family law Flashcards

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1
Q

Common Law Marriage, Elements

A

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

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2
Q

Marriage, Conflict of Law

A

Marriage valid in one state will be valid in another

-UNLESS it violates a STRONG public policy

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3
Q

Putative Marriage Doctrine

A
  • 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
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4
Q

No-Fault Divorce

A
  • Typical Standard is Irrevocable Differences
  • No required attempt at reconciliation
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5
Q

Fault-Based Divorce

A
  • Grounds for include: Adultery, Desertion, Cruelty (physical, not verbal, abuse)
  • Some states require period of separation (like 1 year) prior to divorce
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6
Q

Community Property

A
  • Only 20% of states follow
  • Requires an EQUAL division of marital property
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7
Q

Equitable Distribution

A
  • Majority Rule
  • Equitable or Fair, NOT Equal
  • Takes into consideration the circumstances of the parties
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8
Q

Marital Property

A
  • Divided between spouses, Equitably (majority) or Equally (minority)
  • Includes all assets/property acquired DURIGN marriage
  • Excludes Gifts, Descent, Devise
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9
Q

Spousal Property

A
  • Goes to original Spouse upon divorce
  • Includes

1) Assets acquired DURING marriage by Gift, Descent, or Devise

and 2) Anything acquired BEFORE marriage

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10
Q

MP, Future Retirement/Pension Benefits

A
  • If a spouse works DURING marriage and creates/earns profits/benefits that will be paid AFTER marriage, considered MP
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11
Q

MP, Professional Licenses/Degrees

A
  • The degree itself is spousal, even if acquired during marriage
  • Spouse CAN seek REIMBURSEMENT for contribution to edu and living expenses
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12
Q

MP, Personal Injury claim proceeds

A
  • 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

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13
Q

Modification of Property Division Award

A
  • NOT modifiable, because based on the parties assets at time of divorce (obvious when you think about it)
  • Change in circumstances has NO effect
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14
Q

Spousal Support, Generally

A
  • 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)
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15
Q

Spousal Support, Types of Support

A

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

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16
Q

Spousal Support, Modification

A
  • 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
17
Q

Divorce, Jurisdiction

A
  • 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
18
Q

Child Support, right to support

A
  • 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
19
Q

Uniform Interstate Family Support Act (UIFSA)

A
  • 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

20
Q

Child Support, Amount

A
  • 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
21
Q

Child Support, Modification

A
  • 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
22
Q

Child Support, Jurisdiction over existing child support obligations

A

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

23
Q

Child Custody, Types of Custody

A

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

24
Q

Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA)

A
  • 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
25
Q

UCCJEA, Initial Custody Determination (home-state jurisdiction)

A

Court has SMJ if it:
a) is the child’s HOME STATE (and has been for six months/since birth)
or b) was the child’s home state in the past, and ONE PARENT lives there

26
Q

UCCJEA, Significant Connection Jurisdiction

A

Court can modify order if:

1) home-state jurisdiction not met

2) Child and at least ONE parent have SIGNIFICANT CONNECTION to state

and 3) SUBSTANTIAL EVIDENCE in the state re/ child’s care, protection, training, and personal relationships

27
Q

UCCJEA, Exclusive-Continuing Jurisdiction

A

Court that make the initial ruling in a custody case has exclusive jurisdiction until it determines that:

1) both parties no longer RESIDE in the state

or 2) the child no longer has a SIGNIFICANT CONNECTION, and any substantial evidence is no longer available in the state

28
Q

Best Interests of Child Standard

A
  • Courts determine who Primary Caregiver will be based on best interest of the child
  • Child’s Preference: will be considered, if Old and Mature enough
  • Third Party rights: Legal parents have presumption, can be overcome by third party when they show legal parent has had little contact w/ kid, or that kid lived with third party for long time
29
Q

Visitation and Parenting Time

A
  • Noncustodial parent is allowed reasonable visitation
  • Parents have constitutional right to visitation, can only be overcome if would seriously endanger child
  • Third parties have less visitation rights, limited to situations where they have acted in loco parentis
30
Q

Modification of Custody Order

A
  • Make sure court has Jurisdiction, based on one of home-state, etc.
  • Parent seeking modification must show substantial change in circumstances
  • Court will look at factors of best interest of child
31
Q

Premarital Agreements

A
  • Usually made to decide division of property, spousal support, etc.
  • Enforceable if:
    1) Signed writing
    2) Full disclosure
    3) Agreement is fair and reasonable
    4) Agreement was voluntarily entered into
  • Can argue Unenforceable if:
    1) Involuntary (fraud, duress, coercion)
    or 2) Unconscionability when executed and Lack of Reasonable Knowledge or Disclosure of other side’s assets/obligations
32
Q

Separation Agreements

A
  • Made by spouses planning divorce
  • Define property division, spousal support, child support, custody, visitation, etc.
  • Terms re/ children ALWAYS modifiable in best interest of child
  • May be invalidated w/ Unconscionability or Fraud
33
Q

Property Settlement Agreements

A
  • Settle economic issues of the marital estate
  • Entered into by the parties before a divorce decree is issued
  • May be invalidated w/ Unconscionability or Fraud
34
Q

Unwed Father’s Rights

A

Unwed Fathers have Constitutional rights if they have shown COMMITMENT to being a parent, including preventing adoption

35
Q

Limits on Parental Authority

A
  • Parents have right to make decisions on how to raise child, but courts may intervene in best interest of child
  • Courts can intervene for med treatment when necessary to prevent SERIOUS HARM
  • States, under police powers, can require vaccinations, can deny school admission for refusal