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Family Law Flashcards

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1
Q

What are antenuptial agreements?

A

Premarital contracts are valid contracts that address the rights of the parties upon divorce or death. Marriage is sufficient consideration to support a premarital contract.

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2
Q

What are the typical content of an Antenuptial agreement?

A

These agreements can cover:

1) The disposition of property in the event of death or divorce;

2) The making of a Will, trust, or other arrangement to carry out the provisions of the agreement;

3) The choice of law governing construction of the agreement; AND

4) Any other matter not in violation of public policy or criminal statute

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3
Q

For a premarital contract to be enforceable, most courts require the following:

A

1) Signed writing

2) Agreement entered into voluntarily;

3) Full and fair disclosure of the parties’ assets;

4) Agreement is fair and reasonable.

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4
Q

What are the requirements for a modern marriage?

A

1) License

2) Ceremony with authorized officiant

3) No legal Impediments to marriage

4) Capacity to consent

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5
Q

What are the requirements for a common law marriage?

A

1) Consent to marry

2) Cohabitation

3) The couple holding themselves out publicly as spouses

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6
Q

What is the doctrine of necessaries?

A

One spouse is liable to third parties for the other spouse’s purchases for necessary expenses, such as food, clothing, and health care.

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7
Q

What are protective orders?

A

A battered spouse may seek some form of protective order against a violent spouse.

May be granted ex parte.

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8
Q

What are the various tortious interference with marriage?

A

1) Alienation of Affection

2) Criminal Conversion

3) Negligent Interference with consortium or services

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9
Q

What is the tortious alienation of affection?

A

If a 3d party diverts the affection of one spouse so that the other is deprived of a marital relationship, the deprived spouse may sue.

Action requires evidence of genuine love, the love was destroyed, and proof that the D’s acts caused the loss.

Adultery NOT required

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10
Q

What is the tortious criminal conversion?

A

When one spouse has sexual relations with a 3d party, the other spouse may sue.

Adultery IS required

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11
Q

What is an Annulment?

A

An annulment is a backward-looking doctrine that declares a marriage invalid because an impediment that existed at the time of the marriage makes it legally void or voidable.

Treated as if parties were never married.

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12
Q

What is a Void marriage?

A

An invalid, an utter nullity, because it failed to meet the essential requirements for a legal marriage.

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13
Q

What are key examples of void marriages?

A

1) Bigamy or Polygamy (either party has a living spouse, the marriage is void)

2) Consanguinity (marriages between parties who are too closely related)

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14
Q

What is a Voidable marriage?

A

A valid marriage until declared null.

Because of an impediment that existed at the time of the marriage, ONE of the spouses may bring an action to have the marriage annulled.

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15
Q

What are the issues that can make a marriage voidable:

A

1) Nonage

2) Incurable physical impotence

3) Lack of capacity (drunk as fuck, duress, fraud)

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16
Q

What are the 2 grounds for divorce?

A

1) No-Fault divorce

2) Fault Grounds

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17
Q

What is required for “No-Fault” Divorce?

A

A divorce without court litigating “fault”

Must show ONE of the following:

1) Both spouses agree that the marriage is irretrievably broken.

2) The spouses have been living apart.

3) Both spouses agree that they are now incompatible and can no longer be married.

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18
Q

What are the usual fault-based grounds for divorce?

A

1) Adultery (must show opportunity and inclination of the bad spouse)

2) Willful desertion or abandonment

3) Cruelty (physical or mental)

4) Voluntary drug addiction or habitual drunkenness

5) Insanity

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19
Q

What are the three approaches to property division?

A

1) Community property (all property acquired during the marriage is deemed owned 1/2 by each party, and all property brought into the marriage or acquired by gift or bequest is separate property)

2) Equitable division of all property

3) Equitable division of marital property [MOST COMMON]

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20
Q

What is the two-step process in property division?

A

1) Classification: Determine what is marital property and what is separate property

2) Division: Make an equitable division of the marital estate no matter how the property is titled.

