FAMILY LAW Flashcards
What is required for a statutory law marriage?
1) Capacity
- At least 18 years of age
- Comprehend activities (no drugs/alcohol)
- Voluntary (no fraud/duress/coercion/force)
2) Licence
- Physician certificate (free from communable disease) (some states)
- Waiting period of 72 hours (many states)
3) Solemnization (Ceremony)
What remedies are available for breach of promise to marry?
(Most states have abolished such remedies)
Actual damages Loss reputation Mental anguish Health damage Punitive damages
What is required for a common law marriage?
(Most states have abolished)
1) Capacity
2) ‘Present’ agreement to be married
3) Cohabitation
4) Holding out publicly (living together as spouses)
Premarital Agreement
An agreement made in contemplation of marriage that alters or confirms the rights and obligations that would otherwise arise under applicable law.
What is required for a pre-marital agreement?
Uniform Premarital Agreement Act (UPAA) + Most courts
1) Capacity (NO unconscionability - full exertion of influence)
2) In writing + Signed (not waived)
3) Full fair disclosure of spouses’ financial worth
4) Fair + reasonable provisions
5) Independent counsel (not necessary but less chance of overturning)
Is a void pre-marital agreement still enforceable?
To extent necessary to avoid inequitable result
- E.g. Child custody provisions
What rights do spouses have in pre-marital agreements?
Uniform Premarital Agreement Act (UPAA) + Most states
- Property
- Sell/Lease/Assign
- Spousal support
- Will/Trust
- Choice of law
- NOT child custody (judicial reform/public policy/courts to decide based on child’s best interests)
What property rights do spouses have?
Right of survivorship (presumed joint tenancy)
- No unilateral sales
- No unilateral encumbrances
Equitable distribution of marital property after marriage
What type of support must spouses give to each other and third parties?
Equal obligations
Liability to TPs for other spouse’s authorised purchases (agency law)
Liability to TPs for necessaries (food, clothing)
Do spouses have constitutional privacy?
Due Process Clause
- Marriage
- Procreation
- Contraceptions
- Abortion
- Homosexuals cohabitation
- Children care/custody
Unless regulation meets strict scrutiny standard
1) Necessary
2) Meets compelling government interest
When may spouses assert spousal privilege?
Spousal immunity
- Criminal cases (Not crimes vs spouses)
- Witness spouse
Confidential communications
- Regarding marriage
- Made during marriage
- Criminal + civil cases
- Defendant/Witness spouse
When may spouses sue TPs for tortious interference with marriages?
TP alienation (deprives marriage) - Abolished in most states
TP sexual relations
- TP lives separately from spouse
- Abolished in most states
Negligent spouses causes loss of consortium
- Allowed in most states
How may community property be divided?
Marital property
- Equal distribution
Separate property
- Gifts to directed spouses
- Bequests to directed spouses
What is the procedure for equitable division of all property?
Equitable division (fair, but not necessarily equal)
- Property acquired before/during/after marriage
What type of marital property may be equitably divided?
Uniform Probate Code (Most common approach)
Acquired during marriage
Businesses operated + owned by spouses
Spouses’ active appreciations that increase value
- Increased value => Supporting spouse
- Original value => Original spouse
Support to spouses (even if not actively involved)
Pensions earned during marriage
Compensating contributions for education/training to acquire professional licence/degree
Personal injury damages (between marriage and separation)
Stock options acquired during marriage
Mixed property
- Separate property no longer traceable
- Evidential intention as marital property (named in both spouses’ names)
What type of separate property may be equally divided?
Acquired before marriage
Acquired during marriage
- Gifts
- Bequests
- Descent
Transmutation
A voluntary change in the character of property by one or both spouses, either from separate property to marital/community property or vice-versa.
What factors may determine equitable division?
Age/Education/Background
Financial capacity
Marriage standard/duration
Present incomes
Financial sources
Health
Assets/Debts
Needs
Child custody provisions
Alimony
Contributions
Are property decrees modifiable?
No
Property awards
- Determines past division at time of divorce
- Ascertained division
Support awards
- Determines future support
- Unascertained division
Is jurisdiction required for enforcing property awards?
Yes
- To adjudicate on the merits only
What is required for a void marriage?
