Family Law Flashcards
What are the requirements for a ceremonial marriage?
- Consent
- Capacity
- Compliance (with legal formalities)
- Ceremony (solemnization with two witnesses present)
What are the elements of common law marriage?
- Consent
- Capacity
- Cohabitation
- Holding out (as married to the public)
When is a separation agreement valid?
- Enforceable so long as it is no unconscionable or based on fraud
What are the primary fault-based grounds for divorce?
- Adultery
- Cruelty
- Desertion/abandonment
- Habital drunkeness
- Bigamy
- Imprisonment
- Institutionalization
What are the defenses to fault-based divorce?
- Recrimination
- Unclean hands
- Connivance (consent to the marital wrong)
- Condonation
- Collusion
- Provocation
- Insanity
- Consent
- Justification
When is a pre-nup valid under non-UPAA jurisidctions?
- Full and fair disclosure (procedural conscionability)
- Fair and reasonable terms (substantive conscionsability) AND
- Voluntary (e.g. fraud, duress, time to sign, opportunity for independent counsel)
When is a pre-nup valid under the UPAA?
UPAA requires the party against whom enforcement is sought to prove:
o Involuntariness; or
o That the agreement was unconscionable when executed and she:
Did not receive or waive fair and reasonable disclosure; and
Did not have, or reasonably could not have had, adequate knowledge of the other’s assets and obligations.
Is a professional degree marital property?
Not a divisible asset but the other spouse may be entitled to reimbursement for contributions made to help acquire the license or degree
When are special assets not marital property?
Accrued employment benefits like unused vacation days might be treated as marital property depending upon if accrued during marriage and they can be cashed out, as opposed to a “use it or lose it” policy of an employer. SS benefits are not divisble under the Supremacy Clause.
What are the factors to consider for spousal support?
- Financial resources—assets, earning capacity, and potential; court can impute income if a spouse is voluntarily underemployed below earning capacity
- Standard of living
- Length of marriage
- Time to reintegrate into the workforce
- Contributions to the marriage (e.g., paying for education or training)
- Age and health (both physical and mental health)
- Marital misconduct/fault (states vary as to the weight given to this type of evidence)
- Needs (debt, children)
What are the types of spousal support?
- Lump sum
- Permanent (long marriages only)
- Limited duration
- Rehabilitative (for economincally dependent spouse)
- Reimbursement (to compensate for financial sacrifices)
- Palimony (for unmarried, rare)
What is the standard for modifying both spousal and child support?
Substantial change in circumstances
What are the factors in determining child support?
- Ages and number of children;
- Unusual needs and obligations (e.g., special education);
- Support obligations of the parties;
- Assets of the parties;
- Medical expenses not covered by insurance;
- Standard of living; and
- Best interests of the child.
What are the factors in determining custody of a child?
Overall, best interests of the child.
The court can consider the wishes of the child, which parent acts as primary caretaker, any domestic violence, or opinion of a guardian ad litem, but cannot consider race, religion, or (in most states) the sexual conduct of the parents.
