Family Law Flashcards
Marriage requirements
- Consent
- Marriage license
- Ceremony
Common law marriage requirements
- Live together for a specified time
- Capacity
- Present agreement that they are married
- Hold themselves out at married
Equity Doctrine
Creates a strong presumption that the most recent marriage is valid.
Enforceability of premarital agreements
Enforceable unless procured by:
- Fraud
- Duress
- Coercion
Under the UPAA, the premarital agreement must be:
- In writing
- Signed by both parties.
Premarital act under UPAA not enforceable when:
- Involuntary
- Unconscionable
Child custody/support in a prenup
NOT binding and any provision that adversely affects a child’s right to support is unenforceable.
Payment for necessities
A spouse is LIABLE to creditors who provides necessities (food, clothing, shelter) to the other spouse.
Jurisdiction in Marital/Divorce Actions
State courts have SMJ
Ex Parte Divorce
A divorce that is granted within a jurisdiction where only one of the spouses is validly domiciled
Economic or Child Support/Custody Issues
A court MUST have PJ over the defendant-spouse
Divisible divorce
One spouse can terminate the marriage (ex parte divorce) in one proceeding and reserve other issues for a later proceeding.
Is PJ or physical presence of a party or child necessary for a court order?
NOT necessary for court order, but jurisdiction is needed to enforce the order.
Under the UCCJEA, A court may decide child custody ONLY it it has:
- Home state jurisdiction
- Significant connection jurisdiction
- More appropriate jurisdiction
- Emergency jurisdiction
- No other state jurisdiction
Home State Jurisdiction
- Child’s HOME STATE; or
- (a) where child lived with a parent for 6+ months immediately before action was filed;
(b) child is absent from state; and(c) parent (or acting parent) is still present in the state.
Significant Connection Jurisdiction
- NO home state
- Child and at least 1 parent have significant connection to the state; AND
- Substantial evidence exists in that state.
Grounds for divorce:
- Cruel and inhumane treatment
- Adultery
- Abandonment for a set time
- Habitual drunkenness or drug addiction.
- No fault divorce
Equitable division approach (most states)
Marital assets are divided among spouses by equitable distribution.
Separate property is NOT divided.
What is separate property?
- Property acquired BEFORE marriage
- Gifts & bequests (even during marriage)
- Property agreed to be separate; and
- Passive appreciation of assets (increase in value due to pass of time).
When does accrual of marital property end?
Some states—ends upon PERMANENT separation
Other states—ends upon FINAL DIVORCE decree.
When can you modify a property division award?
ONLY IF exceptional circumstances exist (fraud, duress).
When is spousal support awarded under UMDA?
Spouse:
- Lacks sufficient property; AND
- Unable to support himself/herself through employment OR
is custodian of child with condition where spouse cannot seek employment.
Modification of Spousal OR Child Support
Most states—SUBSTANTIAL & CONTINUING change in circumstances making prior order UNREASONABLE.
UMDA–changed circumstances so SUBSTANTIAL & CONTINUING as to make them UNCONSCIONABLE.
What is parent’s legal obligation under Child Support?
A BIOLOGICAL parent is legally obligated to pay child support.
Child Support Guidelines
Feder law requires:
- Account of all earnings and income of NON-CUSTODIAL parent; AND
- Based on specific descriptive and numeric criteria.
College/Education Expenses
SOME states require support for college/continuing education.
What does the UIFSA asks other state courts to do?
MUST give full faith and credit to support orders from other states.
Modification of Child Support under UIFSA
CANNOT be modify child support of another states UNLESS:
- Court has jurisdiction to ISSUE an order; AND
- Either:(a) all parties DO NOT reside in the issuing state; or(b) each party has consented in writing to jurisdiction in another state.
When does an Issuing State have continuing, exclusive jurisdiction over an ORDER?
- State is still residence of 1 part; OR
- All parties consent in a RECORD or in OPEN COURT.
How do courts determine child custody?
Best interest of the child.
Parent v. 3P Custody
A FIT LEGAL parent is given preference and its presumed that such custody is in the best interest of the child.
A will court will give 3P custody in showing special circumstances.
Modification of Child Custody Order
Need SUBSTANTIAL CHANGE in circumstances.
Division of Property of Unmarried Cohabitants
The party who has title retains sole ownership:
- Agreement b/t cohabitants; OR
- Equitable Remedy Theory
- Resulting trust (gave money to acquire)
- Constructive trust (wrongful conduct)
- Quantum Meruit
How can paternity be established?
- Birth certificate;
- Legal presumption (child born during marriage);
- Unmarried parents sign acknowledgement of paternity;
- Successful challenge by unmarried biological father;
- Paternity suit; AND/OR
- Paternity by estoppel.
Unmarried Biological Father’s Right
Protected Under DP only if:
- Assumed parental responsibilities; AND
- Established substantial parent-child relationship.
What occurs upon ADOPTION of child?
Severs the biological parent’s legal rights and responsibilities for the child.
Some states – Inheritance rights are NOT terminated if adopted by blood relative.
Consent to Adoption
Need BOTH parents’ consent.
Non marital child – Father’s consent required ONLY if he assumed parental responsibilities.
Jurisdiction for Adoption matters
Same as child custody determination under UCCJEA.
