Family Law Flashcards
Pre-marriage issues
Breach of promise to marry: rare claim. If it goes through, it provides for tort damages.
Gifts in contemplation of marriage: e.g. engagement ring being returned to the buyer after the would-be recipient backs out of marriage.
-Gift subject to condition of subsequent marriage, so if condition not satisfied, must be returned.
Antenuptial (premarital) agreements (UPAA in may states):
-Can agree to keep property separate.
-Can waive spousal support (unless one spouse would become a public charge in case of divorce).
-Courts generally won’t enforce child-related provisions in prenups.
Requirements for a valid premarital agreements:
-In writing and signed
-Entered into voluntarily
-Full disclosure or independent knowledge of assets (each party needs to know what they’re waiving).
Ceremonial marriage
Reqs:
-License (but failure to meet the procedural reqs of a license will not invalidate the marriage)
-Marriage ceremony with authorized officiant. Typically, judges, justices of the peace, heads of certain state agencies, religious personnel.
-No legal impediment: parties can’t be too closely related; can’t be already married to someone else (bigamy)
-Capacity to consent (mental ability to consent at the time of the ceremony); in most states, need to be 18.
Common law marriage
A valid marriage w/o a license or ceremony.
Reqs:
-Consent to marry
-Cohabitation
-Hold selves out as spouses (e.g. filing tax returns jointly, have health insurance together).
If validly married in a state that permits common law marriage and then move to state that doesn’t, that second state will still recognize the marriage as valid as long as the couple met the requirements in the first state.
Marriage by estoppel or putative marriage
Equitable remedy for invalid marriage. E.g. person finds out their spouse has been married to someone else for three years, which means their own marriage is invalid. Courts provide this remedy so the party can recover as a normal spouse would.
Marriage relationship
Property rights:
-Title is not dispositive when dividing the property.
Obligation to support:
-Spouses during marriage owe each other support.
-Doctrine of necessaries can be used to make one spouse liable to a third party for the other spouse’s purchases that relate to necessary expanses. E.g. a hospital seeking medical payments for treatments.
Spousal abuse orders:
Tortious interference with marriage:
-Arise during a marriage when a 3rd party comes into the marriage and interferes with the marital relationship.
-Brought against the 3rd party.
-(1) Alienation of affection: 3rd party is alienating the affection of the spouses –> (i) a genuine love and affection b/w the spouses who are validly married (ii) love and affection alienated or destroyed, (iii) D’s actions caused the loss of the love and affection.
-(2) Criminal conversation: (i) valid marriage, (ii) adultery.
Annulment
Backward looking doctrine available for a defective marriage that is legally void or voidable.
Void marriage:
-Parties fail to meet an essential element of marriage.
-Utter nullity.
-No legal action needed.
-Can be attacked by a third party (e.g. IRS - “you can’t file jointly because you’re not actually properly married”).
-E.g. bigamy; too closely related.
Voidable marriage:
-Occurs when some type of event or condition affects the adequacy of the party’s consent.
-Treated as valid UNTIL declared null.
-Can be attacked only on behalf of one of the parties to the marriage, no collateral attacks by 3rd parties.
-Can be remedied, e.g. by living together after removal of the impediment.
-E.g. nonage, capacity, duress, fraud.
Effect of annulment:
-Marriage set aside as if it never existed
-Children remain marital children and child support can be awarded even though the marriage is invalid.
-Property rights: courts tend to treat the parties as if they were never married.
Divorce
Jurisdiction over divorce:
-Just one spouse must be domiciled in state
-A minimum residency period (90 days - 60 months) can give a spouse a presumption of jurisdiction for divorce.
Grounds for divorce:
-No-fault - allows for dissolution of marriage without regard to marital fault.
-Types: irreconcilable differences; living separate and apart for specified time (unilateral or bilateral); incompatibility.
-Fault.
-Types: adultery (generally proven with circumstantial evidence, opportunity and inclination); desertion (abandonment) - unjustified departure from the marital home with no intent to return; cruelty (mental or physical) - e.g. pattern of emotional abuse; habitual drunkenness or drug abuse commencing after the marriage; insanity.
