FAMILY LAW Flashcards
MARRIAGE
Marriage and divorce are not heavily tested. Sometimes, common law marriage is tested (but is usually not found to exist on the MEE). If common law marriage is tested, note that if a couple is common law married in a state that recognizes it, other states will recognize the marriage too.
- Common law marriage: to establish a common law marriage, the proponent must show (mnemonic=CACH): capacity to enter into a marital contract, a present agreement to be married, cohabitation, and holding out a marital relationship.
- Recognition of marriage: a marriage valid under the law of the place in which it was contracted will be valid elsewhere unless it violates a strong public policy of the state that has the most significant relationship to the spouses and the marriage.
- Bigamy: A bigamous marriage is void from the beginning. But there are two marriage-saving doctrines for the new spouse: (1) there is a presumption that the most recent marriage is valid, and (2) removal of the impediment (e.g., by divorce) will render a subsequent marriage valid.
- End of marriage: Virtually all states are no-fault divorce states. Some states recognize fault-based grounds too. Annulment is also recognized for fraud and other reasons.
CHILD CUSTODY
When determining child custody and support, the best interest of the child is examined. A biological parent generally has parenting rights if he is involved in the child’s life.
- Custody determinations, generally: custody is determined by looking at the best interest of the child. This typically requires looking at factors such as:
1. the wishes of the child’s parents,
2. the child’s primary caretaker,
3. the mental and physical health of all individuals,
4. the interrelationship of the child and parents,
5. stability, and
6. whether there is any domestic violence. - Custody modifications: Custody can be modified only if there is a substantial change in circumstances. Generally, this change must be unforeseen at the time of the initial judgment.
RIGHTS OF PARENTS AND OTHERS
- Decisions by a fit parent must be given some deference. This includes decisions regarding medical care (but parental rights can be limited if a parent’s decision will jeopardize the health or safety of the child).
- When does the father have rights Generally, biological fathers have rights. However, the state may make the parent exercise his rights within a specific time (e.g., two years).
- Rights of a parent when another person wants to adopt a child: an involved parent who demonstrates a “full commitment to the responsibilities of parenthood” will likely be able to successfully oppose an adoption petition by another and is entitled to notice of such proceedings.
- Third-party rights: Custody in the parent is presumed to be in the best interest of the child.To rebut this, a third party who wants custody must prove that the parent is unfit or that granting custody to the parent would be highly detrimental to the child. Thus, any third-party visitation or custody statute must give special weight to the parent’s determination of the child’s best interest.
DIVISION OF PROPERTY IN A DIVORCE PROCEEDING
Division by court; martial vs seperate property; divsion based on premarital agreement.
- Division by court: in a majority of states, marital property is divided at divorce but separate property remains the property of the owning spouse.
- Martial vs. separate property (majority approach): 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.
- Division based on premarital agreement: 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 will not, however, enforce a premarital agreement regarding child custody or support if it is not in the best interest of the child.
ALIMONY
Alimony can be permanent, temporary, or granted in a lump sum. Almost all states require the trial court to consider the parties’ financial resources and needs, marital contributions, and marital duration. Some states also look at spousal misconduct, one spouse’s support for the other’s education or training, etc. The trial court has substantial discretion in choosing to award alimony.
MODIFICATION AND TERMINATION OF ALIMONY
Alimony awards may be modified if a court finds there has been a substantial change in circumstances making the prior award unreasonable. This must be an unanticipated change. Alimony usually terminates if a spouse dies or gets remarried. In some states, cohabitation will reduce or terminate alimony.
WHICH COURT MAY DISSOLVE A 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.
WHICH COURT MAY DISSOLVE A MARRIAGE
unless the court has jurisdiction over the defendant spouse, it may not issue a binding order affecting personal rights such as property division or support, but it may grant a divorce.
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.
WHICH COURT MAY ISSUE A PROPERTY DIVISION ORDER
unless the court has jurisdiction over the defendant spouse, it may not issue a binding property division or support order
CHILD SUPPORT ORDER
The Uniform Interstate Family Support Act (UIFSA) governs child support. This Act has been adopted by all states. Once an order is registered, it may be enforced by any state. The state that originally issued a child support order has continuing exclusive jurisdiction to modify that order if the state remains the residence of the obligee, the child, or the obligor, and at least one of the parties does not consent to the jurisdiction of another forum.
CHILD CUSTODY ORDER
The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) applies. This is divided into a few tests:
- The home state test:The “homestate” has exclusive jurisdiction to modify a custody decree. A “home state” is a state where the child has lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of the child custody proceeding. A home state continues to have exclusive jurisdiction to issue a custody order for six months after a child leaves the state, so long as a parent, or person acting as a parent, still lives in the home state.
- The significant connections test: if a child has no home state, a state may exercise jurisdiction based on (1) “significant connections” with the child and at least one parent and (2) the existence of “substantial evidence” relating to child custody in the forum jurisdiction.
- Emergency jurisdiction or default jurisdiction: if no other state has or exercises jurisdiction, this test applies.
