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family law Flashcards

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1
Q

breach of promise to marry claim & available damages

A

claim against someone who broke a promise to marry.

most states do not allow this claim.

actual damages for lost deposits, costs relating to the wedding.
damages for loss of reputation, mental anguish.
punitive damages may be available

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2
Q

claim for gifts in contemplation of marriage

A

claim for a return of the gift because it was given on the condition that the marriage take place

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3
Q

are courts bound by child support or custody provisions in a premarital agreement?

A

no, in all states. in some states they are void & violate public policy and in others they must be reviewed by the court to verify the terms are in child’s best interest.

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4
Q

requirements for valid premarital agreement

A

all states require

-a signed writing
-entered into voluntarily (no fraud, duress, overreaching)
-full and fair disclosure of parties’ assets or parties must have independent knowledge (under UPAA majority rule this analysis is only required if terms unconscionable)

Most courts consider representation of both parties by counsel and will be less likely to find agreement unfair

some courts consider whether economic provisions of the agreement are fair and reasonable

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5
Q

requirements for a valid marriage

A

1) license

2) expiration of waiting period between license and ceremony

3) ceremony with authorized officiant (typically judges, religious personnel)

4) no legal impediments to marriage

5) capacity to consent at time of ceremony- must understand nature of actions & be voluntary

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6
Q

when is capacity to consent lacking?

A

a party is under 18, a party is 16 or 17 and parents do not consent, a party is under influence of drugs or alcohol, fraud, duress

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7
Q

if some of the procedural requirements for a license are lacking, will that invalidate the marriage?

A

No, there would have to be another element of valid marriage lacking

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8
Q

common law marriage

A

not recognized in most states. requirements:

  1. consent to marry- capacity + no legal impediment
  2. cohabitation
  3. both parties hold themselves out publicly as spouses
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9
Q

marriage by estoppel

A

when a marriage is not valid and the parties acted in good faith, a spouse can use this remedy if there is a need for support

in some states this gives a spouse by estoppel all the rights of a properly married spouse

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10
Q

presumption of tenancy by the entirety

A

if a spouse takes title to real estate jointly, most states will presume a tenancy by the entirety

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11
Q

is the manner of title conclusive in determining who should get the property in the event of divorce?

A

no, but some presumptions may arise based on the way title is held (ex: TBE)

ex: 1 spouse putting property in his name during marriage will not make that spouse entitled to all the property

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12
Q

spousal obligation to support each other during marriage

A

one spouse will be liable to third parties for the other spouse’s purchases if implicitly or explicitly authorized by the spouse

Also liable for spouses purchases of food and clothing, as well as medical expenses under the doctrine of necessaries

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13
Q

spousal abuse order

A

all states allow a battered spouse to seek a protective order against the violent spouse

can be granted ex parte (w/o notice to violent spouse)

duration varies based on the state

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14
Q

tortious interference with marriage- alienation of affection

A

most states do not allow these claims. if available must show:

-spouses genuinely loved each other
-love and affection was alienated or destroyed
-a third party caused the diversion of affection of one spouse away from the other so that the other spouse is deprived of a marital relationship

can be adultery but could be critical in-laws

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15
Q

criminal conversation

A

cause of action against a third person when 1) there is a valid marriage and 2) one spouse has sexual relations with the third person

most states don’t allow these claims

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16
Q

annulment

A

a declaration that a marriage was invalid because of an impediment existing at time of marriage. it treats the parties as though they were never married.

the party seeking annulment will either need to prove it is void or voidable

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17
Q

void marriage

A

the marriage is null and void, even without a court declaration, because it lacked one of the essential elements of marriage

can be collaterally attacked by a third party such as the IRS, insurance companies, heirs in intestacy or probate proceedings

examples: one spouse is a bigamist or the spouses are too closely related. in some states, being underage.

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18
Q

can a void marriage be validated?

