Family Law Flashcards
Court is afforded great deal of discretion
Is breach of promise to marry a valid claim?
Majority - No.
Minority - Yes (sounds as a breach of contract)
Should the gift in contemplation of marriage be returned?
Yes, the courts will analyze the type of gift and the likelihood that it was given conditioned on a subsequent marriage
Is alimony and child support waivable in antenuptial agreements?
Alimony - valid, except when it leaves a spouse a public charge (gov. benefits)
Child support - not valid
Requirments for a valid premarital agreement?
1) a signed writing
2) entered into voluntarily (not the night before the wedding)
3) knowledge of assets
Under UPAA - 3rd element is considered only if the K is unconscionable
What law applies?
Law of state of execution or
Law of state with significant connections to the parties
Requirements for a valid ceremonial marriage?
1) license (waiting period)
2) ceremony with authorized officiant
3) no legal impediment (includes aunts and nephews, half-siblings, sometimes cousins)
4) mental capacity to consent
(if <16, judicial consent, 16-18 parental consent, 18+ good)
What is a CL marriage?
1) Consent to marry
2) cohabitation
3) hold themselves out as spouses
If couple has a CL marriage, and moves into state that does not recognize CL marriage, do they have to file for a divorce to legally separate?
Yes, because the CL of marriage recognized it
What is a marriage by estoppel?
an equitable remedy to protect innocent parties
What is a doctrine of necessaries?
spouses are obligated to pay for the necessaries of the other spouse
Can a spouse obtain restrictive abuse order without notice to the other party?
Yes, they can be ex parte
Elements of Alienation of affection?
1) valid marriage
2) love and affection was destroyed
3) caused by defendant’s actions
Elements of Criminal Conversion?
1) valid marriage
2) adultary (sex w/ 3rd party)
What renders marriage void?
1) bigamy ( 2 mariages)
2) too closely related
What renders marriage voidable?
1) consent
2) age
3) duress or fraud
If the prior marriage was terminated only after second marriage was entered into, is the second marriage valid?
Maybe. Continued cohabitaion valides the second marriage
Marriage by estoppel may be applied to protect innocent spouse
What is the affect of annulment (voidable/void) of marriage on children, support, custody?
Children are considered marital, and the same rules as after the divorce govern.
What is the affect of annulment (voidable/void) of marriage on spousal support and division of property?
Majority - no spousal support. Property is divided by legal title or equitably.
After 5 years of marriage, Asha, dissatisfied with Alex, moved to Florida. Alex filed for divorce in NY. Asha filed a motion to dismiss for lack of jurisdiction? Is there jurisdiction?
Yes, so long as one spouse is domicile in the forum state.
After 5 years of marriage, Asha, dissatisfied with Alex, moved to Florida. Alex filed for alimony and property division in NY. Asha filed a motion to dismiss for lack of jurisdiction? Is there jurisdiction?
The court must have personal jurisdiction over both parties to adjudicate financial matters.
2 grounds for a no-fault divorce?
Irreconcilable difference
living apart for a specified and continuous period of time
grounds for a fault divorce?
Adultery (opportunity and inclination)
Abandonment
Extreme physical or mental cruelty
Voluntary drug addiction or habitual drunkenness (must start after marriage)
Insanity
Possible defenses for divorce?
Collusion (fraud)
Connivance (consent)
Condonation (forgiveness)
Recrimination (both at fault)
What is the defense of connivance?
a consent to other spouse’s misconduct. E.g. swinger couples
What is the defense of condonation?
a forgiveness of marital misconduct
What is the defense of recrimination?
a party seeking divorce is guilty of same misconduct
Can the court decide property division, spousal support or custody rights if the parties legally separated but have not divorced?
Yes, if they have an order of legal separation
What are the 3 approaches to division of property?
Community property (1/2 for each spouse)
Equitable division of all property
Equitable division of marital property (majority)
steps of property division
1) classify all property
2) division
What is separate property?
1) retirement accounts
2) gift, inheritance if during marriage
3) money from pre-marriage
4) property bought with separate property
5) pain and suffering awards
What is marital property?
1) earnings, lost wages, employment benefits, pensions
2) property acquired during marriage
Circumstances when separate property may become marital?
1) commingling
2) transmutation (intent to treat property as marital)
If spouse uses marital property to improve a personal house, is the status of the house any different now?
No, but the other spouse may be reimbursed for the added value to the house
Can property division be modified by parties of the appellate court?
No, they are final
Does marital fault affect property division?
No, it does not affect property division or child support, but may affect alimony
Note: economic fault can affect property division
Types of alimonies
1) permanent periodic support
2) lump sump support
3) rehabilitative support (support to acquire good life)
4) reimbursement support (reimbursement for support during law school)
Factors to consider for alimony payments
1) standard of living
2) duration of marriage
3) age and condition
4) financial resources
5) marital fault
When can alimony payments be modified?
only permanent or rehabilitative support can be modified, and only upon substantial and material change in circumstances
What are the tax consequences for alimony?
After 2019 - not taxable
Prior to 2019 - can deduct, and go to the income.
What are the rules for modification of separation agreements
If merged into divorce degree - enforceable as court order and modified in court.
If not merged - contract dispute.
Can a father be denied visitation rights if he failed to pay support?
A spouse cannot deny. Court can
4 events when child support is terminated?
- age of majority
- death of child
- emancipation (minor married)
- termination of parental rights
but may continue if child is severely injured
What court has jurisdiction to decide child support?
Any court, where the first petition is filed.
Except, 2nd state has jurisdiction if
1) the parent objected to a jurisdiction
2) filed a second petition before the time to answer has expired; and
3) the second state is the child’s home state (lived for 6 months in there)
What court has jurisdiction to modify child support order?
Issuing court has continuing and exclusive jurisdiction to modify
How to enforce child support order?
1) the forum court can enforce
2) can mail the order to the obligor’s employer out-of-state to enforce
3) register the order with different state
Are child support payments taxable?
No.
If Ivan fails to pay child support, can the court take away his law licence?
Yes, but will probably withhold part of the salary rather than take away license
What is home state jurisdiction
state where a child lived with a parent for 6 consecutive months
What court has jurisdiction to decide child custody?
1) home state jurisdiction
2) where the child lived in the past 6 months and the parent is still living.
3) if none apply, state to which 1 parent and child have substantial connection and child is available in the state
What court has jurisdiction to modify child custody?
Issuing court has continuing exclusive jurisdiction;
Unlike child support, another state can exercise jurisdiction if
1) no one lives in the state; or
2) no connection with state
What is the standard for deciding custody or visitation rights?
Best Interest of the Child
Can a non-parent win custody rights?
To win any custody
1) show — abuse, neglect, abandonment.
2) consider best interest of the child
Can a non-parent win visitation rights?
1) in extraordinary circumstances
2) if a natural parent is fit, constitution affords great weight to their desires
What is the standard for modifying custody?
1) Best interest of the Child
2) Show substantial and material change in circumstances (like changing everything else)
When can an unwed father establish his rights to a child
- marrying child’s mother after the birth
- holding out child as biological child
- consenting to be named on birth certificate
- acknowledging paternity (formally)
- court order
What is required for fathers to have standing to get custody or visitation rights?
establishment of paternity
When can involuntary termination of parental rights happen?
Action must be by the state!
1. infliction of serious harm
2. abandonment
3. neglect
4. mental health of a parent
5. unfitness (drug abuse)
Can an unmarried father prevent giving up a child for adoption?
Yes, if he provided care and support for the child
