Family Law Flashcards
breach of promise to marry
Return of gift
Gift in contemplation of marriage: gifts conditioned on marriage must be returned
premaritial agreements
Uniform Premarital Agreements act (UPAA)
Can agree to keep prop separate
Can waive spousal support
Will not waive alimony if would be a public charge
Never bound by provisions in premarital agreements regarding children
Requirements
In writing and signed
Entered into voluntarily
Full disclosure or independent knowledge of assets
UPAA
Cts examine only if agreement is unconscionable
Cts consider whether the economic provisions are fair and reasonable
ceremonial requirements
License
Medical certificate not carrying dease
Vary waiting period between license and ceremony ( 48-72 hours)
Defect does not make invalid
Ceremony with authorized officiant
No legal impediment
Cant be too closely related
Ascendants, descendants, sibling, half and whole blooded siblings
Cant be married to someone else (bigamy)
Capacity to consent
Mental ability to consent at time of ceremony
Age
Under 18 need parental consent
Judicial consent when minor pregnant
Under the influence
common law marriage requirements
Consent to marry
Capacity
No legal impediment
Cohabitation
Hold selves out as spouses
marriage by estoppel or putative marriage
Equitable remedy for invalid marriage
Still married to someone else
property rights
Owns and control in his or her own name
Title not dispositive
Tenancy by entirety
marital prop = acquired during marriage
obligation to support
Necessaries: used to make one spouse liable to 3rd parties for the other spose’s purchases for necessary expenses such as food, clothing, and health care
spousal abuse orders
Protective orders can be granted ex parte and can last from one month to several years depending on the jurisdiction
alienation of affection
Genuine love and affection b/n valid married ppl
Affection alienated or destroyed
D’s action cause lose of affection
Adultery not necessary = could sue against in laws
Defense
Marriage falling a part before I got there
SoL
Unaware that the person was married
criminal conversation
Valid marriage
Adultery b/n D and spouse
family privacy
family have the right to privacy in their homes and freedom from governmental interference in their domestic affaits
constitutional privacy
implicit and protected by Due process clause
fundamental right = strict scrutiny
right to marry
to procreate
use or sell contraceptibes
related persons to live together
educate kids outside public school
decide issues concerning care, custody, control of kids
no fundamental right to an abortion
annulment
Declares a marriage invalid bc an impediment existed at time of marriage making it legally void or voidable
void marriage
Utter nullity - absolutely null
No legal action needed
Can be attacked by 3rd party
Impediment causing marriage to be void is removed and some state statutes provise marriage becomes valid if parties continue cohabit
Other states don’t allow validation
Examples
Bigamy
consanguinty= marriage b/n parties too closely related
voidable marriage
Valid until declared null
No collateral attacks
Can be remedied
Example:
lack of consent
Only person who didn’t give free consent can
Nonage
Capacity
Duress
Farud
Prrego by another man only married bc prego
effect of annulment
Marriage set aside as if never existed
Children are marital children
Spousal support not awarded , but is available in some jurisdiction
Spousal support from previous marriage will not be reinstated whn terminated by remarriage
Division of prop
Place in pre-marriage position
jurisdiction for divorce
One spouse must be domiciled in stated
Residence + intent to remain
$$$ at stake
Ct has PJ over spouse for spousal support and prop division
which ever ct render divorce makes other ct decision moot
grounds for no fault divorce
Proof of irreconcilable difference ( bilateral )
Living separate and apart for specified time ( can be bilateral or unilateral) = range from 90 days to 18 months
Unilateral = time period longer
Incompatibility
Defenses
reconciliation
fault grounds for divorce
Adultery
Circumstantial evidence of opportunity and inclination (propensity to commit adultery)
Corroboration required
Desertion (abandonment)
Unjustified departure from marital home with no intent to return
Cruelty
Physically or mental ( pattern or practice of abuse)
Habitual drunkenness or drug abuse
Commencing after the marriage
Insanity
Defenses
Collusion = Where the couple fabricated a grounds for obtaining a divorce
Connivance :Occurs when one spouse baits or sets up the other to commit a wrongful act, like adultery agreed to it at one point in time
Condonation : A claim that one spouse knew of the other’s bad conduct, forgave it, and resumed the marriage
Recrimination : Occurs when the complaining spouse is guilty of the same conduct alleged in the divorce petition
legal separation
Divorce from bed and board
Doesn’t terminate marriage
Could have all rights adjudicated in this proceeding
Ct permanently divides marital prop, then any after acquired prop is separate prop
Enlarged to absolute divorce if requested
approaches to divide prop at divorce
Community prop
All prop acquired during marriage deemed owned one-half by each spouse
All prop brought into marriage or acquired by gift or bequest is separate prop
Equitable division of all prop
