Family Law Flashcards
Marital property (definition)
Marital property is property acquired during the marriage. Separate property includes (mnemonic=BIG) 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
If property is acquired before the marriage, but paid for after marriage with marital funds,
If property is acquired before the marriage, but paid for after marriage with marital funds, most courts will apportion the property between the separate and marital interests in proportion to the contribution of separate and marital funds used to pay for the property.
Spousal support
Spousal support is paid to an economically dependent spouse. The court has great discretion in awarding as much spousal support as necessary for the maintenance of the requesting spouse as to prevent them from becoming dependent on the state to meet their needs. Court will not enforce provisions of a premarital agreement if they violate public policy. Leaving a spouse dependent on the State would violate public policy. The two primary considerations are the needs of the claimant and the ability of the other spouse to pay.
Alimony (types)
- Alimony can be permanent, temporary, or granted in a lump sum.
- Permanent periodic spousal support is paid regularly to support a spouse who has neither the resources nor the ability to be self-sustaining.
- A lump sum payment is a fixed amount payable either all at once or via a series of payments. This is often the present value of permanent periodic support.
- Rehabilitative spousal support consists of periodic payments for a limited time to enable a spouse to gain skills to become self-supporting. It can be ordered along with permanent periodic or lump sum alimony.
The standard for determining child custody is based on the best interests of the child.
- Factors considered in making that determination usually include: the parents’ wishes, the preferences of children over the age of 12, the children’s relationship with parents, siblings, and others involved with parents, children’s adjustment to home, school, and community, parties’ mental and physical health, and the children’s primary caregiver.
- Moreover, when determining whether joint custody is appropriate, courts often consider the fitness of both parents, whether the parents agree on joint custody, parents’ ability to communicate and cooperate concerning the children’s well-being children’s preference, the level of involvement of both parents in the children’s lives, the geographical proximity of the parties’ homes, the effect of joint custody on the children’s psychological development, and the parents’ ability to physically carry out joint custody.
Premarital Contracts
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 is not bound by child custody or child support provisions in premarital agreements and will not enforce a premarital agreement regarding child custody or support if it is not in the best interest of the child.
Marital Action Jurisdiction (Marriage)
The court does not need jurisdiction over both spouses to
terminate a marriage. If the plaintiff spouse is 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. Unless the court has jurisdiction over the defendant spouse, it may not issue a binding property division or support order.
Recognition of State Y divorce decree by State X/Enforcement of State A Child Support Order:
The general rule is that courts will give full faith and credit to divorce decrees/child support order of the courts of sister states if the sister state had proper jurisdiction and the decree is valid in the sister state. The jurisdictional requirement will be satisfied if one of the spouses is domiciled in the state granting the divorce (e.g., in an ex parte divorce). There is a rebuttable presumption that the state granting the divorce is the bona fide domicile of the plaintiff
Child Custody Jurisdiction:
Under the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”), a state may exercise jurisdiction if it is the home state of the child at the time the proceedings began or within six months of the proceedings and a parent still resides in the jurisdiction A child’s home state is the state in which the child lived with a parent (or a person acting as a parent) for at least six consecutive months prior to commencement of the proceeding
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. (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—e.g., examine if the party acted in good faith, among other factors.) This is a heavy burden. Child support cannot be modified retroactively unless there was fraud or other compelling circumstances.
Modification of Child custody:
Under the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”), which has been adopted by nearly every state, the court that made the initial custody determination has continuing, exclusive jurisdiction over the matter until that court determines that: neither the child nor the parents continue to reside in the state, or the child no longer has a significant connection with the state and substantial evidence relating to the child’s care, protection, training, and personal relationships is no longer available in the state
Child Support Calculation
Both parents share equally a duty to support their children. In general, parents must pay for their children based on their ability to pay and the needs of the child. The amount of the award of support to the custodial parent is usually arrived at by reference to child support guidelines, which contain charts that consider the number of children and the parents’ incomes .
