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Family Law Flashcards

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1
Q

What are the requirements for a valid premarital agreement?

A

(1) signed writing
(2) voluntariness
(3) full and fair disclosure of the parties’ assets

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2
Q

What legal impediments make a void marriage?

A

close relations & bigamy

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3
Q

What legal impediments make a voidable marriage?

A

lack of capacity, age, incurable physical impotence, duress, fraud

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4
Q

What are the grounds for a no-fault divorce?

A

(1) incompatibility, irreconcilable differences
(2) living apart for a specified and continuous period of time

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5
Q

What are the fault-based grounds for divorce?

A

(1) adultery
(2) willful desertion
(3) extreme physical or mental cruelty
(4) voluntary drug addiction or habitual drunkenness commencing after marriage
(5) insanity

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6
Q

What are the defenses to a no-fault divorce?

A

Denying the existence of the basis claimed for the divorce (for example, reconciliation)

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7
Q

What are the defenses to a fault-based divorce?

A

(1) collusion - agreement to simulate grounds for divorce
(2) connivance - consent to misconduct
(3) condonation - forgiveness
(4) recrimination - “unclean hands,” the party seeking the divorce is also guilty of misconduct for which a divorce may be granted

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8
Q

What is separate property?

A
  • property owned before marriage
  • property acquired by gift or inheritance
  • property acquired in exchange for separate property
  • income and appreciation of separate property
  • pain and suffering awards
  • personal damages
  • property acquired after an order of legal separation that includes a final disposition of property
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9
Q

What is marital property?

A

Any property not considered separate property, including:
- property acquired during the marriage
- earnings
- employment benefits, pensions, and stock options
- lost wages
- reimbursement for medical bills incurred and paid with marital funds
- recovery for damages to marital property

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10
Q

How may separate property become marital property?

A

(1) commingling - when separate property is inextricably intertwined with marital property
(2) transmutation - the separate property is treated in a way that evidences an intention for the property to be marital property

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11
Q

What are the factors considered for an equitable division of property?

A
  • age, education, background, and earning capabilities of both parties
  • duration of the marriage
  • duration of the marriage
  • standard of living
  • present incomes of both parties, vocational skills, and employability
  • health of the parties
  • source of money used to purchase the property
  • assets, debts, and liabilities of the parties
  • needs of the parties
  • child custody provisions
  • alimony
  • opportunity to acquire future income and assets
  • each party’s contribution to the acquisition or enhancement of the existing marital assets
  • contribution as a homemaker
  • economic fault
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12
Q

What is alimony?

A

Alimony is paid to an economically dependent spouse. Its purpose is to ensure an adequate income stream for persons whose economic dependency has resulted from the marital relationship.

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13
Q

What are the four types of alimony?

A

(1) permanent periodic
(2) lump sum
(3) rehabilitative
(4) reimbursement

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14
Q

What are the factors considered to determine the amout of alimony?

A
  • standard of living
  • duration of the marriage
  • age and physical and emotional condition of the parties
  • financial resources of each party (including how marital property was distributed, each party’s assets, ability to meed needs, and provision for support of a child)
  • contribution of each party to the marriage
  • time needed to obtain education or training
  • ability of payor spouse to meet their needs
  • marital fault (some states)

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

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15
Q

What is permanent periodic spousal support?

A

Spousal support paid regularly to provide for the maintenance and support of a spouse who has neither the resources nor the ability to be self-sustaining.

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16
Q

Is permanent periodic spousal support modifiable?

A

Yes, on proof of a substantial change in circumstances regarding need or ability to pay, and it terminates upon the death of either spouse or the remarriage of the recipient spouse.

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17
Q

What is lump sum spousal support?

A

Spousal support awarded in a fixed amount, payable either all at once or broken down into a series of payments.

18
Q

Is lump sum support modifiable?

A

No.

19
Q

What is rehabilitative spousal support?

A

Periodic payments for a limited period of time to enable a spouse to gain the skills or education necessary so that she can enter or re-enter the workforce and become self-supporting.

20
Q

Can rehabilitative spousal support be modified?

A

Yes, upon proof of a substantial change of circumstances affecting the needs of the recipient spouse or the other party’s ability to pay.

