Family Law Flashcards
When is a marital agreement enforceable?
In many states, a premarital agreement is enforceable if there has been full disclosure, the agreement is fair and reasonable, and it is voluntary. The agreement must be in writing and signed by the party to be charged.
When can a court refuse to enforce a marital agreement?
Under the UPAA, which applies here, the party against whom enforcement is sought must prove (1) involuntariness or (2) both unconscionability at the time of execution and lack of disclosure and adequate knowledge of the other’s assets and obligations. Thus, a court may not refuse to enforce a premarital agreement based on substantive unfairness unless it also finds lack of adequate disclosure or knowledge. Full disclosure requires disclosure of all income, assets, and liabilities of both parties.
What is the equitable-distribution system?
The objective of the equitable-distribution system is to order a fair distribution of all marital property, taking into consideration all of the circumstances between the parties. In most states, all property acquired during the marriage is marital property and subject to equitable distribution. Whether the appreciation in nonmarital property will be subject to equitable distribution will depend on whether the appreciation can be attributable to spousal labor.
What are some factors in determining property distribution
Courts consider a number of factors in determining the equitable distribution of marital property.
Length of marriage;
Existence of prior marriage;
Economic circumstances (age, health, earnings and Earning potential, needs of the spouses);
Contributions to ed or career advancement of other spouse;
Future needs, income, medical, retirement needs;
Value of SP;
Reduction in value of MP by one spouse (fraud);
Economic circumstances at divorce;
Custodianship of minor children
When can spousal support be modified
Occurs if significant change in circumstances in needs of recipient or financial abilities of payor.
Death: usually continues until death of spouse. Payor’s obligation usually not included as obligation of estate unless specified by court
Remarriage: if payor remarries court may modify. If recipient remarries, court may terminate.
Cohabitation: courts consider length, how parties portray the relationship, joint contribution to household budget; support of each other’s children, general support.
Retirement: s/deny, others modify. Depends on reason and nature of retirement
What happens if a guy finds out he’s not the bio-dad?
Traditionally, courts have been loath to modify an established parent-child relationship, citing the child’s best interest as reason to deny admission of evidence of non-paternity or to deny a motion to disestablish paternity.
However, some states have recently recognized the interests of erroneously identified fathers. Should the court be in a jurisdiction that allows erroneously identified fathers to offer proof of non-paternity, the motion might succeed.
When does a state court have jurisdiction to modify an order of child support rendered by a court of another state if the other state has continuing, exclusive jurisdiction.
Modification of child support orders is governed by the Uniform Interstate Family Support Act (UIFSA). Under UIFSA, a state court does not have jurisdiction to modify an order of child support rendered by a court of another state if the original state has continuing, exclusive jurisdiction. This rule applies unless the parties, including the child, no longer reside in that state or the parties expressly agree to another state’s jurisdiction.
When can a child support order be modified?
Generally, a state may prospectively modify a child support order when there is a substantial change in circumstances regarding the child’s needs or the parent’s financial situation. The parent requesting the modification has the burden of showing a substantial change in circumstances such as a significant decrease in income. However, when a parent voluntarily changes his employment, a reduction in income alone is not sufficient proof of substantial changes in circumstances. The courts will consider the parent’s earning capacity and other factors surrounding the change before deciding whether to modify the support order.
What is the Uniform Child Custody Enforcement and Jurisdiction Act (UCCJEA)?
Most states have adopted the Uniform Child Custody Enforcement and Jurisdiction Act (“UCCJEA”). The purpose of the UCCJEA is to prevent jurisdictional disputes with courts in other states on matters of child custody and requires the court to have subject-matter jurisdiction.
A state can modify such order if it is: (i) the child’s home state and has been the home state for a period of six months (home state); 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 (significant connections).
What is home state jurisdiction?
In an initial custody determination, a court has subject-matter jurisdiction to enter custody orders if the state is the child’s home state. A state is the “home state” when the child has lived with a parent or guardian for at least six consecutive months prior to the custody proceeding. A court can decline jurisdiction if the party has wrongfully removed a child from another state.
What is significant connection jurisdiction?
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 are the constitutional rights of parents?
The Supreme Court has held that a fit parent has a fundamental right to the care, custody, and control of his children and state courts must give “special weight” to a fit parent’s decisions on care, custody, and control.
Common Law Marriage Requirements (3)
Common-law marriages are valid when the parties: (i) agree that they are married; (ii) cohabit as married; and (iii) hold themselves out in public as married.
Unwed Fathers and Adoption
The U.S. Supreme Court has held that the right of an unwed father to object to an adoption cannot be denied if the father has demonstrated that he is committed to fulfilling the responsibilities of parenthood. On the other hand, some jurisdictions have created adoption registries for the purpose of determining the identity and location of putative fathers and providing notice in the event of an adoption. A putative father’s failure to register within a statutorily prescribed period of time constitutes a waiver of his right to notice of the adoption and irrevocably implies his consent to the adoption. However, termination in this fashion typically applies only to cases in which the father and child never developed a relationship.
Home State Jurisdiction
(i) the child’s home state (the state in which the child has lived with a parent or guardian for at least six consecutive months prior to the custody proceeding, or since birth, if the child is less than six months old), 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.
