Family Law Flashcards
What are grounds for not enforcing a separation agreement?
Unconscionability or based on fraud. Look to factors like time pressure, the parties’ previous business experience, and the opportunity to be represented by independent counsel.
An advanced degree is not marital property. How may a spouse recover anyway?
A court may consider this as increased earning capacity, which could affect an alimony determination.
A premarital agreement is enforceable if…
there has been full disclosure, the agreement is fair and reasonable, and it is voluntary. In addition, the agreement must be in writing and signed by the party to be charged. Any clauses included in a premarital agreement that relate to child custody and support are unenforceable.
A premarital agreement is invalid if…
it was (1) involuntary or (2) unconscionable when executed AND the defending party did not have, or reasonably could not have had, adequate knowledge of the other’s assets and obligations due to lack of disclosure.
What may a premarital agreement not determine?
Child custody.
The hotchpot approach
Is a minority rule that subjects all property owned by either spouse to equitable distribution
How is the validity of marriage governed?
Validity of marriage is governed by the law of the state where the marriage was celebrated. If the marriage is valid where it was celebrated, it is recognized in all other states. If a marriage violates a particularly strong public policy of the domicile of either party, however, it will be invalid under the traditional approach. But under the Second Restatement approach, such a marriage will be valid everywhere else unless the marriage violates the public policy of the state with the most significant relationship with the parties at the time of marriage.
The requirements for common law marriages are
(i) agree that they are married; (ii) cohabit as married; and (iii) hold themselves out in public as married.
May an unwed father object to an adoption?
Yes. 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: some jurisdictions have created adoption registries for the purpose of determining the identity and location of putative fathers and providing notice in the event of an adoption. A putative father’s failure to register within a statutorily prescribed period of time constitutes a waiver of his right to notice of the adoption and irrevocably implies his consent to the adoption.
Under the 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:
(i) the child’s home state (the state in which the child has lived with a parent or guardian for at least six consecutive months prior to the custody proceeding, or since birth, if the child is less than six months old), or (ii) 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.
It is likely that a court would award spousal support during a marriage?
No.
What does the UCCJEA do for jurisdiction?
Under the 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 the child’s home state. The home state is the one 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 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.