Impediment at time of marriage
- Bigamy (another living spouse unless other spouse unaware of bigamy + reasonably believed marriage was valid - ‘Doctrine of putative spouse’)
- Incest/Consanginuity (most states)
- Underage (some states)
Annulment
A legal action declaring a marriage invalid because of an impediment at the time of the marriage.
What are the consequences of a void marriage?
Nullity (no court order required)
Any interested party may seek annulment
Subject to collateral/parties’ attack after death
What defenses are available against void marriages?
Uniform Marriage and Divorce Act (UMDA)
1) Remove impediment
2) Parties continue to co-habit
What is required for a voidable marriage?
Impediment at time of marriage
- Inability to have normal sexual relations
- Lack of capacity (drugs/alcohol/duress/fraud/no mutual assent)
- Underage (most states)
What are the consequences of a voidable marriage?
Valid until declaration of annulment
Spouse may seek annulment
What defenses are available against voidable marriages?
Uniform Marriage and Divorce Act (UMDA)
1) Remove impediment
2) Parties continue to co-habit
Ratification
Laches
Estoppel
Spouse’s death
What is a legal separation order?
Prevents termination of marriage
Adjudicate spouses’ rights
- Alimony/Custody/Support/Property
Divorce
A court judgment that legally ends a marriage.
What grounds are required for a divorce?
No fault grounds
1) Irretrievably broken down (at least one spouse believes)
2) Separated for specified period
Fault grounds
- Adultery
- Impotence
- Incarceration
- Mental illness
- Addiction
- Cruelty (Physical Abuse)
- Abandonment (Desertion)
- NOT collusion/connivance/condonation/recrimination
What is required for state to have jurisdiction (satisfaction of full faith and credit) over divorces?
1) Spouse domiciled in rendering state (SMJ)
- 90 days for most states
2) PJ over Defendant
What are the consequences of a state having jurisdiction over divorces?
NO PJ => Divorce decree valid in all states
PJ => Satisfaction of full faith and credit => Determines property/alimony/child support provisions (not child custody)
- NO fraud/unconscionability
What type of divorce orders can be made?
Final
Interlocutory (not final until after specified period)
- No remarriage allowed
- Co-inheritance allowed
How can spouses mediate divorce orders?
Parties’ decisions (mediator’s decision not binding)
Independent counsel
Impartial mediator
Informed decision-making
What is a separation agreement?
Prevents termination of marriage
Agreement to live separately
Resolve economic issues
- Enforce property/alimony provisions
- Enforce child support/custody provisions (in child’s best interests)
What is required for a separation agreement?
1) Capacity
2) Full and fair disclosure of spouses’ financial worth
3) Consideration (mutual promises)
4) Independent counsel representation
What is the difference between a separation agreement and a divorce?
Separation agreement
- Enforceable as ‘contract’
Divorce
- Enforceable as court judgment
- Can merge divorce + separation agreement
When may alimony be granted?
During divorce proceeding
As part of divorce decree
During marriage (if annulled/divorced) - Otherwise courts disinclined to interfere with spouses' affairs
What factors may determine amount of alimony?
Duration/Standard of marriage
Age/Conditions
Financial resources
Contributions
Time for necessary training
Payor’s ability to meet recipient’s needs
Marital fault
Why do courts have wide discretion to determine alimony?
Ensure adequate income stream to recipient economically dependent on marriage
Can alimony be waived?
No
- Contrary to public policy
- Not leave spouse dependent on state
What type of spousal support is available?
Permanent periodic spousal support
- Regular + permanent
- For spouse with no self-sustaining resources at all
Rehabilitative spousal support
- Regular + temporary
- For spouse with no self-supporting skill/education until sufficient
Reimbursement spousal support
- Fixed
- For spouse’s compensation for licence/degree
Lump sum payment
- Fixed
- Single/Instalments
How may alimony be modified?
Unanticipated + substantial change in circumstances
- Recipient’s needs
- Payor’s ability to pay
- Legal obligation to new spouse
NOT stepchildren
NOT intent to remarry
NOT self-induced reduction to income
How may alimony be terminated?
Spouse’s death
Recipient’s marriage
Recipient’s cohabitating relationship
Uniform Interstate Family Support Act (UIFSA)
The statute, adopted in some form by all states, that prevents parents from avoiding court-ordered child support by moving across state lines
How may alimony be enforced by law?
