

A

Marital property subject to equitable distribution

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61
Q

marital property: personal injury claim proceeds

A

Two approaches:
1. marital property: action accrues between marriage and separation = marital property
2. separate and marital allocation: view nature of award. compensatory damages for pain and suffering is separate. Lost earning capacity/medical expenses are split.

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62
Q

marital property: sick/vacation days

A

split between jurisdictions

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63
Q

marital property: future interest

A

not distributable

64
Q

marital property: social security

A

not subject to equitable distribution

65
Q

marital property: post separation property

A

property acquired until a divorce is granted can be marital property

66
Q

marital property: stock options

A

stock options are marital property even if they won’t be used until after the marriage

67
Q

modification of property division

A

not modifiable under either approach because it is based on the parties’ assets at the time of divorce

68
Q

spousal maintenance

A

obligation of one party to provide the other with support in the form of income

69
Q

factors in determining spousal maintenance:

A
  1. financial resources
  2. standard of living
  3. time (to find employment or get training)
  4. length of marriage
  5. contribution to marriage
  6. age and health
  7. marital misconduct (in some jurisdictions)
70
Q

types of spousal maintenance

A
  1. lump sum (fixed amount, can’t modify unless fraud)
  2. permanent (for remainder of dependent spouse’s life)
  3. limited duration (limited amount of time)
  4. rehabilitative (limited time, until spouse receives education or employment)
  5. reimbursement (compensate for financial sacrifices made during marriage– one spouse didn’t work so other could go to school)
  6. Palimony (support from unmarried cohabitant to another, rare)
71
Q

modification of spousal maintenance

A

Spousal maintenance may be modified, even if permanent.

Party seeking modification has burden of establishing SIGNIFICANT and CONTINUING change in circumstances in the needs of the 1) dependent spouse OR
2) financial abilities of obligor

72
Q

modification of spousal maintenance: death

A

continues until death of a spouse

73
Q

modification of spousal maintenance: remarriage

A

if the receiving spouse remarries, support may be terminated

74
Q

modification of spousal maintenance: cohabitation

A

if receiving spouse cohabitates with someone who is not family, support may be modified if the need for support decreases because of the cohabitation

75
Q

modification of spousal maintenance: retirement

A

jurisdictions differ on whether an obligor can seek reduction in spousal support upon retirement

76
Q

jurisdiction

A

a court hearing family related disputes must generally have both subject matter jurisdiction and personal jurisdiction.

most states have residency requirement ranging from 6 weeks to 2 years.

77
Q

divisible divorce doctrine:

A

court may have sufficient jurisdiction to grant divorce but lack jurisdiction with respect to other divorce related matters such as property division alimony, and child support.

78
Q

collateral attack on jurisdiction

A

the only way for the nonresident defendant to attack the issuance of an ex parte divorce is to demonstrate the plaintiff either was not domiciled in the divorcing state at the time the judgement was granted OR left the state immediately after divorce was entered

79
Q

indigent parties

A

court cannot require an indigent party to pay court fees

80
Q

child support

A

payment by one parent to the other for support of a common child. Both parents are legally required to support minor children.

81
Q

Can parents bargain away child support?

A

No.

82
Q

Nonmarital children

A

historically not entitled to paternal child support nor to inheritance from the father’s estate.

NOW, nonmarital children may inherit if paternity is established.

83
Q

how can paternity be established?

A
  1. judicial decree
  2. man holding himself out to be the father
  3. consenting to name on birth certificate
84
Q

paternity

A

Once the identity of the father is established, the child’s father has rights to custody and visitation, but he also must support the child. Paternity actions are confidential.