A

under the UMDA and some states’ law, if the impediment is removed (a bigamist’s spouse dies, or bigamist gets divorced from spouse 1), the marriage can be validated in some states if the parties continue to cohabit after the removal of the impediment

some states require the parties to get married after the impediment is removed

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19
Q

voidable marriage

A

valid until declared invalid. reasons invalid:

1) in most states, under age and did not get parental consent
2) lack of capacity
3) duress
4) fraud as to an essential element of marriage (ability to have kids, willingness to have sex)
5) inability to have normal sexual relations

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20
Q

presumption of valid marriage

A

all states presume that the most recent marriage is valid. Challenger must overcome with strong evidence.

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21
Q

defenses to annulment- voidable marriage

A

ratification- for a voidable marriage, cohabiting or holding oneself as married after the removal of the impediment

estoppel
laches
(But these two are very similar to ratification)

Unclean hands, but majority of courts don’t allow

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22
Q

effect of annulment

A

marriage set aside as if never existed

Court will issue child support and custody orders

some states allow spousal support to be awarded and some don’t

courts divide the property to place the parties in as close to the pre-marriage position as possible

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23
Q

jurisdiction for annulment action

A

the state with domicile of either party has jurisdiction

some states provide jurisdiction to courts of the state where the ceremony occurred

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24
Q

jurisdiction for divorce

A

only one party needs to be domiciled in the state where the divorce action is brought

most states set a minimum residency requirement before divorce can be filed

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25
Q

can two different courts hear a divorce case? special rules for child support?

A

yes, but the first court to render a judgment will make the other court’s lawsuit moot

if child support is involved:
1) must file 2nd case before 1st case answer is due
2) 2nd case’s petitioner must object to jurisdiction in 1st case
3) 2nd state must be child’s home state

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26
Q

no fault divorce

A

a divorce action that does not allege any marital fault in the pleadings

can be bilateral or unilateral

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27
Q

no fault divorce grounds

A

marriage irretrievably broken
spouses are now incompatible
Parties living separate and apart for required time period (longer if divorce is unilateral, I.e. only supported by one party)

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28
Q

fault based grounds

A

adultery
willful desertion
extreme physical or mental cruelty (pattern or practice of emotional abuse)
voluntary drug addiction starting after marriage
habitual drunkenness starting after marriage
insanity

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29
Q

defenses to no fault divorce

A

marriage not irretrievably broken
parties are not incompatible
spouses have reconciled

one spouse might claim reconciliation restarts the clock for having to live separately, so that parties haven’t met the required time frame

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30
Q

defenses to fault divorce

A

collusion- agreement to lie to get a divorce or not to raise a valid defense

connivance - one spouse has previously willingly consented to acts that would be adultery (ex: open marriages)

condonation- forgiveness of marital offenses with full knowledge of the wrongs

recrimination- person seeking divorce is guilty of misconduct

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31
Q

legal separation action

A

parties do not invalidate their marriage but file a lawsuit that:

-divides property
-makes orders for spousal support or child support
-makes child custody orders

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32
Q

property division approaches upon divorce

A

community property

equitable division of all property owned by each spouse regardless of when it was acquired

most states use equitable division of property acquired during marriage & each spouse keeps their separate property

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33
Q

are property distribution decrees modifiable?

A

no

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34
Q

separate property

A

all real or personal property owned by a spouse before marriage

assets included in retirement accounts in exchange for SP

property acquired in exchange for SP

property acquired by gift

property acquired by inheritance

property acquired after an order of legal separation that includes disposition of property

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35
Q

if a spouse uses their separate property to buy other property, how is that property classified?

A

it is separate property

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36
Q

if a spouse’s separate property produces income during the marriage, how is that classified?

A

it is separate property

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37
Q

how are lawsuit damages classified?

