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Bar Prep - MEE - DM > Family Law > Flashcards

Family Law Flashcards

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1
Q

What are the situations in which a marriage is Void?

A
  1. ) Prior existing marriage: bigamy or polygamy
  2. ) Incest (consanguinity) - too closely related
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2
Q

What are the basis for a Voidable marriage?

A
  1. ) Age
  2. ) Impotence
  3. ) Mental Capacity (Intoxication, mental illness, fraud/misrepresentation, duress)
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3
Q

What are the grounds for a fault-based divorce?

A
  1. ) Adultery
  2. ) Cruelty
  3. ) Desertion (abandonment)
  4. ) Habitual drunkeness/drug addition beginning after marriage
  5. ) Insanity
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4
Q

What are the Defenses to “At-fault-“ divorces?

A
  1. ) Recrimination: (both spouses commit marital wrongful act of like conduct) – nearly extinct, may be an absolute bar
  2. ) Connivance: complaining spouse has given consent to participate in the marital wrong.
  3. ) Condonation: forgiveness for whatever wrongful act in which they were engaged + resuming marital relations.
  4. ) Collusion: both parties fabricate grounds for divorce.
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5
Q

What is marital property?

A

All property acquired DURING the marriage.

Much depends on whether it remains separate during the marriage.

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6
Q

If both spouses contribute to a mortgage, does the title of the home matter to the courts?

A

No, titling is not material.

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7
Q

What are the elements for a common law marriage?

A
  1. ) capacity - capacity + no legal impediments.
  2. ) present agreement - both parties must intend to presently be married.
  3. ) cohabitation - the parties must live together
  4. ) holding out a marital relationship; hold themselves out as “spouses”

Most states don’t recognize

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8
Q

Is a common law marriage recognized in other states?

A

Yes, even if the state does not allow CL marriages itself, the state will give full faith and credit to the valid marriage

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9
Q

What is required to meet the standard for a no-fault divorce?

A

Most states offer “no-fault” grounds for divorce, requiring neither fault (or consent) of the other spouse.

Generally requires showing that the marriage be irretrievably broken with no prospect of reconciliation (often using the term “irreconcilable differences”) and that the parties have been living apart for a specific period of time.

No attempt at reconciliation required

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10
Q

Legal Separation

A

Order of legal separation does not terminate the marriage

BUT – parties can have their rights regarding property, legal support, custody, and child support adjudicated in the proceeding.

A legal separation can usually be enlarged into an absolute divorce if the parties so request.

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11
Q

If a mediator is used, what are their requirements?

A

Be impartial and disclose any conflicts of interest he may have;

Clearly explain and control the mediation process and ensure that the parties have the
information to make an informed decision; and

Not coerce or improperly influence a party to make a decision.

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12
Q

What is community property? (Only used in 9 states)

A

Generally requires an equal division of all property acquired during marriage (by half)

Gifts and bequests are separate property still.

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13
Q

What is equitable division of marital property?

A

Majority rule – divides the marital property acquired during the marriage

Requires an equitable, or fair distribution - NOT necessarily an equal 50/50 division.

Takes into consideration all of the circumstances between the parties.

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14
Q

What qualifies as “Separate Property?”

A

Assets acquired during marriage by gift, descent, or device. SP also includes anything acquired before marriage.

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15
Q

Can separate property be transformed into marital property?

A

Commingling - separate property is inextricably intertwined with marital property, separate property not traceable

Transmutation - separate property treated in a way that evidences an intention for the property to be marital property

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16
Q

How does a court deal with future retirement/pension benefits?

A

If a spouse works during the marriage and creates or earns profits or benefits that will not be received until after the divorce, the profits will be considered marital property.

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17
Q

How does a court deal with Professional licenses/degrees?

A

Most courts do not treat these as marital property, but may award reimbursement for a spouse’s actual contribution to educational and living expenses.

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18
Q

How does a court deal with Personal Injury Claim proceeds?