Defenses to divorce:
-No-fault: reconciliation.
-Fault: collusion - simulating the grounds for a divorce; connivance - P consents to the other person’s misconduct (one spouse sues for divorce based on adultery but other spouse can raise defense because it was an open marriage); condonation; recrimination - P who is seeking divorce based on fault can’t get the divorce because P also committed fault.
Legal separation
Effects: parties are still married, leaving a line in the sand to decide attendant issues like property division, spousal support, child custody, and child support. Court can decide or the parties can agree to those various issues.
Property division
A court must have personal jurisdiction over BOTH parties to divide up property/distribute assets.
Approaches to dividing property at divorce:
(1) Community property (9 states): all property acquired during marriage is actually owned one half by each spouse.
(2) Equitable division of all property (separate AND marital)
(3) Equitable division of marital property: each spouse takes home his or her own separate property and the marital property is what gets divided at divorce.
Step one: classification of property (i.e. is it marital or separate).
Step one: equitable division of property - does not mean the division is equal!
Separate property: property owned before marriage; property acquired by gift or inheritance; property acquired in exchange for separate property; income and appreciation of separate property; pain and suffering awards; personal damages; property acquired after legal separation.
Marital property: property acquired during marriage; earnings (options, stocks, etc.); employment benefits; lost wages; reimbursements; recovery for damage to marital property.
Special issues with classification:
-Commingling - separate property can become marital if inextricably intertwined. E.g. a bank account.
-Transmutation of separate property - separate property becomes marital property based on intent of parties. E.g. one spouse jointly titles property in the other spouse’s name –> presumed a gift.
-Improvement of separate property: court will grant reimbursement for value added. E.g. husband improves $1000 property he inherited - the increase in value from the improvements goes toward marital property (BUT if just increase in value from e.g. market, remains separate).
-Property acquired before marriage but paid for/off after marriage: varies by state.
-Pensions: marital property if earned during the marriage, even if nonworking spouse doesn’t contribute at all to the pension account.
-Professional license or degree: not marital property; but will be considered.
-Tax consequences: property division is NOT a taxable event.
Equitable division of marital property factors
-Age, education, background, and earning capabilities
-Duration of marriage
-Standard of living during marriage
-Present income and employability
-Source of funds
-Health of parties
-Assets, debts, and liabilities
-Needs
-Custody of minor children
-Alimony
-Opportunity to acquire future income and assets
-Contribution to marital assets
-Contribution as homemaker
-Economic fault
Spousal support/alimony
Trial court is vested with a great deal of discretion in both making an equitable division of property and in determining what type and amount of alimony.
Four types of alimony awards:
(1) Permanent periodic support - paying spouse x dollars a month for the rest of their life until they re-marry or die. Generally awarded to a spouse who has neither the resources nor the ability to be self-sustaining. Also look at how much they’re getting from property division.
(2) Lump sum support - the present value of permanent periodic support. Not modifiable because it’s a set amount.
(3) Rehabilitative support - support used to rehabilitate one’s spouse so that the spouse is earning capacity can increase and the spouse won’t be financially dependent on the other spouse. E.g. $1000 a month for 36 months to gain education or skills.
(4) Reimbursement support - reimbursement of spouse to the extent that the spouse made financial contributions to pay for the other spouse to get education or training. E.g. $20k as repayment for the supporting spouse’s contribution to the increased education provided to the other spouse.
Overall, the two primary considerations when awarding alimony are (i) the needs of the claimant spouse and (ii) the ability of the other spouse to pay.
Factors considered when awarding alimony:
-Standard of living during marriage
-Duration of marriage (if shorter, less economic dependence)
-Age and physical and emotional conditions of both parties
-Financial resources of each party
-Contribution of each party (contribution as homemaker is just as important as wage earner)
-Time needed to obtain education or training
-Ability of payor spouse to meet own needs
-Some jurisdictions: marital fault
Termination of spousal support:
-Recipient remarries
-Either spouse dies (but lump sum payments survive death)
-Most jurisdictions: cohabitation with another
Tax consequences of spousal support:
-Post-2019, not income to the recipient nor are they deductible to the payor.
