Family Law Flashcards
Full Faith and Credit for Child Support Orders Act
full faith and credit must be given to another court’s child support order if the court had jurisdiction over the matter and the parties, and the parties had reasonable notice and an opportunity to be heard.
The jurisdictional requirement is satisfied if one of the spouses is domiciled in the state granting the divorce.
Uniform Interstate Family Support Act (“UIFSA”)
A court of another state may serve as an initiating tribunal to request the court of the original state, which has continuing and exclusive jurisdiction over the support order, to enforce or modify the order issued in the original state.
Parental Kidnapping Prevention Act (“PKPA”)
Under this federal act a state may not modify a custody order if one of the parties continues to reside in the issuing state and under that state’s laws, the court continues to have and does not decline jurisdiction.
This act requires states to enforce a custody order of another state, but only if the state entering the custody decree had home state jurisdiction.
Constitutional Supremacy Clause
federal law prevails over contrary state law
Uniform Child Custody and Jurisdiction Enforcement Act (“UCCJEA”)
Initial Jurisdiction: Under this law a state may exercise jurisdiction if it is the home state of the child at the time the proceedings began or within six months of the proceedings and a parent still resides in the jurisdiction. *see child’s home state card
Continuing Jurisdiction: Under this law the court that made the initial custody determination has continuing, exclusive jurisdiction over the matter until that court determines that: neither the child nor the parents continue to reside in the state, or the child no longer has a significant connection with the state and substantial evidence relating to the child’s care, protection, training, and personal relationships is no longer available in the state.
Court’s considerations when establishing or modifying a custody order
(I) the parents’ wishes; (ii) the child’s wishes; (iii) the relationship of the child with each parent (also siblings and others); (iv) the child’s adjustment to home, school, and community; and (v) the mental and physical health of the parties
Child’s wishes - given little weight when young, but usually great weight when over 12.
Many courts feel it is best to keep siblings together.
Child support modification
based on substantial change of circumstances affecting the needs of the children or the ability of the parents to pay and cannot be modified retroactively
Doctrine of Divisible Divorce
Under this doctrine, an ex parte divorce generally can serve to grant only the divorce. An ex parte divorce decree has no effect on disputes over marital property, unless the property is located in the rendering state. Otheriwse, such disputes can be resolved only by a court having personal jurisdiction over both of the parties (PJ can be established through “minimum contacts” or submission by the party).
Child’s home state
A child’s home state is the state in which the child lived with a parent, or a person acting as a parent, for at least six consecutive months before commencement of the proceeding (or the child’s birth state if the child is less than six months old).
Child’s home state
A child’s home state is the state in which the child lived with a parent, or a person acting as a parent, for at least six consecutive months before commencement of the proceeding.
Are child custody and support agreements binding on the court when in a premarital agreement?
No
Validation of subsequent marriage
(1) the strong presumption that the latest marriage is valid, and (2) if the prior marriage is later terminated by divorce, annulment, or death, continued cohabitation validates the second marriage under UMDA and similar statutes.
Inability to have children as grounds for divorce
Impotence is not the inability to have children, but if the ability to have children was misrepresented, then the marriage may be annulled based on fraud.
Void Marriage Grounds
(1) bigamy, (2) consanguinity, (3) Nonage (some states)
Voidable Marriage Grounds
(1) Nonage (most states), (2) Incurable physical impotence, (3) Lack of capacity [mental incompetence, duress, fraud involving the essentials of marriage]
Void Marriage Defenses
Impediment does not exist (If impediment has been removed, continued cohabitation results in validation in some states).
Voidable Marriage Defenses
(1) impediment does not exist, (2) ratification [that is, continuing in relationship after impediment removed], (3) laches, (4) estoppel, (5) unclean hands [not valid in most states]
Types of Spousal Support
(1) Permanent, (2) Rehabilitative, (3) Lump Sum, (4) Reimbursement
Factors to consider when awarding alimony
(1) standard of living established during the marriage, (2) duration of the marriage, (3) Age, physical, and emotional conditions of the parties, (4) financial resources of the parties, (5) contribution of each party to the marriage, (6) the time needed for the party seeking support to obtain the training necessary to find appropriate employment, (7) the ability of the payor spouse to meet their needs while paying spousal support, and (8) marital fault (considered in most states for alimony but generally not considered for property division except for the extent it led to a dissipation of assets)
*Court has wide discretion
*Purpose is not to punish but to continue one spouse’s duty to the other arising out of the marriage.
