Family Law Flashcards
Bigamous marriage
No state recognizes. two marriage saving doctrines: (1) removal of impediment; UDMA allows an invalid marriage to be validated upon the removal of the impediment; (2) presumption of validity; under this, the last of several marriages will be presumed valid
Incestuous marriage
Void. Under UDMA, can’t marry: (1) ancestors or descendants; (2) siblings; or (3) uncles, aunts, nieces, or nephews
Marriage requirements
(1) marriage license; (2) solemnization; (3) consent
Common law marriage
(1) cohabitated; (2) held themselves out as married and (3) intended to be married
Premarital contracts valid if
(1) in writing and signed by both parties; (2) executed after full disclosure of the property and financial obligations of both parties; AND (3) voluntary
factors to consider re voluntary nature of premarital contract
(1) presence of independent legal counsel; (2) length of time between the agreement and the marriage; (3) sophistication of the parties; and (4) the presence of other pressing reasons to proceed with the marriage
Child custody and premarital contracts
Most courts decide custody according to the best interests of the child at the time of the custody hearing, regardless of premarital agreements
Child support and premarital contracts
Parents have absolute obligation to support their children.
Spousal support in premarital contracts
In some jx, premarital agreements that limit a spouse’s support after the marriage ends are void against public policy.
Under Uniform Premarital Agreement Act, modification or elimination of spousal support is permitted so long as such provisions do not make the former spouse eligible for public support
Annulment
common grounds: (1) lack of capacity to consent at the time of marriage; (2) lack of capacity to physically consummate the marriage; (3) underage minors and (4) marriages prohibited by law (bigamy, incest, etc.)
Divorce
Some states still have fault, but every state has adopted a form of no-fault divorce. Common grounds are: (1) a minimum duration of separation and/or (2) irreconcilable differences
Marital action jurisdiction generally
vested solely in the state courts (federal courts fo not have subject matter jx over domestic relation matters).
Annulment jurisdiction
A state where either party is domiciled has jurisdiction to enter an annulment decree.
Ex parte annulments are allowed in the state where either party is domiciled
Divorce jurisdiction
Under FF&C, a divorce validly granted in one state is entitled to full faith and credit in other states.
Generally, a divorce is valid and must be recognized by other states if the petitioning party: (1) was domiciled in the state that granted the divorce AND (2) provided adequate notice of the proceeding to the other spouse.
Divisible divorce
Under this concept, a distinction is made between the marriage and the marital property. A state does NOT have jurisdiction to divide marital property that is located in another state without PJ over other spouse
Separate property
(1) all property acquired by either spouse before the marriage; (2) all property acquired by a spouse during marriage by gift, bequest, devise, or descent; (3) all property either spouse acquires with the proceeds of the spouse’s separate property; and (4) all passive appreciation of separate property
BIG: before, inheritance, gifts
Marital property
All property acquired during the marriage (regardless of who holds title). Active appreciation of separate property is usually categorized as marital property
Professional degrees and licenses as property
In almost every state, these are separate property and not subject to distribution at divorce.
Equitable distribution factors
(1) income, property, and liabilities of each party; (2) duration of the marriage; (3) the obligations for support arising out of a prior marriage; (4) the lifestyle each spouse is accustomed to; (5) the contributions made by each spouse toward the accumulation of marital property. Marital fault = NO
Modification of property division
Generally, courts may NOT modify a property division award (whether it results from a divorce settlement agreement or judicial determination) UNLESS exceptional circumstances exist
Spousal support
Court has wide discretion, a spouse is eligible for spousal support if the spouse seeking support: (1) lacks property sufficient for his or her reasonable needs and is unable to support himself through gainful employment; OR (2) is the custodian of a child and not working
Spousal support factors
(1) financial resources of the party seeking maintenance; (2) time necessary for the spouse seeking support to obtain an appropriate job; (3) duration of the marriage; (4) standard of living; (5) age and physical condition; (6) ability to meet own needs
Modification of spousal support
When there is a substantial change in circumstances of either party making the prior order unreasonable. Some courts do not allow modification if the change in circumstances was anticipated or voluntary
Child support guidelines
(1) income of both parents; (2) number of children and their needs
Modification of child support
Modified only when there is a substantial change in circumstances of either party making the prior order unreasonable.