Uniform Interstate Family Support Act (UIFSA)
Income withholding order
- Mail to payor’s out-of-state employer
- Mail to payor’s out-of-state support enforcement agency
Registration support order
1) Mail order to payor’s state
2) Payor’s state files order as foreign judgment
3) Subject to enforcement proceedings
How may alimony be enforced by sanctions?
Hold non-payer in court contempt
File judgment against non-payer
Seize real property
Wages attachment/withholding
Attorneys’ fees
Intercept tax returns
Not renew driver’s licence
Which states may modify alimony awards?
Uniform Interstate Family Support Act (UIFSA)
Issuing state
- Generally has continuing + exclusive jurisdiction
Sister state
- Child + Parents no longer reside in issuing state
- ALL parties consent to sister state’s modification
Best interest of the child
A standard for the determination of custody that includes the child’s short- and long-term interests.
How are parents’ duties to support children distributed?
Equal duties
What factors may determine amount of child support?
Child’s monetary need
Obligor’s ability to pay
No. children
Ages
Special needs
Parents’ income
NOT visitation rights (non-custodial parents)
How may child support be modified?
Substantial change in circumstances (child’s needs/parent’s ability to pay)
- Changes in employment
- Child’s growth
- Inflation
- Retirement
- Income (NOT self-induced reduction)
- Disability/Illness
How may child support be terminated?
Emancipation
Child’s marriage
Termination of parent’s rights (lack of paternity)
Obligor’s death
How may child support be enforced by law?
Uniform Interstate Family Support Act (UIFSA)
Income withholding order
- Mail to payor’s out-of-state employer
- Mail to payor’s out-of-state support enforcement agency
Registration support order
1) Mail order to payor’s state
2) Payor’s state files order as foreign judgment
3) Subject to enforcement proceedings
How may child support be enforced by sanctions?
Hold non-payer in court contempt
File judgment against non-payer
Seize real property
Wages attachment/withholding
Attorneys’ fees
Intercept tax returns
Not renew driver’s licence
Which states may modify child support awards?
Uniform Interstate Family Support Act (UIFSA)
Issuing state
- Generally has continuing + exclusive jurisdiction
Sister state
- Child + Parents no longer reside in issuing state
- ALL parties consent to sister state’s modification
Physical custody
The right to live with a child.
Legal custody
The right to make decisions about a child’s welfare on matters including medical care, schooling, religion, and finances.
Joint custody
A situation where the child lives with each parent for significant lengths of time or where both parents have equal rights in making decisions on the child’s behalf.
What is required for state to enforce child custody orders?
Home state jurisdiction
- Child domiciled in state (at least 6 consecutive months before proceedings)
- Child domiciled in state during last 6 months + Parent/Guardian domiciled in state
NO home state jurisdiction
1) NO other state accepts home state jurisdiction/State has jurisdiction + petition already filed in State
2) Child + Parent have significant connection with State
3) Available substantial evidence re child care in State
What methods of enforcement are available for states?
Single state
- Contempt proceedings
- State habeas corpus proceedings
- Suits in equity
- Uniform Child Custody & Jurisdiction Enforcement Act (UCCJEA) (avoid jurisdictional disputes/promote interstate cooperation/facilitate interstate enforcement)
Sister state
- Federal Parental Kidnapping Prevent Act (PKPA) (avoid jurisdictional disputes/discourage ‘forum shopping’ by parents dissatisfied with existing custody order pursuant to child’s home state)
When may jurisdiction be denied to a state for enforcement?
Inconvenient forum + more appropriate forums available
Unjustifiable conduct (wrongfully taking child from state)
What is required for modifying child custody orders?
Burden of proof => Applicant
1) Elapsed time/Endangered child (emotionally/physically/mentally)
2) Substantial/Material change in circumstances
How may court grant single child custody?
Child’s best interests (court must provide substantial assistance in reaching interests => Then appoint counsel/guardian)
- Child’s wishes (at least 12 years of age)
- Parents’ wishes
- Child’s relationship with parents
- Child’s adjustment to home/school/community
- Child’s physical/mental health
- Gender (Tender Years doctrine - Grants mother custody unless gender bias found/unfit mother)
- NOT adultery/financial ability
Primary caregiver (two qualified parents)
How may court grant joint child custody?
Parents' fitness Parents' agreement Communication with child Child's wishes (at least 12 years of age) Parents' involvement Geographical proximity Similarity of homes Effect on child's psychological development Child's physical capacity
How may court grant TP child custody?
Unfit parent
Full abandonment
Physical incapacity (NOT depression)
How may court grant visitation rights?
