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Family Law Flashcards

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1
Q

Defenses to Fault-Based divorce

A

Recrimination, unclean hands, connivance, condonation, collusion, provocation, insanity, consent, justification, religion

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2
Q

Granting a Divorce Residency Requirement and JX

A
  • At least one party must be a reisdent of the state you are petitioning for the divorce.
  • If the plaintiff spouse is domiciled in the forum state or if the state has some other long term connection to one of the parties, then the court has JX to grant a divorce.
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3
Q

Modification of Child Support Standard

A

In order to obtain a modificaiton of future support obligation, the petitioner must show a substantial change in circumstances regarding the child’s needs or the parents’ financial situation that is expected to be continuing.

  • If the change is a voluntary reduction in income, most courts will not modify.
  • NO retroactive child support modification.
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4
Q

Factors Considered for Spousal Support/Alimony

A

1) Financial resources and needs
2) Contributions to the marriage
3) Marital Duration

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5
Q

Professional Degrees

A

Most states do NOT count professional degrees earned during the marriage as marital property.

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6
Q

Marital Property vs Separate Property (BIG)

A

Marital Property: all property acquired during marriage and divisible at divorce.

Separate property (BIG): property acquired
Before marriage;
Inheritance
Gift

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7
Q

Common Law Marriage Requirements

A

The parties agree they are married, cohabit as married, and hold themselves out to the public as married.

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8
Q

Grounds for Fault-Based Divorce

A
  • Adultery
  • Cruelty
  • Desertion
  • Habitual Drunkeness
  • Bigamy
  • Imprisonment
  • Institutionalization for insanity
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9
Q

Child Custody Standard

A

Generally, child custody is determined by looking at the best interests and welfare of the child.

Race and religion NOT a factor

Domestic violence almost always a factor

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10
Q

Under the doctrine of equitable estoppel, a husband may be required to pay support for his wife’s child even when he is not the biological father when which requirements are met?

A
  1. There is a representation by the husband that he would provide for the child;
  2. The wife relied on his representation; and
  3. The wife suffered an economic detriment as a result of the reliance
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11
Q

Ways to end a marriage

A

Annulment, divorce, death

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12
Q

Modification of Child Support Jurisdiction

Different court than issuing one

A

A court may NOT modify a child support order rendered by a court with continuing jurisdiction in another state unless:

  • the parties and child no longer reside in that state OR
  • the parties expressly agree to permit another state to exercise jurisdiction.
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13
Q

Validity of Pre-Marital Agreements

A

Under UPAA

Usually enforceable if:
* Full disclosure of assets and financial status is given to each party
* Agreement is fair and reasonable AND
* Agreement is voluntary (no fraud, duress, or undue influence. Courts will consider factors such as time pressure to sign, prior business experience, and opportunity to consult counsel)
* Must be in writing and signed by the party to be charged

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14
Q

When is Spousal Support/Alimony Awarded?

A

It is awarded if recipient cannot provide for his own needs.

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15
Q

Methods of Calculating Child Support

A
  • Income shares model (most states): child should receive the same proportion of parental income as if the parties continued to live together
  • Percentage of income model: determines the minimum amount of child support by using a percentage of the supporting parent’s net income, determined by the number of children supported.
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16
Q

Sanctions for Avoiding Child Support

A
  • civil contempt
  • criminal contempt
  • interception of tax refund
  • report to credit bureau
  • and more
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17
Q

Types of Alimony/Spousal Support

A

Alimony can be permanent, temporary, or granted in a lump sum.

18
Q

Modification of Child Custody Rule

A

Custody can be modified only if there is a substantial change in circumstances.

Generally, this change must be unforeseen at the time of the initial judgment.

19
Q

No-Fault Divorce

A

Marriage is irretrievably broken and there is no prospect of reconciliation

20
Q

Under the doctrine of equitable estoppel, a husband may be required to pay support for his wife’s child even when he is not the biological father when which requirements are met?

