Family Law Flashcards
Areas of Family Law
Marriage
Divorce/Annulment and Finances
Children
Limits on Ability to marry
Must be 18; younger if consent
Not too closely related
Have capacity
No prior undissolved
Marriage Procedural Requirements
Most require license prior to solemnization
Common Law Marriages
Requires consent of both parties, cohabitation, and holding out publicly as husband and wife
Abolished in most but if validly formed will be recognized
Premarital Contracts
Marriage is sufficient consideration
Child custody agreements non-binding
Must be entered voluntarily, in writing and signed by party to be charged, both parties make full and fair disclosure of finances; and economic provisions are fair and reasonable
NOTE: Independent counsel raises presumption of fairness
Aspects to Marriage Relationship
Property; Privacy; Tortious Interference with Marital Relationship
Marital Property
Marital Property–most property acquired during marriage
Tenancy by Entirety is common method of spousal ownership in real estate
Marital Privacy Right
Fundamental Right makes government regulation invalid unless necessary to compelling governmental interest
Includes: Right to Marry; Procreate; Use or Sell Contraceptive; Abortion (within limits); Right of related people to live together; Educate Children; and Decide Issues of Child Raising
Tortious Interference with Marital Relationship
Alienation of Affairs–abolished in most states
Criminal Conversation–abolished in most states
Loss of Consortium–attached to personal injury claims pretty often; this is how a single person would plead it http://cdn.memegenerator.net/instances/400x/20008080.jpg
Grounds to Terminate Marriage
Annulment–invalid due to impediment at time of marriage
Divorce and Separation–Know the grounds and defenses
Annulment
Treat as if there was never a marriage
Ask Void or Voidable?
If void–complete nullity, i.e. no ratification
If voidable–deemed valid but one spouse may have marriage declared invalid
Grounds for Annulment
Bigamy/Polygamy–MORMONS!!!! got another beau
Consanguinity–void because married cousin (gross Texas, fucking gross)
Nonage–voidable
Incurable Physical Impotence–Hugh Hefner(?); inability of normal sexual relations
Lack of Capacity
Defenses to Annulment
Look to see if voidable with a ratification, otherwise state impediment did not exist
Effect of Annulment
Put spouses back in their pre-marriage positions
No spousal support
Divorce Ground
AR does not have a no fault Adultery 18 Months Separation Conviction of Felony Habitual Drunkenness Cruelty which endangers life General Indignities
General Indignities Language (2)
“Unmerited reproach, rudeness, contempt, steady neglect, and open insult, habitually and systematically pursued to extent of rendering married life intolerable”
“Manifest settled hate, alienation, and estrangement, which is constantly and systematically pursued with the purpose and effect of causing an enduring alienation and estrangement which renders the condition of spouse intolerable”
Defenses to Divorce
Collusion--agreement between spouses Connivance--willing consent to spouses shit Condonation--Abolished/Forgiveness Recrimination--no longer recognized Provocation
Jurisdictional Notes on Divorce
Requires parties to be domiciled for 90 days before action may be filed
Full faith and credit will be afforded from all stats
Comity most likely applies
Division of Marital Property
Three Approaches
Community Property–all property acquired during marriage split 1/2 and all property brought in through gift/bequest is separate property
Equitable Division
Equitable Division of Marital Property–each party takes separate property and split everything else equitably (AR does this)
Factors to Consider in Dividing Property in AR
Approach: Equitable Division of Marital Property
Factors: age, education, background, and earning capacity; duration of marriage; standard of living during marriage; present incomes both parties, vocational skills, and employability; source used to pay for property; health; assets, debts, and liabilities; needs; child custody provisions; etc…
Notes for Marital Property
Generally each spouse takes own separate property
Pensions are included
Professional licenses are not distributable but compensation may lie–reimbursement spousal support
Stock options largely considered marital property
Spousal Support
Four Types: Permanent Periodic Spousal Support; Rehabilitative Spousal Support; Lump Sum; and Reimbursement Spousal Support *Terminates on death or remarriage
Permanent Periodic Spousal Support
paid monthly to spouse with neither resources nor ability to be self sustaining
Rehabilitative Spousal Support
periodic payments for limited time to enable spouse to gain skills to become self-supporting
Reimbursement Spousal Suppor
support spouse who helped the other get professional license or degree can get a fixed sum award to get them a degree/license
Child Support
Usually reached through using a formula based on number of children, ages, special needs, and parent’s income
AR: Arkansas Administrative Order Number 10 lays out how to calculate
Terminates upon emancipation; may be indefinite for severely disabled children
Modification of Support
Periodic Spousal is only type to be modified if substantial change in circumstances regarding needs of recipient spouse or ability of payor spouse to pay
Child support is modifiable based on substantial change in circumstances affecting needs of child or ability to pay
Child Custody
"Best Interests of the Child" Terms: Legal Custody--right to make major decisions affecting child's life Physical Custody--possession and control Joint Custody--combination or both
Uniform Child Custody and Jurisdiction and Enforcement Act
UCCJEA
Avoids jurisdictional disputes
Primary state is home state jurisdiction
Exclusive continuing jurisdiction will be state making initial determination until neither child nor parent resides in state or child no longer has significant connection with state and substantial evidence is available
Decline if inconvenient forum and another state more appropriate forum; also unjustifiable conduct
Can exercise for Temporary Emergency Jurisdiction
Homes State Test UCCJEA
State where child lived the last six consecutive months; disregard temporary absences
Home state does not apply if no other state has or accepts home state jurisdiction and child and at least one parent has significant connection with state and substantial evidence concerning child is available in state
Child Custody Determination
“BEST INTEREST OF CHILD”
Factors include wishes of child and parent; relationship with parents, siblings, and others; adjustment to home, school, and community; and physical/mental health of individuals involved
12 years old is rule of thumb on child’s wishes
Preference to primary care giver if both parents duly qualified
Joint Custody
May be appropriate based on parent fitness, cooperation, ability to communicate, child preference, level of involvement, geographic proximity, similarity of homes; psychological development, and ability to carry out
Visitation
Sole physical custody to one parent gives reasonable visitation rights
May be limited by misconduct
Third party visitation at discretion of parent
Non-Marital Children
If born in marriage presumed to be husband’s child
Subject to intermediate scrutiny; must be substantially related to important governmental interest
Regulations cannot have a punitive purpose
Granted citizenship if mom abroad; dad has to take steps to establish paternity
Father’s relationship protected by due process rights; must be willing to assume custody and not simply block adoption
Adoption
Legal proceeding which terminates relationship between child and biological parent and establishes new relationship with new family
Generally requires consent of natural parents; father’s may not be required if unmarried
Consent may be waived if unreasonably withheld; not required if parent’s rights have been terminated; and can withdrawal consent for 10 days for any reason in AR
Rape and Spousal Immunity
Rape exceptions removed
Spousal immunity against the other is largely abolished; retained for highly private activity (marital privileges and consensual acts)
Children of Annulled Marriages
Support and custody are handled in same way as divorce action
Enforcement of Child Support
May be enforced by nonpaying party through contempt action
Can also get judgment; seizure of real estate; attachment
Child Support may be enforced through automatic wage withholding
Uniform Interstate Family Support Act provides methods for enforcing orders from other states
Mediation Issues
Mediators must explain process, including right to independent counsel, ensure parties have information for informed decision making, must be impartial and disclose any potential bias, and must control any power imbalance
Separation Agreements
Entered into during marriage, parties agree to live apart and resolve economic issues and custody rights
Must be voluntary and must have full and fair disclosure by both parties
Consideration is mutual promises
Will be merged with decress
