Family Law Flashcards
How is common law marriage treated in most states?
Abolished in most states. But full faith and credit is given: If a valid common law marriage is formed in one state, it is regarded as valid even in states that don’t recognize it
What are the best interest of the child factors?
- Child Preference 2. Primary care-taker 3. Financial situation of parents 4. Domestic Abuse 5. Keeping children together
UPAA stands for
Uniform Premarital Agreement Act
When is unconscionability evaluated?
depending on the jurisdiction, as of the time the agreement was signed or at the time of divorce
How is property usually divided?
Most common approach to division of property is equitable division of marital property, where each spouse takes separate property (brought into marriage or acquired by inheritance or gift), and court divides community/marital property (acquired during marriage)
What is included in marital property?
pensions, damage awards from tort suits from cause of action that accrues during marriage, stock options. Does not include licenses or educational degrees. Some jurisdictions compensate for spouse’s contribution during other’s education or training
Mixed property is what?
Initially SP may be transformed into MP if (1) SP is mingled with MP or with SP of other spouse to extent it can’t be traced or (2) SP is treated with intention for it to be MP (e.g., in names of both). If marital funds or effort by non-owner spouse enhances value of SP during marriage, it remains SP, but non-owner may be reimbursed for value added Sold to
What is a separation agreement?
Agreement entered into during marriage to resolve economic issues (e.g., spousal support, property division, child support) and custody rights
1.To be enforceable, agreement must be voluntary, with full and fair disclosure by both pts
2. A separation agreement (or a portion) may be invalidated for fraud or unconscionability
a. Examples: misrepresentation or nondisclosure or asset or income, lack of representation by separate counsel
b. But keep in mind that a property distribution decree based on a separate agreement still may not be modified
What is full faith and credit for the purpose of child support agreements?
Child support orders may be enforced in any state under Uniform Interstate Family Support Act (“UIFSA”), even without personal jurisdiction over respondent (obligor)
1. Court in another state may only enforce original order, UNLESS all parties (obligee, child, and obligor) no longer reside in issuing state, or parties consent on record to non-issuing court’s modification of order
How may a child support agreement be modified?
Court may not retroactively modify child support orders in all circumstances. Prospectively modifiable based on a substantial change of circumstances affecting needs of child, availability of parent, or ability of parent to pay (e.g., employment change, child’s growth, inflation, illness), or fraud
Effect of nonpaternity on child support
It is unclear whether child support may be modified based on a finding that a child is not the husband’s. Traditionally, courts are reluctant to terminate an established parent-child relationship, and some courts cite the child’s best interest. However, some states have placed emphasis on interests of an erroneously identified father
What is UCCJEA?
Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”) governs child custody and visitation
What is PKPA?
Parental Kidnapping Prevention Act (“PKPA”) governs interstate modification of child custody decrees, and gives full faith and credit to another state’s custody or visitation determination (subject to jurisdictional requirements
What are the two types of custody?
Custody may be legal custody (right to make major decisions affecting minor’s life) or physical custody (possession and control of minor). Joint custody may be joint legal custody and/or joint physical custody
What is a primary caregiver?
To decide between two qualified parents, award often goes to primary caregiver, the one most involved in child’s day-to-day life; some courts defer to wishes of an older child