A

pain and suffering- separate property in some states but in most its marital property if the cause of action accrued between date of marriage and final separation

personal damages (future lost wages, future medical expenses)- marital property in most states as long as coa accrued between date of marriage and final separation

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38
Q

marital property-generally and specific things

A

property acquired during the marriage other than separate property. includes:

earnings

employment benefits, bonuses, pensions, stock options earned during marriage

lost wages in a cause of action that arose during marriage

reimbursement for medical bills paid with marital property

recovery for damages to marital property

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39
Q

commingled assets

A
  • marital & separate property inextricably intertwined and impossible to trace a purchase or payment to SP or MP
  • becomes MP

ex: depositing wages during marriage in a bank account that had separate property funds in it

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40
Q

transmutation

A

treating separate property in a way that shows an intent for it to become marital property (for example, putting title to property in both spouses’ names)

creates a presumption that it is marital property. can be rebutted.

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41
Q

improvement of separate property

A

repairs or modifications to separate property using marital funds or due to efforts of a spouse

most states still treat the property as separate property

most states grant reimbursement to the other spouse for value added by the improvement paid for with marital funds or thru spouse’s efforts

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42
Q

if a property appreciates due to market factors, is the increase marital or separate property?

A

it is separate property

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43
Q

if property is acquired before marriage but paid off during marriage how is it classified?

A

most states apportion between marital and separate property, in proportion to the funds contributed by separate property and the funds contributed by marital property

some states will still treat it as separate property and will allow marital estate reimbursement

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44
Q

pensions- classification

A

portion earned during marriage is marital property, and that amount is divided between the spounses

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45
Q

professional license or degree

A

not distributable marital property in most states

some states offer reimbursement spousal support to reimburse a spouse if they paid for the education or training or worked to support the couple

some states make supporting the other spouse during education a factor in considering whether a spouse gets alimony

a minority of states will award the spouse their equitable share of the degree

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46
Q

in divorce, what is marital fault relevant to?

A

it may be the grounds for divorce proceeding

it is not considered in division of property unless it is economic fault taking money away from marital estate

it may be considered in alimony awards

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47
Q

alimony

A

award paid to an economically dependent spouse

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48
Q

types of alimony

A

1 permanent periodic support
2 lump sum
3 rehabilitative spousal support
4 reimbursement

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49
Q

permanent periodic support

A

support that is paid regularly (monthly, quarterly) to support a spouse who does not have the resources or ability to be self-sustaining

generally younger people with ability to become educated and get experience do not get this

described as x per month/ quarter with NO GRAND TOTAL

can be increased, decreased, or terminated when there is a substantial change of circumstance

50
Q

lump sum alimony

A

described as a total amount to be paid

can be paid once, or can be paid periodically

is not modifiable

51
Q

rehabilitative alimony

A

periodic payments for limited time to enable spouse to gain training or skills to support self with NO GRAND TOTAL

is modifiable

52
Q

reimbursement spousal support

A

spousal support award for a specific period of time to reimburse a spouse who supported the other while they obtained a professional license or degree

*this is only available in a minority of states

no modification. can be awarded on top of other types

53
Q

factors considered when awarding alimony

A

support needed by dependent spouse, and ability of other spouse to pay, including following subfactors:

-standard of living during marriage
-duration of marriage
-age and physical and emotional condition of the parties
-financial resources
-contribution each spouse made to marriage
-time needed for party seeking support to obtain training needed for employment
-payor spouse’s needs
marital fault in some states is a bar but in most it is not considered

54
Q

modification of spousal support

A

periodic spousal support can be modified if substantial change of circumstance (voluntary change of career to drop income does not count)

55
Q

termination of spousal support

A

periodic spousal suport terminates on:

remarriage of supported spouse

death of either spouse

most states will also terminate if cohabitation in a marriage-like relationship can be proven

56
Q

are payments of alimony income?

A

no as a result of 2019 change in law. pre-2019 it was income to receiving spouse and deductible by the paying spouse

57
Q

separation agreements

A

entered into after marriage. parties agree to:
- live apart
-resolve economic issues like child support, custody, property division, spousal support

in most states, enforceable if:
-voluntary
- there was a full and fair disclosure by both parties
-defenses to enforcement include fraud, duress, undue influence

58
Q

is a court bound by a waiver of spousal support in a separation agreement?

