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MEE > Family Law > Flashcards

Family Law Flashcards

1
Q

Common Law Marriage

A

valid common law marriage requires 3 things:

  1. consent to marry (includes capacity and no legal impediments)
  2. cohabitation
  3. couple holds themselves out publicly as spouses
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2
Q

Marriage by Estoppel (aka Putative Marriage)

A

equitable remedy some states use to protect an innocent party who acted in good faith when entering into an invalid marriage

in some states, the putative (i.e. innocent) spouse can acquire all of the rights of a legal spouse (mainly for divorce/property)

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3
Q

Marriage requirements

A
  1. License
  2. Ceremony
  3. No Legal Impediments to Marriage (i.e. no incest; no prior existing marriages)
  4. capacity to consent (i.e. no intoxication; no fraud, duress, coercion, force; not underage)
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4
Q

doctrine of necessaries

A

under the doctrine of necessaries, one spouse can be liable to third parties for the other spouse’s purchases for necessary expenses (e.g. food, health care, etc.)

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5
Q

When is a marriage void?

A
  1. prior existing marriage (bigamy, polygamy)
  2. incest
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6
Q

when is a marriage voidable?

A
  1. under legal age (and no proper consent)
  2. incurable impotence
  3. lack of capacity (e.g. mental incompetence, duress, fraud, intoxication, etc.)
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7
Q

tortious interference with consortium or services

A

most states let either spouse sue for loss of the other’s consortium (i.e. sex, companionship) due to injuries from a D’s negligence

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8
Q

Child Custody: Best Interest of the Child

A

the BiotC standard is used when determining custody/visitation. Factors considered include:

  1. wishes of the parents
  2. child’s preference (given great weight for kids 12+; preferences of kids under 8 generally not considered)
  3. child’s relationship with parents, siblings, family members
  4. child’s adjustment to home, school, community
  5. parties’ mental/physical health
  6. who is child’s primary caregiver (tiebreaker factor usually)

*courts can NOT give preference due to gender or financial stability of party

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9
Q

Child Support: Modification

A

child support is modifiable based on a “substantial and continuing change of circumstances” affecting the needs of the child or the ability of the parent to pay

e.g. parent changes jobs, growth of child, inflation, illness, etc.

past due installments of child support can NOT be retroactively modified

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10
Q

modification of child support when a parent’s income is reduced voluntarily

A

Some courts will refuse to modify child support.

Other courts look at a multi factor approach that includes looking at whether the party had good faith

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11
Q

Child Support Guidelines

A

all states employ child support numerical guidelines, and there is a rebuttable presumption that the award that results from these guidelines is correct. But courts do have discretion to deviate from guidelines

the guidelines must be applied in all call cases

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12
Q

Rights of the Biological Non-Marital Father

A

unwed fathers are protected by Due Process Clause and have rights to custody of the child if they show parental responsibility

parental responsibility includes acknowledgement of paternity, support/care of the child, showing commitment to child

to have due process rights, the father must be willing to assume custody of the child. Can NOT merely block adoption by others

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13
Q

A child is the lawful child of an unwed father only if:

A
  1. the parents married after the child’s birth
  2. the father holds the child out as his biological child
  3. the father consents to be named on the birth certificate
  4. the father formally acknowledges paternity
  5. there is a court order establishing paternity
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14
Q

Marital Property

A

Marital property includes the property acquired during the marriage, earnings, employment benefits/pensions, etc.

Marital property is subject to property division upon divorce

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15
Q

Separate Property

A

separate property includes property acquired before the marriage, an inheritance, gift to one party, personal damages, etc.

separate property is NOT subject to division

an increase to the separate property is also considered separate property IF the increase is NOT due to the contribution of marital funds or the labor of the spouses

(e.g. spouse had trust fund before marriage and the trust then increases during marriage, but no marital funds are added = separate property)

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15
Q

Two Step Process for Equitable Division of Marital Property

A
  1. Classification - determine what is marital prop and what is separate prop
  2. Division - make equitable division of the marital estate regardless of how property is titled
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16
Q

equitable division of marital property

A

each spouse takes their separate property and the court only divides the property acquired during the marriage (this is the majority view to property division)

-minority view: court divides ALL assets

property distribution decrees are NOT modifiable

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17
Q

Issues in Classification of Property

A
  1. Commingling: separate property that is “inextricably intertwined” w/ marital prop to extent it can no longer be traced will become marital property
  2. Transmutation: when separate prop is treated in a way that evidences an intention for the prop to be marital prop, it will be treated as marital prop
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18
Q

types of alimony

A
  1. permanent periodic spousal support (paid regularly to support spouse w/o resources or ability to be self-sustaining)
  2. Lump Sum (fixed amount; not modifiable)
  3. Rehabilitative (periodic payments for a limited time to enable to spouse to get skills to be self-supporting)
  4. Reimbursement (awarded to spouse who supported other spouse in getting professional license/degree)
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19
Q