A
  1. There is a representation by the husband that he would provide for the child;
  2. The wife relied on his representation; and
  3. The wife suffered an economic detriment as a result of the reliance
21
Q

Marriage License Requirements

A

Age, Waiting Period, Medical Testing in some states, Expiration Date

22
Q

Divorce

A

A legal dissolution of a marriage

23
Q

When will a marriage license NOT be issued?

A
  1. If party is already married to someone else
  2. Parties are too closely related
  3. The marriage is a sham
  4. Parties are incapable of understanding the act of marriage
  5. One or both parties under the influence of drugs or alcohol
  6. Party lacks consent due to duress or fraud
24
Q

Modification of Alimony/Spousal Support Standard

A

Party seeking the modification needs to show a significant and continuing change in circumstances in the needs of the dependent spouse or financial abilities of obligor that warrant modification.

Must be an unanticipated change

25
Q

Community Property

A

Require equal division of marital property.

AZ, CA, ID, LA, NV, NM, TX, WA, WI

26
Q

Property Division at Divorce Standard

A

Most states divide property at divorce based on the equitable distribution standard.

Equitable distribution is fair distribution of marital property, NOT necessarily an equal division.

27
Q

Other Ways For Termination/Modification of Spousal Support

A
  • death of spouse
  • remarriage (may be terminated)
  • cohabitation (not automatic)
  • retirement (maybe)

willful or voluntary reduction in income = NO modification

28
Q

Child Custody Jurisdiction - Initial Determination

A

Home State Jurisdiction

A court has SM jurisdiction to preside over custody hearings and either enter or modify custody or visitation if the state:

(1) is the child’s home state for at least 6 months OR
(2) was the child’s home state in the past 6 months, and the child is absent from the state, but a parent continues to live in the state

If no home-state jurisdiction, then significant connection jurisdiction.

29
Q

Significant Connection Child Custody Jurisdiction

A

Use when there is NO home state jurisdiction.

A court may exercise jx based on (1) signification connections with the child and at least one parent and (2) the existence of substantial evidence relating to child custody in the forum jurisdiction.

30
Q

Termination of Child Support

A
  • child reaches age of majority (18) or is emancipated
  • Extensions: child in college or disabled
31
Q

PostNup Agreement Validity

A

Same factors as pre-nup enforceability: full disclousre, terms are fair and reasonable, voluntarily signed.

32
Q

Child Support Agreement in Postnup

A

Postnups can decided property division, child support, spousal maintenance, custody, visitation, etc.

Can always be modified for best interest of the child.

33
Q

Recognition of Marriage

A

A marriage is valid under the law of the place in which it was contracted will be valid elsewhere unless it violates a strong public policy of the state that has the most significant relationship to the spouses and the marriage.

34
Q

Factors Considered when Determining Child Support

A

The court will look at factors like income and earnings of the parents, the number of children and their ages, and any special needs of the children.

35
Q

Relocation of Child and Parent

A

Generally, a move sought in good faith that will serve the child’s best interest will ordinarily be approved.

36
Q

Third Party Rights

A

Custody in the legal parent is presumed to be in the best interest of the child.

To rebut this, a third party who wants custody must prove that the parent is. unfit or that granting custody to the parent would be highly detrimental to the child.

Getting around the presumption: De Facto Parent–if the child has lived with a third party for an extended period of time.

37
Q

Chi

Child Custody & Support Clause in Pre-Marital Agreement

A

A court will not enforce a pre-marital agreement regarding child custody or support if it is not in the best interest of the child.

38
Q

Jurisdiction Rule for Dividing Property at Divorce

A

Unless the court has jurisdiction over the defendant spouse, it may NOT issue a binding order affecting property division or spousal support. But it MAY grant a divorce.

39
Q

Child Support Issuing Court

A

The state that originally issued a child support order has continuing exclusive jursidction to modify.

A different court may modify under certain circumstances (see card 15)

39
Q

Law Governing Child Support

A

The Uniform Interstate Family Support Act (UIFSA) governs child support.

This act has been adopted by ALL states.

Once an order is registered, it may be enforced by any state.

40
Q

Impoverished Spouse in Pre-Marital Agreement

A

A valid pre-marital agreement may be set aside if result leaves one spouse woefully impoverished to the extent that he becomes dependent on the state.

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