Family Law Flashcards
1
Q
Marriage Requirements
A
- License: Three day waiting period of additional fee, after application in any county
- If couple remains married but problem with license requirement allows them to be legally married
- Officiant & two competent witnesses- but cannot be annulled based on officiant’s lack of authority
- Legal impediments:
Too closely related: whole or half blood relatives, in WI no marriage between 1st cousins if over 55 or affidavit from dr. you are sterile
Bigamy
Divorce less than 6 months - Capacity: at time of ceremony must have mental ability to consent- intoxicated, duress, or age: must be 18, 16-17 with written consent
2
Q
Marriage Requirements CL
A
- WI does not allow but will recognize
- Requirements: Consent to marry (capacity + lack of impediments) cohabitation, holding themselves out publicly as spouses
3
Q
Marriage by Estoppel
A
Equitable remedy to protect innocent party who acted in good faith when entering into an invalid marriage, e.g. did not know spouse was already married- punitive spouse
4
Q
Marriage Property
A
- Wisconsin’s Martial Property Act: controls rights to property and will be equally divided regardless of title name
- Death: treated like divorce in WI
5
Q
Marriage Support
A
Doctrine of necessaries: obligation to third party for necessary expenses- food, clothing, medical, shelter
6
Q
Spousal Abuse Orders
A
- Temporary restraining orders: granted ex parte and last for 14 days- notice given to other spouse
- Hearing for permanent injunction for up to 4 years and can extend 4 more
- Abuse includes: physical harm, property destruction or the threat of either
7
Q
Annulment
A
- Only under defined statutory circumstances
Grounds - Prohibited by WI law: bigamy, CL, closely related, not divorced for 6 month or trying to avoid WI laws or laws of another state
- Lack of Consent: must be brought within one year
- Lack of physical capacity to consummate: must be 10 one party was not aware, and 2) brought within one year
- Underage: must be brought before minor turns 18, parent can bring action
Validation - For all invalid marriage besides bigamy marriage is declared void and if parties comply with WI law
- Bigamy: if one spouse acted in good faith, they can be validated if the impediment is removed- dies of divorce
Effect of Annulment
- Marriage is set aside
- Child: support can be awarded
- Spousal support may be awarded, but generally treated as if they were never married
8
Q
Divorce Jurisdiction
A
- Residency requirements: resident of county where action is filed for at least 30 days, Bona fide resident: domicile, Resident of WI for 6 months- only one spouse must be a resident
- Financial Matter need PJ: must have personal jurisdiction over defendant. Special PJ if: 1) respondent is personally served, 2) respondent resided in WI in marital relationship for 6 + months during 6 years prior to commencement, 3) petitioner continued to reside in WI after respondent left
- Concurrent Jurisdiction: cases can proceed in both states and once one state renders judgment the other loses SM jurisdiction
9
Q
No-Fault Divorce
A
- Grounds: WI only has one ground for divorce: irretrievable breakdown of marriage
- Proving Irretrievable Breakdown:
1) Both parties agree under oath
2) One party state under oath, must live separate and apart for 12 months
3) One party if court finds either 1) no reasonable prospect of reconciliation or 2) 2 occasions party state under oath that marriage is irretrievably broken
Defense - Reconciliation: can suspend proceedings for up to 90 days
10
Q
Legal Separation
A
- WI allows and parties can permanently divide marital property
- After 1 year either party can have separation converted to divorce as a matter of right
11
Q
Property Division Approaches
A
- Community Property: all property acquired during the marriage is owned ½ by each spouse: Wisconsin
- Equitable Division of all Property: court divides all property owned by either spouse
- Equitable Division of Marital Property: Majority: each spouse takes separate and court divides the property acquired during marriage
12
Q
Property Division Process
A
1) Classification of Property: determine what is martial or separate
2) Division of Marital Estate: equally unless there is a reason to deviate
13
Q
Classification of Property
A
- Must be shown by clear and convincing evidence of separate ownership
Owned prior to marriage
Gift from person other than spouse
Inheritance- and if property is bought with inheritance
Property acquired in exchange for separate property - *WI special rule: separate property can be divided if there is a showing of hardship- can have prenup but no oral separate agreements during marriage
- Changes to classification
1) Commingling: inextricably intertwined and it can no longer be traces
2) Transmutation: intent of the parties