A

if it is merged into the divorce decree or if provisions of it are repeated in the divorce decree, treated as part of judgment and court is able to modify it if circumstances change

if the divorce decree only references it and does not incorporate or repeat the terms the contract controls and can be enforced as a contract

59
Q

is a court bound by waiver of child support or provisions about child custody in a separation agreement?

A

no, court can modify if in best interest of child

60
Q

if parties are not married but live together, how can the court divide property?

A

look to contract law and consideration other than sex (that will make it invalid)

look for oral agreements or implied agreements based on conduct

61
Q

parental duty to support a child

A

parents must support their child based on their ability to pay and needs of the child

62
Q

duration of child support

A

ends when the child reaches age of majority, dies, or is emancipated OR when parental rights are terminated

-in some states, if a kid is 18 and still in high school, support can be ordered to continue until high school graduation.
-special needs’ children child support can be indefinite.

63
Q

Uniform Interstate Family Support Act

A

law in all 50 states that allows enforcement (and sometimes modification ) of support orders issued in another state

64
Q

methods of enforcing child support orders

A

direct enforcement by mailing the order to the payor’s employer

registering a child support order with another state

65
Q

continuing and exclusive jurisdiction of issuing family court

A

the court that issued the support order will have sole authority to modify it, unless no party lives in that state or parties consent to another state’s jurisdiction

66
Q

modification of child support

A

can be modified when there is a substantial and continuing change of circumstances

67
Q

enforcing child support orders

A

holding nonpaying party in contempt (civil or criminal)

intercepting federal tax refund

forfeiture of medical / law / professional license

garnishment of wages

seizure of real estate

68
Q

Uniform Child Custody Jurisdiction and Enforcement Act

A

promote interstate enforcement of custody orders

69
Q

court with jurisdiction to award initial order of custody- general rule & exception

A

generally the child’s home state

if no other state has home state jurisdiction, or will accept it, a court other than the home state jurisdiction can exercise jurisdiction if 1) the child and at least one parent have a significant connection with that state and 2) there is substantial evidence about the child available in that state

70
Q

child’s home state

A

the state where the child lived with a parent for at least 6 consecutive months right before the proceeding started OR

a state that was child’s home state in the last 6 months where a parent or guardian continues to live

71
Q

why would a court refuse to exercise jurisdiction if it has it?

A

-it determines it is an inconvenient forum and another state is more appropriate
-the party seeking jurisdiction has engaged in wrongful conduct (took child from another state and kept them there long enough)

72
Q

emergency jurisdiction

A

when a state exercises jurisdiction because it is necessary to avoid child abuse or because the child has been abandoned

73
Q

types of custody

A

legal custody- right to make major decisions affecting child’s life

physical custody- actual possession and control of the child

joint custody- joint legal custody, joint physical custody, or both

sole custody- only one parent gets custody

74
Q

standard in awarding custody or visitation rights to parents & factors

A

the best interest of the child**

-parents’ wishes
-child’s preference if over 8 (where to live and who they prefer)
-child’s relationship with parents, siblings, others involved w/ parents
-child’s adjustment to home and school life
-mental and physical health of parents and child
-who has been child’s primary caregiver
-geographic proximity of the parents

75
Q

areas where court has a lot of discretion

A

custody
visitation
property distribution
spousal support
child support

76
Q

custody to a nonparent

A

court will only do this if the parent is proven to be mentally unfit or has abused or neglected the child

77
Q

visitation

A

only an issue when sole custody is given to one parent. the parent without custody is allowed to visit the child, and denial is very rare

visitation rights may be limited (order may require supervision) if visitation may put child at risk of harm

78
Q

nonparental visitation

A

most states limit to situations where parents have divorced, died, or separated but some allow it even when above situations are not the case

child has a strong relationship with this third party- has to be in best interest of child!

parental wishes will be given great weight if they oppose and are fit

79
Q

parental wishes on nonparent visitation

A

wishes are constitutionally protected and must be given special weight, can’t override parent’s wishes even if in best interest of child

