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FAMILY LAW Flashcards

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1
Q

GIFTS IN CONTEMPLATION OF MARRIAGE

A

Gifts conditioned on marriage must be returned if the marriage does not occur.

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2
Q

UPAA: PRE-MARITAL AGREEMENTS

A

1) Allows parties to agree on distribution of property/alimony in the event of death/divorce
2) Provisions regarding child custody and support are usually VOID

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3
Q

REQUIREMENTS TO ENFORCE PRE-MARITAL AGREEEMENTS

A

1) Signed writing
2) voluntarily entered into (no fraud/duress)
3) Full disclosure of parties’ assets or independent knowledge of them

  - Only considered if terms unconscionable 
  - Some courts: Economic provisions must be FAIR/REASONABLE
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4
Q

MARRIAGE REQUIREMENTS

A

1) License (although doesn’t invalidate)
2) Ceremony by authorized officiant
3) NO legal impediment (close relations, existing valid marriage)
4) Capacity to consent voluntarily

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5
Q

COMMON LAW MARRIAGE

A

Is marriage without a license and REQUIRES:
1) Consent to marry
2) co-habitation (time varies)
3) Hold themselves out publicly as married

states that do not recognize CL marriages will give FULL FAITH/CREDIT to valid CL marriages from other states

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6
Q

MARRIAGE BY ESTOPPEL

A

1) An equitable remedy to an invalid marriage
2) provides the innocent party who relied on the invalid marriage with support

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7
Q

MARITAL RELATIONSHIP: OBLIGATION TO SUPPORT

A

Under the DOCTRINE OF NECESSARIES, one spouse can be liable to a 3rd party for the other’s spouses costs incurred for food, clothing, health care, etc.

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8
Q

MARITAL RELATIONSHIP: SPOUSAL ABUSE ORDERS

A

1) Protects victims of domestic abuse
2) Courts can grant protective orders ex parte (w/o notice to other spouse)

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9
Q

TORTIOUS INTERFERENCE WITH MARRIAGE (BY 3RD PARTY): ALIENATION OF AFFECTION

A

Plaintiff spouse must show:
1) genuine love and affection in valid marriage
2) love and affection was alienated
3) by a 3rd party
4) Adultery NOT required

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10
Q

TORTIOUS INTERFERENCE WITH MARRIAGE (BY 3RD PARTY): CRIMINAL CONVERSION

A

Plaintiff must show:
1) valid marriage
2) adultery

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11
Q

ANNULMENT

A

Invalidates a marriage because of a legal impediment that existed at the time of the marriage

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12
Q

VOID MARRIAGE: DEFINITION

A

A void marriage is an utter nullity because it failed to meet the legal requirements for a valid marriage. NO legal action is needed

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13
Q

BIGAMY OR POLYGAMY

A

If either party has a living spouse, any subsequent marriage is void

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14
Q

CONSANGUINITY

A

Marriage between parties who are too closely related are void. This applies in MOST STATES

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15
Q

VOIDABLE MARRIAGE

A

1)Some type of effect or condition affects the consent requirement for a valid marriage

2) It is valid until declared void

3) Only the person suffering from lack of consent can attack the validity

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16
Q

VOIDABLE MARRIAGE - EXAMPLES

A

1) under age
2) inability to have sex
3) lack of capacity
4) duress/fraud

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17
Q

DIVORCE: JURISDICTION

A

1) Only one spouse needs to be domiciled in a state

2) For financial matters - PJ needed over the other spouse as well

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18
Q

NO FAULT DIVORCE

A

Allows for the dissolution of the marriage without regard to fault and must show 1 of the following:
1) Irreconcilable differences
2) Living apart for specified/continuous period (length varies)
3) Both agree they are INCOMPATIBLE

This DOES NOT mean that a party is not at fault

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19
Q

FAULT DIVORCE: ADULTERY

A

1) Prove other spouse had sex with a 3rd party - usually circumstantial
- show opportunity & inclination (propensity)