21
Q

What is reimbursement spousal support?

A

A fixed sum awarded to a spouse who supported the other spouse while the latter obtained a professional license or degree. The amount awarded is based on the amount of the supporting spouse’s contribution.

22
Q

How is child support calculated?

A

The award of support to one party for the benefit of the children is generally based on monetary need and ability to pay. However, court discretion in awarding support is limited because of state child support guidelines.

23
Q

Describe how child support guidelines determine the amount of support.

A

Child support guidelines dictate a formula based on the number of children, their ages, any special needs of the children, and the parents’ incomes.

24
Q

When does the duty to pay child support terminate?

A

Upon the child’s death, emancipation, marriage, or termination of parental rights.

25
Q

When must full faith and credit be given to another court’s child support order?

A

(1) the court had jurisdiction over the matter and the parties
(2) the parties had reasonable notice and an opportunity to be heard

(Full Faith and Credit for Child Support Orders Act)

26
Q

A court that entered a child support order has continuing, exclusive jurisdiction to modify it if:

A

(1) the order is controlling
(2) the child or one of the parties resides in the state
(3) when the child and the parties no longer reside in the state, the parties consent to jurisdiction

27
Q

Is child support modifiable?

A

Yes, based upon a substantial change in circumstances affecting the needs of the children or the ability of the parents to pay. Factors considered include: employment, growth of the children, inflation, income, retirement, or disabling illness.

28
Q

Where is original jurisdiction to enter a child support order proper under the Uniform Interstate Family Support Act (UIFSA)?

A

Where the first petition is filed.

Another state can exercise jurisdiction only if:
- the second petition is 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

29
Q

How may a child support order be enforced by another state?

A

(1) direct enforcement - mail order to employer of the payor spouse, triggers automatic wage withholding
(2) registration - receiving court files as a foreign judgment and the order is subject to the same enforcement procedures as if the order had been issued in that state

30
Q

Which court has jurisdiction to modify a child support order?

A

The court that issues the controlling child support order has continuing and exclusive jurisdiction to modify the order.

31
Q

When may a court modify another court’s child support order?

A

(1) the parties no longer reside in the issuing state
(2) the parties consent to the nonissuing court’s assertion of jurisdiction to modify

32
Q

What is child custody?

A

Legal custody - the right to make major decisions affecting the child’s life

Physical custody - actual possession and control of the child

33
Q

When does a court have jurisdiction to enter or modify a child custody order?

A

If it is the child’s home state, or 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 continues to live in the state.

34
Q

What is a child’s home state?

A

The state in which the child lived with a parent for at least six consecutive months, or where the child has lived since birth if the child is less than six months old.

35
Q

What court has jurisdiction to enter a child custody order if there is no home state?

A

(1) the child and at least one parent have a significant connection with the state, and
(2) substantial evidence concerning the child is available in the state

36
Q

What court has jurisdiction to enter a child custody order if all states with jurisdiction (home state or significant connection) decline it?

A

Any court.

37
Q

When may a court decline jurisdiction to hear a child custody case?

A

A court may decline jurisdiction if it determines that it is an inconvenient forum, or if the party seeking to invoke the court’s jurisdiction has engaged in unjustifiable conduct.

38
Q

When may a court exercise emergency jurisdiction to enter or modify a child support order?

A

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

39
Q

What is the standard applied in awarding custody and visitation?

A

The best interest of the child (BIOC).

Factors to consider include:
- the wishes of the parents
- the child’s preferences
- child’s relationship with parents, siblings, and others involved with parents
- child’s adjustment to home, school, and community
- parties’ mental and physical health
- the child’s primary caregiver

40
Q

What are the factors considered when deciding to award joint custody?

A
  • fitness of both parents
  • whether the parents agree on joint custody
  • the parents’ ability to communicate and cooperate concerning the child’s well-being
  • the child’s preference
  • the level of involvement of both parents in the child’s life
  • the geographical proximity of the two homes
  • the similarity or dissimilarity of the homes
  • the effect of the award on the child’s psychological development
  • the parents’ ability to physically carry out the joint custody order.

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