80
Q

modification of custody decree

A

must be a substantial and material change in circumstance that affects the child’s well-being

81
Q

remedies for violation of custody decree

A

habeas corpus petition
contempt (criminal or civil)

82
Q

parentage action

A

lawsuit to establish a biological relationship between a parent and child

83
Q

presumption of parentage

A

mother’s spouse is presumed the father

if the child was born during a marriage or within 300 days after termination of a marriage he/she is presumed conceived during the marriage

rebutted by clear and convincing evidence

84
Q

do the presumptions of parentage apply to void or voidable marriages?

A

yes

85
Q

how to establish parentage of a man who is not married to the mother of the child

A

has to show that he has exercised parental responsibility (supervision, support, care) of the child and any of the following:

the man married the mother after child’s birth

man consents to being on the birth certificate

man holds the child out as his biological child

man formally acknowledged paternity or a court order finds paternity

86
Q

what is a paternity suit? who can bring a paternity suit?

A

a suit brought to seek support from a man believed to be a father

the child, the mother, or the state if state provides support to the child

the SOL is tolled while child is a minor

87
Q

what is the burden of proof in a paternity suit?

A

clear and convincing evidence

88
Q

ways parental rights are terminated

A

-by relinquishment by the parent & putting child up for adoption
-involuntary termination

89
Q

grounds for involuntary termination of parental rights

A

-serious physical harm to child
-abandonment of child
-neglect of child
-failure to provide support w/o justifiable cause
-mental illness making parent unable to care for child
-parental unfitness (conduct that harms the child physically or psychologically)

90
Q

requirements for adoption

A

-termination of biological parents’ rights
-consent of an unwed father is there is a father who has taken parental responsibility
-consent of adoptee over 12 or 14
-home study to make sure home is suitable
-approval by the court

91
Q

effect of adoption

A

biological parents rights are terminated

adopted parents have parental rights and obligations

child loses right to inherit from biological parents in most states. in a few states they can inherit from both biological and adopted families.

92
Q

are egg and sponor donors given parental rights?

A

no, they are not considered the parent of the child

some states allow the donor to have parental rights if the parent agrees in writing with the donor

93
Q

gestational carrier agreement

A

a woman who is not intended to be a parent agrees to become pregnant using someone else’s eggs and sperm

must be:
-in writing and approved by court
-child welfare home study must be done
-must be voluntary
-must provide for health care costs until birth
-maintain surrogate’s constitutional rights to -make health care decisions
-provide reasonable considerations

can be terminated up until embryo transfer

94
Q

allowable provisions in premarital agreements

A

under the UPAA, adopted by majority of states:

-disposition of property in case of death or divorce
-spousal support provisions unless it leaves a spouse totally dependent on the state
-choice of law
-agreements to make a will or trust to carry out the terms of the agreement

95
Q

what law governs a premarital contract if it doesn’t have a choice of law clause?

A

the law where it was executed or state w/ most significant relationship to the parties

96
Q

during marriage, can one spouse sue the other?

A

yes, most states have abolished interspousal immunity except in cases of negligence

97
Q

constitutional rights of families

A

right of privacy implicit in right to liberty and is a fundamental right

right to marry
right to procreate
right to use contraception
right to live together
right to educate children in way parents choose
rights of parents to decide issues concerning care, custody, and control of children

98
Q

burden of proof of void marriage

A

the most recent marriage is presumed valid, the challenger must prove the marriage is void

99
Q

who can seek to annul a void marriage?

A

any interested party

100
Q

who can seek to annul a voidable marriage?

A

only a spouse

101
Q

if a marriage is annulled, are the children still legitimate?

A

yes, they are treated as marital children and child support and custody issues are handled as in divorce actions

102
Q

defenses to void marriage

A

impediment does not exist

marriage has been validated after impediment has been removed (some states)

103
Q

if one spouse thinks the marriage is not irretrievably broken or thinks parties are still compatible, what is the effect on the divorce proceeding?

