Family Law Flashcards
a marriage license will not be issued if… (4, +1)
- one of the parties is married to someone else
- the parties are too closely related (def by statute)
- parties entered into marriage as sham; or
- parties incapable of understanding the nature of the act
- (most) can’t be under influence rendering incapable, or lacked consent b/c duress / fraud
4 potential requirements for ceremonial marriage
- age restrictions (usu 18)
- waiting period (many jx, not all - may be waived in emergency)
- premarital med testing (some states)
- expiration date (most states)
common law marriage requirements (3, +1). where available?
- agree they are married
- cohabit as married
- hold selves out in public as married
NOT valid if married to someone else
not in all states - assume abolished
Four Cs: capacity, consent, cohabitation, conduct
how does a couple show the requisite intent for common law marriage?
evidence that intended to enter into marriage by words in the present tense made for the purpose of establishing a valid legal marital rel; future tense insufficient
can then look to cohabitation or reputation (cohab alone insufficient)
does cohabitation by itself prove holding self out as married?
no
heartbalm action
not available in most jx
jilted party permitted to file civil suit for money damages based on damage to reputation when marriage fails to take place
3 ways to end marriage
annulment, divorce, death
two types of annulment (and what judicial action required)
- void (as if never happened - need not be judicially dissolved)
- voidable (valid until one spouse seeks to void - requires judicial decree)
3 justifications for void annulment
- prior existing marriage
- incest
- mental incapacity (must understand nature of marriage K; valid if entered in lucid moment)
6 justifications for voidable annulment
- age (if underage party (not yet 18), and didn’t seek consent of parents or court)
- impotence (if natural and incurable, and other party didn’t know)
- intoxication (tho can ratify after with cohabitation)
- fraud, misrep, duress, coercion, force (must immed cease living together; must be present fraud)
- lack of intent (jest/hilarity; agreed to only some aspects of conventional marriage)
Enoch Arden statute
addresses bigamy cases; most states have adopted
defense to bigamy if parties had GF belief that previous spouse was dead
some jx require divorce proceeding from orig spouse
in bigamy cases, what is presumed about the status of the latest marriage? what evidence to rebut?
presumed that latest marriage valid
rebuttable by cogent evd of existence of prior valid marriage at time latest marriage entered into
putative marriage doctrine
protects party who is unaware of impediment to marriage that makes it void or voidable; if they 1. participated in the ceremonial marriage and 2. believe in good faith that it is valid, they can use the state’s divorce provisions even if later found void
divorce not required to end it, but allows equitable remedies
requirement for no fault divorce
majority of jx:
1. marriage irretrievably broken
2. no prospect of reconciliation (irreconcilable differences)
about 1/2 states require couple be separated for specific time prior to filing
upon divorce, two methods of distributing asssets
- community property (guiding principle: marriage is partnership, generally requires equal division)
- equitable distribution (most states - not nec equal)
four exceptions to marital property (subject to distribution in divorce) (6)
- acquired before the marriage (or in exchange for prop acq before)
- excluded by prenup/postnup
- acquired by gift or inheritance (or acq in exchange, unless xchange between spouses)
- property party sold, granted, conveyed or OT disposed of in good faith and for value before date of final sep;
- prop that has been mortgaged/encumbered in gf for value (b4 final sep)
- award or settlement payment for any coa/claim accrued before marriage
standard for child custody, support, other child issues
best interest of the child
states that do not have established common law marriage will recognize it from another state unless…
violates strong public policy of state
may also require parties to be domiciled in state for period of time
four heartbalm actions
seduction, alienation of affection, breach of promise to marry, criminal conversation
sufficient to constitute fraud for annulment: lying about wealth? pregnancy?