A

Separate property
* pain and suffering awards
* personal damages

Marital property
* lost wages/earning capacity action that accrues during marriage
* recovery for damages to marital property

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19
Q

Is a modification of a property division award allowed?

A

No - a property division is not modifiable because it is based on the parties’ assets at the time of the divorce.

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20
Q

Do changes in parties’ circumstances affect the property division award?

A

No - don’t affect the award.

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21
Q

What factors are considered when a court is considering Spousal support?

A
  1. Financial resources of both parties
  2. Standard of living during the marriage.
  3. Duration of marriage
  4. Age, physical and mental condition
  5. Contribution of each to marriage
  6. Time needed for party seeking support to obtain training to find appropriate employment
  7. Ability of payor spouse to meet their own needs while paying support
  8. Marital fault (considered in most states)

Needs of claimant and payor spouse’s ability to pay are most important considerations.

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22
Q

What is permanent alimony?

A

an award for the remainder of the dependent spouse’s life (generally only appropriate after a long marriage).

Permanent Periodic Support is indefinite, but can be increased, decreased, terminated upon proof of substantial change in circumstances.

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23
Q

What is “limited-duration” alimony?

A

Typically awarded when the marriage was of short duration. (making permanent alimony inappropriate).

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24
Q

What is rehabilitative support?

A

support for a specified period of time, such as until the spouse receives education or employment.

can be increased, decreased, terminated upon proof of substantial change in circumstances.

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25
Q

What is reimbursement alimony?

A

it compensates a spouse for financial sacrifices made during the marriage that resulted in a reduced standard of living to secure an enhanced standard of living in the future.

Not modifiable, treated as a contract.

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26
Q

Lump Sum Payment

A

Spousal support in a fixed amount, payed as lump sum or in installment payments.

Not modifiable, treated as a contract.

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27
Q

In most jurisdictions, what happens when the receiving spouse remarries or cohabitates with someone else?

A

Spousal support may be terminated.

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28
Q

What 2 types of jurisdiction must a court have to hear family-related disputes?

A
  1. Subject matter jurisdiction
  2. Personal jurisdiction
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29
Q

Can a state court grant a divorce to one spouse if it does not have personal jdx over the other spouse?

A

Yes, if it has personal jdx over at least 1 spouse.

Only for the grant of divorce – must have PJ over other spouse for division of out-of-state property or spousal support.

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30
Q

In a situation where a court only has personal jurisdiction over 1 spouse and not the other, what can it NOT do?

A
  1. ) Address property division
  2. ) Address spousal support
  3. ) Address child support
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31
Q

Can a parent bargain away child support payments, or agree to a release or compromise that would negatively affect the childs welfare?

A

Yes, must it is always modifiable by the court based on the best interests of the child

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32
Q

When does the Uniform Interstate Family Support Act (UIFSA) govern?

A

When a state has personal jurisdiction over an out-of-state parent in an action to establish or enforce child support, or establish paternity.

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33
Q

What situations can a court be found to have personal jdx over an out-of state parent?

A
  1. ) When the parent is personally served within the state or consents to jdx.
  2. ) Parent resided with the child in the state in the past, or
  3. ) Parent engaged in sexual intercourse in the state, and the child may have been conceived by the act of intercourse. (Recently Tested)
34
Q

How is the amount of child support determined?

A

Usually determined by reference to child support guidelines (less discretion left to judge)

Typically based on ibcome of parents and number of children.

35
Q

What model have most states adopted to determine child support amount?

A

The Income-Shares Model.

combined net income of both parents to determine the child support amount

36
Q

What “other factors” may be considered in determine child support award amount?

A
  1. ) Best Interests of the Child.
  2. ) Age
  3. ) Special Needs
  4. Medical expenses
37
Q

When are child support modifications permissible?

A

When there has been a Substantial Change in Circumstances regarding (1) the childs needs, or (2) the parents’ financial situation.

38
Q

Who has the burden in supporting a modification in child support?

A

The party seeking the modification.

Must show Substantial and Continuing Change in Circumstances

39
Q

Under what circumstances may a modification of child support occur?

