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Family Law Flashcards

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1
Q

What is required for a prenup?

A

Writing and signed by parties

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2
Q

When will a prenup be invalidated?

A

Procedural unfairness in the making of the agreement or substantive unfairness in the agreement itself

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3
Q

What are the factors in evaluating the procedural fairness of a premarital agreement?

A
  1. The fullness of disclosure of net worth
  2. Availability of independent counsel or waiver (lawyer not required)
  3. Timing of the presentation of the agreement
  4. Relative bargaining power of the parties
  5. Relative levels of financial or legal knowledge
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4
Q

What are the factors in evaluating the procedural fairness of a premarital agreement?

A
  1. The fullness of disclosure of net worth
  2. Availability of independent counsel or waiver (lawyer not required)
  3. Timing of the presentation of the agreement
  4. Relative bargaining power of the parties
  5. Relative levels of financial or legal knowledge
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5
Q

What is the UPAA approach to unenforcability of a prenup?

A

Look at circumstances surrounding execution, not time of enforcement.

Unenforceable if:
- lack of voluntariness
Or
- lack of adequate disclosure and unconscionable at time of signing

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6
Q

What subjects can a prenup not cover?

A
  • rights of children or obligations to support children
  • sexual relations and childbearing

Close scrutiny on waivers of alimony, though allowed

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7
Q

What is required for a formal marriage?

A

Marriage license
Solemnization by state authorized official

Marriage license is presumptively valid as long as parties were eligible to marry and were in good faith intending to marry.

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8
Q

What is required for a common law marriage?

A
  • capacity to marry
  • present intent to marry
  • cohabitation
  • holding out as a married couple
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9
Q

What is the standard of proof for a common law marriage?

A

On the party asserting it, by clear and convincing evidence

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10
Q

What are the legal impediments to marriage?

A
  • age
  • consanguinity and affinity
  • lack of consent due to mental incapacity or fraud
  • physically incapable
  • prior marriage still in force
  • annulment
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11
Q

What is the majority rule for marriage of a minor?

A

Prohibited under 14, must get consent between 14 and 18.

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12
Q

What is consanguinity?

A

Will not issue a marriage license for marriages between blood relatives:
- ancestor and descendant
- brother and sister
- uncle and niece or aunt and nephew

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13
Q

What is affinity?

A

Minority of states

Prohibition against marriage is extended to consanguinity relations when related by marriage.

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14
Q

When does fraud render consent to a marriage invalid?

A

Misrepresentation or failure to disclose must be intended to induce the other party to enter the marriage, and it must be material.

Includes sexual relations and the desire to have children, does not include character, social standing, or wealth.

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15
Q

When does physical incapacity render a marriage invalid?

A

At common law, ability to consummate marriage is a requirement.

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16
Q

What is the presumption regarding a party that is married twice?

A

Presumption that the party’s latest marriage is valid, and any earlier marriage was dissolved.

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17
Q

What is a voidable marriage?

A

It is a valid marriage until and unless the aggrieved party obtains an annulment.

Can be ratified by confirmation of the aggrieved party (can be by conduct), or death of either party.

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18
Q

What are the grounds for a voidable marriage?

A

Attempted, but not complete based on:
- non-age
- impotence of spouse
- temporary lack of capacity (intoxication)
- mental incompetence

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19
Q

What are the effects of annulment?

A

Declared invalid from date of inception.

Can sometimes get divorce-like remedies, like property distribution and alimony

Can sometimes get equitable relief on theories of unjust enrichment or constructive trust

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20
Q

What is a putative spouse?

A

There must be a ceremonial marriage and at least one spouse must have good faith belief in validity of the marriage.

The putative spouse can get divorce-like remedies at the dissolution, even if the marriage is void because of a law in the formation.

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21
Q

When is a marriage in another state not valid, despite the principles of comity?

A

Evasion of state law.

Residents left home to contract a marriage that would not be valid in their home state, but intend to continue to reside in their home state.

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22
Q

What is the doctrine of necessity during a marriage?

A

A spouse has liability for obligations occurred by the other spouse through:
- agency theory
- forcing the issue
- medical expenses

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23
Q

What is the presumption of paternity?

A

Presumption that children born to a married woman are the children of her husband.

Can be rebutted but clear and convincing evidence.

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24
Q

When does the doctrine of estoppel apply against the presumption of paternity?

A
  • against husband - when he learns that he is not the biological father, but continues to support and claim the child, he can’t later deny the child.
  • against mother - can’t claim child support from another man when she deliberately allows one man to believe he is the father and accepts child support from him.
25
Q

When does the Uniform Parentage Act provide presumptions about parentage?

A
  • couple marries before the child’s birth (even if invalid)
  • after the child’s birth, the other parent automatically and voluntarily asserts parentage
  • for the first two years of the child’s life, the other parent resided in the same household and openly claimed the child
26
Q

When can paternity actions be brought?

A

Any time before the child is 18

27
Q

When is a parent entitled to custody of a minor child?

A

If the parent is living, competent, and has not been found to be unfit, they have a right to custody and to make decisions regarding education and medical care.

28
Q

When are parental rights and obligations terminated?

A

(After the child reaches 18)

  • emancipation
  • relinquishment
  • involuntary termination
29
Q

What are the key components of emancipation?

A
  • financial independence
  • maturity
  • marriage
  • child of their own
  • ability to support themselves
30
Q

What are the requirements for voluntary relinquishment of parental rights?

A
  • affidavit signed by parent after the birth of the child
  • objectively confirmed, like with witnesses
  • states whether revocable
31
Q

When can parental rights be involuntarily terminated?

A

Notice and hearing. Based on a finding of parental unfitness proved by clear and convincing evidence.