wealth: no. must go to essence of marital relationship
pregnancy: jx differ
common grounds for fault based divorce
adultery; cruelty/inhumane treatment; desertion; habitual drunkenness; bigamy; imprisonment/incarc (for certain period); indignity; institutionalization (no reas prospect of discharge/rehab)
adultery requirement
- opportunity
- inclination
cruelty or inhumane treatment requirement
usually physical, and a course of conduct (not just once); affects the health, makes cohabitation unsafe or improper (some, not all allow if emotional abuse)
rq for abandonment/desertion
someone left w/o consent of other spouse w/o intent to return
some allow it when another has forced one out and harm will come if they return (constructive desertion)
bigamy
knowingly entered into second marriage w knowledge of prior marriage
indignity
when one spouse is subjected to some course of behavior that makes it intolerable and life burdensome (vulgarity, disdain, sexual deviance etc.)
most jx don’t allow
defenses to fault-based divorce
must be affirmatively pled
- recrimination / unclean hands (you also did adultery / harm)
- connivance
- condonation
- collusion (conspire together to get divorce)
- provocation
- insanity (no diff between right and wrong knowl)
- consent (desertion/adultery)
- justification (e.g. left house b/c forced)
- religion (fails in all jx)
connivance
complaining spouse gave consent to marital wrong (e.g. consent to adultery)
condonation
- has knowledge of grounds for divorce
- continues to engage in marital relations afterwards
limited divorce
legal separation; live apart and court determs support / prop division, but not rly used
separate maintenance
one party asks for support, but not for parties to live apart
a non marital asset can become marital property if…
increased value due to spousal effort / money - at least that extra value may become marital property
burden of proof allocation for claim something isn’t marital property
person claiming it isn’t bears burden of proof
if husband has house before marriage, does that become part of marital property?
no; but increase in value that has accrued during marriage can become marital property
if he transfers title to both parties, could be deemed a gift and become part of marital property
also look out for whether marital assets were used to improve
dissipation of marital property
occurs when one spouse uses marital property for his sole benefit after marriage has irreconcilably broken down (such as expensive gifts for paramour)
treatment of professional licenses or degree in divorce
most jx don’t treat this as distributable property interest (acq of knowledge, not prop)
but can have impact on support / distrib of other marital assets
if one spouse used educational expenses, might be reimbursable
treatment of retirement / pension benefits in divorce
if earned and accrued during marriage, considered part of marital property
will not look into future (just present value)
may also use time rule: part accrued during the marriage
treatment of personal injury proceeds in divorce
marital prop approach: if CoA during marriage, marital property even if proceeds gotten after divorce
separate and marital allocation approach: pain and suffering (sep for injured spouse); lost wages / med expenses award = marital property; loss of consortium belongs only to non injured spouse
treatment of goodwill of a business in divorce
considered marital property if developed during marriage; must be part of the business and independent of the individual (i.e. part of personal reputation vs. law firm’s)
treatment of accumulated sick and vacation days in divorce
split jx; often depends on how / when accrued
some look at nature of sick/vacation pay; not marital property if you have to use it by end of year
treatment of stock options in divorce
if acquired during marriage, even if to be ex after divorce, gen considered marital property
how is marital property division treated under tax law?
equitable distrib payments transferred between divorcing spouses not taxed as income
once property division occurs, is it modifiable?
no; but may warrant change in spousal support / child support
spousal support arises when…
one spouse cannot support themselves w/own employment and assets
can spousal support be discharged in bankruptcy?
no
can spousal support be waived?
yes, with consideration (e.g. waive maintenance in exchange for the house)
factors in determining amount of support
- financial resources of both parties (includes all assets including non marital, earning potential)
- standard of living during marriage
- time to find a job or complete education
- duration of marriage
- contributions to marriage (esp if one enhanced earning capacity of other -homemaker while other in school)
- age and health
- marital misconduct (sometimes)
- children
classifications of marriage duration for spousal support
short term: up to 7 years
moderate: 7-15/16 years
long: 16/17+
is marital misconduct a factor in marital property? support?
- no
- sometimes; esp if adultery
can maintenance be modified? how?
yes; must show significant change in circumstances (needs of recipient or financial abilities of payor. voluntary income reduction does not change it)
factors affecting modification of support
- death (usually cont until death of spouse; not ob of the state unless court specifies)
- remarriage (usu ends if payee remarries)
- cohabitation w non-family member (court looks at nature of rel, duration, $ support etc)
- retirement (some jx deny mod if voluntary; others do modify. depends on nature/circ)
alimony pendente lite
alimony paid during pendency of divorce litigation; not affected by whether payee cohabitating with someone else
court jurisdiction over support obligations may depend on duration of residency. what range might we see?
