Family Law Flashcards
Marriage
There are three requirements to marriage:
1. License: Most states require that persons intending to marry obtain a license
2. Ceremony with authorized officiant
3. No legal impediments to marriage: Generally to get married the parties must:
A. Not be to closely related(Cannot marry ascendants, descendants siblings, aunt/uncle, niece/nephew
States very on whether first cousins can marry
B. Not have a prior undissolved marriage to a living spouse(bigamy)
4. Capacity to Consent: At the time of the ceremonies the parties must have the mental ability to consent
The parties must understand their action and voluntarily agree to them.
Thus, someone under the influence of alcohol or drugs may lack the mental capacity to enter into a valid marriage.
To establish a common law marriage, the proponent must show (mnemonic=CACH):
1. Capacity to enter into a marital contract,
2. A present agreement to be married,
3. Cohabitation, and
4. Holding out a marital relationship.
Recognition of marriage: A marriage valid under the law of the place in which it was contracted will be valid elsewhere unless it violates a strong public policy of the state that has the most significant relationship to the spouses and the marriage.
Bigamy: A person cannot be married to more than one person at the same time.
A bigamous marriage is void from the beginning. But there are two marriage-saving doctrines for the new spouse:
1. There is a presumption that the most recent marriage is valid, and
2. Removal of the impediment (e.g., by divorce) will render a subsequent marriage valid.
Child Custody
Custody is determined by looking at the best interest of the child.
This typically requires looking at factors such as:
1. The wishes of the child’s parents,
2. The child’s primary caretaker,
3. The mental and physical health of all individuals,
4. The interrelationship of the child and parents, stability, and
5. Whether there is any domestic violence.
Preference to financial status or gender generally cannot be shown
Custody modifications: Generally, custody awards will be modified only if there has been a substantial and material change in circumstances affecting the child’s well-being.
Generally, this change must be unforeseen at the time of the initial judgment.
Child Support
Child support guidelines: All states employ numerical guidelines and establish a rebuttable
presumption that the award that results from applying the guidelines is correct. The guidelines must be applied in all cases, regardless of the parents’ marital status. The court will look at factors like income and earnings of the parents, the number of children and their ages, and any special needs of the children.
Modification of child support: In order to obtain a modification of a future support obligation, the petitioner must show a substantial change in circumstances making the prior order unreasonable. (If the change is a reduction in income, and it was voluntary, some courts will not modify it; some will under a multi-factor test—e.g., examine if the party acted in good faith, among other factors.) This is a heavy burden.
Child support cannot be modified retroactively unless there was fraud or other compelling circumstances.
Relocation of Child
Most court allow the custodial parent to move out of state with the child if relocation is
1. In the child’s best interest,
2. The move is motivated by a benefit to the family, and
3. It is not intended to thwart the relationship with the other parent
Rights of Parents and Others
When does the father have rights? Generally, biological fathers have rights. However, the state may make the parent exercise his rights within a specific time (e.g., two years).
Rights of a parent when another person wants to adopt a child: An involved parent who demonstrates a “full commitment to the responsibilities of parenthood” will likely be able to successfully oppose an adoption petition by another and is entitled to notice of such proceedings.
Third-party rights: Custody in the parent is presumed to be in the best interest of the child.
To rebut this, a third party who wants custody must prove that the parent is unfit or that granting custody to the parent would be highly detrimental to the child. Thus, any third-party visitation or custody statute must give special weight to the parent’s determination of the child’s best interest.
Division of Property
There are three approaches to property division upon divorce:
1. Community Property: All property acquired during the marriage is deemed owned one-half by each spouse, and all property bought into the marriage or acquired by gift or bequest is separate property
2. Equitable Division of All Property: The court divides all property owned by either spouse, whether acquired before or after the marriage
3. Equitable Division of Marital Property(Majority): Each spouse takes their separate property, and the court only divides property acquired during the marriage
Division by court: In a majority of states, marital property is divided at divorce but separate property
remains the property of the owning spouse
Marital property is property acquired during the
marriage.
