Family Law Flashcards
Requirements for valid premarital contract:
(1) writing and signed (2) voluntarily, (3) full/fair disclosure of assets
Marriage requirements:
(1) License, (2) ceremony w authorized officiant, (3) no legal impediments, and (4) capacity
What are the two legal impediments to marriage:
closely related and bigamy
What does the capacity requirement of marriage require
Parties understand actions and voluntarily agree
Elements of common law marriage:
Consent to marry (capacity and no legal impediments), cohabitation, and hold out as married
Marriage by Estoppel or Putative Marriage
Spouse in good faith enters into marriage that is invalid
What is the doctrine of necessaries:
Allows third party to hold other spouse liable for spouse’s purchase of food, clothing, and healthcare
What is alienation of affection?
Third party diverts affection of spouse depriving other of marital relationship
Alienation of affection claim requires evidence of
(1) genuine love and affection, (2) alienation of love and affection, (3) caused by defendant’s actions
What must be proven for criminal conversation claim?
Existence of marriage and act of adultery
Two examples of void marriage:
(1) Bigamy, and (2) Consanguinity
Examples of voidable marriages:
(1) Nonage, (2) Incurable physical impotence, (3) lack of capacity, (4) duress, (5) fraud
What is an annulment?
Doctrine that declares marriage invalid because impediment existed at the time of the marriage
What is the effect of an annulment?
Marriage set aside as if it never existed
When does a court have jurisdiction over a divorce?
One party is domiciled in the jurisdiction for set period (usually 90 days)
When does divorce court need PJ over the defendant?
Only when the filing spouse wants remedies beyond divorce
What are the three different grounds for a no fault divorce?
- irretrievably breakdown
- separate and apart for continuous period of time
- irreconciliable difference
Grounds for fault based divorce:
- Adultery
- Desertion
- Extreme physical/mental cruelty
- Addiction
- Insanity
No fault divorce defense:
Deny the existence of one of the grounds for no fault divorce
Four Defenses to fault based divorce:
- Collusion
- Connivance
- Condonation
- Recrimination
Effect of legal separation (divorce from bed and board)
Does not terminate the marriage but parties can have all their rights regarding property, spousal support, custody, and child support adjudicated
Two steps in property division upon divorce:
Classification and division
Separate property of spouse includes property:
(1) owned before marriage, (2) acquired by gift or inheritance, (3) acquired in exchange for separate property, (4) income of separate property, (5) pain and suffering awards, (6) personal damages, and (7) property acquired after legal separation that includes final disposition of property
Marital property includes:
(1) property acquired during marriage, (2) earnings, (3) employment benefits, pensions, and stock options, (4) lost wages, (5) reimbursement for medical bills paid w marital property, and (6) recovery for damages to marital property
Separate property may become marital property through either:
commingling or transmutation
What is alimony
spousal support obligation that court has great discretion in awarding
Equitable division factors
- age, education, background, earning potential
- duration
- standard of living
- income
- source of money used to purchase property
- health
- assets, debts, liabilities
- needs
- child custody
- alimony
- opportunity to acquire
- contribution to acquisition
- homemaker
- economic fault
Four types of alimony:
- Permanent Periodic
- Lump Sum
- Rehabilitative
- Reimbursement
What is permanent periodic alimony
(1) paid regularly, (2) indefinite duration, (3) modified upon substantial change of circumstances
What is lump sum alimony
(1) fixed amount payable at once or in payments, (2) not modifiable
What is rehabilitative alimony?
(1) periodic payments for limited time to enable spouse to gain skills (2) specified time period, (3) modifiable upon proof of substantial change
8 alimony factors:
- standard of living during marriage
- duration of marriage
- age, physical, mental condition of parties
- financial resources of parties
- contributions of parties
- time needed for party seeking support to obtain training
- ability of payor spouse
- marital fault
When can periodic spousal support be modified?