A

it is a defense to divorce, but in most states the spouse won’t prevail if the other is unwilling to remain married

104
Q

are the defenses to fault divorce still viable?

A

most states have abolished connivance or recrimination. even in states where recrimination is allowed, courts try to avoid finding it proven

105
Q

does a legal separation have any impact on inheritance or other death benefits like life insurance or pensions?

A

the default rule is no. court order would have to explicitly decide the issue or the will, pension, or policy would have to be modified to remove spouse’s rights.

106
Q

end of marriage date for property distribution purposes

A

most states say date of divorce decree. anything acquired before that will be MP

some states say date of separation.

107
Q

factors in division of property

A

court has great discretion

marital fault is generally not a factor

factors considered:
-age, education, and earning capability of each spouse
-length of marriage
-standard of living in marriage
-present incomes of each spouse
-skills of each spouse and employability
-assets, debts, liabilities
-parties’ needs
-contribution as a homemaker
-economic fault (gambling or taking money away from marital estate to pay for affairs or drugs and alcohol)
-child custody provisions

108
Q

when is spousal support modifiable?

A

upon proof of a substantial change of circumstances (death, remarriage if it was unanticipated at time of divorce)

109
Q

can visitation be withheld if child support is not paid?

A

No. the obligation of support is independent from visitation rights.

110
Q

when is a child emancipated?

A

when a child applies for it or is married under age

111
Q

uniform interstate family support act

A

-adopted by all 50 states
-governs enforcement and modification of support orders from other states

112
Q

are child support orders entitled to full faith and credit?

A

yes, under Full Faith and Credit for Child Support Orders Act if:
1) the issuing court had jurisdiction over the parties
2) the parties had reasonable notice and opportunity to be heard

113
Q

can a child support order be modified by a court other than the one that issued the child support order?

A

no, unless the parties consent to its jurisdiction or no party resides in the issuing state anymore

114
Q

can a child custody decree be modified by a court other than the issuing court?

A

no, unless the child and parent or guardian no longer live in the issuing state AND the child has no significant connection with the issuing state anymore AND there is no substantial evidence about the matter available in the issuing state

115
Q

is a child subject to a custody decree able to relocate (change primary residence)?

A

only after a court hearing finding it is in the best interest of the child

116
Q

surrogates- issue of who the mother is, UPA and default rules

A

if the state has not adopted the UPA, the father and mother would have to be determined by a parentage action, adoption, or a gestational agreement (which is allowed in most states)

under the UPA:
-the mother is the person who gave birth, or another person who is determined to be the mother by parentage action or adoption.
-but note that the UPA does allow people who contribute the eggs and sperm is a parent if they do so with intent to be a parent
-the father is the husband of a woman who has a child through assisted conception, unless he proves lack of consent within 2 years

117
Q

registering a child support order

A

the issuing state sends its judgment to the paying spouse’s state of residence and the state of residence registers and enforces the issuing state’s order as a foreign judgment

118
Q

parental kidnapping prevention act

A

federal law that requires that custody orders from one state be given full faith and credit and enforced by another state even if the issuing state continues to have and does not decline jurisdiction. provides remedies in case child is taken across state lines by non custodial parent.

there is continuing jurisdiction unless:
-neither the child or any parent or guardian lives in the state anymore
-the child no longer has a significant connection with the state

119
Q

if a spouse without custody or that has joint custody takes the couple’s child to another state, what is the other spouse’s remedy?

A

to file a petition in the state where the child was taken and have the original enforced under the Parental Kidnapping Protection Act, or file a certified copy with the state where the child is under the UCCJEA

120
Q

important thing to mention in spousal support essays

A

court has wide discretion
purpose is to ensure continued support, not to punish

121
Q

habeas proceedings (family law)

A

a claim by someone who is not in possession of the child but claims to have a legal right to custody

in many states the court only considers the validity of the order granting custody and whether the claimaint is entitled to custody

family law (1 decks)

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