Family Law Flashcards
PROPERTY DIVISION AT DIVORCE
At divorce, courts divide marital property between spouses pursuant to state law. Some states follow the community property approach; however, most states have adopted the equitable distribution approach for division of property at divorce. The analysis is relatively similar under both approaches:
Categorize the property as separate or marital; THEN
Determine an equitable distribution of the marital property between the spouses.
CATEGORIZATION OF PROPERTY AS SEPARATE OR MARITAL
Generally, marital property includes all property acquired during the marriage that is not separate property. Separate property includes:
All property acquired by either spouse before the marriage;
All property acquired by a spouse during marriage by gift, bequest, devise, or descent;
All property either spouse acquires with the proceeds of the spouse’s separate property; AND
All passive appreciation of separate property.
EQUITABLE DISTRIBUTION OF MARITAL PROPERTY
Once the court categorizes the property as either separate or marital, the court will then equitably distribute the marital property between both spouses. Courts are afforded significant discretion in determining the equitable distribution of martial property at divorce. General factors include:
- The income, property, and liabilities of each party;
- The duration of the marriage;
- The obligations for support arising out of a prior marriage;
- The lifestyle each spouse is accustomed to; AND
- The contributions made by each spouse toward the accumulation of marital property.
MODIFICATION OF PROPERTY DIVISION AT DIVORCE
Generally, courts may NOT modify a property division award (whether it results from a divorce settlement agreement or judicial determination) UNLESS exceptional circumstances exist (e.g., fraud)
Pre-marital Contracts
Most states will enforce a premarital agreement as a valid contract if it is:
- In writing and signed by both parties;
- Executed after full disclosure of the property and financial obligations of both parties; AND
- Voluntary - courts will consider the following factors to determine whether an agreement was voluntary:
- The presence of independent legal counsel;
- The length of time between the agreement and the marriage;
- The sophistication of the parties; AND
- The presence of other pressing reasons to proceed with the marriage (e.g., a pregnancy).
b) Under the Uniform Premarital Agreement Act (UPAA), the party against whom enforcement is sought must prove that the agreement was:
(1) NOT voluntary; OR
(2) Unconscionable when it was executed AND that he or she did not receive or waive fair and reasonable disclosure AND did not have, or reasonably could not have had, an adequate knowledge of the other’s assets and obligations.
CHILD CUSTODY IN PREMARITAL CONTRACTS
Most courts decide custody according to the best interests of the child at the time of the custody hearing, regardless of any premarital agreements.
CHILD SUPPORT IN PREMARITAL CONTRACTS
Parents have an absolute obligation to support their children. A premarital contract CANNOT adversely affect a child’s right to support under any circumstance. Such agreements are NOT binding on the court and are unenforceable.
SPOUSAL SUPPORT IN PREMARITAL CONTRACTS
Premarital agreements that limit a spouse’s support during marriage are generally void as against public policy.
In some jurisdictions, premarital agreements that limit a spouse’s support after the marriage ends are void as against public policy.
Under the Uniform Premarital Agreement Act (UPAA), modification or elimination of spousal support is permitted so long as such provisions do not make the former spouse eligible for public support.
Common Law Marriage
Most states have abolished common law marriage. In jurisdictions that recognize common law marriage, the proponent of the marriage must prove that the parties:
Cohabitated (i.e., lived together) for the statutory period;
Held themselves out as married; AND
Intended to be married.
Child Support
Parents have an absolute obligation to support their children. Federal law requires every state to provide guidelines to determine the proper amount of child support owed by a non-custodial parent. These guidelines must:
Consider the income of the non-custodial parent;
Provide for the child’s healthcare needs; AND
Be based on specifically descriptive numeric criteria.
Child Support Modification
In most states, a child support order can only be modified when there is a substantial change in circumstances of either party making the prior order unreasonable. Under the UDMA, a modification of child support is allowed only upon a showing of changed circumstances so substantial and continuing to make the terms unconscionable.
Some courts will NOT permit a modification of child support if the change in circumstances was anticipated or voluntary.
Child Custody
Generally, courts determine child custody based on the best interests of the child. Courts consider multiple factors to determine what custody order will serve the child’s best interests. General factors include:
- The needs of the child for a meaningful relationship with both parents;
- The ability and willingness of the parents to actively perform their functions as mother and father for the child’s needs;
- The interaction and interrelationship of the child with parents, siblings, and any other person who may affect the child’s best interests;
- The child’s adjustment to the child’s home, school, and community;
- The mental and physical health of all involved individuals;
- The intention of either parent to relocate the principal residence of the child;
- The wishes of the child’s parents as to custody; AND
- The wishes of the child as to the child’s custodian.
Spousal Support
Under the UDMA, a spouse is eligible for spousal support if the spouse seeking support:
- Lacks property sufficient for his or her reasonable needs and is unable to support himself through appropriate gainful employment; OR
- Is the custodian of a child such that it would be inappropriate for him to work.
Spousal Support Calculation
n most states, a spousal support order can only be modified when there is a substantial change in circumstances of either party making the prior order unreasonable. Under the UDMA, a modification of spousal support is allowed only upon a showing of changed circumstances so substantial and continuing to make the terms unconscionable.
Some courts will NOT permit a modification of spousal support if the change in circumstances was anticipated or voluntary.
Marital Action JX
Under the majority view, a state where either party is domiciled has jurisdiction to enter an annulment decree. Under the Full Faith and Credit Clause, a divorce validly granted in one state is entitled to full faith and credit in other states if the petitioning party:
- Was domiciled in the state the granted the divorce; AND
- Provided adequate notice of the proceeding to the
other spouse.