85
Q

paternity– blood test

A

court may order blood tests to determine paternity, court will have to pay if indigent client

86
Q

paternity– other evidence

A
  1. prior statements regarding paternity by deceased family
  2. medical testimony on probability of conception
  3. defendant’s acknowledgement of paternity
  4. resemblance of child to father
87
Q

time limit on paternity

A

is invalid unless gov has a legit interest (prevent fraud)

88
Q

marital presumption: paternity

A

presumption the child born to a married woman is the child of the woman and her husband

89
Q

esoppel: paternity

A

a husband who is not the biological father may be estopped from denying his obligation to pay child support. He may be required to pay when:
1. Husband said he would provide for the child
2. Wife relied on representation AND
3. Wife suffered economic detriment based on the reliance (loss of opportunity to get child support from biological father)

90
Q

Personal jurisdiction over out of state parent

A

To establish/enforce child support or determine parentage, the court obtains PJ over an out of state parent under the Uniform Interstate Family Support Act (UIFSA)

91
Q

Ways a court can obtain PJ:

A
  1. personal service on defendant parent
  2. consent of defendant parent (enters appearance)
  3. past residency with child in the state
  4. past residency in the state and support for the child
  5. residency of child in the state as a result of acts of the parent defendant
  6. parent defendant had sex in the state (child doesn’t have to be conceived by that instance)
  7. parent defendant asserted parentage in the putative father registry maintained by the state OR
  8. any other basis consistent with state/fed constitutions
92
Q

models for calculating child support

A
  1. income shares model
  2. percentage of income model
  3. melson formula
  4. deviations from child support guidelines
93
Q

income shares model

A

most jurisdictions follow. child should receive same proportion of parental income as if the parties continued to live together.

94
Q

percentage of income model

A

minimum amount of child support by using percentage of supporting (noncustodial) parent’s net income, determined by number of children supported.

95
Q

deviations from guidelines

A

rebuttable presumption the amount calculated pursuant to child support guidelines is correct, but court can deviate as long as it puts forth specific findings supporting and explaining the deviation.

96
Q

Other considerations for determining child support:

A
  1. ages of children
  2. unusual needs/obligations
  3. support obligations of the parties
  4. assets of the parties
  5. medical expenses outside insurance coverage
  6. standard of living
  7. duration of marriage
  8. best interests of the child
97
Q

modification of child support

A

most jurisdictions allow child support to be modified.

There must be substantial change in circumstances relating to the child’s needs OR to the paren’s financial situation, and the change needs to be continuing.

98
Q

voluntary reduction in income

A

child support may not be reduced because of a voluntary reduction. court will use the earning capacity

99
Q

termination of child support

A

a parent’s obligation to pay usually ends when the child reaches the age of majority. some jurisdictions can order support for when the child is in college.

Support may be terminated if the child is emancipated before 18.

100
Q

jurisdiction for modification of child support

A

a state court may not modify an order of child support by a court of continuing jurisdiction in another state unless the parties no longer reside in that state or agree to allow a different state to exercise jurisdiction.

101
Q

enforcement of child support awards

A
  1. civil contempt (requires compliance with a court order, can be sent to jail and held until amount is fully paid)
  2. criminal contempt (jail sentence imposed on obligor who willingly fails to pay amount owed)
  3. other sanctions (judgements, suspending driver’s license, intercepting tax refunds)
102
Q

enforcement of child support awards in other jurisdictions

A

every jurisdiction has the Uniform Interstate Family Support Act (UIFSA). Only the issuing state may modify the original support order, the other states just have to enforce the order.

103
Q

child custody

A

having legal custody, physical custody, or both. Can be shared under a joint custody arrangement.

104
Q

legal custody

A

right of a parent to make major decisions: health, religion, education

105
Q

physical custody

A

right to have the child reside with the parent and provide daily care and control.

106
Q

joint custody

A

parents must be willing and able to cooperate with well-being of the child. this is the preferred custody. does not require 50-50 timesharing.

107
Q

uniform child custody jurisdiction and enforcement act (UCCJEA)

A

purpose is to prevent jurisdictional disputes with courts in other states regarding child custody and visitation. Requires the court possess SMJ.

108
Q

UCCJEA: home state jurisdiction (initial)

A

court has SMJ to preside over custody hearings and enter/modify custody or visitation orders if the state:
1. is the child’s home state where child has lived with parent for at least 6 months OR
2. was the child’s home state in the past 6 months, child doesn’t live there anymore, but one parent still lives there

109
Q

UCCJEA: significant connection jurisdiction

A

a court can enter or modify an order if:
1. no other state accepts home state jurisdiciton
2. the child and at least one parent has significant connection with the state AND
3. there is substantial evidence in the state regarding the child’s care, protection, etc.

