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Family Law Flashcards

1
Q

Gifts in contemplation of marriage

A

Must be returned if conditioned on marriage (engagement ring)

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2
Q

Breach of marriage remedy is

A

Damages - actual and damage to rep and possibly punitive

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3
Q

For a premarital contract to be enforceable it must be

A

-In a signed writing
-Voluntary - no fraud, duress, or overreach
-With full disclosure of the assets of the other (UPAA only requires if the K is unconscionable)
-Some courts require fairness

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4
Q

Premarital contracts regarding _____ do not bind the court

A

Child custody and support

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5
Q

The law that applies to a premarital contract is

A

The law where it was executed or the state with the most significant relationship to the parties

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6
Q

The requirements for a valid marriage are

A

-License from Physician (failure does not invalidate the marriage)
-Ceremony w/ authorized officient
-No legal impediments to marriage
-Capacity to consent @ time of ceremony

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7
Q

The legal impediments to marriage are

A

-Too closely related (no ascendants, descendants, siblings/half, aunt/uncle, niece/nephew)
-Has a prior undissolved marriage to a living spouse
-Lacks capacity at ceremony

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8
Q

Common law marriage requires

A

-Consent w/ capacity to marry, not just cohabitate
-Cohabitation
-Couple acts married (filing taxes, referring to spouse)

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9
Q

Marriage by estoppel is

A

an equitable remedy for an otherwise invalid marriage

Ex: spouse finds out that the marriage is invalid b/c their partner was already married

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10
Q

Property rights in marriage are

A

-During marriage each spouse owns/controls property in their name
-On divorce, title is not dispositive of ownership

Most property obtained during marriage qualifies as marital property

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11
Q

Tortious interference with a marriage is a claim that can arise against ____ through _____

A

A third party

Either:
-Alienation of affection
-Criminal conversation

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12
Q

Alienation of affection requires

A

-Valid marriage w/ love and affection
-Diversion of that love and affection
-Caused by 3P

Adultery not required

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13
Q

Criminal conversation requires

A

-Valid marriage
-Adultery

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14
Q

Annulment is only available to marriages that are

A

Void - a nullity b/c an element failed (collateral attacks allowed)
OR
Voidable - valid, but because of an impediment at formation, a spouse can bring an action to have it annulled (cannot occur if ratified, I.e. by cohabitation)

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15
Q

The proper jurisdiction for a divorce is

A

Any state a spouse is domiciled in (multiple actions may be brought, first to render a judgment holds)

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16
Q

Before a state can have jurisdiction over a divorce, most require that a _____ be met

A

Residency requirement (usually 90 days)

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17
Q

For a court to determine financial issues or property disposition surrounding divorce, they must have

A

PJ over the person (not just domicile of a spouse)

Except when there is marital property within the state (that property can be disposed of)

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18
Q

Grounds for divorce are:

A

Fault and No Fault

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19
Q

Reasons that may warrant a fault divorce

A

-Adultery
-Desertion w/ no intent to return
-Cruelty
-Drug addiction/drinking if developed after marriage

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20
Q

Reasons that may warrant a no fault divorce

A

Bilateral
-Irreconcilable differences
-Incompatibility

Unilateral or Bilateral
-Separation for specified, continuous amount of time (suff for one partner to seek div)

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21
Q

Defense to no fault divorce

A

Reconciliation (resets any required waiting time)

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22
Q

Defenses to fault divorce

A

-Collusion
-Connivance - P consents to misconduct
-Condonation - spouse forgives
-Recrimination - both parties guilty of misconduct

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23
Q

Approaches to property division in divorce

A

-Community property - each spouse gets half or marital property
-Equitable division of all property - each spouse takes an equitable share of marital and separate property
-Equitable division of marital property -each spouse takes an equitable share of marital property

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24
Q

The process for dividing property requires

A

-Classification - marital vs separate
-Division - equitable (not even)

