Family Law Flashcards
substantive requirements for marriage
- minimum age
- not too closely related
- capacity to consent
- not already married
Procedural requirements for marriage
license
soleminzation
requirements for a common law marriage
- exchange of consent between two people with capacity
- cohabitation
- holding out publicly as spouses
requirements for an enforceable premarital contract
- The agreement must be entered into voluntarily
- The contract must be in writing and signed by the party to be charged
- Both parties must make a full and fair disclosure of their financial worth
- The economic provisions must be fair and reasonable
Possible Grounds for annulment
- Bigamy or Polygamy (void)
- Consanguinity (void)
- Nonage (void or voidable depending on state law)
- Incurable physical impotence (voidable)
- Mental incompetence (voidable)
- Lack of assent (voidable)
- Duress (voidable)
- Fraud involving the essentials of marriage (voidable)
typical grounds for a no-fault divorce
- irretrievable break down
- irreconcilable differences
- parties have been living apart for a specified time
typical fault grounds for divorce
- Adultery
- Willful desertion for a specified time
- Extreme physical or mental cruelty
- Drug addiction or habitual drunkenness
- Mental illness
Defense to fault
collusion
connivance
condonation
recrimination
collusion
an agreement between the spouses to simulate grounds for divorce or to forgo raising a valid defense
connivance
the willing consent by one spouse to the other spouse’s misconduct
condonation
the forgiveness of marital offenses with full knowledge of their
commission
recrimination
the party seeking the divorce is also guilty of misconduct for which a
divorce may be granted
where is jurisdiction proper
in a state where a party is a bona fide resident of the state
where is venue proper
in the county in which the spouses usually reside
when will a decree be recognized as valid in all other states
when at least one of the parties was domiciled in the state that granted the divorce
when are provisions of the decree relating to property rights, spousal support, child support, etc., are given full faith and credit
when the court had personal jurisdiction over the
defendant
community property
all property acquired during the marriage is deemed owned
one-half by each spouse, and all property brought into the marriage or acquired by
gift or bequest is separate property
equitable dividion
2 approaches
1. division of all property owned by either spouse, whether acquired before
or after the marriage
2. Equitable division of marital property
is property acquired through gift, bequest, devise, or descent marital property
no
is property acquired in exchange for property that a spouse owned before the marriage or acquired through gift, bequest, devise, or descent marital property
no
Is The income from or appreciation of property that a spouse owned before the
marriage or acquired through gift, bequest, devise, or descent, unless either
spouse contributed to the property’s increase in value marital property?
no
when does separate property become marital property?
1) when Separate property is inextricably mingled with marital property to the extent that it can no longer be traced; OR
2) is treated in a way that evidences an intention for the property to be marital property
Are wages earned during a marriage marital property?
yes
Are portions of employee pensions earned during a marriage marital property?
yes
Factors to consider when dividing marital property
- The age, education, background, and earning capacities of both parties
- The duration of the marriage, and whether there were any prior marriages
- The standard of living during the marriage
- The present incomes of both parties, and their vocational skills and employability
- The source of the money used to purchase the property
- The health of the parties
- The assets, debts, and liabilities of the parties
- The needs of the parties
- The child custody provisions
- Whether the distribution is in addition to, or in lieu of, spousal support
- Each party’s opportunity to acquire future income and assets
- Each party’s contribution to the acquisition of, or enhancement of the value of, the existing marital assets
- Each party’s contribution as a homemaker to the family unit
- Whether either party has dissipated marital property
Factors to consider in awarding spousal support
- The duration of the marriage and standard of living
- The age and physical and emotional condition
- The financial resources
- The contribution of each party to the marriage
- The time needed for the party seeking support to obtain the training necessary to
find appropriate employment - The ability of the payor spouse to meet his needs while paying spousal support
- Marital fault (only in some states)
permanent periodic spousal support
paid regularly (e.g., monthly) to support a
spouse who has neither the resources nor the ability to be self-sustaining
rehabilitative spousal support
periodic payments for a limited time to enable a
spouse to gain skills to become self-supporting
lump sum payment
nonmodifiable, fixed amount payable either all at once or
broken down into a series of payments
reimbursement spousal support
awarded to a spouse who supported the other spouse while the latter obtained a professional license or degree
what court has jurisdiction to hear a child custody case?
- In all states, divorce courts are authorized to make custody awards
- State statutes determine which other state courts have jurisdiction to hear child
custody cases
Uniform Child Custody Jurisdiction and Enforcement Act
(“UCCJEA”)
apply when deciding which of two states has jurisdiction over a child custody case
how to determine a childs “home state” under UCCJEA
- state in which the child lived with a parent (or a person acting as a parent) for at least six consecutive months immediately before the commencement of the proceeding
- if the child is less than six months old, the home state is where the child has lived since birth)
when determing a child’s home state under UCCJEA, in meeting the 6 month requirement, may temporary absences be disregarded
yes
A court has jurisdiction to initially enter or to modify a child custody or visitation order if the state:
(i) is the child’s home state, or
(ii) was the child’s home state within the past six months and the child is absent from the state, but a parent or person acting as a parent (e.g., guardian) continues to live in the state
Standard for custody decisions
best interest of the child
factors to consider for best interest of the child
- wishes of the parents;
- the preferences of the child (especially if the child is over age 12);
- the child’s adjustment to home, school, and community;
- the mental and physical health of all of
the parties - any other factor the trial court deems relevant
when are custody orders modifiable
if there is a substantial or material change in
circumstances
absoluate denial of visitation is
rare
may a custodial parent withhold visitation for failure to pay child support
no
what is the presumption regarding third-party visitation
Courts presume that a fit parent’s decision regarding third-party visitation is in the
child’s best interest, and this decision must be given deference
How is maternity (parentage) established
Most statutes provide that any child is the lawful child of his mother
How is paternity (parentage established)
a. The parents were married at the time of the child’s birth
b. The parents were married after the child’s birth
c. The father holds the child out as his biological child
d. The father consents to be named on the birth certificate
e. The father has acknowledged paternity
f. There is a judicial decree establishing paternity
who may bring a paternity action?
the child’s mother, the child, or by state agencies if the child is receiving support from the state
Steps to adoption
- termination of biological parents rights
- creation of a new legal parent-child releationship
what is involved in the termination of a biological parents rights?
a. Consent of biological parents
b. Consent is not required if parental rights are terminated in another proceeding
c. Consent may be waived if the court determines that it is being unreasonably withheld against the best interest of the child
d. Consent of the father of a nonmarital child may not be required if he has not established a relationship with the child