110
Q

UCCJEA: default jurisdiction

A

if no state has jurisdiction through home state or sig. connection, any court in a state that has appropriate connections to the child has jurisdiction.

111
Q

UCCJEA: exclusive-continuing jurisdiction

A

courts that make the initial ruling in a custody case have exclusive jurisdiction until the court determines:
1. the parties no longer reside in that state OR
2. child no longer has any significant connections or evidence in that statew

112
Q

jurisdictions under UCCJEA

A
  1. home state (initial)
  2. significant connection
  3. default
  4. esclusive continuing
  5. temporary emergency jurisdiction
113
Q

UCCJEA: when can courts decline jurisdiction?

A

If a court has initial or exclusive jurisdiction, can decline if it finds the forum to be inconvenient considering:
1. whether domestic violence has occurred and which state could best protect the parent and child
2. length of time child has lived outside of jurisdiction
3. distance between competing jurisdictions
4. partes finances
5. agreement between the parties about jurisdiction
6. nature and location of evidence needed
7. ability of each state’s court to decide the issue quickly
8. familiarity of each court with the facts and issues of the case

114
Q

temporary emergency jurisdiction

A

a jurisdiction that does not otherwise have jurisdiction can get it temporarily and enter an order if the child is in danger and requires immediate protection

115
Q

enforcement of another state’s orders (child custody)

A
  1. custody order from another state can be registered with/without request for enforcement
  2. after petition is filed, respondent must appear in person at the hearing held on the first judicial day after service of order.

Petitioner will be awarded immediate physical possession of the child UNLESS:
1. child custody/visitation order was not registered AND
a. issuing court did not have jurisdiction,
b. the order had been stayed or vacated OR
c. respondent was entitled to notice and did not receive the notice.
2. order was registered and confirmed, but order was stayed, vacated, or modified.

116
Q

warrant for child custody

A

court may issue warrant upon petitioner’s request for the petitioner to take physical possession if child likely to suffer serious physical injury OR to be removed from the state

117
Q

law enforcement

A

may take any lawful action to enforce custody order or obtain return of child if officer believes the person holding the child has violated a criminal statue or if requested to do so by the court

118
Q

uniform deployed parents custody and visitation act (UDPCVA)

A

applies to parents who are service members. Cannot use deployment as a negative factor when determining best interests of the child.

119
Q

parental kidnapping prevention act (PKPA)

A

applies to parental kidnapping and civil interstate custody disputes. discourages forum shopping between states

120
Q

best interests of the child standard

A

standard for custody is the best interests of the child. a parent is in the best position to care for the child unless determined to be unfit.

121
Q

best interests of child - race/religion

A

cannot use race as a factor. most courts consider to refuse religion unless it would be detrimental to the child.

122
Q

best interests of child - parent’s sexual conduct

A

many jurisdictions cannot consider parents’ prior sexual conduct, including gay/lesbian relationships

123
Q

best interests of child - third party rights

A

legal parents are presumptively entitled to custody of their children in cases against 3rd parties (grandparents, stepparents) unless it can be established the legal parent is unfit or if awarding custody would be detrimental to the child.

124
Q

best interests of the child - child’s preference

A

most courts will consider the wishes of the child if the child is sufficiently mature

125
Q

best interests of the child - guardian Ad Litem

A

legal counsel may be appointed to the child. the attorney must advocate for the child’s preferences and act on her behalf.

126
Q

best interests of the child - siblings

A

courts avoid separating siblings

127
Q

best interests of the child - domestic violence

A

court must consider presence of domestic violence, some courts have presumption in favor of nonabusive spouse.

128
Q

visitation and parenting time: noncustodial parent

A

noncustodial parent is allowed reasonable visitation time because parents have a constitutional right to have contract with their children.

129
Q

how can a court restrict visitation and parenting time?

A

supervised parenting time, denial of overnight visits

130
Q

visitation and parenting time: third parties

A

some third parties may seek visitation. typically limited to third parties who have acted in loco parentis (as a parent) with the child prior to divorce.

131
Q

a fit parent

A

has a fundamental right to the care, custody, and control of his children.