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21
Q

Generally, in a divorce, each spouse takes their separate property. Separate property includes:

A

1) Property owned before marriage

2) Property acquired by gift or inheritance

3) Property acquired in exchange for separate property

4) Income and appreciation of separate property

5) Pain and suffering awards

6) Personal damages

7) Property acquired after an order of legal separation that includes a final disposition of property

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22
Q

Marital property includes:

A

1) Property acquired during the marriage

2) Earnings

3) Employment benefits, pensions, and stock options

4) Lost wages

5) Reimbursement

6) Recovery for damages to marital property

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23
Q

Separate property may become marital property through either:

A

1) Commingling (separate property is inextricably intertwined with marital property)

2) Transmutation (separate property treated in a way that evidences an intention for the property to be marital property).

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24
Q

What is Alimony?

A

It is spousal support or maintenance. It is paid to an economically dependent spouse.

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25
Q

What are the 4 types of Alimony?

A

1) Permanent Periodic Spousal Support

2) Lump Sum

3) Rehabilitative Spousal Support

4) Reimbursement Spousal Support

26
Q

What is Permanent Periodic Spousal Support?

Duration?

Modification?

A

Alimony paid regularly to support a spouse who has neither the resources nor the ability to be self-sustaining.

Duration: Indefinite

Modification: Can be increased, decreased, or terminated upon proof of substantial change of circumstances

27
Q

What is Lump Sum Alimony?

Duration?

Modification?

A

A lump sum payment is a fixed amount payable either all at once or via a series of payments.

Duration: For specific time period; can be payable in installments or in a lump sum

Modification: None. This is treated like a contract right and is binding on payor’s estate.

28
Q

What is Rehabilitative Spousal Support?

Duration?

Modification?

A

Consists of periodic payments for a limited time to enable a spouse to gain skills to become self-supporting. It can be ordered along permanent periodic or lump sum alimony

Duration: For specified time period, unless modified by court

Modification: Can be increased, decreased, or terminated upon proof of substantial change of circumstances.

29
Q

What is Reimbursement Spousal Support?

Duration?

Modification?

A

Occasionally awarded to a spouse who supported the other spouse while the latter obtained a professional license or degree. It may be ordered along with permanent periodic or lump sum alimony

Duration: For specified period of time; can be payable in installments or in a lump sum

Modification: NONE. It is treated as a contract right and can be awarded even if the supporting spouse is not otherwise eligible for spousal support.

30
Q

The court has great discretion in awarding as much spousal support as necessary for the maintenance of the requesting spouse. What are the factors considered when awarding alimony?

A

Standard of living established during marriage

Duration of marriage

Age and physical and emotional condition of the parties

Financial resources of the parties

Contribution of each party to the marriage

Time needed for the party seeking support to obtain the training necessary to find appropriate employment

The ability of the payor spouse to meet their needs while paying spousal support

Marital fault

IMPORTANT: The two primary considerations are the (1) needs of the claimant and (2) the ability of the other spouse to pay

31
Q

What and how is the spousal support terminated?

A

Periodic spousal support terminates upon the remarriage of the recipient spouse or the death of either spouse.

Lump sum and reimbursement support is NOT modifiable AND survives the death of either spouse. (Estate is liable).

32
Q

What is a Marital Agreement?

A

An agreement between spouses who intend to remain married.

A marital agreement usually alters or confirms marital rights or obligations during the marriage or at separation, death, divorce.

33
Q

What is a Separation Agreement?

A

An agreement entered into after marriage under which the parties agree to live apart and resolve economic issues.

34
Q

What must exist for a separation agreement to be enforceable?

A

The agreement must be (1) voluntary, (2) there must have been a full and fair disclosure by both parties, and (3) there must be consideration (found in the mutual promises of the parties).

35
Q

Is the court bound by a separation agreement concerning children?

A

NO

36
Q

The duty to support a child ceases upon:

A

1) The child reaching the age of majority (usually 18)

2) Death of child

3) Emancipation of child

4) Termination of Parental rights

37
Q

Original JDX to enter a child support order is proper where:

A

The first petition under UIFSA is filed.

38
Q

Another State can exercise JDX over child support order only if:

A

The second State is the child’s home State

39
Q

Another State can enforce a child support order in two ways:

A

1) Direct Enforcement (alllows the obligee to mail the order to obligor’s out-of-State employer, automatically triggering withholding)

2) Registration (issuing State sends the order to the State where the obligor resides. It is registered and filed as a foreign judgment and now has JDX).

40
Q

What is the standard used to review whether a child support is modifiable?

A

Based on a substantial and continuing change of circumstances affecting the needs of the child or the ability of the parent to pay.

