Family Law Flashcards
gifts in contemplation of marriage:
what happens if the marriage doesn’t happen?
the gift must be returned
failure of the condition (not getting married) renders the gift null
define
gifts in contemplation of marriage
A gift that is conditional on the parties getting married
Failure to get married nullifies the gift
most common: engagement ring
antenuptial/premarital agreements
Uniform Premarital Agreements Act (UPAA)
act that allows parties to make agreements about property and alimony in the event of death or divorce
- can waive spousal support
-
when is an agreement to waive spousal support in an antenuptial agreement unenforceable
if it renders the dependent spouse a public charge
if the spouse doesn’t receive support or alimony, he or she will be so poor that they will need state or federal support
what provisions in an antenuptial agreement are courts not bound by?
provisions regarding children
- will not enforce custody or support agreements
requirements for a valid premarital agreement
- in writing
- signed by both parties
- that is entered into voluntarily
- full disclosure or independent knowledge of each others’ assets (parties need to know what they are waiving)
- EXTRA: assess the agreement for general fairness
oral premarital agreements are prohibited
courts only consider #4 if they deem the agreement unconscionable
what does “voluntarily” mean for purposes of a valid premarital agreement?
without fraud, duress, or overreaching
requirements of ceremonial marriage
- license
- ceremony with authorized officiant
- absence of a legal impediment to wed
- capacity to consent to the marriage at the time of the ceremony
does failure to meet the procedural requirements of a license for marriage invalidate the marriage?
No.
If there is a defect in the license and the parties remain married for a period of time, states will not invalidate the marriage solely bc of the license problem
types of legal impediments to marriage
- parties are too closely related
- being married to someone else (bigamy)
capacity required to enter into a marriage
s
- not under the influence of drugs or alcohol
- not mentally impaired
- ## age of majority (18+)
common law marriage requirements
Valid marriage without a license or ceremony
Requirements:
1. consent to marry (moving in together is not consent to marry)
2. cohabitation
3. parties must hold themselves out publicly as spouses (look for whether the community considers the couple as married)
marriage by estoppel/putative marriage
an equitable remedy for an invalid marriage to protect the innocent party and provide the innocent party spousal benefits
ex: party marries someone who is still married to someone else
if spouses take title to real estate jointly, what type of property interest is assumed?
tenancy by the entirety
includes a right of survivorship and one spouse cannot convey or encumber the property wihtout consent of the other
upon dissolution of the marriage, what does a tenancy by the entire turn into?
Tenants in common
doctrine of necessaries
one spouse can be held liable to third parties for the other spouse’s purchases for necessary expenses (food, clothing, healthcare etc)
ex parte
orders granted without notice to the other party
applies to domestic protective orders
tortious interference with marriage
claims arise when a third party comes into a marriage and commits a tort that interferes with marital relationships
claims against a third party
alienation of affection requirements
- genuine love and affection between married spouses
- love and affection was alienated or destroyed
- because of the third party’s actions
adultery is not a requirement
criminal conversation requirements
- a valid marriage
- adultery bt third party and spouse during the marriage
annulment
declares a marriage invalid bc of an impediment that existed at the time of the marriage makes the marriage void or voidable
void marriage
a marriage that failed to meet the essential requirements for a legal marriage
- no subsequent act can ratify a void marriage
- parties don’t need legal action to dissolve the marriage
- can be attacked by a third party (creditors)
examples of void marriages
bigamy (being married to two people)
too closely related
voidable marriages
some type of event or condition affects the adequacy of the party’s consent
- treated as valid until declared null
- no collateral attacks by third parties
- can be remedied by subsequent actions
ex: married a minor, capacity, duress, fraud (fraud must affect an essential element of the marriage)
effect of an annulment
marriage is set aside as if it had never existed
but child support will still be awarded
some states allow spousal support
what is required for a state to have jx over a divorce
at least one spouse must be domiciled in that state
domicile
residence plus intent to remain in that states
what is required for a court to have jx over a divorce if remedies are sought by the filing spouse
remedies= alimony or property division, etc
presonal jurisdiction over the defendant spouse
no-fault divorce
divorce that allows for dissolution of marriage without regard to marital fault
standards allowed to grant a no-fault divorce
- irreconcilable differences
- living apart for a certain period of time
- incompatibility
fault grounds for divorce
- based on adultery
- desertion (abandonment)
- cruelty (physical or mental)
- habitual drunkenness or drug abuse that started after the marriage
- insanity
test for adultery in a fault divorce
1- opportunity and
2- inclination (propensity to commit adultery)
abandonment/desertion
unjustified departure from the marital home with no intent to return
justified if spouse was being abused and left
defense to no-fault divorce
reconciliation (restarts the timer on living apart)
defenses to fault divorce
- collusion (both spouses lie to get a divorce easier)
- connivance (one spouse consents to the other spouse’s conduct)
- condemnation (spouse forgives the other for misconduct)
- recrimination (plaintiff also committed fault so divorce is barred)
effects of legal separation
- parties are still married
- parties can decide how to divide marital property themselves (instead of the court doing so)
three main approaches to property division
- community property
- equitable division of all property
- equitable division of marital property
community property
all property acquired during marriage is actually owned one half by each spouse
division is completely equal between spouses
equitable division of all property
division of all property, including separate and marital property
equitable division of marital property
majority approach
each spouse takes his or her own separate property and the marital property is divided at divorce
two step process to property division
- classify the property as either marital or separate
- equitable division of only the marital property (regardless of whose name the title is in)
separate property
