Family Law Flashcards
Common Law Marriage
CACH
Capacity to enter agreement, a present AGREEMENT to be married, COHABITATION, and HOLDING OUT a marital relationship
(other states recognize is too)
Fault-based divorce?
All states are no fault divorce states
Some state recognized fault-based grounds too
Child Custody
BEST INTERESTS OF THE CHILD
1) Wishes of the child’s parents
2) Child’s primary caretaker
3) Mental and physical health of all individuals
4) Relationships between child and parents
5) Stability
6) Domestic Violence
Modify Child Custody
substantial change in circumstances aka UNFORSEEN at the time of the initial judgment
Child Support
(1) CHILD’S NEEDS & (2) ABILITY TO PAY
FORMULA (*** COURT MAY deviate if findings of fact to JUSTIFY DEVIATION)
1) # of Children
2) Ages
3) Special Needs
4) Parents’ Income
Modify Child Support
- SUBSTANTIAL CHANGE IN THE CIRCUMSTANCES so that the prior order is UNREASONABLE.
- VOLUNTARY REDUCTION IN INCOME (NO or GOOD FAITH determination
- NEVER RETROACTIVELY unless FRAUD or COMPELLING CIRCUMSTANCES
Relocation of Parent & Child
IF (1) GOOD FAITH & (2) serve child’s BEST INTEREST = APPROVED
FACTOR VISITATION OF NONCUSTODIAL PARENTS v. BEENFITS of CHILD AND CUSTODIAL PARENT
Decisions by a fit parent
decisions regarding medical care
When does father have rights?
biological father has rights
state may make paret exercise right within speicifc time ( 2 years)
Right of a person when someone wants to adopt child?
can oppose adoption peitition by another and is entitled to notice of such proceedings IF demonstrates “fulll commitment of parenthood”
Third-Party Rights
custody = best tinterest of child
third party who wats custody must prove that parent is UNFIT and that granting custody would be HIGHLY DETRIMENTAL to the child
Marital Property (majority approach)
acquired during the marriage
Seperate Property (BIG)
property acquired BEFORE the marrriage, an INHERITANCE, or a GIFT to one party
PROFESSIONAL DEGRESS EARNED DURING MARRIAGE
Premarital Agreement
- voluntarily made
- substantively fair, and if full dislcosure of the assets and obligations was made
NOT regarding child custody or support if not in best interest in child
Alimony (Spousal Support)
Can be permant or temporary, or granted in lump sum
To determine Alimony courts consider
parties’ financial resources and needs
marital contributions
marital duration
some states look at spousal misconduct, one spouse’s support for anotehr’s education etc.
Who has substantial discretion in choosing to award alimony?
TRIAL COURT
Modification and Termination of Alimony
Modify if SUBSTANTIAL CHANGE in CIRCUMSTANCES making it urneasonable - unforseeable
Terminates if spouse DIES or gets remarried (some states cohabitation will reduce or terminate alimony)
What court can dissolve a marriage?
does not need jurisdiction over both spouses, if P spouse in domiciled in forum state that is enough or long term connections
Which court may issue a property division order?
unless court has jurisdiction over D spouse, may NOT issue binding property division or support order
Uniform Interstate Family Support Act (UIFSA)
governs child support
adopted by all states
once order registered in one state, may be enforced by ANY state
Who has continuing and exclusive jurisdiction to modify?
state originally issued the child support order IF state remains residence of obligee, the child or the obligor and at least one of the parties does not consnet to J of another foum
Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA)
child custody
home state test (exclusive jurisidction to modify a custody decree) home state where child has lived for 6 MONTHS immedately before commencemnet of custody procceding - continues to have J for 6 months after child leaves the state, so long as parent still ived in state
If child has no home state
signficant connections test
(1) significant connections with atl east one parent AND
(2) exitsence of sbstantial evidence relating to child custody in forum jurisdiction