Separate property includes (mnemonic=BIG)
1. Property acquired before the marriage,
2. An inheritance, or a
3. Gift to one party.
Most states don’t count professional degrees earned during the marriage as marital property.
Division based on premarital agreement: A court will enforce a premarital agreement so long as it is
1. Voluntarily made,
2. Substantively fair, and
3. If full disclosure of assets and obligations was made.
A court will not, however, enforce a premarital agreement regarding child custody or support if it is not in the best interest of the child.
Separate property may become marital property though either:
1. Commingling: The separate property is inextricably intertwined with marital property or with the separate party of the other spouse to the extent that it can no longer be traced
2. Transmutation: the separate property is treated in a way that evidences an intention for the property to be marital property (placing serrate property in the names of both spouses)
Improvement of Separate Property: When separate property is imported by used of martial funds or the effort of a spouse, courts generally hold that the property remains separate property, but most jurisdictions grant the marital estate or the non owning spouse reimbursement for the value added to the separate property
An increase in value due to marker factors would remain separate property
Property Acquired Before Marriage but Paid For After: Majority view seems to be that property should be apportioned between separate and marital estates in proportion to the contribution of serrate and marital funds to pay for the property
Other states focus on the inception of title and allow a reimbursement remedy
Pensions: The portion of a pension earned during a marriage is marital property subject to distribution
Professional License or Degree: A professional license or education degree is not marital property
However, some jurisdictions use alimony to compensate supporting spouses for their contribution during the other spouses education or training
Tax Consequences: Property division is not a taxable event
Alimony
4 Types of Alimony:
1. Permanent Periodic Spousal Support: Paid regularly(monthly) to support a spouse who has neither the resources nor the ability to be self-sustaining
2. Lump Sum: A fixed amount payable either all at one or via a series of payments
3. Rehabilitative Spousal Support: Consists of periodic payments for a limited time to enable a spouse to gain skills to become self-supporting
4. Reimbursement Spousal Support: Occasionally awarded to a spouse who supported the other spouse while the latter obtained a professional license or degree. It can be ordered along with permanent periodic or lump sump alimony.
Almost all states require the trial court to consider the parties:
1. Financial resources and needs,
2. Marital contributions, and
3. Marital duration.
4. Marital fault(only for alimony not property division)
5. The contribution of each party to the marriage
Some states also look at spousal misconduct, one spouse’s support for the other’s education or training, etc. The trial court has substantial discretion in choosing to award alimony.
The two primary considerations are the needs of the claimant and the ability of the other spouse to pay
Modification and termination of alimony: Alimony awards may be modified if a court finds there has been a substantial change in circumstances making the prior award unreasonable. This must be an unanticipated change.
Alimony usually terminates if a spouse dies or gets remarried. In some states, cohabitation will reduce or terminate alimony
2 Child Custody Jurisdiction Tests
The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) applies.
- The Home State Test: The child’s “home state” has exclusive jurisdiction to modify a custody decree.
A “home state” is a state where the child has lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of the child custody proceeding.
A home state continues to have exclusive jurisdiction to issue a custody order for six months after a child leaves the state, so long as a parent, or person acting as a parent, still lives in the home state.
- The Significant Connections Test: If a child has no home state, a state may exercise jurisdiction based on (1) “significant connections” with the child and at least one parent and (2) the existence of “substantial evidence” relating to child custody in the forum jurisdiction.
Jurisdiction: Property Division and Marriage Dissolution
Which court may dissolve a marriage: The court does not need jurisdiction over both spouses to terminate a marriage. If the plaintiff spouse is domiciled in the forum state or if the state has some other equivalent long-term connection between at least one of the parties to the marriage, then that court has jurisdiction to dissolve the plaintiff’s marriage
Which court may issue a property division order: Unless the court has jurisdiction over the defendant spouse, it may not issue a binding property division or support order.