Marital contracts
Separation agreement:
-Entered into after marriage
-Enforceable if supported by consideration
-Full access to assets each party will be giving up
-Can waive alimony and equitable distribution of property
-Can agree on custody and child support - but court is not bound. Always modifiable.
Modifying separation agreements depends on whether the agreement is merged into the divorce decree or not. If the parties do not submit the agreement to the court, the contract is not modifiable by the court and can only be enforced through contract remedies.
Rights of unmarried persons
Generally, contracts by cohabitants are valid unless sex is the only consideration for the agreement.
Usually consist of agreements re: the division of earnings and property rights.
Child support
Child support guidelines proliferated since the 1980s.
Parents must pay for their children based on their ability to pay and the needs of the child.
Duration of child support: generally lasts until the age of majority (typically 18); death of child; emancipation of child; termination of parental rights.
Jurisdiction over child support orders: Uniform Interstate Family Support Act (UIFSA) adopted by all states, assisting in the more orderly collection of child support.
-Original jurisdiction: proper where the first petition under UIFSA is filed. But another state can exercise juris if the second petition is filed before the time to answer the first one has expired and the petitioner objected to jurisdiction in the first action and the second state is the child’s home state.
-Jurisdiction to enforce: court that initially issued the child support order will have continuing jurisdiction to enforce; but through UIFSA, two other options: (i) direct enforcement allows the obligee, the person receiving the child support, to mail the child support order to the obligor’s employer in another state. The employer receives court order and withholds wages based on that order; (ii) registration - child support ordered registered in another state and can thereby be enforced.
-Jurisdiction to modify: once court enters a valid child support order, that court maintains continuing exclusive jurisdiction to modify. UNLESS no parties reside in the state or the parties consent to jurisdiction in another state.
Modification of child support orders: substantial and continuing change of circumstance, which affects the needs of the child or the ability of the parents to pay.
Tax consequences of child support orders: not taxable events.
Enforcement of child support awards: can be enforced through civil or criminal contempt proceedings. Various remedies fed gov’t is now offering.
Child custody
Initial award of custody:
-Home state: state where child has lived with parent for at least 6 consecutive months OR a state that was the child’s home state within the last six months and the child is absent from that state but a parent continues to live in the state.
Modification of an existing decree: issuing state maintains continuing jurisdiction; only if no parent or child continues to reside in the state or if the child no longer has a significant connection with the state and there is no evidence, then can another state court exercise jurisdiction. But only issuing state can decide there is no significant connection.
Declining jurisdiction: courts must decline to exercise jurisdiction if there is already a proper proceeding elsewhere unless the court would defer to the new state and the new state can exercise deferred jurisdiction, or if the person who wants jurisdiction has engaged in unjustifiable conduct.
-Can decline b/c inconvenient forum.
Court may exercise temporary jurisdiction to protect the child.
Custody: hallmark consideration is the best interest of the child. Factors considered when awarding custody:
-Parents’ wishes
-Child’s preference (for whom to live with). Children over age 12 given great weight.
-Child’s relationship with parents, siblings, and others involved with parents.
-Child’s adjustment to home, school, and community
-Parties’ mental and physical health
-Primary caregiver
Types of custody:
-Joint custody: encouraged in most jurisdictions.
-Sole custody: can be awarded in favor of one parent if there is strong evidence that demonstrates that sole custody is in the BIOC. Other parent will in most cases be entitled to reasonable visitation with the child.
-Custody to a nonparent (rare): to be entitled to custody, the nonparent will bear burden of proof and must show harm to the child if custody is left with the parents or show a general parental unfitness, abandonment, neglect, abuse, etc.
Modification of custody:
-Substantial and material change of circumstances that affects wellbeing of the child.
Relocation: changing child’s primary residence (according to BIOC and whether the move is motivated by a benefit to the family). Courts want to make sure the move is not intended to thwart the relationship with the other parent.
Enforcement of custody awards:
-Habeas corpus petition