Factors considered in awarding Alimony

A

Court ultimately has great discretion but mainly considers needs of claimant and ability of other spouse to pay. Includes following factors:

  1. standard of living during marriage
  2. duration of marriage
  3. age and physical/emotional condition of parties
  4. financial resources of parties
  5. contribution of each party to the marriage
  6. time needed for other spouse to get training to support self
  7. ability of payor spouse to meet their needs while paying alimony
  8. marital fault (considered in most states for alimony, but generally NOT for prop division)
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20
Q

Modification of Spousal Support/Alimony

A

Periodic spousal support may be modified if there is a “substantial change in circumstances” regarding the needs of the recipient spouse or ability of the payor spouse to pay

a self-induced reduction in income by the payor spouse is NOT sufficient to have spousal support reduced

21
Q

circumstances that usually terminate alimony

A
  1. death of either spouse
  2. lapse of specific time
  3. remarriage of receiving spouse (cohabiting w/ someone in marriage like relationship also often terminates alimony)
22
Q

Premarital Agreement

A

a court will enforce a premarital agreement so long as it is:
1. in a signed writing,
2. voluntary
3. based on full disclosure of assets/obligations was made, and
4. fair (court will consider each provision to ensure that it is fair and reasonable, and that it does not violate public policy)

A court will NOT enforce a premarital agreement regarding child custody/support if it is NOT in the best interest of the child. These do NOT bind the court

also against public policy to enforce a waiver of spousal support if it would leave a spouse dependent on the state

23
Q

Law governing enforceability of a premarital agreement

A
  1. law of the state where the parties executed the contract; OR
  2. the law of the state w/ the most significant relationship to the parties

But most premarital agreements tend to include valid choice of law provisions. The above choices apply when there is no such choice of law provision

24
Q

Divorce jurisdiction

A

for court to have jurisdiction over divorce, only 1 of the parties needs to be domiciled in the jurisdiction (often a minimum residency period before can file action)

-in essay, note if the spouse’s domicile status can be challenged (i.e. did they move to the state legitimately or just to get a divorce?)

an ex parte divorce generally can serve to grant only divorce and has no effect on disputes over marital property, unless the property is located in the rendering state

to determine property division/alimony rights, the court must have personal jurisdiction over the D

also possible for multiple states to have jurisdiction over a divorce, and multiple cases could proceed until one court renders judgment (this then makes other case lose SMJ over the case)

25
Q

Divorce - Full Faith and Credit

A

as long as the court that granted the divorce decree had proper jurisdiction, the decree will be recognized as valid in all other states

provisions of divorce decree relating to property rights, alimony, child support, etc. are all given full faith and credit only if the court had personal jurisdiction over the D

26
Q

No Fault Divorce

A

most states allow spouses to get divorce w/o showing marital fault.

A No-Fault Divorce requires showing one of the following:
1. BOTH spouses agree marriage is “irretrievably broken” (i.e. that there are “irreconcilable differences”)
2. the spouses have been living apart for a specified and continuous period of time. This form of No-Fault divorce can be bilateral OR unilateral

27
Q

Fault Divorce grounds

A
  1. Adultery
  2. willful desertion (unjustified abandonment)
  3. cruelty
  4. drug addiction/habitual drunkenness
  5. insanity
28
Q

Defense to No-Fault Divorce

A

denial that the marriage is irretrievably broken (i.e. reconciliation is possible)

denial that the parties have lived separate and apart for the specified time

29
Q

Defenses to Fault-Based Divorce

A
  1. Collusion (agreement b/w spouses to simulate grounds for divorce)
  2. Connivance (consenting to other spouse’s misconduct)
  3. Condonation (forgiveness of marital offense w/ full knowledge of the wrong)
  4. recrimination (i.e. unclean hands; rarely used defense)
30
Q

Separation Agreements

A

agreement entered into after marriage under which parties agree to live apart and resolve economic issues (property, alimony) and custody rights

31
Q

separation agreement requirements

A

to be enforceable, the agreement must be:
1. voluntary
2. full and fair disclosure by both parties
3. consideration

parties can waive alimony or property division

parties can also agree on custody/child support, BUT courts are not bound by the parties’ K concerning children

32
Q

Contracts between Unmarried Cohabitants

A

express Ks b/w unmarried cohabitants regarding earnings/property are generally valid and enforceable

BUT these Ks are unenforceable when sex is the only consideration

33
Q

Uniform Interstate Family Support Act (UIFSA)

A

the UIFSA governs child support. It has been adopted by all 50 states and lays out rules for enforcement and modifications of support orders

the purposes of the UCCJEA are to promote the use of a more convenient forum and to deter abductions and unilateral removals of children

34
Q

Child Support: Original Jurisdiction

A

Original jurisdiction to enter a child support order is proper where the first petition under UIFSA is filed

Another state can exercise jurisdiction over a child support order ONLY IF:
1. The second petition is filed before the time to answer the first has expired
2. the petitioner objected to jurisdiction in the first action
3. the second state is the child’s home state

