Family Law Flashcards
Premarital Agreements
Uniform Premarital Agreement Act (UPAA)
Can agree regarding alimony but not for child custody and support
Must be in writing and signed , entered into voluntarily, and have a full and fair disclosure
Marriage Requirements
- License (will not invalidate)
- Ceremony with officiant
- No legal impediments
- Capacity to consent at time of ceremony
Common law marriage
- Consent to marry
- cohabitation of parties
- couple holds themselves out as married to the public
Void marriage (annulment)
Invalid because the essential requirements are not there
Subject to collateral attack
Voidable marriage (annulment)
Valid until declared null
No collateral attacks allowed
Can be remedied or ratified by continued cohabitation
Divorce jurisdiction
Where only one of the parties is domiciled
BUT if financial issues - then must have personal jurisdiction over the defendant
No Fault Divorce
Irretrievably broken - bilateral
Living apart for a specified and continuous period of time - bilateral or unilateral
Now incompatible - bilateral
Fault grounds
- adultery
- willful desertion
- cruelty
- drugs or alcohol
- insanity
Defenses to fault divorce
- collusion - agreement to fake
- connivance - willing consent
- condonation - forgiveness
- recrimination - also guilty
Separate Property
- property owned before marriage
- acquired by gift or inheritance
- acquired in exchange for separate property
- income and appreciation of separate assets
- pain and suffering awards
- personal damages
- property acquired after an order of legal separation
Marital Property
- property acquired during the marriage
- earnings
- employment benefits, pensions, and stock options
- lost wages
- reimbursement
- recovery for damages to marital property
Commingling of property
Separate property is inextricably intertwined with marital property so that it can no longer be traced
Transmutation
Separate property Is treated in a way that evidences an intention for the property to be marital property
Equitable Division factors
- age, education, background, earnings of parties
- duration of marriage
- standard of living
- present incomes of parties
- source of the money used to buy
- health of the parties
- assets, debts, and liabilities
- needs of the parties
- child custody provisions
- alimony
- opportunity to acquire future income
- each party’s contribution
- contribution as a homemaker
- economic fault
NOT marital fault
Permanent Periodic support
Paid regularly to support a spouse who has neither the resources nor the ability to be self-sustaining
Can be modified upon proof of substantial change of circumstances
Lump sum support
A fixed amount payable either all at once OR via a series of payments
No modification allowed
Rehabilitative support
Periodic payments for limited time to enable a spouse to gain skills to become a self-supporting
Can be modified
Reimbursement Spousal support
To a spouse who supported the other spouse while the latter obtained a professional license or degree
No modification allowed
Alimony factors
- standard of living
- duration of marriage
- age and physical and emotional condition of the parties
- financial resources
- contribution of each to marriage
- time needed for a party to obtain necessary training
- ability of the payor spouse to meet their needs
- marital fault
Separation Agreements
Agreement entered into after marriage
Must be voluntary, have full and fair disclosure, and there must be consideration (mutual promises)
Can contract for alimony or property, but not custody or child agreements
Contracts between unmarried cohabitants
Regarding earnings and property rights are generally valid and will be enforced unless the only consideration is sex
Jurisdiction over Child Support orders - original jurisdiction
Uniform Interstate Family Support Act (UIFSA)
Original jurisdiction - proper where the first petition was filed UNLESS
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 OR
3. the second state is the child’s home state
Jurisdiction over Child Support orders - enforcement
Issuing court OR another state if:
1. the obligee mails the order to the obligor’s out of state employer (direct) or
2. it is registered in the other state and filed (indirect)
Jurisdiction over Child Support orders - modification
Issuing court has continuing and exclusive jurisdiction based on substantial and continuing change of circumstances affecting the needs of the child or the ability of the parent to pay
Jurisdiction over Child Custody orders - home state
Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA)
Initial jurisdiction if the state:
1. is the child’s home state OR
2. was the child’s home state within the past 6 months and the child is absent from the state BUT a parent continues to live in the state
Jurisdiction over Child Custody orders - NOT home state
If no other state has or accepts home state jurisdiction and:
1. the child and at least one parent have a significant connection with the state and
2. substantial evidence concerning the child is available in the state
Jurisdiction over Child Custody orders - modification
Issuing court has continuing exclusive jurisdiction
Another court can IF:
1. no child or parent continues to reside in the issuing state OR
2. the child no longer has a significant connection with the issuing state and substantial evidence relating to the matter is no longer available in that state
Child custody factors
Best interests of the child, including:
1. wishes of the parents
2. child’s preferences
3. child’s relationship with others
4. child’s adjustment
5. mental and physical health
6. who is the primary caregiver
Child custody modification standards
only if there is a substantial and material change in circumstances affecting the child’s wellbeing
Involuntary termination of rights
Only proven through clear and convincing evidence
Adoption consent of unwed father
