Family Law Flashcards
How do states across the board recognize comon law marriage?
If a couple is common law married in a state that recognizes it, other states will recognize the marriage too.
How do you establish common law marriage?
to establish a common law marriage, the proponent must show:
1. capacity to enter into a marital contract,
2. a present agreement to be married, cohabitation,
3. and holding out a marital relationship.
CACH
How is marriage recognized?
Marriage valid under the law of the place in which it was contracted will be valid elsewhere unless it violates a strong public policy of the state that has the most significant relationship to the spouses and the marriage.
What is the legal value of a bigamous marriage?
A bigamous marriage is void from the beginning.
What are the two marriage saving doctrines for a spouse in a bigamous relationship?
(1) there is a presumption that the most recent marriage is valid, and
(2) removal of the impediment (e.g., by divorce) will render a subsequent marriage valid.
Why will most states grant divorce?
Virtually all states are no-fault divorce states.
Some states recognize fault-based grounds too.
Why is annulment recognized?
Annulment is also recognized for fraud and other reasons.
What is the primary factor in how custody is determined?
Custody is determined by looking at the best interest of the child.
What are the factors for determining if custody is in the best interest of the child?
- This typically requires looking at factors such as the wishes of the child’s parents, the child’s primary caretaker
- the mental and physical health of all individuals, the interrelationship of the child and parents stability
- and whether there is any domestic violence.
When can custody be modified?
Custody can be modified only if there is a substantial change in circumstances.
Generally, this change must be unforeseen at the time of the initial judgment.
What are child support guidelines?
All states employ numerical guidelines and establish a rebuttable
presumption that the award that results from applying the guidelines is correct.
The guidelines must be applied in all cases, regardless of the parents’ marital status.
What are the factors for child support guidelines?
The court will look at factors like income and earnings of the parents, the number of children and their ages, and any special needs of the children.
How does one obtain modification of child support?
In order to obtain a modification of a future support obligation, the petitioner must show a substantial change in circumstances making the prior order unreasonable.
(If the change is a reduction in income, and it was voluntary, some courts will not modify it; some will under a multi-factor test—e.g., examine if the party acted in good faith, among other factors.)
This is a heavy burden.
Is child support modified retroactively or substantially?
Child support cannot be modified retroactively unless there was fraud or other compelling circumstances.
How will a court deal with relocation of a parent and child?
- Generally, a move sought in good faith that will serve the child’s best interest will ordinarily be approved.
- The court will balance the impact on visitation by the noncustodial parent against the benefits of the move to both the child(ren) and the custodial parent.
- There are a few different views (which you should mention if applicable): some states place the burden on the relocating parent and some put it on the objecting parent.
How much weight are decisions by a fit parent given?
Decisions by a fit parent must be given some deference.
This includes decisions regarding
medical care (but parental rights can be limited if a parent’s decision will jeopardize the health or safety of the child).
When does the father have rights?
Generally, biological fathers have rights.
However,thes tate may make the parent exercise his rights within a specific time (e.g., two years).
What are the rights of a parent when another person wants to adopt a child?
An involved parent who demonstrates a “full commitment to the responsibilities of parenthood” will likely be able to successfully oppose an adoption petition by another and is entitled to notice of such proceedings.
What must a third party who wants custody prove?
Custody in the parent is presumed to be in the best interest of the child.
To rebut this, a third party who wants custody must prove that the parent is unfit or that granting custody to the parent would be highly detrimental to the child.
Thus, any third-party visitation or custody statute must give special weight to the parent’s determination of the child’s best interest.
How will courts divide property at a divorce proceeding?
in a majority of states, marital property is divided at divorce but separate property
remains the property of the owning spouse.
What is martital property?
Marital property is property acquired during the
marriage.
What is separate property?
Separate property includes (mnemonic=BIG) property acquired before the marriage, an inheritance, or a gift to one party.
Most states don’t count professional degrees earned during the marriage as marital property.
Will a court enforce property division based on a premarital agreement?
A court will enforce a premarital agreement so long as it is voluntarily made, substantively fair, and if full disclosure of assets and obligations was made.
Will a court enforce a premarital agreement regarding child custody or support?
A court will not, however, enforce a premarital agreement regarding child custody or support if it is not in the best interest of the child.
