Family Law Flashcards
marriage requirements
majority
license
ceremony
consent
capacity
common law marriage
live together for specified amount of time
legally able to marry
present agreement that 2 parties married
hold themselves out as married
marriage saving doctrines
Generally, bigamous marriages are void. But a couple of marriage-saving doctrines exist that will recognize one’s most recent marriage if they apply.
Under the presumption in favor of the validity of the most recent marriage, the most recent marriage is presumed to be valid. This presumption can be rebutted by evidence showing that the previous marriage was still going. But it’s an equitable doctrine and the court might rule that a spouse with unclean hands is estopped to deny the validity of the subsequent marriage, especially if the subsequent spouse was innocent, divorce from the first spouse was later attained, etc.
Under the UMDA impediment-removal doctrine, a subsequent marriage is deemed valid upon the removal of the impediment to its validity—the first marriage.
Premarital agreements
Must be
- in writing; and
- signed by both parties
Enforceability of premarital agreements (Generally)
Enforceable unless party against whom enforcement is sought can show (1): involuntariness; (2): inadequate financial disclosure; or (3): unconscionability
presentation of a prenup close to the wedding night may render agreement involuntary if
party has difficulty conferring with legal counsel
strong independent reasons to continue with the marriage exist such as pregnancy
risk of sign. financial loss and embarrassment
(OLDER CASES MORE SYMP)
Enforceability of premarital agreements under UPAA
Prenups enforceable unless (1): involuntary; or (2) (a): unconscionable when signed (b): challenging party didn’t receive or waive disclosure of other party’s finances; and (c): neither knew nor reasonably could have known about other’s finances before signing.
premarital agreements: child custody and support
premarital agreements affecting child custody or support are not binding on a court and won’t be enforced unless in the child’s best interests.
Presumption of legitimacy
A child born to a married woman is presumed to be the child of the woman’s husband.
Biodad might lack a constitutional right to control the upbringing of the child in such a case if they don’t rebut the presumption by filing a timely paternity action
state statutes limiting such rights are justified state’s strong interest in preserving an intact family unit.
parentage by estoppel
applies where (1): person acts like child’s parent such that (2): he induces reliance on the parental relationship; and (3): it would not be in the best interest of the child to sever the relationship
res judicata
divorce judgments recognizing paternity render subsequent challenges to paternity void in some states.
in others, not the case
what does a separation agreement address
property division
alimony
custody; and
child support
When will a court invalidate a separation agreement (generally)?
A separation agreement will be invalidated if it is (1): procured by fraud, duress or overreach; and (2): is substantively unfair
When will a separation agreement touching on alimony and property division be set aside under the UMDA
Such agreements are binding on the court unless it finds the agreement grossly unfair.
When has there been fraud, duress or overreach in the procurement of a separation agreement?
failure to advise spouse to seek independent legal counsel
taking advantage of spouse by convincing her not to get lawyer
misstatement of spouse’s legal rights
mediation misconduct
misleading spouse on paternity
mediation misconduct
mediator must (1): help both parties understand the mediation process so that (2): both parties may exercise self-determination in crafting their own solutions
Mediators have a duty to be (1): impartial or unbiased; and (2): free from conflicts of interest.
substantive unfairness
A separation agreement won’t be set aside simply because one party made a bad bargain.
concealment of sizeable assets and/or
agreement will leave one party destitute.
Divorce: Jurisdiction
A court must have smj and pmj over at least one spouse to entertain a divorce action
Ex-parte divorces
A state court may maintain a divorce action without personal jurisdiction over one spouse if (1): the plaintiff-spouse is a domiciliary of the rendering state; and (2): meets the state’s durational residency requirements.
Ex-parte divorces involving economic or child support issues are not entitled to full faith and credit with respect to those issues.
divisible divorce
allows one party to terminate the marriage in the absence of pj over the defendant-spouse and reserve economic/support issues for later resolution
Is personal jd over the respondent-spouse required for property distribution
yes
five Divorce Grounds
cruel and inhuman treatment
adultery
abandonment
habitual drug addiction and drunkenness
no-fault (irretrievable breakdown)
no-fault divorce
to procure a no fault divorce, a party must show (1): irreconcileable differences; or (2): separation of a year or less depending on state law or both.
Alimony Factors
Courts have discretion in assessing alimony and consider factors such as
each spouse’s needs
each spouse’s ability to pay
the spouse’s earning capacity
duration of the marriage
separate assets
spousal contributions as a homemaker
need to maintain a party’s post-divorce standard of living..
infidelity only in some states
types of alimony
temporary
rehabilitative
reimbursement
permanent
temporary
while case is pending
rehabilitative
alimony awarded for the purpose of recipient becoming self sufficient by (1): redeveloping a prior vocation; or (2): preparing for a new one
a minority of states won’t award such alimony if the requesting spouse is capable of being self-sufficient.
reimbursement
award given to reimburse spouse for lost income as a result of spouse setting sacrificing to support career of other spouse.
permanent alimony
most appropriate in long term marriages where there is likely to be long-term economic disparities preventing one spouse from ever living at or near the standard of living enjoyed during the marriage.
modification and termination of alimony
a court can modify or terminate alimony based on a substantial, unanticipated change in circumstances that makes the prior award unreasonable
a court can modify either the amount or the duration of the alimony.
alimony is frequently terminated upon remarriage
jurisdiction to modify or enforce alimony orders
the court that issued the alimony order has continuing exclusive jurisdiction to modify or enforce the order.
