Family Law Flashcards
Family Law for MEE
Premarital agreements (Generally)
Premarital agreements are generally valid devices to resolve disputes between spouses in the event of divorce and a means for estate planning in the event of death.
When premarital agreements will be invalidated
In most states, premarital agreements will be invalidated when there is a court finding of either: procedural unfairness in the making of the agreement or substantive unfairness in the agreement itself.
Subject matter of premarital agreements
- Property division (permissible)
- Waiver of alimony (permissible)
- Children
- In virtually all states, it is invalid as against public policy to limit the obligation of a parent to support a minor child during or after marriage
- Sexual relations
- Majority rule–provisions dealing with frequency of sex and child bearing are not enforceable. UPAA: such provisions are permitted
Legal requirements for formal marriage
- Issuance of marriage license
- Solemnization of the marriage by a state-authorized official
Common law marriage
Outlawed in most states, but generally recognized if performed validly in another state.
Requires:
- Capacity to marry
- Present intent to be married
- Cohabitation
- Consummation of the marriage, and
- Holding out as a married couple to the world.
legal impediments to marriage–Nonage
- If either party is under 14, marriage is prohibited.
- If either party is between 14 and 18, they need consent of a parent/guardian to marry
legal imediments to marriage–consanguinity and affinity
Marriage is not allowed between blood relatives (whole or half) who are ancestor-descendant, brother-sister, and uncle-niece or aunt-nephew
Legal impediments to marriage–lack of consent
- Mental incapacity:
- Inabilty of a party to consent to marriage due to mental incapacty or infirmity will render the marriage invalid.
- Fraud:
- Lack of consent to the marriage because of fraud (tort definition of fraud) will render the marriage invalid.
Annulment
Annulment=judicial declaration that the marriage is invalid
Annulment because marriage is void
Void marriages have no legal effect and cannot be recognized.
Grounds:
- Bigamy
- incest
Annulment because marriage is voidable
Voidable marriages are valid until and unless the aggrieved party obtains an annulment.
Grounds: nonage, impotence of spouse, temporary lack of capacity (eg drunkenness), mental incompetence
Presumption of marital legitimacy
- Children born to, or conceived by, a married woman are presumed to be children of the husband.
- Presumption is rebutted by clear and convincing evidence that the husband is not the father (usually DNA evidence).
- The father may also be estopped from denying paternity in certain instances
actions brought by putative father
Many states have enacted statutes that give an unmarried father no more than 2 years to establish his paternity when his alleged child has a persumed father.
The Uniform Parentage Act (UPA) provides presumption of paternity in two circumstances, which can be rebutted only by genetic testing introduced in a paternity proceeding. If the man and the child’s natural mother:
- marry after the child is born and the man voluntarily asserted his paternity (such as by agreeing to be namedas the child’s father on the birth certificate); or
- for the first 2 years of the child’s life, the man resided in the same household with the child and the man openly held out the cild as his own.
child support action brought by or for a child
generally, most states allow a patenrity action to be brought:
- before a child turns 18, and
- during the life of the putative father.
Custody and Control
- A parent who is living, competent, and has not been found unfit is entitled to custody of the minor child and to direct her education and medical care.
- For a non-parent to seek custody or visitation rights over a child with living parents, significant deference must be given to a legal parent’s objection to visitation (ie a finding of parental unfitness or harm to the child would likely satisfy this).
- Standard for determining custody and the parenting time allocation between the parties is the best interest of the child which is determined by examination of all relevant factors, including:
- the wishes of the child as to his custodian
- the interaction and interrelationship of the child with his parents, siblings and any other person who may significantly affect the childs’s best interest; and
- the mental and physical health of all individuals involved.
obligation of support
a parent’s obligation to support a child ends when the child: reaches the age of majority (most states=18), or is legally emancipated.
legal emancipation (Factors)
Factors for emancipation:
- financial independence
- maturity
- marriage
- having children of their own
- ability to support themselves
Divorce: subject matter jurisdiction
SM Jx established if one spouse is domiciled in the state when the action is filed
Divorce: personal jurisdiction
A court must have personal jurisdiction over the defendant to enter or enforce any decrees in personam (e.g., order imposing child support)
fault-based grounds for divorce
- desertion
- adultery
- impotence
- cruelty
- felony conviction (1 year+ of incarceration)
- intoxication or excessive use of addictive drugs,
No-fault divorce
Requires proof that:
- marriage is irretrievably broken (or irreconcilable differences between spouses) and there is no reasonable prospect of reconciliation, and
- parties have been separated for a definitive period of time.
Equitable distribution
How most states divide property on divorce.
Steps are:
- classify property as marital or separate
- value property
- divide property
Equital distribution: marital property
Marital property is property jointly owned and jointly acquired through the labor of the parties.
Property acquired during marriage is presumed to be marital property.
equitable distribution: separate property
Property owned before marriage, acquired after dissolution of marriage, excluded by premarital agreement, or acquired by gift or inheritance to one spouse.
