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Family Law Flashcards

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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
Q

Property distribution decrees are

A

not modifiable

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26
Q

Separate property includes

A

-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

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27
Q

Marital property includes

A

-Property acquired during the marriage
-Earnings
-Employment benefits, pensions, stock options
-Lost wages
-Reimbursement
-Recovery for damages to marital property

28
Q

Separate property may become marital property through

A

-Commingling - inextricably intertwined
-Transmutation - separate property treated as marital property

29
Q

Improvement of separate property with marital funds may warrant

A

Reimbursement for nonowning spouse

30
Q

Obtaining a professional license during marriage may warrant

A

compensation for supporting spouse on divorce

31
Q

In terms of taxation, property division is

A

not a taxable event

32
Q

Equitable division factors

A

-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
Q

Types of alimony are

A

-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
Q

The standard for modifying alimony and the types it applies to are:

A

A substantial change in circumstances

Applies to Permanent Periodic Spousal Support and Rehabilitative Spousal support

35
Q

The factors for alimony determinations are

A

Primary
-The ability of a spouse to pay
-Needs of the claimant spouse

Secondary
-Standard of living
-Fault often considered
-Age, duration, resources

36
Q

Separation agreements are ___ and must be ____

A

Agreements after entering into marriage

-In a signed writing
-Voluntary
-With full and fair disclosure
-And Consideration (mutual promises suff)

37
Q

Modification of separation agreements by the court is allowed if _______ but if not ______

Child custody is always _____

A

Possible IF merged into divorce

Not possible if NOT merged (K remedies)

Child custody is ALWAYS modifiable

38
Q

A contract between unmarried people is

A

generally enforceable unless sex is the only consideration

39
Q

Child support is based on ___ and lasts _____

A

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
Q

Jurisdiction types for a child support action

A

Original
Jurisdiction to enforce
Jurisdiction to modify

41
Q

Original jurisdiction for a child support action exists in the

A

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
Q

Jurisdiction to enforce child support orders exists through

A

-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
Q

Jurisdiction to modify child support orders exists in

A

OG court has continuing exclusive jurisdiction UNLESS
-No party lives in that state
-OR parties consent to jurisdiction elsewhere

44
Q

For child custody, the jurisdiction for initial determination is

A
  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
Q

Jurisdiction for modification of an existing custody decree is proper in

A

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
Q

Temporary emergency jurisdiction for a child custody order is available if

A

-Child has been abandoned
-Or if necessary to protect the child

47
Q

For child custody, jurisdiction can be declined if

A

-Inconvenient forum
-Already a proceeding elsewhere
-If parties conspired to create jurisdiction

48
Q

Child custody decisions are split into

A

Legal custody, physical custody, joint custody

49
Q

The standard for child custody/visitation decisions is

A

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
Q

Custody may be awarded to a non-parent but

A

It is a high burden requiring showing of:
-Harm to child or Parental unfitness
-BIOC analysis

51
Q

Modification of a child custody order is available based on

A

substantial material change affecting the well being of the child

52
Q

Constitutional protection afforded to nonmarital children:

A

any discrimination must be substantially related to an important gov interest

53
Q

Presumption of parentage is available if

A

Child born during marriage or w/in 300 days

54
Q

Parent disestablishment is

A

Difficult if significant passage of time

55
Q

Unwed fathers have constitutional protection through ____ and may gain parentage through _____

A

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
Q

Parentage actions are tolled

A

during the minority of the child

57
Q

Termination of parental rights can occur

A

-Voluntarily
-Involuntarily - parental unfitness (abandonment, neglect, abuse, mental health issues)

But a biological parent has a constitutional right to raise their child

58
Q

A child’s home state is the state where they have lived

A

with a parent
for at least 6 consecutive months before proceeding

59
Q

Retroactive modification of a child support order

A

Cannot be made

60
Q

For a child support modification, ____ is not a sufficient justification

A

Voluntary reduction in income

61
Q

Voidable marriage defects include

A

-Underage (most states) - ratifiable after reaching req’d age
-Lack of capacity - I.e. drugs/alcohol, ratifiable w/ capacity
-Duress
-Fraud

62
Q

Void marriages include

A

Bigamy
Too closely related (consanguinity)
Underage (some states)

63
Q

Permanent spousal support is awarded to

A

A spouse who has neither the resources nor the ability to be self-sustaining.

64
Q

For pre-marital contracts, unconscionability is determined at

A

the time of formation

If inequitable later, it is still enforceable

65
Q

In a pre-marital contract, parties may agree to ____ and may not agree to _____

A

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
Q

Joint custody will not be awarded if

A

Parents are openly hostile or unable to communicate

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