Family Law Flashcards
Uniform Interstate Family Support Act - Enforcement of Child Support (UIFSA)
been adopted by all states.
Under UIFSA, the state that originally issued a child support order has continuing, exclusive jurisdiction to modify the order if that state remains the residence of the obligee, the child, or the obligor and all parties do not consent to the jurisdiction of another forum.
UIFSA does not apply to divorce property-division disputes.
Child support orders cannot be modified retroactively
Fed law requires the states, as a condition of federal child-support funding adopt rules that absolutely forbid retroactive modification of the support obligation.
Prospective modification of child support
Typically available only when the petitioner can show a substantial change in circumstances.
A significant decrease in income is typically viewed as a substantial change, but some courts refuse to modify if the shift was voluntary. other courts look towards the intent
Many courts use a multifactor approach where court would consider the impact on the child (i.e likely duration of income loss, and the likelihood of a promotion that would ultimately be of benefit to the child).
Divorce property-division is non modifiable
division was made by court based on the circumstances at the time of the divorce and because the past cannot be ascertained, a property division award is not subject to a post-divorce modification
enforceability of a premarital agreement
Enforceability of an agreement turns on three factors: voluntariness, fairness, and
disclosure
*In considering whether a premarital agreement was voluntarily executed, courts look to whether there was fraud, duress, or coercion
*consulting w/ independent counsel, embarssement from cancelling wedding, and financial loss goes to voluntariness
enforceability of a premarital agreement under UPAA
the party against whom enforcement is sought must prove
(1) involuntariness or
(2) that “the agreement was unconscionable when it was executed” and that he or she did not receive or waive fair and reasonable disclosure and did not have, or reasonably could not have had, an adequate knowledge of the other’s assets and obligations
Premarital agreements regarding child custody are unenforceable
courts are not bound by custody provisions in a prenup that could be injurious to child’s interest
marital property
assets acquired during the marriage except by gift, devise, or inheritance
continues to accrue until the marriage is dissolved
Divorce and division of property
in most states, only marital property—assets acquired during the marriage except by gift, devise, or inheritance—is subject to division at divorce.
In a minority of “hotchpot” jurisdictions, the court may divide all assets, whenever or however acquired.
A few states permit the division of
separate property in special circumstances, such as hardship.
an asset that is initially separate property may be partially transformed into marital property if
marital funds or significant postmarital effort by the owner spouse enhance its value or build equity
if marital funds are used to reduce mortgage indebtedness, such equity-building payments typically create marital property.
Child custody decisions standard
best interest of the child
best interest of the child factors
(1) the wishes of the child’s parent or parents as to his custody;
(2) the wishes of the child as to his custodian;
(3) the interaction and interrelationship of the child with his parent or parents, his siblings, and any other person who may significantly affect the child’s best interest;
(4) the child’s adjustment to his home, school, and community;
(5) domestic violence in the home; and
(6) the mental and physical health of all individuals involved.”
a court may not deny a parent child cutosdy based on parent’s
values or lifestyle unless evid shows that the parental conduct adversely affects the child
common law doctrine of nonintervention
disallows judicial intervention in an intact family
courts have used this doctrine to deny a support petition when couple is married and living together
May the government limit parental decisions?
parental right to the care, custody, and control of a child is constitutionally protected under the 14A, but if it appears that parental decisions will jeopardize the health or safety of the child, or have a potential for significant social burdens then gov can limit that
- vaccination mandate is within state’s police powers to protect public health
Under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), a court may exercise juris over a petition for child custody only if
this State is the home State of the child on the date of the commencement of the proceeding,
or was the home State of the child within six months before the commencement of the proceeding and the child is absent from this State but a parent or person acting as a parent continues to live in this State” and
no other state’s courts would have jurisdiction under the above standard or other courts having jurisdiction have declined to exercise it.
The federal Parental Kidnapping Prevention Act (PKPA) grants exclsuive juris over a child-custody petition to…
a child’s home state
PKPA takes precedence over any conflicting state law under the supremacy clause
When a non-party seeks to obtain custody of a child from a fit legal parent
parent is accorded a preference.
Troxel case SCOTUS implied such a prefernece is constitutioally mandated and invalidated a statute that allowed for any person to petition for visitation at any time if in best interest of child
Under federal law, states are required to give full faith and credit to
child support awards from other states
Subsection (e) of full faith and credit for child support orders act prohibits the modification of child support orders issued by a court w/ continuing exclusive juris unless
no contestant or child resides there, or unless each contestant has agreed in writing to allow another state to assert jurisdiction.
modification of child support orders may be made only
upon a showing of a substantial AND continuing change in circumstances making the prior order unreasonable
Modification of spousal support is allowed only upon a showing of…
a substantial AND continuing change in circumstances making the prior order unreasonable
Requirements for a valid divorce decree being entered
Scotus has found that a state could enter a valid divorce decree as long as one spouse was domiciled in that state
Power of court in an ex parte divorce
In an ex parte divorce where the court issues a divorce decree based on the domicile of the plaintiff and without personal jurisdiction over the defendant, the court lacks the power to adjudicate property and support rights.
