family law Flashcards
Common Law Marriage, Elements
1) Capacity: mental and legal capacity to marry
2) Present Agreement: future agreements not allowed
3) Cohabitation: parties must live together
4) Holding Out as a Marital Couple to the community
Marriage, Conflict of Law
Marriage valid in one state will be valid in another
-UNLESS it violates a STRONG public policy
Putative Marriage Doctrine
- Party enters into marriage believing it to be valid, later discovers it was invalid
- Even though marriage is invalid, Spouse can still seek remedies, like spousal support and property distribution
No-Fault Divorce
- Typical Standard is Irrevocable Differences
- No required attempt at reconciliation
Fault-Based Divorce
- Grounds for include: Adultery, Desertion, Cruelty (physical, not verbal, abuse)
- Some states require period of separation (like 1 year) prior to divorce
Community Property
- Only 20% of states follow
- Requires an EQUAL division of marital property
Equitable Distribution
- Majority Rule
- Equitable or Fair, NOT Equal
- Takes into consideration the circumstances of the parties
Marital Property
- Divided between spouses, Equitably (majority) or Equally (minority)
- Includes all assets/property acquired DURIGN marriage
- Excludes Gifts, Descent, Devise
Spousal Property
- Goes to original Spouse upon divorce
- Includes
1) Assets acquired DURING marriage by Gift, Descent, or Devise
and 2) Anything acquired BEFORE marriage
MP, Future Retirement/Pension Benefits
- If a spouse works DURING marriage and creates/earns profits/benefits that will be paid AFTER marriage, considered MP
MP, Professional Licenses/Degrees
- The degree itself is spousal, even if acquired during marriage
- Spouse CAN seek REIMBURSEMENT for contribution to edu and living expenses
MP, Personal Injury claim proceeds
- IF cause of action arose DURING marriage, THEN:
(2 approaches)
1) All proceeds are MP, or
2) Damages are divided by type:
-Compensatory are SP of injured spouse
-Consortium are SP of non-injured spouse
-Lost wages, med expenses, etc. are MP
Modification of Property Division Award
- NOT modifiable, because based on the parties assets at time of divorce (obvious when you think about it)
- Change in circumstances has NO effect
Spousal Support, Generally
- Obligation of one party to provide the other with financial support
- Factors for consideration:
-Financial resources of parties
-Standard of living during marriage
-Time of receiving spouse to secure employment
-length of marriage
-contributions to marriage
-age/health of parties
-marital misconduct (some states)
Spousal Support, Types of Support
1) Permanent Alimony
-award for rest of life
-usually for longer marriages, when one party stayed home
2) Limited Duration Alimony
-usually for shorter marriages
3) Rehabilitative Support
-limited period of time, such as until [finds employment]
4) Reimbursement Alimony
-for financial sacrifices made during the marriage, reduced standard of living in present in order to get better SOL in future
Spousal Support, Modification
- Can be modified, EVEN if “permanent”
- Party seeking mod has BURDEN to establish SIGNIFICANT CHANGE in circumstances
- Voluntary reduced income insufficient, must be at least Incurred New Obligation
- Terminates if receiving Spouse remarries
Divorce, Jurisdiction
- Court can grant DIVORCE if it has jurisdiction over party seeking divorce
- Court CANNOT grant property division, spousal support, or child support UNLESS it has jurisdiction over BOTH parties
Child Support, right to support
- BOTH parents are legally required to provide for child
- Parents CANNOT bargain away child support payments
- Visitation rights CANNOT be denied for failure to pay support
Uniform Interstate Family Support Act (UIFSA)
- Governs when a state has PJ over Out-Of-State Parent in an action relating to child support
- PJ exists over Out-Of-State Parent WHEN:
1) Personal service in state
2) Parent resided w/ child in the state in the past
or 3) Child may have been conceived in that state
Child Support, Amount
- States have their own guidelines (most use Income Shares model)
- Guidelines control, but court can deviate based on factors:
-Best Interest of Child
-Age of child
-Special needs
-Assets of both parties
-Standard of Living during marriage
Child Support, Modification
- Permissible when there is a SUBSTANTIAL CHANGE in circumstances r/ either Child’s needs or Parent’s financial situation
- Party seeking change bears burden of proof
- Voluntary Reduction in Income may warrant change, if done in GOOD FAITH
- Modification ONLY affects future payments, cannot retroactively get your money back
Child Support, Jurisdiction over existing child support obligations
A) Modification: Under UIFSA, state that issued original order has continuing exclusive jurisdiction to modify, UNLESS no party lives there or parties agree otherwise
B) Enforcement: If a receiving parent moves to a new state, they may register a child support order in the new state, which will give full faith/credit
-new state can ENFORCE, but not MODIFY
Child Custody, Types of Custody
1) Legal Custody: right to make major decisions (health, edu, religion, etc.)
2) Physical Custody: right to have child reside w/ parent, provide routine daily care
3) Join Custody: both parents contribute, neither has superior right to make decisions
Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA)
- Purpose is to dictate which court has jurisdiction to decide custody and visitation
- Order goes,
1) Initial Custody Determination (home-state jurisdiction)
2) Significant Connection Jurisdiction
3) Exclusive-Continuing Jurisdiction