A
  1. ) a parents change in occupation
  2. ) remarriage of a parent
  3. ) an increase or involuntary decrease in income by either parent.
40
Q

Will a court modify a child support award Prospectively?

A

YES. Only.

41
Q

Will a court modify a child support award retroactively?

A

NO.

42
Q

When does a parent’s obligation to pay child support end?

A

When child reaches age of majority (18), death, emancipation, termination of parental rights.

Some jdx’s until the child gets out of college and may enforce agreements to pay for college.

43
Q

What are “reasonable parental demands?”

A

An employable child’s right to support is contingent on compliance with reasonable parental demands;

an employable child who fails to comply, even if attending college, risks the loss of parental support.

44
Q

Under UIFSA, what court can modify the child support order?

A

Under UIFSA, the state that issued the initial child support order has continuing exclusive jurisdiction to modify the child support order.

45
Q

When can another state (besides the original state of jx) modify the child support order?

A
  1. ) The parties (both parents) AND the child no longer reside in the state; or
  2. ) The parties consent another state to exercise jurisdiction.
46
Q

Under UIFSA, can the receiving parent register a child support order in another state?

A

Yes, and the non issuing state can enforce the child support order.

47
Q

What are the 3 types of Custody?

A
  1. ) Legal Custody
  2. ) Physical Custody
  3. ) Joint Custody
48
Q

What is Legal Custody?

A

The right of a parent to make major decisions regarding the child

49
Q

What is Physical Custody?

A

The right to have the child reside with a parent or guardian and the obligation to provide for routine daily care and control of the child.

50
Q

What is Joint Custody?

A

Generally requires that the parents are both willing and able to cooperate with respect to the wellbeing of the child; typically neither parent has a superior right to make major decisions.

May both share legal and physical custody, or not.

51
Q

What is the purpose of the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA)

A

To prevent jurisdictional disputes with courts in other states on matters of child custody and visitation.

52
Q

When does a court have subject-matter jurisdiction to preside over custody hearings (enter or modify)?

A

**Home State Jurisdiction
**
When it’s the child’s home state (has been the home state for a period of six months living with a parent or since birth if the child is less than 6 months old), OR

Was the child’s home state In the Past 6 months, and the child is absent from the state, but 1 parent still lives there.

53
Q

Under the “Significant-connection jurisdiction, when can a court enter or modify an order?

A
  1. ) No other state has or accepts home-state jurisdiction;
  2. ) The child and at least one parent have a Significant Connection with the state; and
  3. ) There is Substantial Evidence in the state concerning the child’s care, protection, training and personal relationships.
54
Q

When does Exclusive-Continuing Jurisdiction terminate?

A

Courts that make the initial ruling in a custody case have cont. exclusive jurisdiction over the matter.

Another state can exercise jurisdiction if:
1. ) Both parties no longer reside in the state, OR
2. ) The child no longer has a significant connection to the state, and any substantial evidence connected to the child’s condition is no longer available in the state.

55
Q

Does new significant-connection to another state terminate exclusive-continuing jurisdiction?

A

No, not necessarily

56
Q

What is the standard for determining child custody?

A

The best interest of the child standard considers factors:
* wishes of the parents
* child’s preference
* child’s relationship with parents, siblings, and others involved with parents
* child’s adjustment to home, school, and community
* parties’ mental and physical health
* who has been child’s primary caregiver (no gender preferences)

57
Q

When will courts consider the the wishes of a child regarding custody?

A

When the child is older (over 12) and has sufficient maturity to express a preference. The Court will look at the child’s reasoning behind her preference.

58
Q

Will courts consider Race or Religion in determining custody?

A

Courts will generally not use race or religion in determining custody.

59
Q

Who has the presumption of custody?

A

Legal parents.

A statute saying other wise would be unconstitutional because it wouldn’t give “special weight to the parent’s determination of her child’s best interest.”

60
Q

Do parents have a constitutional right to have contact with their children?

A

YES

61
Q

Generally, the non-custodial parent is allowed what?