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20
Q

FAULT DIVORCE: WILLFUL DESERTION

A

Unjustified departure from marital home with no intent to return

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21
Q

FAULT DIVORCE: PHYSICAL OR MENTAL CRUELTY

A

Pattern of emotion or physical abuse

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22
Q

FAULT DIVORCE: HABITUAL DRUNKENNESS/ABUSE OF DRUGS

A

MUST be AFTER marriage has began

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23
Q

FAULT DIVORCE: INSANITY

A

another method of fault grounds for divorce

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24
Q

DEFENSES TO DIVORCE: NO-FAULT GROUNDS

A

Reconciliation ONLY

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25
Q

DEFENSES TO DIVORCE: COLLUSION (FAULT)

A

Simulating grounds for divorce to avoid valid defenses (false allegations)

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26
Q

DEFENSES TO DIVORCE: CONNIVANCE (FAULT)

A

Plaintiff consents to other’s misconduct such as allowing spouse to have sex with others

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27
Q

DEFENSES TO DIVORCE: CONDONATION (FAULT)

A

Forgiveness of offense after becoming knowledgeable of offense

28
Q

DEFENSES TO DIVORCE: RECRIMINATION (FAULT)

A

Plaintiff can’t get the divorce because they are also at fault – some states use this

29
Q

LEGAL SEPARATION

A

Parties are still married but court adjudicates issues of property, support, child custody

30
Q

PROPERTY DIVISION: COMMUNITY PROPERTY

A

All property acquired during the marriage is deemed owned 1/2 by each spouse while all property brought into the marriage or acquired by gift is SEPARATE

31
Q

PROPERTY DIVISION: EQUITABLE DIVISION OF ALL PROPERTY

A

Court divides all property owned by either spouse regardless of when it was acquired

32
Q

PROPERTY DIVISION: EQUITABLE DIVISION OF MARITAL PROPERTY

A

Each spouse takes their separate property and the court divides the property acquired during marriage

33
Q

PROPERTY DIVISION: 2 STEP PROCESS

A

1) Determine what is marital and what is separate
2) Division - equitable division of the marital estate

34
Q

SEPARATE PROPERTY

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) damages in PI cases
6) Property acquired after legal separation determined by court

35
Q

MARITAL PROPERTY

A

1) Property acquired during marriage
2) earnings
3) employment benefits, pensions, stock options
4) lost wages
5) reimbursement
6) recovery for damages to marital property

36
Q

SPECIAL ISSUES IN PROPERTY CLASSIFICATION: COMMINGLING

A

separate property can become martial if inextricably intertwined

37
Q

SPECIAL ISSUES IN PROPERTY CLASSIFICATION:TRANSMUTATION

A

becomes marital based on intent of parties

38
Q

SPECIAL ISSUES IN PROPERTY CLASSIFICATION: IMPROVING SEPARATE PROPERTY

A

 By use of marital funds or by efforts of either spouse
 Increase of value would benefit marital estate

39
Q

PROPERTY ACQUIRED BEFORE MARRIAGE BUT PAID FOR AFTER MARRIAGE

A

non-owning spouse is reimbursed half

40
Q

EQUITABLE DIVISION OF MARITAL PROPERTY

A

Will not necessarily be equal and considers
1) age,education, background, earning capability of parties
2) duration of marriage
3) standard of living
4) incomes
5) health
6) needs
7) child custody provisions

ETC ETC

41
Q

ALIMONY: DEFINITION

A

Paid to an economically dependent spouse

42
Q

ALIMONY: PERMANENT PERIODIC SUPPORT

A

permanent monthly payments to ex spouse until they get remarried or die

43
Q

ALIMONY: LUMP SUM

A

can be paid over time too
o For a sum certain
o Does not affect remarriage or death
o Not modifiable

44
Q

ALIMONY: REHABILITATIVE SUPPORT

A

support used to rehab one spouse so their earning capacity can increase through obtaining education or skills for example
o So they can eventually be financially dependent

45
Q

ALIMONY: REIMBURSEMENT SUPPORT

A

Pays the spouse who supported the other spouse during the marriage obtaining a professional degree or license

46
Q

ALIMONY FACTORS CONSIDERED

A

o Standard of living
o Duration of marriage
o Age and physical/emotional conditions of each party
o Financial resources of each party
o Contribution of each party
o Time needed to get education or training
o Ability of payor spouse to meet own needs
o Some states allow fault to be considered

