Family Law Flashcards
Family Law Imported
Will a state recognize a common law marriage from another state?
Yes
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 marriage is void from the beginning. There are two marriage-saving doctrines for the new spouse: (1) 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
Virtually all state are no-fault divorce states. Some states recognize fault-based grounds too. Annulment is also recognized for fraud and other reasons.
When determining child custody and support, what is the main consideration?
The best interest of the child.
A biological parent generally has parenting rights if:
He is involved in the child’s life
Factors to look at in custody determinations:
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 can be modified only if:
There is a substantial change in circumstances.
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. This is a heavy burden.
EXCEPTION:(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—examine if the party acted in** good faith**, etc.).
Also note: 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 BIOC 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 children and the custodial parent. There are a few different views: some states place the burden on the relocating parent and some put it on the objecting parent.
When does the father have rights?
Generally, biological fathers have rights. However, the state may make the parent exercise his rights within a specific time.
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 rights re child custody
Custody in the parent is presumed to be in the BIOC. 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.
Any third-party visitation or custody statute must give special weight to the parent’s determination of the child’s best interest.
Division of property by court in a marital proceeding
In a majority of states, marital property is divided at divorce but separate property remains the property of the owning spouse
Marital vs separate property
Marital property is property acquired during the marriage.
Separate property includes 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.
Division of property on divorce 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 BIOC.
Alimony
Can be permanent, temporary, or granted in a lump sum. 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.
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.
Must be an unanticipated change. Alimony usually terminates if a spouse dies/gets remarried. In some state, cohabitation will reduce/terminate alimony.
Can a court issue a binding order affecting personal rights such as property division or support if it does not have jurisdiction over the defendant spouse?
No, 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 one 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.
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.
Child support jurisdiction
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 oblige, the child, or the obliged, and at least one of the parties does not consent to the jurisdiction of another forum.
Child custody order jurisdiction
Uniform Child Custody Jurisdiction and Enforcement Act applies.
The home state test: 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 6 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** 6 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.
What happens to gifts made in contemplation of marriage if the marriage fails to take place?
They are null. These are gifts conditioned on the subsequent marriage (engagement rings).Consider the type of property, conditions attached, and donor intent.
Requirements for validity of premarital agreements
In writing and signed
Entered into voluntarily (no fraud/duress/overreaching)
Full disclosure of assets OR proof that party had independent knowledge
Marriage requirements
(1) license(2) ceremony with authorized officiant(3) no legal impediments to marriage—not too closely related/married to someone else (4) capacity to consent—mental capacity and age of majority
Marriage by estoppel/putative marriage
Equitable remedy that may be given by some courts to the innocent party who acted in good faith when entering an invalid marriage.In some states, the putative spouse can acquire all of the rights of a legal spouse.
