Family Law Flashcards
What is the definition of a family?
no single legal definition of what constitutes a family
- could mean only spouses and children
- could add grandparents or 1st cousins
- could add distant blood relatives
What is marriage?
A contract regulated to a degree that other types of contracts are not.
- a one-size-fits-all contract that cannot be expanded, modified, or restricted based solely on the consent of the parties
How is marriage regulated?
- primarily regulated at the state level, with each state setting different requirements for marriage. Typical regulations include
- Minimum age thresholds
- Monogamy
- Competency
- Prohibitions on incestual marriage
- Solemnization Ceremonies
The Supreme Court has intervened to strike down prohibitions on interracial marriage (Loving v. Virginia) and same-sex marriage (Obergefell v. Hodges)
Do states require that in order to be recognized as married, a couple must go through a ceremony, whether civil or religious – to serve as a public and tangible signal that the marriage has occurred?
Yes
What is Common Law Marriage?
a legally recognized marriage between two people who have not purchased a marriage license or had their marriage solemnized by a ceremony
What are some factors for determining whether a common law marriage has occurred?
Cohabitation, presentation as a married couple, otherwise unmarried, of age, established relationship as spouses
What is adoption?
the legal transference of both rights and duties of parenthood from one (set of) parent(s) to another
How are Agency Adoptions conducted?
by professional adoption agencies who interview and closely scrutinize prospective adoptive parents to ensure proper placement.
- Approval is often a very intensive, expensive process
- Adoptions between related persons are often expedited
How are Independent Adoptions conducted?
by the birth parents themselves, who set their own standards for adoption
What is a closed adoption?
little-no contact between birth and adoptive families and a high degree of privacy
What is an open adoption?
birth and adoptive families in contact
Does the formal adoption process require a petition to be filed with the court, and generally a period of temporary custody to make sure the adoption is in the best interest of the child?
Yes
Can adoptions be involuntary?
Yes, courts have the power to terminate parental rights against the will of the birth parent
- Married parents of a child must jointly consent to adoption
- Unmarried parents whether custodial or non-custodial have the right to object as well, as long as they have been active in fulfilling parental obligations
What duties do parents have to provide for their children’s needs?
- Food
- Clothing
- Shelter
- Education
- Medical Care
What happens if parents fail to provide these essential duties?
Failing to provide these essentials often constitutes a criminal offense
When do these obligations end?
These obligations generally end at the age of majority – when a minor legally becomes an adult
- 18 in most states, 19 in AL & NE, 21 in MS
- Some courts have required divorced parents to contribute to college expenses as part of child support (but intact families have no obligation)
What happens when parents disagree with each other about key child-rearing decisions?
- In cases of divorce, a parent with sole legal custody generally gets to decide
- But joint custody is preferred by the Courts
- In intact families, it can be tricky
- In practice many decisions only need one parent, and typically either parents approval is enough for most things to move forward
Courts can be called in to settle important decisions, and will apply a best interest of the child standard
How can marriages legally end?
- Divorce
- Annulment
- Legal Separation (Limited divorce)
What is an annulment?
An official declaration that no legal marriage ever existed
- Annulments are less popular today as no-fault divorce has become the norm and as divorce has become less stigmatized
- Common justifications: bigamy, incest, incompetence, fraud, coercion, parties underage
- Any property acquired during the marriage is considered co-property of each person
What is a no-fault divorce?
No-fault divorce is, as it sounds, a divorce that can be obtained without anyone having to allege or prove that one party’s behavior is to blame
What is legal separation? (limited divorce)
an incomplete divorce usually intended to be temporary
- Parties must have actually physically separated and meet certain other requirements/justifications:
- Nonsupport, adultery, desertion, cruelty, etc
- The parties have privacy rights from each other, but are not free to remarry and may reconcile or pursue a full divorce
- Spousal support may be required, states differ as to property division
What is a divorce?
the formal dissolution of the marriage only
What is a separation agreement?
People use the word divorce to refer to the entire process of ending a marriage, dividing property, determining child support, etc. - In some states, parties can settle some of these issues themselves via a separation agreement which dictates how they think property should be divided, and even proposes child custody arrangements
- Courts don’t always have to accept these agreements, particularly with relation to decisions regarding children
Does divorce require the consent of both parties?
- Divorce does not require the consent of both parties.
- A resistant party can delay, but ultimately not stop a divorce from being finalized
What is alimony?
Financial support that a person is ordered by a court to give to their spouse during separation or following divorce.
Although states have enacted no-fault divorces, how do states use allegations of fault?
- Some states (including GA) allow allegations of fault to be considered for the purpose of determining alimony (aka Spousal Support)
- Justifications
- Length: often 1:3 years of alimony:marriage
- Can be modified with pre-nups, but enforceability varies
- Alimony can be permanent or rehabilitative
What is rehabilitative alimony?
This type of spousal support provides financial assistance while a spouse seeks education, training, or skills required to obtain a job. The alimony is temporary and only for a specific period of time.
What is permanent alimony?
This type of spousal support lasts until the death of either spouse or until the payee gets remarried.
What is the typical standard for all questions relating to children?
-
best interest of the child
- Children are also entitled to representation in court via a Guardian Ad Litem
- Works with child, teachers, parents, doctors, etc
- Recommendations taken very seriously
- Children are also entitled to representation in court via a Guardian Ad Litem
- Factors Considered (among others)
- Parents relationship and ability to care for child
- Involvement in Child’s schooling and medical decisions etc
- Relationship to (step/half) siblings
- Parents legal, emotional, mental health issues
What is the key distinction between the custodial and non-custodial parent?
Child Support
- When parenting time is equal, higher income usually is considered non-custodial
What are the two ways that states approach property division in divorce?
- Community Property
- Equitable Distribution
- Both systems consider other assets and debts
- States can combine systems
- Defaults can be altered via pre-nuptial agreements