3) Appreciation: increase of value of separate property if it is improved by marital funds or efforts of either spouse- not market factors
14
Q
Classification of Pensions
A
- Spouse may come with a pension but earned during marriage are marital
- Present Value Method: value is determined by contributions made during marriage, the non-employee spouse is awarded other assets to offset the pension’s value
- Future Collection Division: if there are not enough assets to offset the pension, allows the non-employee spouse to obtain QDRO Qualified Domestic Relations Order- so it would pay the non-employee
15
Q
Professional Licenses
A
- Wi: not distributable property, but if unfair court may consider an award of alimony
- If business any goodwill in the business with saleable value will be considered marital property
16
Q
Classification of Personal Injury
A
- Replacement analysis: consider award, determine what it is intended to replace, and classify whether separate or marital
- Marital: damages for lost wages during marriage, or damage done to martial property- car
- Separate: pain and suffering, future medial and lost wages
17
Q
Property Tax Consequences
A
Award of property division is not a taxable event
18
Q
Factors to Deviate Division of Property
A
- WI: equally divided
- ***May deviate based on:
1) Length of marriage
2) Property brought by each
3) Destruction or waste
4) Substantial assets not subject to division
5) Contribution to each to marriage
6) Age and health
7) Contribution of one spouse
8) Earning capacity
9) Awarding the family home
10) Maintenance payments
11) Pension benefits
12) Tax consequences
13) Written agreements
14) Other factors - Marital fault cannot be considered but economic fault can be- spending money on side piece or gambling
19
Q
Maintenance
A
General
- Support: ensuring the recipient’s needs are met after considering the earning capacities of both parties
- Fairness: ensures that maintenance award is fair to bother spouses and considers lifestyle
- Great deal of discretion
Types
- Permanent: payments of a certain amount until death or remarriage, can be modified if substantial change
- Limited: enable a souse to increase their earning capacity to no longer be financially dependent – example: 36 months at 1,000 per month for school
- Can request both types
- Factors: length of marriage, age and health, property division, education, earning capacity, likelihood to become self-supporting, tax consequences, prior agreements, contribution to education or increased earning power of one party, any other relevant factors
Modification
- Change of circumstance based on ability to pay or recipient’s needs
- Voluntary reduction in income is not a sufficient basis
- May be modified or extended during the maintenance, but not after the expiration of limited maintenance
Termination
- Permanent maintenance: upon remarriage or death of either spouse
- Not automatic if the recipient cohabits with another, court will consider as a factor in the modification request
Tax
- Not taxable unless prior to 2019 because they were deductible, unless modified
20
Q
Premarital Agreements
A
- Valid contracts entered into by the parties who are getting married
- Content: parties can agree to remain separate in property and waive their right to marriage (unless renders a party a public charge)
- Courts will not be bound by provisions in premarital agreements about children including custody and support
- Requirements for validity
1) Must be in writing and signed
2) Full and fair disclosure of parties assets and proof that there was independent knowledge of assets
3) Entered into voluntarily without fraud, duress, mistake, or misrepresentation
4) Must not be unconscionable
5) WI: allows court to consider the facts and circumstances at the time of enforcement if it would be unfair to enforce if parties are affected by unforeseen changes - Allows choice of law provisions
21
Q
Separation Agreements
A
- Agreement entered into when the parties are getting divorced
- Can waive maintenance or property division
- Court is not bound by party’s agreement concerning children if not in best interest of child
22
Q
Rights of Unmarried Children
A
- Contractual issues: express agreements between unmarried cohabitants regarding earnings and property rights
- Originally was common in same sex couples not able to marry, but now many just do not like to marry
- Valid unless sex is only consideration
- Unjust enrichment: if no express contract, can try unjust enrichment, must show:
1) An accumulation of assets
2) Acquired through the efforts of the cohabitants
3) Without the court’s intervention, the other party would retain an unreasonable amount of those assets
23
Q
Child Support: Determining Amount
A
Flat Percentage Method:
- Wisconsin uses- court focuses on the non-custodial parent’s annual gross income and applies percentage to that figure to determine the basic amount owed
