Family Law Flashcards
What is the rule for the special weight given to a fit parent’s decision regarding their children?
A fit parent has a fundamental right to the care, custody, and control of his children (constitutional holding). State courts must give special weight to a fit parent’s decision to deny nonparent visitation.
When does the obligation to pay child support end?
In all jurisdictions, both parents, regardless of marital status, are required to support their minor children until the child reaches the age of majority or is emancipated. Some jurisdictions continue the obligation through college. Additionally, it can be continued indefinitely for a child incapable of self-support due to a disability.
In most jurisdictions, the obligation may also terminate if the child marries, parental rights are terminated, the child commences active duty military service, or the parent or child dies.
How does a party modify a property division award?
A property division award is not modifiable because it is based on the parties’ assets at the time of divorce. Changes in the parties’ circumstances after divorce are not be considered once the award has been entered.
Regarding premarital agreements, what choice-of-law approach do most states use in deciding which state’s law will govern enforcement?
The significant relationship test. Most states apply the law of the state with the most significant relationship to the agreement and the subsequent marriage.
Some states apply the law of the state where the agreement was executed.
What are the defenses to a claim that the marriage is voidable?
Equitable defenses of:
1) Unclean hands
2) Laches
3) Estoppel
What is the standard courts apply when determining whether to modify a child custody order?
The majority of jurisdictions apply a change-in-circumstances standard, requiring some substantial and unforeseen change since the issuance of the prior order. Some jurisdictions have also applied time barriers before an application for modification can be filed absent consent or endangerment. The purpose of these considerations is to promote stability in the child’s life.
What is the purpose of adoption registries?
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 the 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 doctrine of equitable estoppel, a husband may be required to pay support for his wife’s child even when he is not the biological father when which requirements are met?
- There is a representation by the husband that he would provide for the child;
- The wife relied on his representation; and
- The wife suffered an economic detriment as a result of the reliance
What kind of support is available to an unmarried cohabitant in a minority of jurisdictions?
Palimony. This is only available when the parties have lived together in a stable, long-term relationship.
What is the most important standard in determining child custody?
The best interests and welfare of the child
What custody arrangement is the outcome in a majority of child custody cases and even the statutory presumption in a many jurisdictions?
Joint physical custody is preferred, but it does not necessarily require a 50-50 time-sharing arrangement.
What is the amount of child support typically based on?
Awards are typically based on income from any source and include wages, interest and dividends, rental income, and other income received, including retirement benefits, capital gains, and Social Security income.
What is the scope and purpose of permanent alimony?
Permanent alimony is an award for the remainder of the dependent spouse’s life, unless certain circumstances occur. The purpose is to compensate the dependent spouse for either the lost earning capacity or benefit conferred to the other spouse during marriage. This is typically awarded only when the marriage was one of long duration.
What are the requirements for a marital agreement to be enforceable?
- Full disclosure
- Fair and reasonable
- Voluntary
- In writing
- Signed by the party to be charged
How do you resolve a conflict of laws regarding the enforceability of a prenup agreement, and what statute governs such issues?
Under the Uniform Premarital Agreement Act (UPAA), followed by 26 jurisdictions, to resolve such a conflict one must apply the law of the state with the most significant relationship to the agreement and subsequent marriage.
What Act applies to interstate custody disputes, including visitation rights, as well as parental kidnapping cases?
The Parental Kidnapping Prevention Act (PKPA)
What is the only defense to a claim that the marriage is void?
The only way to defend against annulment of a void marriage is to deny the existence of the impediment that voided the marriage.
Note: Removing the impediment merely makes the marriage voidable; it will not necessarily prevent annulment.
What action does not sever marital ties but allows the court to determine spousal support and property division?
A limited divorce does not sever the marital ties but permits the parties to live apart. The court will determine support and property division in limited divorce actions.
Note: Limited divorce is known in some states as “divorce from bed and board.”
What is the name of the agreement made between spouses who are planning for divorce, and what happens to this agreement upon divorce?
Separation agreements are made between spouses planning for divorce. They are generally merged into the final judgment for divorce, as long as they are based on full and fair disclosure.
What is the most important requirement for a marital contract?
Full disclosure. Absent full disclosure, a court will generally refuse to enforce it.
The current trend is for courts to enforce marital agreements that may not be fair as long as there has been full disclosure.
Are the support rights of an employed child contingent on the compliance by the child with reasonable parental demands?
Yes.
Is a party’s insistence on the agreement as a condition to marriage is considered duress?
No.
What type of alimony is meant to enhance and improve the earning capacity of the economically dependent spouse?
Rehabilitative alimony, which is awarded for a limited period of time
When does a court’s exclusive-continuing jurisdiction end?
A court that makes the initial ruling in a custody case has exclusive continuing jurisdiction over the matter until:
1. The parties no longer reside in the state, or
2. The child no longer has a significant connection to the state