all real and personal property owned by a spouse before marriage
Includes:
- assets in retirement accounts
- assets acquired by a spouse (at any time) by gift or inheritance
- property bought with separate funds even during the marriage
- income and appreciation of separate property
- pain and suffering awards
- personal damages
- property acquired after legal separation
marital property
includes property acquired by either or both spouses during the marriage
includes:
- property acquired during marriage
- earnings
- employment benefits (pensions)
- lost wages
- reimbursement for medical bills incurred and paid with marital property
- recovery for damage to marital property
comingling
separate property can become marital if the property is inextricably intertwined -> court can no longer differentiate between marital and separate property
best example: bank account
transmutation of separate property
separate property can become marital based on the intent of the parties
presumption that once a spouse jointly titles property in the other spouse’s name, the property is assumed to be a gift and becomes marital property
improvement of separate property by use of marital funds or by efforts of either spouse
property division
separate property is infused with marital funds or with the efforts of the spouses that results in an increase in value
the marital estate is granted reimbursement for the value added
reimbursement for increase in value added to martital estate regardless of whether it was the spouse improving his own separate property
increase in value of separate property bc of market factors or factors unrelated to the spouses
property division
increase in value would remain separate property
property acquired before marriage but paid for after marriage
property division
courts are split
majority: property is apportioned between the separate and marital estates in proportion to the contribution of funds
inception of title rule
property division
asset acquired before marriage but paid for after marriage remains separate property but half of the marital funds that were used to pay off the property are reimbursed to the non-owning spouse
pensions
property division
marital property if it was earned during the marriage
contributions to the pension **during the marriage **will be marital property
contributions before the marriage will be separate
Greg and Sue both work throughout the marriage for the same
company, which puts 4% of each employee’s income into a 401K
plan that was started the year after they married. Greg makes
much more money than Sue. He has $40,000 in his, and she has
$8,000 in hers.
How will the court divide each interest, if at all?
all funds contributed during marriage so:
- court will add the pensions together ($48k)
- then divide it in half so each gets $24k
- QDRO enforces this when Greg gets access to his pension
professional license or degree
property division
not marital property subject to a division but courts will consider the degree and the other spouse’s contributions to it in awarding alimony
generally, most courts will compensate the spouse who put the other spouse through school in an award of alimony
equitable division
division of property that is not subject to modification
courts consider many factors in making this decision -> any fact that goes to the equities between the spouses can be considered
examples:
- whether distribution of property is additional to or in lieu of alimony
- needs
- custody of minor children
- contribution to marital assets or as a homemaker
- age, education, background
- earning capabilities
- duration of marriage
- dissipation of marital property (wasting marital property)
alimony
aka spousal support or maintenance
money paid by one spouse to the other economically dependent spouse
permanent periodic support
support paid regularly to support a spouse who has neither the resources or ability to be self-sustaining. lasts until the spouse remarries or dies
“Periodic alimony of $2,000 per month to one former spouse until death or remarriage.”
modification of permanent periodic support
upon proof of a substantial change of circumstances
lump sum support
fixed amount payable either all at once or in a series of payments
just the present value of permanent periodic support
The sum of $36,000 paid at a rate of $1,000 per month for 36 months
Rehabilitative Spousal Support
periodic payments for a limited time to enable a spouse to gain skills to become self-supporting -> so that the spouse’s earning capacity can increase
can be ordered along with permanent periodic or lump sum alimony
“Rehabilitative alimony to one former spouse of $1,000 per month for 36 months to gain education or skills.”
modification of lump sum alimony
not modifiable bc the amount due is treated like a contract right and is binding on the payor’s estate
modification of rehabilitative spousal support
can be modified upon proof of a substantial change in circumstances
what happens if the payor dies before paying the entire lump sum?
the amount remaining that is unpaid to the former spouse can be collected from the estate
reimbursement spousal support
awarded to a spouse who supported the other spouse while the latter obtained a professional license or degree
can be ordered along with permanent periodic or lump sum alimony
“The sum of $20,000 as repayment for the supporting spouse’s contribution to the increased education provided to the other spouse.”
modification of reimbursement spousal support
None. Treated as a contract right and can be enforced upon the paying party’s estate
how is the amount of reimbursement spousal support calculated?
based on the supporting spouse’s financial contributions to pay for the other spouse’s education or training that increased the spouse’s earning power
* and the other spouse didn’t get to enjoy the benefit of the increased earning power bc of the divorce
NOT the value of the professional license or degree
which types of spousal support are:
- modifiable
- non-modifiable
modifiable: permanent periodic and rehabilitative spousal support upon a substantial and continuing change in circumstances (usually death or remarriage)
* any voluntary reduction in income is not sufficient to reduce an obligation
non-modifiable: lump sum payments and reimbursement spousal support
some factors considered by the court in awarding alimony
- standard of living during marriage
- duration of the marriage
- age, physical and emotional conditions of both parties
- financial resources of each party
- contribution of each party to the marriage
- time needed to obtain eduation or training
- ability of payor spouse to meet own needs
- maritial fault (some jx)
two most important factors considered by the court in awarding alimony
- needs of the claimant spouse
- ability of the other spouse to pay
termination of permanent periodic support occurs when:
- recipient remarries
- either spouse dies
- most jx: cohabitation with another person
are alimony decrees post 2019 taxable events?