Reinstatement
If the alimony terminates for remarriage, a court is unlikely to reinstate it unless the equities strongly favor the former alimony recipient.
annulment
declares a marriage void from the start
logic of anulment doctrine
alimony suspended as a result of a remarriage later annuled should be reinstated because the marriage is void from the start
vast majority of modern courts don’t apply this doctrine.
property division: jurisdiction
A court must have pj over both spouses to order a disposition of the property.
PJ over an out-of-state defendant is sufficient to order the disposition of property even if located in another state.
Marital Property
property acquired by either spouse during the marriage regardless of how the property is titled unless
gifted from a third party to one spouse during the marriage
inherited by one spouse during the marriage
professional degree obtained during the marriage
expectancies
expectancies acquired during the marriage are marital property even if payment cannot be received until after the marriage.
increased value of separate property during marriage
Generally separate property unless the increase is attributable to either party’s efforts or contributions during the marriage.
distribution factors
spouses’ age and health
each spouse’s ability to be self-supporting
duration of the marriage
homemaker spouse’s contributions
either spouse’s separate assets
modification of property division
not allowed because it’s a one-time award that doesn’t look to future conditions.
legal custody
right to make important decisions about the child
medical care and education
physical custody
responsibility for daily care and supervision
custody standards
child’s preferences
bonds between the child and the parties
party’s ability to care for child
party’s ability to provide a stable environment and
history of substance abuse
child’s preferences
only if old enough or mature enough to express them meaningfully
a handful of states require a court to allow a sufficiently mature child to choose between fit parents.
visitation or custody statutes must give due regard to a fit parent’s decision as to what’s best for her child
court must afford special weight to a parent’s claim to custody or visitation over a nonparent’s challenge.
presumption in favor of meaningful contact with BOTH parents being in child’s best interests
A court will rarely deny visitation rights to an adjudged parent even if he had no previous relationship.
custody order modifications
The court that made an initial custody determination retains continuing and exclusive jd to modify it unless
(1): the court determines that neither the child, nor the child and a parent have a significant connection with the issuing state and there is not substantial evidence in that state or (2): both parents and the child no longer reside in the issuing state.
custody order modifications
a court may modify a custody order if (1): there has been a substantial and material change in circumstances and (2): modification is in the bic.
Relocation of a custodial parent
trend toward allowing relocation of the parent with greater physical custody
Relocation (some states)
Relocating parent has the burden to show (1): that the move is in the child’s best interests and (2): that there’s a reasonable purpose for the move
Relocation of custodial parent (other states)
Burden is on the non-relocating parent to show (1): relocation is not in the bic or would harm the child.
other factors
whether move is motivated by desire to interfere with other parent’s custody
feasibility of alternative custody arrangements.
UCCJEA: Home state rule
Jurisdiction to determine child custody lies first in the child’s home state: where the child has lived with at least one parent or someone acting as a parent for at least 6 months immediately proceeding the custody
UCCJEA personal jd
No personal jd over out-of-state parent required.
No home state=recent home state
If a child has no home state, jurisdiction over child custody actions lies in a state where the child (1): has resided within the last 6 months; (2): with one parent for at least 6 months prior to leaving; and (3): the child is absent from the state but a parent still lives there.
no home state or recent home state = significant connection
jurisdiction lies in a state where the child and at least one parent have a significant connection and substantial evidence is available concerning the child’s upbringing.
Jurisdiction: Initial Child support order
To order child support, a court must have personal jd over the obligor
Jurisdiction fact patterns UIFSA
lived with the child in the state
lived in the state an supported the child
sex in the state that may have resulted in the child’s conception
Interstate Enforcement of Child Support order
UIFSA allows a party to a child support order to register a child support order in another state’s courts
If an order from an issuing state is registered in another state’s courts, the order is enforceable there
Interstate enforcement of child support order: two-state procedure
an action brought in a non-issuing state may be forwarded to another state’s court for enforcement
the forwarding state need not have pj.
Interstate Support Modifications
Under UIFSA and full faith and credit for child support orders act, an issuing state retains continuing exclusive jd to modify a child support order unless
nobody lives there anymore; or
the parents have consented to modification in the modifying state
New state bound by old state’s rules
A non-issuing state with authority to modify a child support order must apply the law of the issuing state.
Presumptive child support amounts required and based on obligor’s income.
federal law requires this to be determined based on obligor’s income
When can a court order modification of a child support award
based on a substantial or material change in circumstances that makes the initial order unreasonable or unconscionable
voluntary income reduction
courts sometimes:
refuse; or
require a showing of good faith; and/or
a showing that it won’t cause substantial hardship to the child; and/or
What must a court do to carry out an adoption?
- terminate any existing parental rights; and then
- confer parental rights on adoptive parents
both biological parents must consent to an adoption unless
they’ve abandoned the child
voluntarily surrendered their parental rights; or
had their parental rights terminated for unfitness.
An unwed father’s consent to adopt is required if
he’s demonstrated a willingness to be a parent by establishing a relationship with a child
attempted to take on the responsibilities of fatherhood but was thwarted by the mother; or
is registered in a putative father registry
