Family Law Flashcards
How is a common law marriage established?
To establish a common law marriage, the proponent must show (“CACH”):
- capacity to enter into a marital contract,
- a present agreement to be married,
- cohabitation, and
- holding out a marital relationship.
Recognition of marriage
A 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.
Bigamy
A bigamous relationship is void from the beginning. But there are two marriage-saving doctrines for the new spouse:
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.
End of marriage (Divorce)
Virtually all states are no-fault divorce states. Some states recognize fault-based grounds too. Annulment is also recognized for fraud and other reasons.
What is examined when determining child custody and support?
When determining child custody and support, the best interest of the child is examined.
A biological parent generally has parenting rights if he is involved in the child’s life.
General child custody determinations
Custody is determined by looking at 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
Custody modifications
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.
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. 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
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.
Child support cannot be modified retroactively unless there was fraud or other compelling circumstances.
Relocation of 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 should be mentioned if applicable): some states place the burden on the relocating parent and some put it on the objecting parent.
Should decisions by a fit parent be given deference?
Yes. 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 a father have parental rights?
Generally, biological fathers have rights. However, the state may make the parent exercise his rights within a specific time (e.g., two years).
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.
Third party custody rights
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.
Key principle #3:
Be familiar with how a court will divide property in a divorce proceeding.
Division by court:
In a majority of states, marital property is divided at divorce but separate property remains the property of the owning spouse. (F2018, J2010, J2008, F2007)
Martial vs. separate property (majority approach):
Marital property is property acquired during the marriage. 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. (F2017, F2016, J2010, J2008, F2007, F2004, F1998)
Division based on 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. 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. (F2018, F2016, J2010, J2008, J2003, J1998, J1997)
Key principle #4:
Be aware of the three factors that a court will look at when considering to grant spousal support (alimony). Also, be aware of when a court may modify or terminate alimony.
Alimony:
Alimony can be permanent, temporary, or granted in a lump sum. Almost all states require the trial court to consider the parties’ financial resources and needs, marital contributions, and marital duration. Some states also look at spousal misconduct, one spouse’s support for the other’s education or training, etc. The trial court has substantial discretion in choosing to award alimony. (J2019, F2011, J2010, F2010, J2007, F2006, J2001, F1998, J1996)
Modification and termination of alimony:
Alimony awards may be modified if a court finds there has been a substantial change in circumstances making the prior award unreasonable. This must be an unanticipated change. Alimony usually terminates if a spouse dies or gets remarried. In some states, cohabitation will reduce or terminate alimony. (O2020, F2011, F2006, J2001, J1996)
Key principle #5:
Unless the court has jurisdiction over the defendant spouse, it may not issue a binding order affecting personal rights such as property division or support, but it may grant a divorce.
Which court may dissolve a marriage:
The court does not need jurisdiction over both spouses to terminate a marriage. If the plaintiff spouse is domiciled in the forum state or if the state has some other equivalent long-term connection between at least one of the parties to the marriage, then that court has jurisdiction to dissolve the plaintiff’s marriage. (J2020, F2007, F2003, F2000, F1996)
Which court may issue a property division order:
Unless the court has jurisdiction over the defendant spouse, it may not issue a binding property division or support order. (J2020, F2007, F2003, F2000, F1996)
Child support:
The Uniform Interstate Family Support Act (UIFSA) governs child support. This Act has been adopted by all states. Once an order is registered, it may be enforced by any state. The state that originally issued a child support order has continuing exclusive jurisdiction to modify that order if the state remains the residence of the obligee, the child, or the obligor, and at least one of the parties does not consent to the jurisdiction of another forum. (J2021, O2020, J2014, J2009, F2005, J2001)
Child custody order:
The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) applies. This is divided into a few tests: (J2021, J2019, J2012, J2011, J2009, F2005, F2003, F1996)
The home state test:
The “home state” has exclusive jurisdiction to modify a custody decree. A “home state” is a state where the child has lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of the child custody proceeding. A home state continues to have exclusive jurisdiction to issue a custody order for six months after a child leaves the state, so long as a parent, or person acting as a parent, still lives in the home state.
The significant connections test:
if a child has no home state, a state may exercise jurisdiction based on
(1) “significant connections” with the child and at least one parent and
(2) the existence of “substantial evidence” relating to child custody in the forum jurisdiction.
Emergency jurisdiction or default jurisdiction:
If no other state has or exercises jurisdiction, this test applies.