A

Reasonable visitation (or parenting time) with a minor child.

62
Q

What rights does an unwed biological father have?

A

A substantive due process right to have contact with his child, but only when the father demonstrates a commitment to the responsibilities of parenthood. (E.g. participation in child rearing or providing financial support).

63
Q

Who has the burden in an action to modify a custody order?

A

The burden is on the parent seeking modification to establish that the modification is warranted.

Most juridsdictions require a SUBSTANTIAL CHANGE IN CICRUMSTANCES to modify the custody order.

64
Q

Will a court modify a custody order based on the custodial parents relocation?

A

Yes, if the relocation is for a legitimate and reasonable purpose - not just restricting other parents access.

Relocation should be in the BIOC and motivated by benefit to the family.

65
Q

What are the factors used to determine if a modification based on relocation is allowed?

A
  1. ) Best interest of the child
  2. ) The relationship of the non-relocating parent with the child
  3. ) Age and needs of the child
  4. ) The child’s preference
  5. ) The quality of life of relocating parent and child.
66
Q

In a premarital agreement, are clauses relating to child custody and support enforceable?

A

NOPE

67
Q

For a premarital agreement to be enforceable, what are the 3 requirements?

A
  • Voluntary (no fraud, duress, overreaching)
  • Must be in writing and signed
  • In most states, if the agreement is unconscionable, also look to whether there was full and fair disclosure of assets or independent knowledge of assets

Some courts also consider whether the economic provisions are Fair and Reasonable

68
Q

Under the Uniform Premarital Agreement Act (UPAA) how is a premarital agreement made unenforceable?

A

At least one of these:

  1. ) Involuntariness [fraud, duress, coercion], OR
  2. ) Unfairness or unreasonableness TOGETHER with a lack of reasonable knowledge or disclosure.
69
Q

Regarding a prenuptuial agreement, what is required for it to be Voluntary?

A

Parties must enter into the contract voluntarily (i.e. free of fraud, duress, or coercion).

70
Q

For a premarital agreement to be enforceable, does the other party have to seek independent representation?

A

No, but it is a factor courts will consider – weighs against overreaching and in favor of enforceability

71
Q

Regarding a premarital agreement, at what time does the court look to whether the agreement was fair and reasonable?

A

At the time of execution.

Current trend is for courts to enforce contractual agreements that may not be fair as long as there has been fair disclosure.

72
Q

Regarding premarital agreements, what is the full disclosure requirement?

A

Premarital agreements must provide full disclosure of financial status, including income, assets, and debts of all parties.

73
Q

What are separation agreements?

A

They are made between spouses who are planning for divorce to define property division, spousal support, child custody, custody, and visitation.

74
Q

How can a separation agreement be invalidated?

A

Can be invalidated in part, or in whole, if the moving party can show unconsciounability or fraud.

75
Q

What is the purpose of a Property Settlement Agreement?

A

To settle the economic issues of the marital estate. It is entered into by the parties before a divorce decree is issued.

76
Q

How can a property settlement agreement be invalidated?

A

In part of in whole if a party can show unconscionability or fraud.

77
Q

What rights do “unwed fathers’ have?

A

The protections under the 14th amendment Due Process Clause IF they have shown parental responsibility (or for newborn, manifestations of parental resp):

  • can veto prospective adoption
  • petition for rights to custody
78
Q

What is a Putative Father Registry?

A

A registry that allows unwed fathers to register themselves as the father of a child.

If mom tries to terminate father rights, he gets notified and a hearing.

79
Q

Legally, what is adoption?

A

A statutory legal action in which the previous parent-child relationship is terminated and a new parent-child relationship is established.

80
Q

What are the limits on parental authority?

A

1.) Parent has right to make decisions about how child is raised, including religion, BUT courts may intervene in the best interest of the child.

81
Q

How do courts deal with parents and medical treatments?

A

If medical treatment contradicts a parent’s religious beliefs, courts can intervene to protect a child when necessary medical care is needed to prevent serious harm to the child’s health.

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