Family Law Flashcards
Marriage
(not commonly tested)
Limitations on Marriage:
Age
Relatedness
Capacity/Consent
Bigamy/polygamy - can’t be married to multiple people
Requirements to Marry
License
Ceremony
Capacity/Intent
Common Law Marriage
Capacity to enter a marital contract
Present agreement to be married
Cohabitation and
Holding out to public a marital relationship
If valid common law marriage is formed under one state’s laws, it is regarded as valid marriage in other state
End of marriage
Virtually all states are no-fault divorce states
Some states recognize fault-based grounds too
Annulment is also recognized for fraud and other reasons
How is Custody Determined?
Custody determinations are generally determined by looking at the best interest of the child
Custody BIOC
Factors Include:
Parent’s wishes
Child’s wishes (given more weight for older children)
Ability & willingness of each parent to provide for child’s needs
Child’s adjustment to home, school and community
Custody modifications
Custody can be modified only if there is a substantial change in circumstances
Generally this change must be unforeseen at the time of the initial judgment
Child Support
Each state has guidelines to determine the proper amount of child support owed
Guidelines are usually based on a formula that considers number of children, their ages, healthcare needs, any special needs and parent’s incomes
Modification of Child Support
In order to obtain a modification of a future support obligation, the petitioner must show a substantial change in circumstances
If the change is a reduction in income that was voluntary some courts will not modify it
Child support cannot be modified retroactively unless there was fraud or other compelling circumstances
Relocation of parent or child
Generally a move sought in good faith that will serve the child’s best interest will ordinarily be approved
The court will balance the impact on visitation by the non custodial parent against the benefits of the move to both the child and the custodial parent
Some states place burden on relocating parent
Some place burden on objecting parent
Rights of parents and others
Generally biological fathers have rights, however the state may make the parent exercise his rights within a specific time
An involved parent who demonstrates a “full commitment to the responsibilities of parenthood” will likely be able to successfully oppose an adoption petition by another and is entitled to notice of such proceedings
Full Faith & Credit for Child Support Orders Act
Under the FFCCSOA full faith and credit must be given to another court’s child support order if 1) the court had jurisdiction over the matter and the parties and the parties had reasonable notice and an opportunity to be hard
Third party rights
Custody in the parent is presumed to be in the best interest of the child
A third party who wants custody must prove that the parent is unfit or that granting custody to the parent would be highly detrimental to the child
Any third party visitation or custody statute must give special weight to the parent’s determination of the child’s best interest
Division of Property (Divorce)
When property is divided upon marriage dissolution there are two main approaches
Equitable Division of marital property
Community Property ( property acquired during marriage is 50-50 by each spouse unless gift or bequest)
Equitable Division of Marital Property
Each spouse takes their separate property and the court divides property acquired during marriage on an equitable basis
Most popular approach
Assume this approach for MEE
Marital vs Separate Property
Majority Approach
Marital Property is property acquired during the marriage
Separate property includes (BIG)
Property acquired BEFORE the marriage, an Inheritance, or a Gift to one party
Most states do not count professional degrees earned during the marriage as marital property
Division based on premarital agreement
Courts will enforce a premarital agreement so long as it is voluntarily made, substantively fair and if full disclosure of assets and obligations was made
A court will not enforce a premarital agreement regarding child custody or support if it is not in the BIOC
Spousal Support (Alimony)
Alimony can be permanent, temporary or granted in a lump sum
Almost all states require the trial court to consider the parties’ financial resources and needs, marital contributions and marital duration
Some states look at spousal misconduct, one spouse’s support for the other’s education or training
The trial court has substantial discretion in choosing to award alimony
Types of Spousal Support
Permanent Periodic Support
Lump Sum Support
Rehabilitative Support
Reimbursement Support
Modification/Termination of Alimony
Alimony awards may be modified if a court finds there has been a substantial change in circumstances (this must be unanticipated change)
Alimony usually terminates if a spouse dies or gets remarried
In some states, cohabitation will reduce or terminate alimony
Child Support
The Uniform Interstate Family Support Act (UIFSA) governs child support and has been adopted in all states
Once an order is registered it may be enforced by any state
The state that originally issued a child support order has continuing exclusive jurisdiction to modify that order if the state remains the residence of the obligee, the child or the obligor and at least one of the parties does not consent to the jurisdiction of another forum
Child Custody
The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) applies
This is divided into a few test
The home state test
The home state has exclusive jurisdiction to modify a custody decree
A home state is a state where the child has lived with a parent or a person acting as a parent for at least six consecutive months
A home state continues to have exclusive jurisdiction to issue a custody order for six months after a child leaves the state or so long as a parent still lives in the home state
Significant connections test
If a child has no home state a state may exercise jurisdiction based on 1) significant connections with the child and at least one parent and 2) the existence of substantial evidence relating to child custody in the forum jurisdiction
Emergency Jurisdiction/Default Jurisdiction
If no other state has or exercises jurisdiction this test applies