Upon showing a substantial change of circumstances regarding needs of recipient or ability of payor
What is reimbursement alimony?
(1) awarded to spouse who supported other in obtaining professional license or degree, (2) specified period, (3) not modifiable
When does spousal support terminate?
death of either or remarriage of recipient
Tax consequences of alimony pre 2019
deductible by payor income of recipient
Tax consequences of alimony under modern law
not a taxable event
The duty to support a child ceases upon:
- 18
- death of child
- emancipation of child, or
- termination of parental rights
Original jurisdiction to enter child support order is proper where:
The first petition is filed
Another state other than where petition is filed can exercise jurisdiction only if:
(1) the second petition is filed before the time to answer the first has expired, (2) the petitioner objected to jurisdiction in first action, and (3) second state is child’s home state
When may child support order be modified?
Substantial and continuing change of circumstances affecting needs of child or ability of payor
Sanctions for failure to pay child support:
(1) interception of tax refund, (2) contempt of court, (3) forfeiture of licenses, (4) seizure of real estate, (5) attachment of wages, (6) order to pay attorney’s fees
What is the default test for determining which court has jurisdiction over child custody order?
Home state jurisdiction
If the home state jurisdiction does not apply a court has jurisdiction to enter or modify child custody order if:
(1) child and at least one parent has significant connection w state, and
(2) substantial evidence concerning the child is available in the state
A court has home state jurisdiction where:
(1) the state is the child’s home state, or (2) was the child’s home state within the past six months but the child is absent but a parent or guardian continues to live there
Where is a child’s home state?
The state where the child lived with a parent for at least six consecutive months immediately before commencement of the proceeding
Another state other than issuing jurisdiction can only exercise jurisdiction over child custody order if:
(1) no child or parent continues to reside in issuing state OR (2) the child no longer has significant connection w issuing state and substantial evidence relating to matter no longer available in that state
What is legal custody
right to make major life decisions for the child
What is physical custody
possession and control of the child
what is joint custody
joint physical, legal, or both
What is the standard applies when awarding custody and visitation?
The best interests of the child
6 factors for determining the best interests of the child when awarding custody or visitation:
- wishes of parents
- child preference (under 8 not considered over 12 great weight)
- Child’s relationship w parents, siblings, and others
- Child’s adjustment to home, school, community
- Parties mental and physical health
- Who has been primary caregiver
Joint custody considerations:
- fitness of parents
- agreement of parents
- parent’s hostility
- child preference
- level of parental involvement
- geographical proximity of parents homes
- similarity/dissimilarity of homes
- psychological development
- parents ability to carry out joint custody
What must be shown to award sole custody to a parent?
strong evidence that sole custody is in best interests of child
When will court award custody to nonparent?
if nonparent shows parent unfit or harm to child will result
When will a court allow custodial parent to move?
(1) best interest of child, (2) move motivated by benefit to family, and (3) move not intended to thwart relationship w other parent
What is considered in determining whether a nonparent has visitation rights?
best interest of child and prior relationship between child and nonparent (wishes of fit parent control on this issue however)
When will a custody award be modified?
Substantial and material change of circumstances affecting the child’s well-being (best interest of child is overriding concern)
Distinctions between marital and nonmarital children receive what type of scrutiny?
IS –> must be substantially related to important gov interest
What is the presumption of parentage?
father of child born during marriage or within 300 days of marriage termination is the father
What is required to rebut the presumption of parentage?
Clear and convincing evdience
A child is the child of an unwed father if:
- parents married after child birth
- father holds out child as his biological child
- father consents to be named on birth certificate
- father formally acknowledges paternity
- court order establishing paternity
Grounds for involuntary termination of parental rights:
- infliction of serious physical harm
- abandonment
- neglect or deprivation
- failure to provide support
- mental illness or retardation
- parental unfitness
Two requirements for adoption:
(1) termination of natural parents rights, (2) creation of new parental rights