34
Q

Child Support: Jurisdiction to Enforce

A

court that initially ordered child support has jurisdiction to enforce. UIFSA sets out rules for other states to enforce child support orders too

  1. Direct Enforcement - obligee can mail the order to the obligor’s out of state employer, automatically triggering withholding unless there is timely objection
  2. Registration - UIFSA provides for registration of a support order w/ another state, allowing it to be subject to same enforcement procedures as issuing state
35
Q

Child Support: Jurisdiction to Modify

A

Generally, the state that originally issued the order has continuing and exclusive jurisdiction to modify the order

Other states generally only enforce the order. BUT another state will have jurisdiction to modify the child support order if:
1. no party resides in the issuing state; or
2. the parties consent to jurisdiction elsewhere

36
Q

Child Custody: Initial Custody Determination (Home State Test)

A

A court has jurisdiction to initially enter or modify a child custody or visitation order if the state:
1. is the child’s “home state”, OR
2. was the child’s home state within the past six months and the child is absent from the state, but a parent/guardian continues to live in the state

child custody jurisdiction is governed by the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”)

37
Q

Child Custody: Home State

A

a child’s “home state” is the state in which the child lived with a parent/guardian for at least 6 consecutive months immediately before the child custody proceeding commences

can also be state where child has lived since birth if child is younger than 6 months old

38
Q

Child Custody: When Does Home State Rule not apply?

A

a court will have jurisdiction to enter or modify a child custody order only if no other state has or accepts home state jurisdiction and:
1. the child and at least 1 parent/guardian have a significant connection w/ the state, AND
2. substantial evidence concerning the child is available in the state

39
Q

Child Custody: Modification of Existing Decree jurisdiction

A

the issuing court has continuing exclusive jurisdiction for modifications

another court can ONLY exercise jurisdiction to modify if:
1. no child or parent/guardian continues to reside in issuing state, OR
2. the child no longer has a significant connection w/ the issuing state and substantial evidence relating to the matter is no longer available in that state

Custody orders are always modifiable

40
Q

Child Custody: Emergency Jurisdiction

A

court can exercise temporary emergency jurisdiction if the child has been abandoned or if necessary to protect the child when threatened/subject to abuse

41
Q

Child Custody: Custody to a Nonparent

A

in custody disputes b/w parents and third parties the court will also take into consideration the constitutional rights of the natural parent to raise child in addition to best interest of the child

Absent voluntary relinquishment of the child, the parent is entitled to custody unless the non parent can show that it will result in harm to the child or that the parent is unfit

typically only special circumstances will lead to a court finding the bio parents has lost right to raise the child and that the non parent gets custody (e.g. abandonment, neglect, abuse of child)

42
Q

Parental Visitation and Child Support

A

the right to parental visitation is independent of child support obligations

Therefore, visitation can NOT be withheld bc of missing child support payments

43
Q

non parental visitation rights

A

most states have statutes enabling some third parties to visitation (e.g. grandparents)

But, the SCOTUS has held that if a parent is fit, their wishes on non parent visitation are constitutionally protected and must be given “special weight.” A judge may not override a fit parent’s decision regarding third party visitation merely bc it would be in best interest of the child

44
Q

Child Custody: Modification of Custody Decrees

A

custody orders are always modifiable. burden of proof on party seeking change

Generally custody awards will be modified only if there has been a “substantial and material change in circumstances” affecting the child’s well being

45
Q

Parental Kidnapping Prevention Act (PKPA)

A

Under PKPA, full faith and credit must be given to another state’s custody or visitation determination if jurisdictional requirements are met

jurisdictional standards are substantially the same as those in UCCJEA

46
Q

Parent’s rights over care of child

A

Parents have a constitutional right to determine issues regarding the care, custody, and control of their children

Court may not override a parent’s authority just because it would’ve decided an issue differently.

But a court can override if there is indication that child would otherwise be irreparably harmed

47
Q

child support - full faith and credit

A

Under the Full Faith and Credit for Child Support Act (FFCCSA), full faith and credit must be given to another court’s child support order if:
(1) the court had jurisdiction over the matter and the parties, and
(2) the parties had reasonable notice and opportunity to be heard

Once a state w/ proper jurisdiction issues the support order, courts of other states are generally limited only to enforcing the original order (unless all parties no longer reside in issuing state or parties consent to non issuing court asserting jurisdiction to modify)

48
Q

child support modifications - past due installments of child support

A

most states hold that past due installments of support can NOT be retroactively modified

49
Q

Interspousal Tort Immunity

A

traditional law was that one spouse could not sue another in tort for personal injury

BUT now modern view has gotten rid of interspousal tort immunity. Either spouse may now maintain a tort against the other

50
Q

Parent-Child Tort Immunity

A

majority of states have abolished parent-child tort immunity

BUT most states generally grant parents broad discretion in exercise of parental authority/supervision

MEE (6 decks)

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