Family Law Flashcards
Premarital Agreement
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. Under the Uniform Premarital Agreement Act (UPAA), the party defending against enforcement of a premarital agreement must prove it invalid by clear and convincing evidence. 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. To determine whether an agreement is voluntary, courts consider factors such as time pressure, the parties’ previous business experience, and the opportunity to be represented by independent counsel. However, a party’s insistence on the agreement as a condition to marriage is not considered duress.
Marital Property
In most states, property acquired during marriage is considered marital property. However, property acquired by gift or inheritance during the marriage is the individual’s separate property. And separate property is not subject to division at divorce. But the appreciation in separate property can be marital property if it is attributable to either spouse’s labor during the marriage. A minority of states subject all property owned by either spouse to equitable distribution (i.e., the “hotchpot” approach), but there is no indication this jurisdiction follows the minority rule.
Child Custody
The standard for determining custody is the “best interests and welfare of the child.” A parents’ sexual conduct is a factor in determining custody only if the parent’s conduct has or will have a negative effect on the child. Generally, a parent is in the best position to care for a minor child, unless the parent is determined unfit. There is no presumption in favor of the mother. Many courts consider who the primary caretaker of the child was up until the divorce when determining who should have custody. The primary-caretaker consideration not only encompasses the day-to-day care of the child, but also includes the quantity and quality of the time spent with the parent at the time of the hearing, rather than in the past.
Unwed Father Objection to Adoption
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. On the other hand, 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. However, termination in this fashion typically applies only to cases in which the father and child never developed a relationship.
Spousal Support/Necessary Item/Doctrine of Nonintervention
Spousal support is the obligation of one party to provide the other with support in the form of income. It is awarded in a divorce if one spouse cannot provide for his own needs with employment. At common law, a husband was obligated to support his wife, and the duty was enforceable under the necessaries doctrine. A necessary item was something suitable to the parties’ station in life, including medically necessary care. Most jurisdictions have modified the necessaries doctrine to apply equally to both spouses, and often refer to them as “family expense” statutes. This spousal support obligation is limited by the common law doctrine of nonintervention, which disallows judicial intervention in an intact family. Courts have relied on the nonintervention principle to deny a support petition when the couple is living together.
Require Vaccinations
A parent has a right to raise his child as he sees fit. A fit parent has a fundamental right to the care, custody, and control of his children. However, a parent’s authority over his child is not absolute. Laws are in place to protect children from harm, whether or not that harm is intentional. If a parent’s decisions will jeopardize the health or safety of the child or have the potential for significant social burdens then a parent’s power is limited. States are permitted, under their police powers, to require vaccinations and to refuse admission to public school for students who fail to receive required vaccinations. Such statutes are not subject to constitutional challenge based on a violation of parental rights.