132
Q

grandparent visitation

A

request of grandparents for visitation will focus on the decision of the fit parents, statutory factors, and best interests of the child.

133
Q

unwed biological father - visitation

A

an unwed biological father has substantive due process rights under the constitution to have contact with his child. This right exists only when:
the father demonstrates commitment to responsibilities of parenthood

134
Q

visitation: sexual relationship or cohabitation

A

courts unlikely to restrict visitation because of parent’s cohabitation with another UNLESS it has adverse impact on the children

135
Q

enforcement of child custody and visitation orders

A
  1. sanctions (compensatory visitation, attorneys fees, fines, jail time)
  2. habeas corpus proceedings (for person who claims to have custody of child, but does not, to be heard by court)
  3. enforcement of foreign decrees (custody and visitation orders between states are enforceable)
136
Q

modification of custody

A

once a custody order has been entered, a state retains SMJ to modify the order while the child remains a minor (unless there is relocation)

137
Q

modification of custody - relocation

A

Some jurisdictions consider relevant facts, but most weight is the best interests of the child. Some apply a presumptive right to relocate the child. There just needs to be a legit purpose essentially for the relocation.

138
Q

modification - cohabitation

A

some states permit a hearing to consider a change in custody when the custodial parent is living with a nonmarital partner, but typically not granted unless there is an adverse effect on the child.

139
Q

termination of child custody order

A

terminates upon custodial parent’s death or upon child reaching majority

140
Q

parental consent

A

parental consent needed for medical procedures. a doctor who performs surgery without such is liable in tort, unless done in an emergency.

141
Q

parental consent: religious beliefs

A

courts can intervene to protect a child when necessary medical care if needed to prevent serious harm to the child’s health

142
Q

parental consent: upbringing

A

a parent has a right to raise her child as she sees fit. Parental decisions may be limited if they jeopardize the health or safety of the child, or have a potential for significant social burdens.

143
Q

types of marital agreements

A
  1. premarital
  2. separation
  3. property settlement
144
Q

premarital agreement

A

contract made before marriage containing terms relating to division of property or spousal support in case of divorce or death.

Must expressly state its applicability to divorce proceedings.

clauses relating to child custody/support are NOT enforceable

145
Q

separation agreement

A

made between spouses planning for divorce. Can define property division, spousal support, child support, custody, and visitation. Courts can modify child support and custody if not in best interests of the child.

146
Q

property settlement agreement

A

purpose is to settle economic issues of the marital estate. entered into by the parties before a divorce decree is issue.

147
Q

validity of premarital agreement

A

enforceable if:
1. full disclosure
2. agreement is fair and reasonable
3. made voluntarily
4. must be in writing and signed

148
Q

impoverished spouse

A

court may set aside valid premarital agreement if it will leave one spouse woefully impoverished

149
Q

agreements between unmarried cohabitants

A

-contracts between unmarried persons are invalid if the only consideration is sex
-if no express contract for property division, courts generally provide for equitable distribution of property

150
Q

adoption

A

legal action in which the previous parent child relationship is terminated and a new parent child relationship is established

151
Q

termination of natural parents rights

A

for an adoption to be valid, the parental rights of the biological parents must be terminated

152
Q

how to terminate rights of biological parents

A
  1. voluntary – may give up rights and consent to adoption
    a. also consent by failure to register on putative father registry
  2. involuntary– only a court can involuntarily terminate. typically due to abuse/neglect, after court has tried to fix
153
Q

legal effect of adoption

A

adoptive parents have all the rights/responsibilities that the biological parents would have had and the adopted child has all of the rights a biological child would have had

154
Q

Adoption Alternatives under the Uniform Parentage Act (UPA) (rules for establishing parentage)

A
  1. assisted reproduction (maternity determined by who gives birth to the child, husband of the mother is the father)
  2. surrogacy agreement
  3. frozen embryo
155
Q

domestic violence

A

jurisdictions have statutes granting civil relief to victims of domestic violence

156
Q

domestic violence requires

A

perpetrator of the violence be in a relationship with the victim or be a household or family member

157
Q

relief for domestic violence

A

injunctive order prohibiting contract

Family Law (2 decks)

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