Ct ivides all prop owned by either spouse whether acquired before or after marriage
Equitable division of marital prop = majority view
Ea spouse takes their separate prop and ct only divide prop acquired during marriage
Property division are not modifiable
Two step process
Classification : determine what is marital and what is separate
Division: make equitable division of marital estate no matter how prop titled
Equitable division does not necessarily mean equal
separate prop
Prop owned before marriage
Prop acquired by gift or inheritance
Prop acquired in exchange for separate property
Income and appreciation of separate property
Pain and suffering awards
Personal damages ( future medical expenses, future lost wages)
Prop acquired after an order of legal separation that includes a final disposition of property
marital prop
Prop acquired during marriage ( date of separation of date of filing for end of marital estate)
Earnings
Employment benefits
Lost wages
Reimbursement for medical bills incurred and paid with marital prop
Recovery for damages to marital prop
commingling
separate prop can become marital if inextricably intertwined
transmutation of separate prop
separate prop becomes marital prop based on intention
improvement of separate prop
ct will grant reimbursement for value added
Distinguish b/n efforts and marital funds help improvement vs. market factors
prop acquired before marriage but paid for after marriage
Cts split
Majority seems to be prop should be apportioned b/n separate and marital estates in proportion to the contribution of separate and marital funds to pay for the prop
pensions
marital prop
pension earned during a marriage
professional license or degree
Not marital prop subject to distribution
But will be considered in an award of alimony
tax consequences of classification of prop
prop division is not considered a taxable event
equitable division factors
Age, education, background, earning capabilities
Duration of marriage
Standard of living
Present incomes
Source of money
Health
Sserts,debts, and liabilities
Needs of parties
Child custody provisions
Alimony
Opportunity to acquire future income
Contribution to the acquisition of existing marital assets
Contribution as a homemaker
Economic fault
ways ct divide prop
in kind ( actually dividing the assets)
Contribution ( awarding assets to one spouse and money to the other)
types of alimony
Permanent periodic support
Paid regularlyy to support spouse who has neither the resources nor the ability to be self sustaining
Lump sum support
Present value of permanent periodic support
Paid in installments or lump sum
Not modifiable , survives death of either spouse
Rehabilitative support
Limited Support to rehabilitate to becom self sustaining
For specified period to gain skill or education
Reimbursement support
When one spouse paid for other to get a degree
Reimburse spouse to extent other spouse to get degree and earning power and other spouse didnt see benefit of degree
not modifiable and survives death of either spouse
factors considered when awarding alimony
Standard of living during marriage
Duration of marriage
Age and physical and emotional conditions of both parties
Financial resources of each party
Contribution of each party
Time needed to obtain education or training
Ability of payor spouse to meet own needs
Some jurisdictions: marital fault
modification of spousal support
Periodic spousal support may be modified if there is a substantial change in circumstances regarding need of receipt spousal or ability of payor spouse to pay or legal obligation to new spouse or children ( not stepchildren)
termination of spousal support
Recipient remarries
Either spouse dies
Most jurisdictions: cohabitation with another
tax consequence of spousal support
Before 2019 are income to recipients and deductible of payor
Post 2019 alimony is not a taxable event
separation agreement
Entered into after marriage
Enforceable if supported by consideration
Can waive alimony and equitable distribution of property
Can agree on custody and child support
But ct is not bound
to be enforceable must be entered into voluntarily and must have been full and fair disclosure by both parties
Modifying
Whether merged into divorce degree or not
if merged = status of a ct judgment
not merged = enforceable as contract
Child support and custody always modifiable for best interest
contracts between unmarried person
K for cohabitation is valid unless only consideration is sex
Agree to division of earning and property rights
Implied contracts could be found
Constructive trust
duration of child support
visitation cannot be withheld bc of failure to pay child support
Age of majority
Death of child
Emancipation of child
Termination of parental rights
Child still in high school after 18 then can still pay
Wont pay for college unless agree
jurisdiction over child support orders
Original jurisdition
Where first filed
Can be somewhere else if filed in diff jurisdiction before expiration to answer in first
Petitioner objected to 1st juridiction
second state is Home state of child
Jurisdiction to enforce
Initially issued the award
Direct enforcement: obilgee can mail to employer
Registration : register order in new state
Give full faith and credit
Jurisdiction tomodify
Ct that issue had continuing and exclusive jurisdiction to modify
Unless no one resides or they agree to diff jurisdiction
