Family Law Flashcards
Breach of promise to marry
Rare and mostly abolished
if recognized
- tort damages
- actual damages, loss of reputation, mental anguish, injury to health
- possibly punitives
gifts conditioned on marriage must be returned
prenup
rights upon divorce or death
marriage is the consideration
property division, choice of law and any other matter not against public policy
alimony, but may not be enforceable if leaves other spouse a public charge
child custody and support NEVER BINDING ON COURT
Prenup requirements
writing and signed
voluntary
full and fair disclosure of the parties’ assets or proof of independent knowledge of assets
- upaa only examine if agreement unconscionable
- other courts consisder whether ex provision is fair and reasonable
choice of law
- if non written, law of state where executed or state with most significant relationship to parties
Marriage requirements
license
- may require waiting period
- failure to meet will not invalidate
ceremony
- authorized officiant
no legal impediments
- not too closely related
- no undissolved marriage to living spouse
capacity to consent
- at time of ceremony
Common law marriage
consent to marry
cohabitation
holding out to public
if valid in one state, recognized in others even if that state does not ahve common law marriage
Marriage by estoppel or punitive marriage
Protect innocent party acting in good faith when entering invalid marriage
acquire all rights of legal spouse
Doctrine of necessaries
used to make one spouse liable to third parties for the other spouse’s purchases for necessary expenses - food, clothing, healthcare
Spousal abuse orders
Allow a battered spouse to seek a protective order
can be granted ex parte
Tortious interference with marraige
Alienation of affection
- D’s actions must have caused the loss of love and affection
Criminal conversation
- one spouse has sex with a third part
Annulment
Marriage invalid during to an impediment at time of marriage
Void or voidable
set aside like never existed
Void marriage - annulment
anyone can bring action
-if impediment removed - some say now valid if continue to cohabit
Void marriage
- bigamy
- consanguinity - too closely related
Voidable marriage
Only spouses can bring claim
issue affecting consent - can be ratified by continued habitation
Voidable
- nonage
- incurable impotence
- lack of capacity
- duress
- fraud of essential element of marriage
Annulment defenses
deny existence of defect
removal of impediment
ratification
Annulled children
Considered marital children
Annulment spousal support and property
Generally not awarded
property- place in pre marriage position
Divorce jurisidction
one party needs to be domiciled
some states have minimum residency requirement
multiple cases can proceed until one court renders judgment
pj over other spouse not needed because in rem
No fault divorce
Irretrievable broken/irreconcilable differences - both spouses agree
living apart for specified and continuous period of time - bilateral or unilateral
incompatible - bilateral
Fault grounds for divorce
Adultery - circumstantial evidence of opportunity and inclination and corroboration
willful desertion or abandonment - unjustified departure from marital home for specified period with no intent to return
extreme cruelty - mental or physical
voluntary drug addiction or habitual drunkenness commencing after marriage
insanity
No fault defense
Deny existence of ground
Fault defenses
Collusion
- agreement to simulate grounds for divorce and forgo defenses
connivance
- willing consent to other’s misconduct
condonation
- forgiveness of martial offenses with full knowledge of offense
recrimination
- both guilty of misconduct
Legal separation
does not terminate marriage but can have rights regarding property, spousal support, and child custody and support determined
Property division approaches - not modifiable or taxable
Community property
- all property acquired in marriage 1/2 each
equitable division of all property
equitable division of marital property
Separate property
owned before marriage
acquired by gift or inheritance
acquired in exchange for separate property
income and appreciation of separate property
pain and suffering awards
personal damages
acquired after an order of legal
separation that includes a final disposition of property
Marital property
Acquired during marriage (some use date or separation, others use data of filing for divorce)
earnings
employment benefits, pensions, stock options
lost wages
reimbursements
recovery for damages to marital property
Separate property becomes marital
Commingle and now inextricably intertwined and cannot be traced
transmutation - treated in a way that evidences intention to make martial property
Marital fault in property and alimony
not considered in property division, but economic fault is
may be considered in alimony
Types of alimony
permanent periodic
- cannot self sustain
- modifiable upon substantial change of circumstances
lump sum
-usually present value or permanent periodic