Child’s best interests (court must provide substantial assistance in reaching interests => Then appoint counsel/guardian)
- Child’s wishes (at least 12 years of age)
- Parents’ wishes
- Child’s relationship with parents
- Child’s adjustment to home/school/community
- Child’s physical/mental health
- Gender (Tender Years doctrine - Grants mother custody unless gender bias found/unfit mother)
- NOT adultery/financial ability
Who may exercise visitation rights?
Biological parent (fit) (SDP rights)
TP (stepparent)
- TP child custody
How may court limit visitation rights?
Injury to child (rare absolute denial)
Removal of child from state (motivated by benefit to parent)
In child’s best interests + TP-child relationship
How may unmarried cohabitants have contract rights?
Express contracts
- Earnings
- Property rights
NOT implied contracts/sexual relations
How may unmarried cohabitants have property rights?
Express contracts
Equitable distribution
- Constructive/Resulting trust
- Quantum in meruit
How can non-marital children presume legitimacy from their fathers?
Father married mother after birth
Father holds out as biological child
Father consents to birth certificate name
Paternity acknowledgement (by Father/court) (clear + convincing/preponderance of evidence - some states)
- Medical testing
- Blood testing
- Paternity statements
What rights does a non-marital father have if he acknowledges paternity?
Child custody/visitation rights
Child support duty (full commitment to parenthood)
- Acknowledgment of paternity
- No acknowledgement of paternity (Knowledge of non-paternity + opportunity to litigate at time of divorce)
What rights do illegitimate children have?
No discrimination between legitimate + illegitimate children
No father inheritance preclusion
No discriminatory statute of limitations
Same rights as legitimate children
Government benefits
What rights do non-marital parents have for child’s death?
Mother/Father
- Recovery in tort (negligence/intentional)
- Bring action for Child’s loss of consortium
Father (legally recognised) - Full commitment to parenthood
- Daily supervision
- Education/Care/Protection
- Birth expenses
- Paternity acknowledgment
When are intra family immunities applied?
Parent-Child tort actions
- NOT intentional torts (Parent/Child can sue Parent/Child)
- NOT automobile accidents (personal injury) (Parent/Child can sue Parent/Child)
NOT Spouse-Spouse tort actions
- Spouse can sue Spouse
When may court intervene parental autonomy?
Children in need of supervision
- Habitual truancy/Escaping home
- Counselling/Social worker supervision/State agency adoption
Termination of parental rights
1) Due process (Right to counsel)
2) Clear + convincing evidence (harm/abandonment/sexual abuse/neglect/mental illness/unfit parent)
What is required for adoption?
1) Natural parents’ consent
- Unless waiver/withdrawal before adoption decree entered (in child’s best interests) (notice + hearing for Adopting parent)
2) Child’s consent (at least 12 years of age)
3) Father’s consent
- Married
- NO veto (depends on father’s level of involvement re care/regular visits/admit paternity/child support)
4) Investigation + Court consent (most states)
5) Medical costs to natural parents (most states)
What is required for jurisdiction to enforce adoption orders?
UCCJEA
Home state jurisdiction
- Child domiciled in state (at least 6 consecutive months before proceedings)
- Child domiciled in state during last 6 months + Parent/Guardian domiciled in state
NO home state jurisdiction
1) NO other state accepts home state jurisdiction/State has jurisdiction + petition already filed in State
2) Child + Parent have significant connection with State
3) Available substantial evidence re child care in State
Uniform Adoption Act (UAA)
- Child + Parent domiciled in state (6 months before proceedings)
- Adopting Parent domiciled in state (6 months before proceedings) + Substantial evidence re child care
- Adopting Agency domiciled in state + Substantial evidence re child care + Parent and Child’s significant connections with state
- Adopting Parent and Child physically present + Child was abused/neglected/abandoned
- NO other child accepting/declining jurisdiction + In child’s best interests
What is required for assisted reproduction/in vitro fertilisation?
Uniform Parentage Act (UPA)
1) Parent intended to act as parent
2) Parent provides gamete/consent => Sperm mixed with frozen embryo
- UNLESS Parent died + NO written consent before Child’s birth
What is required for surrogacy agreements?
Genetic surrogacy
- Surrogate uses own gamete
- Additional safeguards
Gestational surrogacy (UPA + most states) - Surrogate uses other gamete
