Family Law Flashcards
A court will generally enforce separation agreements unless it is
unconscionable (substantially unfair) or based on fraud
Parties must enter into separation agreements
voluntarily
Effects of fault on divorce
In states which have fault based divorce, fault may be a factor in determining (increasing) spousal support, but is not a factor in the distribution of property
Professional licenses or degrees are
not treated as distributable property interests
Types of spousal support include
lump sum, permanent, limited direction, rehabilitative, or reimbursement
Under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), a court has subject matter jurisdiction to preside over custody hearings and either enter or modify custody or visitation orders if the state is
(1) the child’s home state (the state in which the child has lived with a parent or guardian for at least six consecutive months immediately prior to the custody proceeding, or since birth, if the child is less than six months old); or
(2) was the child’s home state in the past six months and the child is absent from the state, but one of the parents (or guardians) continues to live in the state.
When there is no home-state, a court may be granted jurisdiction through significant connection which is valid if
(1) the child and at least one parent have a significant connection with the state, and
(2) there is substantial evidence in the state concerning the child’s care, protection, training and personal relationships.
The Supreme Court has held that a fit parent has a fundamental right to
the care, custody, and control of his children and state courts must give “special weight” to a fit parent’s decisions on care, custody, and control
Equitable division of property at divorce does not
require 50/50 split
Marriage requires
mental and legal capacity to marry (+ consent and present exchange of promises / vows)
Valid marriage in one state will be valid in another unless
it violates a strong public policy of the other state
Putative marriage protects an innocent party who
participated in a marriage ceremony in good faith thinking the marriage was valid but later found out about an impediment to the marriage (e.g. other party was still married to someone else)
allows for legal remedies like spousal support and property distribution
No-fault divorce is typically granted for
irreconcilable differences
Fault based divorce typically includes
adultery, cruelty (physical abuse), desertion
In most states, marital property continues to accrue while
parties are separated and until final divorce decree is entered
SP can be transformed into MP if marital funds or efforts are
used to increase value or build equity
Taking title in one spouse’s name alone
is not conclusive of separate property
While professional license / degrees are not MP
contributions made to educational and living expenses may be reimbursed
Once a property division is awarded it
may not be modified after the fact (either based on will of the parties or change in circumstances)
Factors considered in determining spousal support include
(1) Financial resources of both parties
(2) Standard of living during marriage
(3) Time for receiving spouse to find employment / finish education
(4) Length of marriage
(5) Contributions to marriage
(6) Age and health of parties
(7) Marital misconduct (only in some states)
Types of spousal awards
(1) Permanent alimony (for remainder of spouse’s life)
(2) Limited duration alimony (for short marriages)
(3) Rehabilitative support (until spouse receives education or employment)
(4) Reimbursement alimony (compensation for sacrifices made during marriage)
Modification of spousal support may be done when
the moving spouse establishes a significant and continuing change in circumstances warranting the modification
Note: voluntary reduction usually NOT ok, re-marriage of former spouse may terminate spousal support
An ex part divorce allows
a court to grant a divorce if one spouse is domiciled in the state
applicable only to divorce decree but state does NOT have jx to address property division, spousal support, or child support unless PJ over both spouses
Child support may not be
bargained away in premarital or settlement agreements (court retains jx to modify)
Once paternity is established the father has
rights to custody and visitation but also duty to support child
Uniform Interstate Family Support Act (UIFSA) governs when
a state has PJ over an out of state parent in an attempt to enforce child support or establish paternity
Governs when:
(1) personally served within state and consents to PJ
(2) Resided with child in state in past, or
(3) Engaged in sexual intercourse in the state and child may have been conceived by the act (BROAD)
In determining child support courts may consider
(1) best interests of the child
(2) age of the child
(3) special needs
(4) Assets of both parties
(5) Standards of living during marriage
Child support may be modified if
there has been a substantial change in circumstances regarding the child’s needs or parents’ financial situation (burden on moving party)
Modifications to child support may not be done
retroactively (only modifiable prospectively)