6 weeks to 2 years
ex parte divorce
personal jx over one but not the other spouse
can determine maritual status, but cannot issue orders on property, spousal support, child custody/support w/o PJ
is there a right to legal counsel?
no, but can order attorneys fees if one party is indigent
when is spousal support awarded in a divorce?
whenever a spouse cannot provide for their own employment
a party seeking modification in spousal support has the burden of establishing…
a significant change in circumstances in either:
- recipient’s needs OR
- payor’s ability to pay
child support is paid until…
age of 18-
but, if child still in HS, until age of 19 while working on hs diploma, or
if child has disability and requires support past high school
sometimes cont through college
right to receive financial child support belongs to…
the child
cannot be bargained away by parents
a nonmarital child is entitled to child support, government benefits, or inheritance rights, but requires…
that paternity is established before the father’s death
4 ways nonmarital children can become marital children
- parents subsequently marry
- father consents to putting name on childs birth cert
- holding out as the father
- by judicial decree (usu thru paternity action)
once paternity is established, gives rise to…
rights to custody and vistation
and duty to support
how paternity proven
blood test; DNA test
prior statements by deceased family members
med testimony on prob of conception
defendant’s own knowl of paternity
physical resemblance between child and defendant
time limit on paternity claim?
no; violates EPP. child or mother can bring it
burden of proof for paternity
varies by jx
marital presumption
presumes child born to married woman presumed to be child of husband
applies to artificial insemination so long as father consented to it and it was performed by a doctor
when can a wife deny that her husband is the father?
in some states, woman is stopped from denying wife’s paternity
half states: allow for wife to present evd that husband is not father (e.g. sterile, impotent, not accessible)
some states - allow court to exclude evd of mother’s rebuttal if not in BI of child
when can husband who isn’t bio father be estopped from denying duty to pay child support?
- husband promised to provide for child
- wife detrimentally relied on promise
- wife would suffer econ detriment from relying on that promise
some states may still allow him to show he is not bio father
uniform interstate family support act (UIFSA)
adopted in all states; long arm statute that allows to get PJ over out of state parent
UIFSA grounds to et PJ over out of state parent
- personal service on defendant parent
- consent
- past residency with the child in state
- past residency while providing child support
- defendant directed child to reside in the state
- defendant engaged in conception in that state resulting in child’s birth
- defendant asserted parentage via the putative father registry
- any other const basis
can any source of income be factored into calculating child support?
yes
three policy principles that guide child support
- parents have fundamental obligation to financially support their children
- combined income is what’s important (what would child have had access to?)
- how to minimize litigation - fair and efficient
in determining child support, what are parents required to file?
- affidavit regarding their net income
- child support guidelines worksheet
2 models of calculating support
income shares (most)
percentage of income model (some)
income shares model of calculating child support
- add both incomes
- determine amount of child support based on total income
- allocate responsibility respective to each person’s net income
percentage of income model for calculating child support
- uses percentage of non custodial parents income
- determined by number of children supported
can court deviate from formula child support guidelines?
yes, but court must specify why it is deviating
standard for modifying child support & who bears burden
substantial changes in parents circumstances (10% or more change in amount owed b/c income and therefore percent changed)
burden on party seeking modification
does not count if voluntary reduction; court may impute income
are modifications in child support retroactive or prospective? what date applies?
retroactive to date of service on motion
in child support modification, when will the court not impute income when a party has voluntarily elected to have lower income?
if it was in good faith and there is no hardship for the child
child support may be terminated if… (5)
- child marries
- child emancipation
- termination of parental rights
- child dies
- parent dies (though courts may require they have a life insurance policy)
in what circumstances can jurisdiction for child support agreement be modified?