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25
Property distribution decrees are
not modifiable
26
Separate property includes
-Owned before marriage -Inherited/gifted -Property acquired in exchange for separate property -Income/appreciation of separate property -Pain and suffering awards -Personal damages -Property acquired after legal separation w/ final prop division
27
Marital property includes
-Property acquired during the marriage -Earnings -Employment benefits, pensions, stock options -Lost wages -Reimbursement -Recovery for damages to marital property
28
Separate property may become marital property through
-Commingling - inextricably intertwined -Transmutation - separate property treated as marital property
29
Improvement of separate property with marital funds may warrant
Reimbursement for nonowning spouse
30
Obtaining a professional license during marriage may warrant
compensation for supporting spouse on divorce
31
In terms of taxation, property division is
not a taxable event
32
Equitable division factors
-Length of marriage - if short, put back as they were -Distribution of property in lieu of or in addition to alimony -Contribution of each spouse - no preference for earner -Dissipation of marital property - economic fault through misappropriation of marital property -Marital fault (adultery) may be considered Courts have vast discretion and decision is final
33
Types of alimony are
-Permanent periodic support -Lump sum -Rehab spousal support - $ to gain skills to be self-suff -Reimbursement for spousal support - $ paid during marriage to help spouse increase earning potential
34
The standard for modifying alimony and the types it applies to are:
A substantial change in circumstances Applies to Permanent Periodic Spousal Support and Rehabilitative Spousal support
35
The factors for alimony determinations are
Primary -The ability of a spouse to pay -Needs of the claimant spouse Secondary -Standard of living -Fault often considered -Age, duration, resources
36
Separation agreements are ___ and must be ____
Agreements after entering into marriage -In a signed writing -Voluntary -With full and fair disclosure -And Consideration (mutual promises suff)
37
Modification of separation agreements by the court is allowed if _______ but if not ______ Child custody is always _____
Possible IF merged into divorce Not possible if NOT merged (K remedies) Child custody is ALWAYS modifiable
38
A contract between unmarried people is
generally enforceable unless sex is the only consideration
39
Child support is based on ___ and lasts _____
Child's need and parent's percent of contribution during marriage -Age of Majority -Death -Emancipation -Termination of parental rights -As agreed -Longer if disabled
40
Jurisdiction types for a child support action
Original Jurisdiction to enforce Jurisdiction to modify
41
Original jurisdiction for a child support action exists in the
Under UIFSA it is the first jurisdiction where filed UNLESS -a 2nd petition filed in a different state -with objection in the court of the 1st -AND the 2nd state is the child's home state (min 6 months)
42
Jurisdiction to enforce child support orders exists through
-Direct enforcement - wages can be withheld in another state if spouse mails the court order to the employer -Registration - full enforcement and remedies available if registered with courts of a state (FF&C required)
43
Jurisdiction to modify child support orders exists in
OG court has continuing exclusive jurisdiction UNLESS -No party lives in that state -OR parties consent to jurisdiction elsewhere
44
For child custody, the jurisdiction for initial determination is
1. Home state - Child's home state OR was child's home state w/in last 6 months and a parent or guardian still lives there 2. If Home state doesn't apply - A court has jurisdiction if -No other state has or accepts home state jurisdiction -The child and at least one parent have a significant connection with the state -Substantial evidence concerning the child is there
45
Jurisdiction for modification of an existing custody decree is proper in
the issuing court, which has continuing exclusive jurisdiction. Another court may exercise jurisdiction only if -No child or parent lives the issuing state -The Child no longer has a substantial connection/substantial evidence not available there* *This determination can only be made by the issuing state
46
Temporary emergency jurisdiction for a child custody order is available if
-Child has been abandoned -Or if necessary to protect the child
47
For child custody, jurisdiction can be declined if
-Inconvenient forum -Already a proceeding elsewhere -If parties conspired to create jurisdiction
48
Child custody decisions are split into
Legal custody, physical custody, joint custody
49
The standard for child custody/visitation decisions is
the best interest of the child (TC has vast discretion) Factors: -Fitness of the parents -Wishes of the parents -Ability of parents to communicate -Child's pref - over 12 given great weight -Geographic proximity and similarity of the homes -Effect on the child -Parents ability to carry out joint custody -Who has been primary caregiver
50
Custody may be awarded to a non-parent but
It is a high burden requiring showing of: -Harm to child or Parental unfitness -BIOC analysis
51
Modification of a child custody order is available based on
substantial material change affecting the well being of the child
52
Constitutional protection afforded to nonmarital children:
any discrimination must be substantially related to an important gov interest
53
Presumption of parentage is available if
Child born during marriage or w/in 300 days
54
Parent disestablishment is
Difficult if significant passage of time
55
Unwed fathers have constitutional protection through ____ and may gain parentage through _____
DPC rights if they have shown parental responsibility The child of an unwed father is lawful if -Marriage after birth -represents as his child -consents to be named on birth certificate -formally acknowledges paternity -court order establishes paternity
56
Parentage actions are tolled
during the minority of the child
57
Termination of parental rights can occur
-Voluntarily -Involuntarily - parental unfitness (abandonment, neglect, abuse, mental health issues) But a biological parent has a constitutional right to raise their child
58
A child's home state is the state where they have lived
with a parent for at least 6 consecutive months before proceeding
59
Retroactive modification of a child support order
Cannot be made
60
For a child support modification, ____ is not a sufficient justification
Voluntary reduction in income
61
Voidable marriage defects include
-Underage (most states) - ratifiable after reaching req'd age -Lack of capacity - I.e. drugs/alcohol, ratifiable w/ capacity -Duress -Fraud
62
Void marriages include
Bigamy Too closely related (consanguinity) Underage (some states)
63
Permanent spousal support is awarded to
A spouse who has neither the resources nor the ability to be self-sustaining.
64
For pre-marital contracts, unconscionability is determined at
the time of formation If inequitable later, it is still enforceable
65
In a pre-marital contract, parties may agree to ____ and may not agree to _____
Permissible -Deem all property acquired during marriage to be separate property Impermissible -Forego spousal support - not binding if spouse would be dependent on state -Determine child custody - against public policy -Forego child custody - against public policy
66
Joint custody will not be awarded if
Parents are openly hostile or unable to communicate

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