Note: “Retroactive” only as to the date of service of motion, NOT when need / desire arose
Child support after the age of majority may be
subject to reasonable parental demands
Under UIFSA, the state which issued the initial child support order has
continuing exclusive jurisdiction to modify the child support order
exceptions:
(1) parties (both parents) and child no longer reside in the state
(2) parties expressly agree to permit another state to exercise jx
States are bound to enforce other states’ child support orders based on
full faith and credit
3 types of custody
(1) Legal custody (major decisions of child)
(2) Physical custody (routine daily care and control)
(3) Joint custody (2 parents share equal right)
Best interests of the child standard
(1) Primary-caretaker
(2) Child’s preference (if sufficiently mature and consider reasoning)
(3) Race or religion (CANNOT be used - unless detrimental to the child)
(4) Third party rights
Third party rights (e.g. step-parents, grandparents) may
be granted custody as de facto parent / parent by estoppel if legal parent is unfit or would be detrimental or child has lived with that third party for an extended period of time
A court may only deny a parent visitation if
it would seriously endanger the child’s physical, mental, or emotional health
CANNOT be denied on the bases of failure to pay child support
Third party visitation of child is limited to instances of
loco parentis (having acted as quasi-parent) prior to divorce
Modification of a custody order requires the moving parent to show
substantial change in circumstances
Relocation of a custodial parent with a minor child may be done for
a legitimate and reasonable purpose
consider:
(1) best interests of child
(2) relationship between non-relocating parent and child
(3) age and needs of child
(4) child’s preference
(5) quality of life of relocating parent and child
A pre-marital agreement is enforceable if
(1) there has been full disclosure
(2) the agreement is fair and reasonable, and
(3) it was voluntarily entered into
To argue unenforceable pre-marital agreement, must show
(1) involuntariness (fraud, duress, coercion) OR
(2) Unconscionability when executed AND lack of reasonable knowledge or disclosure
Fair and reasonable pre-marital agreement means
(1) Procedural fairness and
(2) substantive fairness (generally at time of execution of contract, minority also consider at time of enforcement)
Separation agreements are
agreements in preparation for divorce and define property division, spousal support, child support, custody and visitation
Generally merge into final judgement for divorce
Note: Terms relating to children are ALWAYS modifiable by court if necessary and in best interests of the child
For conflict of laws concerning marital agreements, apply either
(1) State in which agreement was executed, or
(2) State with most significant relationship
Putative father registry allows
unwed fathers to register themselves as father of a child
If registered, father will receive notice and hearing before rights are terminated
Adoptive children have
all the rights and responsibilities that biological children would have had (and same for adoptive parents)
The common law doctrine of nonintervention disallows
judicial intervention in an intact family
Note: has been relied upon to deny spousal support petition when couple is living together
A fit parent has a fundamental right to
the care, custody, and control of his children
Note: not absolute, may be impacted by state statutes if social harm exists (think vaccinations in schools)
The U.S. Supreme Court has held that the right of an unwed father to object to an adoption cannot be denied if
the father has demonstrated that he is committed to fulfilling the responsibilities of parenthood
Note: May conflict with putative husband / adoption registries in states which may serve to waive right to notice of adoption and thus implies consent to adoption
If a natural parent has had little or no contact with a child, or if the child has lived with the third party for an extended period of time, then courts have
employed the terms “parent by estoppel” and “de facto parent” to get around the presumption that legal parents are entitled to the custody of their children in cases against third parties
The state may intervene and terminate parental rights when it is
in the best interests of the child
(Grounds for termination include failure to support)
Under the theory of parens patriae, a court can intervene to protect a child when
medical treatment contradicts religious beliefs and such treatment is required to prevent serious harm to the child’s health
Note: In those situations, a child can be declared neglected and the medical treatment ordered
In determining distribution of assets under equitable distribution, courts consider a number of factors including
the length of the marriage, contributions to the marital estate, and custodianship of children
A valid marriage, including common-law marriage, can be terminated only by
annulment, divorce, or death
While property distribution is generally unaffected by adultery in divorce, it may be relevant if
the adulterer used MP for sole benefit such as expensive gifts for the mistress
Will thus be taken into consideration by court