Issue is the child’s best interest.
- abandonment
- neglect
- abuse

32
Q

When can consent for adoption be revoked?

A

Proof of fraud or duress prior to adoption decree.

Uniform adoption act only allows revocation based on other reasons within 8 days.

33
Q

Can racial matching be considered in a petition for adoption?

A

Yes, but cannot be sole determining factor.

Primary concern is the child’s best interests.

34
Q

What is equitable adoption or parenthood by estoppel?

A

You have assumed the relationship of parent/child and will be treated as such, even though you do not have a legal adoption.

35
Q

What are the approaches to parenthood by estoppel?

A

Contract theory - require proof of a contract between natural parents and putative parent when the child is a minor.

Behavior/equitable theory - look at whether putative parent led the child to believe she was legally a member of the family and apply estoppel theory where the child has performed services for the putative parent

36
Q

When is subject matter jurisdiction established over divorce proceedings?

A

Domicile of one of the parties within the state at the time of filing the action

37
Q

When is personal jurisdiction over the defendant necessary in divorce proceedings?

A

To enforce any decrees in personam, like support obligations, orders on out of state property.

Not required to enter into a divorce decree.

38
Q

Where is venue proper in divorce proceedings?

A

Generally in the county where either party resides.

39
Q

What are the fault-based ground for divorce?

A
  1. Desertion
  2. Adultery
  3. Impotence
  4. Cruelty - physical or mental
  5. Imprisonment
  6. Habitual intoxication or drug addiction
  7. Felony conviction
40
Q

What is required for a no-fault divorce?

A
  • state of mind of the parties - marriage is irretrievably broke
  • separation for a definitive period of time.
41
Q

What are the defenses to fault-based divorce allegations?

A
  1. Collusion - agreement to seek divorce
  2. Connivance - plaintiff facilitated wrong
  3. Condonation - knowing forgiveness
  4. Recrimination - spouses are both guilty
42
Q

How is property divided upon divorce?

A

Equitable distribution scheme - not just rigid 50/50

43
Q

What is the difference between separate and marital property?

A

Separate property is not divided. Generally property acquired before marriage, or by gift or inheritance to one spouse.

Marital property is divisible between spouses. Property acquired during the marriage, including the earnings of one party.

44
Q

What considerations affect the division of marital property?

A

Equitable division.

Financial status or need of the parties
Contribution - including financial or at-home parent.

45
Q

What are the types of alimony?

A
  • periodic
  • lump sum
  • rehabilitative
46
Q

What are the types of alimony?

A
  • periodic
  • lump sum
  • rehabilitative
47
Q

What are the types of alimony?

A
  • periodic
  • lump sum
  • rehabilitative
48
Q

What are the grounds for alimony?

A

Economic need or fairness.

Uniform marriage and divorce act:
- lacks sufficient property to provide for their reasonable needs and
- is unable to support themselves through appropriate employment, or is the custodian or a child whose circumstances make it appropriate that the custodian not be required to seek employment outside the home

49
Q

What are the grounds for alimony?

A

Economic need or fairness.

Uniform marriage and divorce act:
- lacks sufficient property to provide for their reasonable needs and
- is unable to support themselves through appropriate employment, or is the custodian or a child whose circumstances make it appropriate that the custodian not be required to seek employment outside the home

50
Q

When is modification of alimony allowed?

A

Under UMDA - only upon showing of a substantial and continuing change in circumstances making the prior order unconscionable.

Most jurisdictions - substantial change that makes the original award unreasonable and unfair.

51
Q

When does alimony terminate?

A
  • after a specified term
  • on death of either spouse
  • automatically on remarriage or cohabitation
52
Q

What factors are considered when evaluating the best interest of the child regarding custody?

A
  • what will maintain bonds between parent and child, especially the primary caretaker
  • wishes of parents
  • wishes of child
  • relationship of child with other people, like siblings and parents
  • the child’s adjustment to the community
  • the mental and physical health of all individuals involved
53
Q

When can a state court exercise personal jurisdiction over a nonresident in a support order case under the Uniform Interstate Family Support Act?

A
  • personal service
  • consent
  • resided with the child in the state
  • resided in the state when providing prenatal or support for the child
  • the child resides in the state because of the person
  • the child may have been conceived by a sex act in the state
  • the individual asserted paternity by filing with the DHS paternity registry
  • any other basis for personal jurisdiction
54
Q

When can a state court exercise personal jurisdiction over a nonresident in a support order case under the Uniform Interstate Family Support Act?

A
  • personal service
  • consent
  • resided with the child in the state
  • resided in the state when providing prenatal or support for the child
  • the child resides in the state because of the person
  • the child may have been conceived by a sex act in the state
  • the individual asserted paternity by filing with the DHS paternity registry
  • any other basis for personal jurisdiction
55
Q

What court can modify support orders under the uniform interstate family support act?

A

The issuing state, if a party or the child still lives there.

If all the parties live in another state, that state has jurisdiction.

Otherwise, must seek modification in the state where the respondent resides.

56
Q

When does a state have child-custody jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act?

A

If it has jurisdiction over the child.

  • The home state - where the child has lived since birth or the last 6 months
  • state with significant connections to the child
  • or the most appropriate forum
  • or default jurisdiction - no other home state or state that wants jurisdiction

Exclusive jurisdiction continues with that state unless no significant connection or the child and both parents move out of the state

57
Q

What is the Parental Kidnapping Prevention Act?

A

States must enforce any custody or visitation order made by a court of another state, so long as the issuing state had proper jurisdiction and is the home state of the child.

58
Q

What is the Parental Kidnapping Prevention Act?

A

States must enforce any custody or visitation order made by a court of another state, so long as the issuing state had proper jurisdiction and is the home state of the child.

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