*Although the factors listed above are considered ultimately the dependant spouse’s needs and the payor spouse’s ability to pay tend to guide decisions about spousal support. Lifestyle may be considered but the purpose of support is to ensure the dependent spouse has an adequate income stream to meet their needs.
*Self-induced reduction in income by the payor spouse is NOT sufficient to have spousal support reduced.
Home State Jurisdiction
(1) child’s home state, or (2) was the child’s home state within the past six months and the child is absent, but a parent or person acting as a parent (guardian) continues to live in the state.
Permanent Spousal Support
Paid regularly for the lifetime of the recipient, modifiable upon substantial change in circumstances, terminates upon the death of either spouse or the remarriage of the recipient spouse
Rehabilitative Spousal Support
paid regularly for a limited period of time, modifiable upon substantial change in circumstances, terminates upon the death of either spouse or remarriage of the recipient spouse
Lump Sum Spousal Support
Payable all at once or in a series of payments, nonmodifiable, survives the death of either spouse
Reimbursement Spousal Support
Payable all at once or in a series of payments, nonmodifiable, survives the death of either spouse
Termination of Child Support
Duty of support usually terminates upon emancipation of child by age or marriage, or by termination of parental rights.
Amount of child support awarded
Based on monetary need and ability to pay, but the court generally must follow statutory guidelines based on the number of children, their ages and special needs, and the parents’ incomes
Settlement Agreement
An agreement entered into during the marriage, before the issuance of the divorce decree, in which the parties may resolve economic issues.
Governed by general contract principles and most states require full and fair disclosure by both parties, fair and entered into voluntarily without undue influence.
May be set aside when a spouse’s fraud, duress, or coercive behavior results in an unfair agreement.
Representation by an independent counsel lessens the chances of the agreement being overturned.
Is a license or degree considered “marital property” subject to division?
No, even when attainment was made possible through the support of the other spouse. Might be subject to reimbursement alimony in some states.
It has none of the usual attributes of property in that it cannot be purchased, transferred, or inherited.
Can a state grant divorce when it lacks jurisdiction over one spouse?
Yes as long as one of the parties is a bona fide resident of the jurisdiction where the action is brought.
Bona fide resident
States may set a minimum durational residency requirement - usually 30-90 days.
Evidence of bona fide residence - duration of residency and other ties to the jurisdiction such as job, intent not to return to previous residence, lease or purchase of residence
Can a court divide marital property if it does not have jurisdiction over both spouses or property?
Generally, a court cannot determine out-of-state property rights or rights to support unless it has jurisdiction over both parties. There is a limited exception if the property is located in the state where the action is filed.
Can a divorce be granted even if one spouse does not consent and thinks the marriage can be saved?
Yes
Can courts order an equitable distribution of marital property even if the title of the property is only in one spouse’s name?
Yes
Marital property
all property acquired during the marriage unless acquired through gift, bequest, devise, or descent.
What if the property is acquired before the marriage but paid for after the marriage?
If property is acquired before the marriage, but paid for after marriage with marital funds, most courts will apportion the property between separate and marital interests in proportion to the contribution of separate and marital funds used to pay for the property.
Can a Court split a couple’s property?
Generally not unless they were married or had a valid cohabitation agreement.
Will a marriage be recognized in other states?
Yes if it was valid where it was entered.
Common Law Marriage Requirements
(1) capacity, (2) exchange of consent, (3) cohabitation, (4) holding out publicly of living together as spouses
For sufficient holding out (for common law marriage), what do courts look at?
common last name, opening a joint bank account, telling others in the community they consider themselves married, “spousal” benefits, joint tax returns
Equitable distribution of property considers factors such as:
earning capacity of each party, duration of marriage, standard of living during marriage, source of money used to purchase martial assets, parties’ health and needs, custody of minor children, each party’s contribution to the marriage.
Factor’s considered for unwed father’s involvement
(1) whether the parents lived together (or wether father visited regularly, (2) whether father admitted paternity, (3) whether father paid child support, and (4) whether father had any responsibility for supervision, education, protection, or care of the child
Can an unwed father block the adoption of his child if he is not actively involved with the child or is found to be an unfit parent?
No