17% gross income for 1 child
25% for 2
29% for 3
31% for 4
34% 5 or more
Special rules for low and high income earners
- Shirking: court may consider the parent’s earning capacity and impute the income to that parent if they reduce one’s earning with intent to reduce the ability to pay support, found if voluntary and unreasonable under the circumstances
- Deviation: if it is unfair to the child or any of the parties, will consider following factors: number of children, availability of childcare providers, financial need of children, detrimental effect of support level if one parent stays home, age, mental and physical condition of child and parents, skills and educational background- not exhaustive
- Health Care Costs: must include an order dealing with the cost of healthcare of the minor child
24
Q
Child Support and Visitation
A
- Independent of noncustodial parent’s visitation rights
- Grandparent’s liability: must support unmarried minor child’s children
- Must exchange financial information annually
25
Child Support Duration
- Until child reaches age 18 or 19 if still in high school
- Death of child
- Emancipation
- Termination of parental rights
26
Child Support Orders & Enforcement
- UIFSA: Uniform Interstate Family Support Act: adopted in all states to simplify collection of child support when parent moves out of state
Original Jurisdiction: proper where first petition under UIFSA is filed. Another state can exercise jurisdiction only if: 2nd petition filed before the time to answer the first has expired, the petitioner objected to jurisdiction in the first action, the second state is the child’s home state
Jurisdiction to Enforce: court that issued order for support, can enforce through
1) Direct enforcement: allows the obligee to mail order to out-of-state employer
2) Registration: sends the order to the state where obligor resides
Jurisdiction to Modify: court that ordered the child support has continuing, exclusive jurisdiction to modify it and retains for life as long as one party resides in issuing state unless consent to jurisdiction elsewhere
Modification: substantial change of circumstances
Enforcement:
- If support is 90 days or more past due and payor has the ability to pay- can suspend driver’s license for up to 2 years
- Federal Level: Criminal or civil methods or property seizure
27
Custody: UCCJEA
Uniform Child Custody Jurisdiction & Enforcement Act- UCCJEA
- Enacted to avoid jurisdictional disputes, promote interstate cooperation and facilitate the interstate enforcement of custody and visitation orders
- Triggered when the parents are living in a different states
28
Initial Custody Determination Methods
- Primary Test: Home State Jurisdiction: original jurisdiction is the child’s home state must 1) live with parent for 6 consecutive months, or 2) was the home state within last 6 months and child is absent from the state but parent continues to live in that state
- Significant Connect: When Home State does not apply: if no home state, a court can assume jurisdiction to enter or modify order if: 1) child and one parent has significant connection and 2) Substantial evidence concerning the child is available in the state
Other Jurisdictions
- Declining Jurisdiction: if pending proceeding elsewhere or if the party seeking to invoke jurisdiction has engaged in unjustifiable conduct or forum nonconveniens
- Temporary Emergency Jurisdiction: can have temporary jurisdiction if 1) child is physically present in the state and 2) child has been abandoned or necessary to protect
29
Custody Modification: Jurisdiction
-Issuing court has continuing, exclusive jurisdiction, another state if: 1) no child or parent resides in issuing state, or 2) child no longer has significant connection with issuing state
30
Best Interest of the Child Factors
Parent’s wishes
Child preference- if sufficient age-over 8
Relationship with parents, sibling and others
Time each parent spends with child
Primary caregiver status
Child’s adjustment to home, school, and community
Age and educational needs
Mental and physical health of parties
Cooperation and communication between parties
Unreasonable interference with the other parent’s access or relationship to child
Evidence of abuse
Abuse of drugs or alcohol of parents
Any other relevant factor
- Guardian ad Litem: when custody is disputed, the court may appoint a GAL to help determine the best interest of the child
31
Types of Custody
- Joint: presumption in Wisconsin that it is in the best interest of the child, requires that placement: allows the child to have placement with each, maximizes time with each parent, and geographic separation
- Sole: if there is strong fact-specific evidence that demonstrates it is in the best interest of the child and one of following:
1) Both parties agree
2) One party is not capable
3) Condition interfere with joint custody
