Family Law Flashcards
When is a marriage void?
Incest
Prior existing marriage
Mental incapacity
When is marriage voidable?
age, impotence, fraud, duress, intoxication, lack of intent
What is the residency requirement for divorce?
At least one spouse must be resident of the forum state
Non-marital property
- property acquired before a marriage
- property excluded by parties valid agreement
- property acquired by gift or inheritance
Property division - community vs separate property states
Community - equal split of marital property
Separate - equitable division of marital property
Spousal support - factors and modification
Earning potential, length of marriage, homemaking and childrearing services, standard of living at time of marriage, marital misconduct (only in some states)
Modifiable only if there is a significant and continuing change in circumstances
Paternity - Estoppel
husband estopped from denying paternity if:
1 - husband rep that he would provide support for child
2 - wife relied on rep
3 - wife suffered economic detriment from reliance
Modification of child support
substantial and continuing change in circumstances
voluntary reduction in income not a valid reason
Jurisdiction for modification of child support
- A different court may not modify a child support order issued by a court of continuing exclusive jurisdiction.
- EXCEPTION: the parents and child no longer resides in that state
- EXCEPTION: the parties consent to a different court’s jurisdiction.
Enforcement of child support
- Only the issuing state can modify a child support order. BUT, another court can enforce the order if it is registered in that state.
When is a SEPARATION agreement not enforceable?
If it is unconscionable or based on fraud
When does a court consider a fault based ground in entering the divorce decree?
1 - a court does NOT typically consider the fault based ground when doing property division
2 - a court MAY consider the fault based ground when determining alimony, i.e. marital misconduct.
Are professional degree marital property subject to division at divorce?
No, they are not property. HOWEVER, they can affect alimony.
Also, the non-degree spouse may seek reimbursement for support given through school.
What are the different types of alimony?
Permanent, lump sum, limited duration, rehabilitative, reimbursement
Retirement benefits - marital property?
Yes, if acquired during marriage
Personal injury claims/proceeds - marital property?
Two approaches
1 - if cause of action accrued during marriage, proceeds are marital property
2 - allocate damages for pain and suffering as separate of injured spouse, consortium separate for other spouse, remainder is split between marital and separate.
Social security benefits
no subject to equitable distribution
Can an unwed father object to adoption?
If the father records his paternity and demonstrates a commitment to the responsibilities of parenthood, then he may be able to object.
Failure to record waives this right.
Adoption and Safe Families Act
State can move for termination of parental rights if child has been placed outside of home and not with relative for 15 of the past 22 months
Gestational (surrogacy) agreements
Intended parents must agree
provisions for medical care
gestational mother - cannot limit her healthcare decisions
Agreement must be approved by court
Putative Marriage
If innocent party enters marriage in good faith that is actually invalid, still protected.
Can still sue for spousal support and property division
Mediation in divorce
Some states require this. Mediator must
-disclose potential conflicts
-control the process
-not coerce or improperly influence decision
Can separate property be transformed to marital property?
Yes, if marital efforts or marital funds are used to increase the value in the asset or build equity.
Think: mortgage previously owned by one spouse and then wages used to add value to home and build equity.
Support during marriage
if creditor provides a necessary item to one spouse, it may be able to come after the other spouse for payment
Jurisdictional issue of granting divorce when one spouse is not a resident of state
The court in the state in which the one spouse lives can still grant that spouse a divorce, but it cannot do property division, alimony, or child support unless it has PJ over the out of state spouse
Jurisdiction for child custody
(1) child’s home state (state where child has lived with at least one parent for 6 months prior), or
(2) was the child’s home state in the past 6 months and the child is absent, but one of the parents still resides in the state.
When will a court have PJ over an out of state parent to determine child support?
-service or consent in state
-parent has lived with child in the state in the past
-parent had sex in state and this is probably what led to conception