Modifiable based on substantial and continual change of circumstances
child support arent taxable
enfocrement of child support awards
past due installments of support cant be retroactively modified
Can be enforced through civil or criminal court
Revocation of licenses ( drivers, law, hunting)
Revocation of prop
initial award of custody
Home sate: state where child has lived or was homstate within past 6 consecutive months and parent still lives there
Deferred jurisdiction
One parent and child have significant connection with state
Substantial evidence concerning child is available in that state
modification of existing decree
Issuing ct has continuing exclusive jurisdiction
Another state can only exercise jurisdiction
No child or parent continues to reside in the issuing state or
Child no longer has a significant connect with the issuing state and substantial evidence relating to the matter is no longer available in that state
declining jurisdiction
If proper proceeding elsewhere
Or person who wants jurisdiction is engaged in unjustifiable conduct
Forum non conveiens clause
emergency jurisdiction
May exercise to protect the child
types of custody
Physical (residential or custodial)
The right of an adult or agency to have a child reside with them
Custodial parent: the parent with whom that child is living; the parent with physical custody of the child
non custodial parent: that parent who is not living with the child; te parent who does not have physical custody of the child; parent who visits with a child
Visitation: the right to have access to a child who resides with another, or actual time spent by a noncustodial parent with the child
Legal
The right to make major decisions on health, education, religion, discipline and general welfare
Sole (legal and /or physical custody)
One parent/ agency is granted one or both types of custody
Joint (shared legal and/or physical) custody
Both parents are granted one or both types of custody
standard applied in awarding custody and visitation
best interest of the child
Factors considered when awarding
Parents wishes
Child’s preference
Child’s relationship with parents, siblings, and others involved with parents
Child’s adjustment to home, school, and community
Parties mental and physical health
Primary caregiver
modification of custody
Allows can be modified
Substantial and material change of circummstances
Some states say parents wait certain timm
relocation statute
Changing child’s primary residence
Whether relocation is in child’s best interest
Move motivated by a benefit to the family?
Move intended to harm relationship with other parent?
enforcement of custody awards
contempt proceedings
state habeas corpus proceedings
suits in equity
Out of state decrees will be enforce if a certified copy has been filed w/ clerk of ct
Wont remove original state continuing exclusive jurisdiction
PKPA = Federal parental kidnapping prevenion act
emergency Jurisdiction is not temporary, could be permenant
full faith and credit
international PArental Kidnapping prevention act (IPKCA) and Hague convention on child abduction provides relief when child wrongfully removed to a foreign country
nonmarital children
Constitution protection
Intermediate scrutiny
parentage actions
action determining parents= Rights to custody and paying child support
Presumptions
Mother’s spouse during marriage
Born w/i 300 days of termination of marriage
Clear and convincing evidence to rebut presumption
Unwed fathers est rights by
After birth marrying child’s mother
Holding out child as bio child
Consenting to be named on birth certificate
Acknowledging paternity
Court order
Show parental responsibility : education, supervising
Paternity suit
Once paternity est can assert right SoL = 18 years
Custody / visitation
Statute of limitations tolled during minority of child
Blood and tissue sampling
Some states allow testimony
termination of parental rights and adoption
Voluntary termination
Involuntary termination
Child in need of care
Child in dangerous state or
Events
Infliction of serious physical harm
Abandonment
Neglect or deprivation
Failure to provide support
Mental health of parent that results in inability to care for child
Parental unfitnes
adoption
goal : Reunite child and parent
Suitable home for child
Agency adoptions
Facilities as intermediaraties
Privacy adoptions
Done with lawyers
Requirements
Termination of biological parents’ rights
Creation of adoptive parents’ rights
Records are sealed unless bio parents consent
Consequences
Termination of bio parents rights and obligation
Creation of adoptive parents rights and obligation
Some states: child may still inherit from biological parent
assisted reproduction
surogacy
Alternative to adoption
Uniform parentage act : UPA
Woman who gives birth is child mother unles K in surrogacy
Named as mothre by court order no need for adoption
Father by assisted fertility
Egg and sperm donor are not parents through assited conception
Can agree in writing to have relationship
Posthumous conception
Born after death
Full inheritance rights with written parent’s consent
Gestational agreements
Surrogacy agreements
Surrogate: gestational mother
Gestational carrier agreement
Must be in writing and approved by court
Voluntary by all parties
Any consideration must be reasonable
Nt affeccted by subsequent marriage or divorce
May be terminated before embryo transfer