47
Q

ALIMONY: MODIFICATION

A

o Substantial/material and continuing change of circumstances - ONLY PERMANENT OR REHAB ALIMONY

48
Q

ALIMONY: TERMINATION

A

o Remarriage
o Death
o Most states – cohabitation with another

49
Q

SEPARATION AGREEMENTS

A

o Entered into after marriage – supported by consideration
o Can waive alimony and equitable distribution of property
o Can agree on custody and child support
 But court is NOT bound here

50
Q

CHILD SUPPORT

A

Both parents have duty to support children based on needs/ability to pay

51
Q

CHILD SUPPORT GUIDELINES

A

Income shares model – considers number of children and income of parents

52
Q

DURATION OF CHILD SUPPORT

A

Ceases upon:
o Age of majority
o Death of child
o Emancipation of child
o Termination of parental rights

53
Q

CHILD SUPPORT ORDER JX: UIFSA

A

1) ORIGINAL JX
* Proper where first petition is filed
* Child’s home state – lived with another parent for 6+ or more
- So parent can object if petition filed in another state by other parent
2) JX TO ENFORCE
* Direct enforcement by another state
* Registration – child support in one state is registered in another state’s court system
* Full faith and credit to child support awards
3) JX TO MODIFY
* Substantial and continuing change of circumstances
* Continuing exclusive jx to modify of original court which made the order

54
Q

CHILD CUSTODY: UCCJEA - JURISDICTION FOR INITIAL CUSTODY DETERMINATION

A

Home state – state where child has lived with parent for at least 6 consecutive months

55
Q

CHILD CUSTODY: MODIFYING EXISTING DECREE

A

o Continuing exclusive jx of orginal ordering court
o Another state can exercise jx when child no longer has connection other state

56
Q

CHILD CUSTODY STANDARD - BEST INTEREST OF THE CHILD

A

FACTORS
 Parents’ wishes
 Child’s preference
 Child’s relationship with parents, siblings
 Adjustment to home, school, community
 Parties’ mental and physical health
 Primary care giver

57
Q

CHILD CUSTODY: JOINT CUSTODY

A

Is encouraged in most jx’s but not required

58
Q

CHILD CUSTODY: VISITATION RIGHTS

A

o Denial is rare
o Non-parental – extraordinary circumstances
o Modification - Substantial and material change in circumstances

59
Q

PARENTAGE: NON-MARITAL CHILDREN

A

o Born out of wedlock – constitutional protections afforded

60
Q

PARENTAGE ACTION

A

1) Brought to establish biological relationship
2) Mother’s husband PRESUMED father and in situations where marriage ends within 300 days of birth

61
Q

PARENTAGE: CONSTITUTIONAL LIMITS ON DISCRIMINATION

A

Distinctions between marital and non-marital children are subject to intermediate scrutiny - must be substantially related to an important government interest

62
Q

REBUTTING PRESUMPTION OF PARENTAGE

A

Need clear and convincing evidence

63
Q

UNWED FATHERS ESTABLISHING RIGHTS

A

o Marrying child’s mother
o Holding out as bio child
o Consenting to be named on birth certificate
o Acknowledging paternity
o Court order
F

64
Q

FEDERAL PARENTAL KIDNAPPING ACT

A

General Rule: FFC must be given only to final orders entered by courts of another state which child custody orders are not

2) FPKA requires FFC to child custody orders if the jurisdictional standards are met.

65
Q

ADOPTION

A

Is a legal proceeding in which the legal relationship between biological parents and their child is terminated.

66
Q

UNIFORM ADOPTION ACT

A

A court has jx over an adoption proceeding IF:
1) child lives in state for at least 6 consecutive months
2) prospective adoptive parent lived in the state for 6 consecutive months prior to proceeding and substantial evidence concerning child’s present or future care is available in the state
3) Agency which put child up for adoption is in the state and it is in child’s best interest that the court assume jx
4) both child and prospective parent are in state and child is threatened OR
5) appears no other state would have jx

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