Family Law Flashcards
Property Division at Divorce
A majority of states follow an equitable division scheme where the court will will identify and classify the property as either separate or marital. Separate property is property owned prior to marriage, was gifted during the marriage to only one spouse, bought with the proceeds of separate property, or property that appreciated with time. Marital property includes items such as pensions, stock options, debts and the marital residence and can also include comingled property. The court would then value the property at the date the parties separate and they divide the assets based on factors to include alimony, spousal support, education, health, financial status of the parties.
Child Custody: Best Interest
While both parents of a minor are living, competent and fit, they are jointly entitled to custody of the minor with equal rights. Under the UMDA , the best interest of the child is determined by an examination of the child’s wishes, the parents wishes, the interaction of the child with siblings and other important persons, the child’s adjustment to their home, school and community, and the mental and physical health of all individuals involved.
Premarital Contracts
A prenuptial agreement in which spouses establish the division of assets upon divorce. They must be in writing, voluntarily signed by the parties, and not be unconscionable or lack reasonable disclosure. Such an agreement can be found unconscionable under inspection of the procedural fairness that include access to independent counsel for the parties, fair and accurate disclosure of assets, and the education level of the parties,
However, such an agreement does not bar either party from making subsequent gifts via a will or otherwise.
Marital Action Jurisdiction
Jurisdiction over the marital status is established by virtue of the domicile of one of the parties within the state at the time of filing the action.
Common Law Marriage
Most states do not authorize common law marriages in their jurisdiction, but will recognized a common law marriage if it was recognized by
another state unless it violates an important state public policy. The parties are required to have the capacity to marry, cohabitate, hold out as a married couple, and have the present intent to be married.
Modification of Child Support
Uniform Interstate Family Support Act provides that a registered child support order is enforceable by any state using a two-state enforcement process. Modifying that order requires a substantial change in the child’s need or the obligor’s capacity.
The Parental Kidnapping Prevent Act and the Uniform Child Custody Jurisdiction Enforcement Act preclude a non-issuing state from modifying a custody order from another state if the child is still under the jurisdiction of the issuing state.
Modification of Child Custody
Uniform Interstate Family Support Act provides that child custody modifications only occur where significant changes in circumstances have taken place as there is a need to maintain stability and finality in custody arrangements.
Modification of Spousal Support
Most jurisdictions require a substantial change in circumstances that rendered the original award unreasonable and unfair. Decreases in income may be considered substantial but the courts will consider if the change was voluntary.
Child Support Calculation
Establishing Paternity/Legitimation