No. Post-2019 spousal support paymetns are not income to the recipient nor are they deductible to the payer (opposite is true for all agreementes executed before 2019)
separation agreements
marital contract entered into by spouses when they are getting divorced or when separating to deal with all financial issues arising bc of their separation by themselves instead of having a court decide
separation agreement requirements for enforceability
- must be executed after marriage
- supported by consideration
- full and fair disclosure of assets
- voluntarily entered into
what can spouses contract about in a separation agreement:
- waive alimony
- waive equitable distribution of property
- ## agree on child custody and child support (but court is not bound by this agreement involving children if not in BIOC)
modification of separation agreements if agreement is merged with the divorce decree
agreement assumes the status of a court judgment
- can be modified and enforced by the court
modification of separation agreements if agreement is NOT merged with the divorce decree
agreement remains a contract and can only be enforced with contract remedies
contracts by cohabitants are valid unless:
sex is the only consideration for the agreement
what is valid consideration for a contract by cohabitants
- giving up a career
- taking care of the home
where is original jx to enter a child support under UIFSA
where the first petition under UIFSA is filed or where another state is the child’s home state
what state’s court has jx to enforce a child support order
under UIFSA
the court that initially issued the order or any other state through direct enforcement or registration
direct enforcement
person receiving child support payments (obligee) can mail the child support order to the obligor’s employer in another state
employer withholds wages based on that order
registration
once the child support order from state A is registered in state B, the order can be enforced in state B
what state court has jx to modify a child support order
The court that issued the controlling child support order has continuing and exclusive jx to modify it
when does the court that issued the controlling child support order lose continuing and exclusive jx to modify it
When no parties reside in the state or the parties consent to jx elsewhere
test to modify child support
substantial and continuing change in circumstance which affects the needs of the child or the ability of the parents to pay
tax consequences of child support orders post 2019
child support payments are not taxable events
how to enforce child support awards
through civil or criminal contempt proceedings
feds can intercept your federal tax refund, retract driver’s licenses, retract professional licenses, etc if you’re not paying child support
wage withholding, seizures of property
what is the purpose of the UCCJEA
used to decide what state should initially order child custody and which state has jx to modify the order
what is the primary test to determine which state has original jx to enter an order of custody
child’s home state test
child’s home state
state where child has lived with the parent for at least six 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 the parent continues to live there
if the child has no home state, what state can have jx over child custody decisions
A court can assume jx if:
- the child has a significant connection with the state and
- there is significant evidence of the child’s well-being in the state
what state has jx to modify an existing child custody decree
the issuing state exercises continuing and exclusive jx to make modifications
when does a state lose continuing and exclusive jx to over a child custody order
if no parent or child continues to reside in the state or the child no longer has a significant connection with the state
grounds for a court decling to exercise jx over a child custody case
- court can say they are not a conveinent forum
- ## if a parent has enaged in unjustifiable conduct (parent took kid and took kid to a new jx to get a better child custody order)
when can a court exercise temporary emergency jx
- if the child is physically present in the state
- the child has been abandoned, or
- if jx is necessary to protect the child, sibling, or parent from abuse
what is the standard applied in awarding custody and visitation
best interest of the child
factors the court considers in BIOC
- parents’ wishes
- who the child prefers to live with (ages 12+ are given greater weight to their preference)
- child’s relationship with siblings and other family members
- child’s adjustment a move
- mental and physical health of the parties
- who is the primary caregiver of the child
talk about any fact that would affect the BIOC
joint custody
joint legal custody and physical custody
joint legal custody
joint decision making authority between the two custodians for the child
joint physical custody
actual possession and control of the child
when can sole custody be awarded?
can be awarded to one parent if there is strong evidence that demonstrates that sole custody is in the BIOC
when can custody to a nonparent be awarded?
if the nonparent shows:
- harm to the child if child is left with parents or
- a general parental unfitness, abandonment, neglect, abuse, or surrender of custody
visitation
access to the child granted to the person who is not granted custody
If a person has custody, he has no visitation. If a personal has visitation, he does not have custody.
standard to modify a child custody order
always modifiable if in BIOC
Party seeking modification must prove a substantial and material change that affects the child’s well-being
only affects the parent -> not enough to modify custody
parentage action
action to establish a biological relationship and settle issues of paternity or maternity
when are unwed fathers protected by the due process clause (can have rights to parentage)
if the father demonstrates parental responsibility
- assisted in raising the child
- education of child
- supervising child