**State that originally issued the order has continuing exclusive jurisdiction to modify so long as that state remains the residence of the obligee, child, or obligor
Best interest factors for custody
(1) needs of the child for relationship with both parents; (2) ability and willingness of the parents to actively perform their functions as parents; (3) relationships; (4) child’s adjustment to home, school, community; (5) mental and physical health of all individuals; (6) intention of parent to relocate; (7) wishes of the child’s parents as to custody AND (8) wishes of the child
Visitation
When one parent is granted custody of a child, the other parent is usually always entitled to visitation unless the court determines that visitation would seriously endanger the child’s wellbeing
Third party visitation
In a minority of states, courts may order visitation for a nonparent if: (1) the nonparent has a substantial relationship with the child; AND (2) the visitation is in the child’s best interests
Modification of Child Custody
In order to modify a child custody order, the parent must show that (1) circumstances have substantially changed and (2) the modification would be in the child’s best interests
**state that issued has continuing and exclusive jx
Relocation of child
Courts will allow if: (1) motives are not vindictive AND (2) move is in child’s best interests.
Rights of Cohabitants
Most courts allow express contracts of economic sharing, some states allow unmarried cohabs to seek a remedy based on an implied in fact theory, or equitable remedies (resulting trust, constructive trust, quantum meruit)
Establishing paternity
(1) an effective acknowledgement of paternity by the man unless the acknowledgement has been rescinded or successfully challenged; (2) a valid adoption or (3) an adjudication on man’s paternity
Man presumed to be father
(1) married to mom at child’s birth or child born within 300 days of marriage ending; (2) while child is under the age of majority, father openly holds child out as his own
Legitimation
Legal action brought by biological father to establish his rights concerning child born out of wedlock. To establish his rights, father may file a petition seeking to legitimate his child. Must show that he has (1) assumed parental responsibilities; AND (2) established a substantial parent-child relationship
Adoption
Statutory procedure that terminates the rights of biological parents and establishes the rights of the adoptive parents. In most states, the biological parents lose the right to visit their child after the adoption. However, some states will permit visitation if it is in the child’s best interests.
Parental consent in adoption
BOTH parents. If born out of wedlock, dad only required if he assumed parental responsibility. An unwed father who knew of his child’s pending birth is NOT entitled to notice of the adoption if he did not take steps to establish a parent-child relationship with the child.
Challenge to validity of consent for adoption
can challenge if consent was (1) procured by fraud or duress or (2) failed to comply with statutory formalities (some states require two witnesses to consent to an adoption, most states declare pre-birth adoptions invalid)
Revocation of valid consent to adoption
(1) consent is revocable until the final adoption decree is entered with the court; (2) consent is revocable at the court’s discretion up to a specified amount of time so long as the revocation is in the child’s best interests; or (3) absent fraud or duress, consent is not revocable
Jurisdiction to modify child support order
The state originally issuing the order has continuing and exclusive jurisdiction to modify the order if: (1) the obligee, obligor, or child resides in the state
Child support jurisdiction
The Uniform Interstate Family Support Act (“UIFSA”) provides methods of enforcement and guidelines for modifications of support orders issued in other sates
Original child support jurisdiction
Original jurisdiction to enter a child support order is proper where the first petition under UIFSA is filed
When can another state exercise support jurisdiction
only if (1) the second petition is filed before the time to answer the first has expired; (2) the petitioner objected to jurisdiction in the first action; (3) the second state is the child’s home state
Initial Custody Determination
A court has jurisdiction to initially enter or modify a child custody or visitation order if the state: (1) is the child’s home state; or (2) was the child’s home state within the pst six months and the child is absent from the state, but a parent or person acting as a parent continues to live in the state
When “home state” does not apply
The child and at least one parent (or person acting as a parent) has a significant connection with the state, and substantial evidence concerning the child is available in the state
Defenses to marital fault grounds
(1) recrimination (dirty hands, spouse also cheating) (2) condonation (waiver, knowledge and forgiveness) (3) connivance (entrapment) (4) collusion
Types of alimony
temporary, permanent periodic, rehabilitative
What governs child support
Uniform Interstate Family Support Act (UIFSA)
What governs child custody
Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA)
Which state’s laws govern premarital agreements?
Some states will apply the law of the state where the contract was executed. Other states apply the law of the state with the most significant relationship to the parties and transaction.
Best interests of the child (FLIP DADS)
F - financial ability of parents – who has the money?
L - lifestyle of parents – does one parent smoke crack or hang out with a shady crew?
I – Initial custody, courts will look at how custody was initially awarded
P – Primary caregiver (who has been the childs primary caregiver up until now).
D – Desires of the child (this one is pretty important if the child is older. Maybe a 6 year old can’t decide… but a 14 year old? That will be given way more weight).
A – Availability of parents and their respective living arrangements.
D – Domestic violence. Obviously prior incidents of domestic violence initiated by one parent will cut against them for custody.
S – Siblings should not be separated because one can find a lot of support and stability being with their sibling (unless you don’t like your siblings).