- not modifiable - binding on estate
rehabilitative
- periodic for limited time to enable spouse to gain skill to become self supporting
- can be ordered along with permanent or lump sum
- modifiable upon substantial change of circumstances
reimbursement
- for supporting other spouse to obtain profession license or degree
- no modification
Alimony considerations
needs and ability to pay
look at
- standard of living
- duration of marriage
- age and physical and emotional condition
- financial resources
- contributions
Modification - substantial change in circumstances
cannot be anticipated
self-induced reduction in income is not sufficient
Termination of spousal support
Remarriage of recipient terminates periodic
death of either terminates periodic
may terminate if recipient cohabits with someone in marriage-like relationship
lump sum and reimbursement - binding even after death of payor
Alimony tax
Not a taxable event for instruments executed after 2019
Separation agreement
voluntary
full and fair disclosure
consideration
can waive alimony or property division
can agree on custody and child support but COURT IS NOT BOUND - best interest of child test
Modification
if merged into divorce decree - modifiable by the court
if not merged - only enforceable and modifiable like a contract
Child support and custody always modifiable
Contracts between unmarried cohabitants
Contracts regarding earnings and property rights enforceable unless sex is the only consideration
Child support and visitation
independent
visitation cannot be withheld for failure to pay child support
Duration of child support
age of majoirty
death
emancipation
until graduate HS if turn 18 before graduating
termination of parental rights
may be indefinite if disabled
may require payment for college but not support into college
Child support jurisidiction
original jurisdiction
- where first petition under UIFSA is filed
another state can exercise only if
- second petition filed before time to answer first expires
- petitioner objected to jurisdiction in first action
- second state is child’s home state
continuing and exclusive jurisdiction unless no party resides in the issuing state or the parties consent to jurisdiction elsewhere
Child support enforcement
Court issuing order can enforce
another state
- direct enforcement - mail oder to obligor’s out of state employer to withhold
- registration of support order
child support modification
modify for substantial and continuing changes in circumstances
Methods of enforcement
Contempt
interception of tax refund
forfeiture of licenses
seizure of real estate
attachment of wages
order to pay attorney’s fees
Initial custody determination
Home state jurisdiction
- home state - where lived with parent for 6 consecutive months immediately before commencement of proceeding
- child’s home state within the past 6 months and then child is absent but a parent continues to live there
When home state rule doesnt apply
no other state has or accepts home state jurisdiction
and child or parent has significant connection with the state
and substantial evidence is available in the state
Modification of child support jurisidction
Issuing court has continuing exclusive jurisdiction
another state con exercise if
- no child or parent continues to reside there
- or the child not longer has significant connections and substantial evidence no longer available there
declining jurisidction
inconvenient forum
unjustifiable conduct
Legal custody
right to make major decision affecting the child
Physical custody
actual possession and control
Joint custody
can mean joint legal, joint physical, or both
preferred but will not award if parents are openly hostile or unable to communicate
Best interest of the child test
Factors
- wishes of parents
- child’s preference if over 12
- child’s relationships
- child’s adjustment
- parent’s mental and physical health
- primary caregiver
Custody to non-parent
Must be voluntary relinquishment or showing that harm to child or parent is unfit
Nonparent visitation
if parent is fit, their wishes are given special weight
parentage action
establish biological relationship or settle issues of paternity or maternity
presumption of paternity
mother’s husband presumed if child born during marriage or within 300 days of termination even if marriage void or voidable
to rebut - need c&c evidence
unwed father
lawful child if
- married after birth
- hold child out as own
- consent to be named on birth certificate
- formally acknowledge paternity
- court order establishing paternity
Grounds for involuntary termination of parental rights
infliction of serious harm
abandonment
neglect and deprivation
failure to support
mental illness so severe
unfitness
Genetic surrogacy agreement
in writing and approved by court
home study
voluntary
provision of healthcare costs
does not limit rights of surrogate to make healthcare decisions
reasonable consideration
subsequent marriage or divorce of intended parents does not invalidate agreement