41
Q

What are the two ways a Court determines initial custody?

A

1) Primary Test - Home State JDX

2) Secondary Test - When “Home State” Rule does not Apply Test

42
Q

Under the Home State JDX test, a court has JDX to initially enter or modify a child custody or visitation order if the State:

A

1) Is the child’s home State; OR

2) Was the child’s home State within the past 6 months and the child is absent from the State, but a parent or person acting as a parent continues to live in the State.

43
Q

How is a State determined to be the child’s home State?

A

The child lived with a parent for at least 6 consecutive months immediately before the commencement of the proceeding, disregarding temporary absences.

44
Q

Under the secondary test, a court has JDX to enter or modify a child custody or visitation order if no other State has or accepts home State JDX and:

A

1) The child and at least 1 parent have a SIGNIFICANT connection with the State; AND

2) Substantial evidence concerning the child is available in the State.

45
Q

The issuing court has continuing exclusive JDX. Another State can only exercise JDX if:

A

1) No child or parent continues to reside in the issuing State; OR

2) The child no longer has a significant connection with the issuing State and substantial evidence relating to the matter is no longer available in that State.

46
Q

A court that DOES have JDX may decline to exercise its JDX if it determines that it is:

A

1) Forum Non and another State is the more appropriate forum

2) If the party seeking to invoke the court’s JDX has engaged in unjustifiable conduct (i.e., a parent wrongfully took the child from another State)

47
Q

A court may exercise temporary emergency JDX. When does temporary emergency JDX arise?

A

If the child has been abandoned or its necessary in an emergency to protect the child because the child is subjected to or threatened with abuse.

48
Q

What is the standard used in awarding custody and visitation?

A

The Best Interest of the Child.

49
Q

Under the Best Interest of the Child standard, courts consider the following factors:

A

1) Wishes of the parties

2) Child’s preference (preferences under age of 8 not considered, preferences of children over the age of 12 are greatly considered)

3) Child’s relationship

4) Child’s adjustment

5) Parties’ mental and physical health

6) Who has been the child’s primary caregiver

50
Q

What are the three types of custody?

A

1) Joint Custody

2) Sole Custody

3) Custody to a Nonparent

51
Q

When determining whether joint custody is appropriate, courts often consider the following factors:

A

1) The Fitness of both parties

2) Whether the parents agree on joint custody

3) Parents’ ability to communicate and cooperate concerning child’s well-being

4) Child’s preference

5) Level of involvement of both parents in the child’s life

6) Geographical proximity of the 2 homes

7) Similarity or dissimilarity of the homes

8) Effect of the award on the child’s psychological development

9) Parents’ ability to physically carry out the joint custody order

52
Q

Sole custody can be awarded to one parent if there is:

A

Strong evidence that demonstrates it is in the best interest of the child.

It is hard to deny a parent any visitation unless some type of harm to the child will result

53
Q

Custody to a Nonparent is presumably favored to the parent (constitutional right to raise child). However, what is the standard used in these situations?

A

Under special circumstances, a court may find that the biological parent has lost the right to rear the child, and the nonparent should get custody.

54
Q

Under the SCOTUS, a parent has the constitutional right to prevent nonparent visitation rights, the court may not override this decision. True or false?

A

TRUE

55
Q

Custody orders are always modifiable. Who bears the burden of proof?

A

Parking seeking the change.

56
Q

Custody awards will be modified only if:

A

There has been a substantial and material change in circumstances affecting the child’s well-being.

57
Q

How do you establish jurisdiction in a State to bring a divorce proceeding?

A

One party must be a bona fide resident of the State where action is brought.

58
Q

What must exist for a court to determine out-of-state property rights or rights to support?

A

The court must have personal JDX over both parties.

Exception is for marital property in the State.

59
Q

Under the Full Faith and Credit for Child Support orders, State B Court may enforce a child support order issued from State A if:

A

State A had JDX over the matter and the parties, and the parties had reasonable notice and an opportunity to be heard.

This will probably be provided in the fact pattern. Look for whether State A had proper JDX to issue the child support order. If State A did have proper JDX, then any State may enforce it.

60
Q

May State B court modify child custody order issued by State A?

A

No. A State may not modify a custody order if one of the parties continues to reside in the issuing State (State A) and issuing State still has jurisdiction.

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