Family Law Flashcards
Marriage, Parentage, and Adoption
Marriage = (1) marriage license/formal ceremony, (2) age of majority, (3) not too closely related by blood, (4) mental capacity to understand legal significance of marriage, (5) not married to someone else
(some jx) common law marriage = (1) cohabitate, (2) hold themselves out as married, (3) display intent to be married
Interstate recognition = states recognize marriages of another state
Curative doctrines
- If marriage with legal impediment, once legal impediment removed, marriage valid
- if dispute over multiple marriages, most recent marriage presumed valid
- even if valid marriage never existed, person who believed in good faith they were married may claim property rights as if couple had been married
Pre-marital contracts (pre-nups): valid if (1) satisfy general contract-law requirements, (2) voluntary, (3) informed, (4) not unconscionable
- informed = each spouse had actual/constructive knowledge of other’s financial situation before signing
- unconscionable = unfair or would leave one spouse effectively destitute
Marital debt = debt that could be expected to benefit the marital family
- creditors can go after marital property/spouse who incurred the debt
Non-marital debt = debt incurred by only one spouse
- creditor can only go after spouse’s individual property who incurred debt
Parentage = parental rights and obligations toward a child
Adoption = terminating rights of current parents, and giving to adoptive parents
- typically requires consent by both of current parents
- BUT no consent necessary if (a) abandoned child, (b) state terminated rights for abuse/neglect
- Unwed fathers = can object to adoption IF attempted to create substantial relationship with child, otherwise can’t object to adoption
Divorce
Fault:
- (most jx: allow no-fault divorces where marital fault is irrelevant)
- (some jx: still allow fault-based divorces where fault is relevant)
Jurisdiction:
- Marriage travels with each spouse so any state with PJ over one spouse has jurisdiction to do divorce proceedings
- (most jx: require spouse to reside in the state for specified length of time before they can file for divorce)
- BUT if marriage includes real property located outside the state, then current state has no jurisdiction over that property, thus separate litigation in that state will need to be filed to deal with the real property (land) outside the state
State recognition:
- State’s recognize the divorces adjudicated by other states
Property Division
- Division: (some jx:”Equitable distribution” = divide property “fairly” between parties (not strictly equal, but based on length marriage, individual assets/earning potential/liabilities, contributions to marriage)) (some jx: “community property rule”: divide marital assets straight 50-50 equal)
- Identifying property: (some jx: court determines marital/separate property and only divides marital property)
- (some jx: court may distribute all property, regardless of marital/separate status)
- Separate property = property acquired prior to marriage
– (increases in value of separate property still separate if increase due to natural appreciation, BUT considered marital property/appreciation if increased value due to joint efforts of spouses)
– (separate property can become marital property if co-mingled such that it can’t be distinguished with marital property, or owner spouse gives to marital unit)
- Marital property = any property acquired during marriage, regardless of who pays/acquires
Alimony = ongoing monetary payment from one spouse to the other
- temporary alimony = support payable while divorce litigation is pending
- rehabilitative alimony = temporary award to former spouse to enable that spouse to obtain education or training needed to become self-supporting
- reimbursement alimony = compensate spouse for money/other value given to other spouse during marriage (ex; spouse gives up their own career so other spouse can pursue their career)
- permanent alimony = permanent/long-term alimony to support former spouse who might otherwise have difficulty self-supporting or maintaining standard of living enjoyed during marriage
- standard to modify alimony = “substantial change of circumstances unforeseeable at time of original alimony”
Child Support
Parent’s owe child support until age of majority (typically 18)
Each state has minimum amount of child support
- parents can agree to more, but cannot agree to less than the statutory requirement
Jurisdiction:
- Court must have PJ over person required to pay child support to enter/enforce child support order
Child support modification IF “substantial or material change in circumstances that makes current aware unreasonable or unconscionable”
- effective date: no retroactive modifications, SO earliest effective date of modification is the date the party notified the other party about the petition to modify the child support payments (day other party was served)
Courts must give “full-faith and credit” to child support orders of other states
- courts cannot modify child support orders of other states, UNLESS (a) consent of all parties, (b) parents nor child live in the issuing state any longer
Child custody
Legal custody: right to make decisions about important overarching aspects of child’s life (ex: education or medical care)
Physical custody: physical responsibility for child including routine daily decisions
Legal standard for determining custody: “best interests of the child”
Jurisdiction to make judicial custody decisions:
- (a) child’s home state (state where child lived with parent for 6 months immediately before start of custody proceedings)
- (b) state that was child’s home state within 6 months before start of proceedings, if child is absent from that state but parent remains in that state
- (c) (1) child and at least one parent, have significant connection to the state beyond mere presence (2) substantial evidence in that state regarding child’s care, protection, personal relationships, and training
Child custody modifications: (1) material and substantial change in circumstances, (2) if modification is in child’s best interest
- state retains exclusive jurisdiction to modify, UNLESS: (a) child nor parent continue to have significant connection with issuing state, and no substantial evidence in the state regarding child’s care, protection, personal relationships, training (b) neither child nor child’s parents reside in the state (c) issuing state determines another state more convenient forum
MEE Family Law Rules
- annulment: declaring marriage void from its inception (it never occurred)
- annulment standard: fraud that goes “to the essentials” of the marriage
- divorce: marriage ended upon divorce decree
- reinstatement of alimony: majority rule is no reinstatement after annulment of subsequent marriage
- validity of conflicting marriages: (a) impediment removal: If marriage with legal impediment, once legal impediment removed, marriage valid, (b) if dispute over multiple marriages, most recent marriage presumed valid
- invalidating divorce settlement agreement: if (1) fraud/duress/overreaching, and (2) unfair
- no-fault v fault divorces: majority: no-fault (adultery doesn’t matter), minority: fault (one factor among many)
- asset division (degrees): majority: not divisible marital property BUT: factor in determining alimony/spousal support
- prenup enforceable: (1) voluntary, (2) disclosure, (3) unconscionable/fair
- child support: many factors including income
- enforceability of K limiting parentage (parental rights): bests interests of the child (unenforceable if against interest of child)
- constitutionality of long-arm statute: purposely avail of forum state (deliberate contacts with forum state)
- adoption order is final and typically cannot be dissolved (some jx: special circumstances based on facts)
- retroactive modification of child support is against federal law (but some states: court can modify payment methods if severe financial hardship)
- future/prospective modification of minority child support: (1) substantial change of circumstances (2) good faith
- future/prospective modification of child support of employable child over the age of majority: can be modified if child ignores reasonable parental requests
- jurisdiction: Jurisdiction to make judicial custody decisions:
– (a) child’s home state (state where child lived with parent for 6 months immediately before start of custody proceedings)
– (b) state that was child’s home state within 6 months before start of proceedings, if child is absent from that state but parent remains in that state
– (c) (1) child and at least one parent, have significant connection to the state beyond mere presence (2) substantial evidence in that state regarding child’s care, protection, personal relationships, and training