- parties agree, OR
- no one lives in court of continuing jx
3 tax consequences of child support
- paying parent cannot deduct child support from their income
- receiving parent cannot include child support as income
- parent who pays medical expenses can deduct those expenses
main three ways of enforcing child support orders by federal law
- contempt orders
- wage garnishment
- withholding tax refunds
is counsel required for indigent parents in contempt orders for failure of child support?
in civil contempt, split
for criminal contempt for failure to pay child support, court must find that…
failure to pay by obligor is willful BRD
can a paternity action be subject to an SoL? why or why not?
no; violates EPP
legal custody defined
right to make major decisions for the child (religion, education, medical decisions)
physical custody defined
right to make everyday decisions for daily care and control of the child (gen includes right to have child reside with parent)
requirement for joint custody of child
both parents must be willing and able to cooperate for the best interest of the child
what is the UCCJEA?
act that has the purpose of prevent forum shopping regarding child custody and visitation; determines which state can have jx, change it, or decline it
requires SM jx
5 types of jx under UCCJEA
- initial custody determination (home state jx)
- significant connection jx
- default jx
- temporary emergency jx
- exclusive continuing jx
how is home state jx determined?
where child lived w parent for six months (or since birth, if child under 6 months)
if child moved, home state still has jx if:
1. home state w/in past six months, and
2. parent / guardian still lives there
requirements for UCCJEA significant connection jx
- no other state is home state
- child and at least one parent have a significant connection to new state AND
- substantial evidence in that state concerning the child
requirements for UCCJEA default jx
- no home state or subst connection jx AND
- appropriate connections
requirements for UCCJEA temporary emergency jx
- child in danger AND
- requires immediate protection
if prior custody order in existence, must allow time for parties to enter prior court to resolve
otherwise, if no prior custody order, emergency order stays in place until home state changes it
requirements for exclusive-continuing jx
court that made initial rulings in custody case keeps jx until:
1. parties no longer reside in state
2. child no longer has sig connection to state AND no significant evd of child’s condition remains in state
when courts can decline jx over child support under UCCJEA
when forum no longer convenient per:
1. domestic violence occurs
2. length of time child has resided outside of jx
3. distance between competing jx
4. parties relative financial circs
5. agreement of parties
6. nature / location of rel evidence
7. courts can decide ability to decide iss expeditiously
8. familiarity of each court with the issues / facts
can one state enforce another state’s child support orders? how?
yes
register the order with the new court; can grant relief under it
expedited enforcement of child custody determination requirements
requires respondent to appear very next judicial day after being served, or else petitioner will be awarded immed phys possession, UNLESS
1. custody order not registered, AND one of:
a. court didn’t have jx
b. order had been stayed or vacated, or
c. notice improper; OR
- registered but stayed / vacated / modified
court may issue warrant upon petitioner’s request to take physical possession of child if child is likely to:
- suffer serious physical injury or
- be wrongfully removed from the state
under UCCJEA, law enforcement may obtain return of child or enforce an order if:
- official believes person holding the child violated a criminal statute or
- if such action is requested by the court
what is the main thrust of the Uniform Deployed Parents Custody and Visitation Act (UDPCVA)?
applies UCCJEA to parents serving in the military
1. if there is not imminent deployment, courts cannot use potential deployment negatively against military;
2. sets out procedures for temp custody / out of court agreements;
3. prohibits permanent orders before or during deployment (absent consent)
parental kidnapping prevention act (PKPA)
applies to kidnapping cases and to interstate parental responsibility disputes
supersedes any conflicting state law
allocates powers and duties between states regarding child custody disputes
international PKPA prohibits children from being taken out of country
under international PKPA, the hague convention requires ____
that a child be returned after being removed from country, unless return puts the child in grave danger (physical or psychological)
FC STOPPED AT CHAPTER 7 CHILD CUSTODY PART 2
what act provides a court with personal jurisdiction over an out of state parent to establish or enforce child support or to determine parentage?
Uniform Interstate Family Support Act (UIFSA)
can child support be ordered when a child is past the age of majority? if so, subject to what conditions?
some jurisdictions have authority to order child support beyond the age of majority when the child is in college
if a child is employed, however, support rights are contingent on the compliance by the child with reasonable parental demands