4) Unable to cooperate
*Still get visitation if allowed
- Custody to Nonparent: parents have a constitutional right to raise children, so entitled to custody unless 1) relinquish right, 2) nonparent can show parent is unfit- must be in the best interests of the child
32
Visitation
- Parental visitation: absolute denial of parental visitation is rare- may be supervised
- Nonparental visitation: permits grandparents, great grans, and stepparents to have visitation but parents are given special weight so not easy to get
- **WI grandparents of nonmarital: may be able to get if 1) maintained relationship, 2) unlikely to act contrary to parent’s decisions and 3) best interest of child
33
Modification of Custody Orders
- Modifiable and burden of proof is on the party seeking change
- Timing:
if within 2 years of original order must show substantial evidence that conditions are physically or emotionally harmful to child
After 2 years: must show that a substantial change in circumstances means modification is in the best interest of the child
- Relocation: Wisconsin: if relocation with child is 100 miles or more, must provide:
1) Notice: motions seeking permission to move
2) Opportunity to be Heard: if other parent objects, a hearing will be held
Decision: if relocating will significantly impact placement- will consider best interest- do analysis
Presumption in favor of relocating if parent has not exercised placement time or domestic abuse- if intended to frustrate other parent’s right the court will deny relocation
34
Custody Enforcement
- In state: enforced by contempt proceedings
- Out of State: allows enforcement if certified copy has been filed with clerk of court
- Kidnapping: PKPA Parental Kidnapping Prevention Act: full faith and credit must be given to custody or visitation must file in new state and seek enforcement- like UCCHEA in emergency but it is not temporary
- International: IPKCA and the Hague Convention on Child Abduction provide relief when child is wrongfully removed to a foreign country
35
Constitutional Protection for Nonmarital Children
- Subject to intermediate scrutiny- distinctions must be substantially related to an important government interest
- SC will not uphold discriminatory legislation
36
Parentage: Establishing Paternity
- Presumption for Marital Children: mother’s husband is presumed to be the father if the child is conceived or born during marriage
- Presumption attaches if the parents marry after the birth
- Can be rebutted if clear and satisfactory preponderance of the evidence
- Unwed Fathers: can be considered unwed father if 1) name on birth certificate, 2) father acknowledges paternity by state registrar 3) judgment declaring paternity
- Paternity Suits: may be brought by child—through guardian—the punitive father or the state
- Once paternity is established, the father has obligations to support and visitation rights
- Child can also inherit
37
Parentage: Termination of Rights
- Voluntarily: parents relinquish all rights
- Involuntary: have due process before rights are terminated. State cannot interfere unless endangers the child well-being proved by clear and convincing evidence, this includes:
Abandonment
Continuing need of protection or services
Parental disability
Denial of placement or visitation
Failure to assume responsibility
Child abuse
Homicide or attempted homicide of other parent
Sexual assault
38
Parentage: Adoption
- Adoption: payment prohibited except for costs
- Process:
1) Consent of natural parents
2) Consent of adoptee- if over 14
3) Investigation of new home
- Records generally sealed unless biological parents agree to contact
- All rights of biological parents terminated
39
Assisted Reproduction
- Used as alternative to adoption with others involved
- Uniform Parentage Act: for third parties but not adopted in WI
- Maternity: established by birth of child unless gestational surrogacy agreement, court order, adoption
- Paternity: consent is touchstone-presumed to be father of assisted conception unless he proves lack of consent within 2 years after birth
- Gamete Donor: no rights unless pre-agreement
- Surrogacy Contracts: enforceable unless not in best interest
Genetic surrogacy: woman who is not intended parent agree to assisted reproduction using her own gametes- egg
Gestational surrogacy: woman who is not an intended parent agrees to become pregnant through assisted reproduction using other’s gametes
Wisconsin allows both
Must have written agreement: WI SC did not uphold the provisions of surrogate’s termination of parental rights, but did enforce on custody
Termination: any can terminate by any parties any time before embryo transfer
Result of Agreement: if agreement is approved the intended parents must file notice of birth- if agreement is found to be unenforceable, the gestational mother is found to be mother of child regardless of biology