The divorce decree is thus “divisible”; jurisdiction to terminate a marriage does not establish jurisdiction over other divorce claims.
state cant enter property division w/out PJ and need minmum contacts. (brief stopover or marriage in a state does not equal min contacts)
Fault based divorce
a divorce may typically be granted on grounds of cruelty or a like concept
if abuse, traditionally it needed to be phsyical, successivee, and continuing or a single severe act
courts today recgonize a single, less phsyical incident as sufficent and recognize emotional/mental cruelty
common law marriage requirements
requires that the partners
(1) capacity to enter a marital k,
(2) cohabited,
(3) agreed to be married, and
(4) held themselves out to others as a married couple.
*requires dissolution through divorce
Will another state recognize a common law marraige?
Under COL principles, a marriage valid under the law of the state where it was contracted is valid elsewhere unless it viols the strong public policy of another state which has the most significant relationship to the spouses and the marriage.
courts have consistently held that common law marriage doesnt viol public policy
common law marriage analysis
1) did they form a valid common law marriage?
2) does the state/diff state recongize the common law marriage?
3) are they still married?
Putative-Spouse doctrine
permits a would-be spouse, who participated in a marriage ceremony with a good-faith but mistaken belief in its validity, to be treated like a spouse for purposes of equitable distribution of the property acquired by the couple during their invalid marriage
states that dont recognize the putative spouse doctrine permit a distribution of marital assets in a proceeding to declare a marriage void
the trend of modern statutes is increasingly to blur the line not only between void and
voidable marriages but even between them and valid marriages in an attempt to equalize the consequences of termination of marital relationships on whatever ground
Bigamy
Bigamy is illegal in all states; no individual may have more than one legal spouse at a time.
when a first marriage has not been legally terminated, a second marriage has no legal effect.
presumption that the latest in a series of marriages is valid
The presumption is one of the strongest known to the law” and can be rebutted only by strong evidence that the prior marriage still subsists or by cogent and conclusive evidence.
The presumption is designed to protect the parties’ expectations; thus, some cases hold that the presumption’s strength increases with the lapse of time and the birth of children in the later marriage.
Visitation of children
SCOTUS has recognized that parents have a fundamental constitutional right to control the upbringing of their children, including decisions about with whom their children will visit.
A fit parent is presumed to act in the best interests of her children, and courts are constitutionally required to give “special weight” to a parent’s reasons for objecting to visitation with a third party before overriding the parent’s objection and granting visitation
circumstances determining what effect court should give between mature child testimony
child age and judgment capacity, basis for and strength of its preference, treatement extended to child by contestants for custody, and wrongful inducement of child’s wishes
courts are placing greater emphasis on interest of erroenously identified fathers
some states have adopted paternity disestablishment legislation that places greater emphasis on erroneously identified fathers
when dividing up property, courts strive for an equitable distirbution using these factors
duration of the marriage,
indicators of each spouse’s future needs,
contributions of parties to the marriage
UIFSA §603(b)
a registered child support order issued in another state is enforceable in the same manner and is subject to the same proceudres as an order issued by a tribunal of the adopting state
UCCJEA §202
a state that properly issued a custody decree retains continuing exclusive jurisdiction until all parties have left the state or until issuing has determined no longer any significant connection between child and person liing in the state and there’s substantial evidence in that state
burden of proof for each party in a modification hearing
movant must show the modification is for a legitimate purpose
objecting parent show mod isnt in child’s best interest
factors considered in spousal support award
age
work experience
duration of the marriage
ability to provide for oneself
Marvin v. Marvin
property or support rights between non-married cohabitants can be founded upon an express or implied contract to share assets
based on mutual support obligation in a marriage,
a creditor who has furnished necessaries to a husband or wife may, in most states, sue spouse of the purchaser to recover on the debt
necessaries doctrine is only availble to a credito who has already provided goods or services - not for future spending
a state child welfare agency may intervene in family decision making only when
the decision at issue endangers the well being of a child or another family member incapable of protecting his own interests
courts refuse to intervene in family disputes if
couple is living together/married
unless dispute between parties is over child abuse/neglect which includes medical care/child rearing decisions that endanger the child
courts typically have refused to consider religion unless the evidene shows
that the parent’s religious practice would imperil the child’s well being
SCOTUS has held that a father who lived with his children and their mother and held the children out as his own is entitled to a hearing to
demonstrate his parental fitness before his parental rights may be terminated
equal protection clause requires the state to give a father the opportunity to veto his
child’s adoption when state law grants a similarly situated unmarried mother a veto.
Under federal law, a voluntary
acknowledgment of paternity is binding if unchallenged by the named father within
60 days
