Family Law Flashcards
Marriage & Limitations on Who Can Marry
Marriage is the legal union of two individuals; the law imposes various legal obligations and liabilities on the parties.
Limitations on marriage:
>Age - most states impose a minimum age requirements, usually 18, before a person can consent to marriage
»Some states allow minors to marry if there is parental consent or judicial approval
>Consanguinity - people who are too closely related are prohibited from marrying each other
>Capacity - each party must have the ability to comprehend and voluntarily consent to the marriage
»Physical capacity - in many states, marriage is voidable if one party is physically unable to consummate the marriage and the other party was unaware of the physical condition
>Bigamy/Polygamy - no person may marry who has a prior undissolved marriage to another living spouse
»Exceptions:
»>i. Removal of impediment - under the Uniform Marriage & Divorce Act (“UMDA”), a bigamous marriage can be validated upon the removal of the impediment (i.e., when the prior marriage is terminated)
»>ii. Presumption of validity - under the presumption of validity, the last of several marriages is presumed valid, which may be rebutted by evidence that the prior marriage(s) still persist
Requirements to Marry
Procedural and state-of-mind requirements exist for a valid marriage.
Procedural requirements - most states require both a license and solemnization (i.e., ceremony)
1) License - obtained from appropriate govt.-designated licensing officer prior to solemnization; then
2) Solemnization - conducted by an authorized clergy member or judicial officer
>License must be completed/signed by person who solemnized the marriage and filed with the appropriate govt. office
»Creates a public record of the marriage
State-of-mind requirements - both parties must consent to marriage, meaning they each intended to take on the obligations of marriage
>Factors - in evaluating consent, courts look at:
»Capacity - partiesm ust have capacity to understand and agree to their actions (e.g., one under the influence of drugs or alcohol may lack capacity to enter into marriage)
»Intent - parties must intend to enter a marriage relationship on their own free will (i.e., fraud, dures,s coercion, etc. will negate the consent requirement)
Common Law Marriage
In a common law marriage, a couple is legally considered married without having registered or performed legal requirements for marriage
>Abolished in most states
Requirements - where recognized, a common law marriage is established by:
1) Consent - exchange of consent between two people;
»Must be consent to be in a permanent, exclusive relationship; agreement to cohabitate alone is insufficient
2) Cohabitation; and
3) Holding out publically as spouses living together - e.g., joint bank account, same last name, telling people they are married
Recognition - though largely abolished, if a valid common law marriage is formed under one state’s laws, it is regarded as a valid marriage in other states, even those where common law marriage is illegal
Premarital Agreements
Premarital agreements are Ks that provide for distribution of assets upon divorce or death in a way that varies from what the law would otherwise require
>Marriage is considered sufficient consideration to support the K
>Uniform Premarital Agreement Act (“UPAA”) - adopted by most states; provides rules as to what parties may include in the K
Requirements:
1) Writing - must be in writing to satisfy Statute of Frauds (“SoF”)
2) Voluntariness - must be enetered into voluntarily (i.e., without fruad, duress, overreach)
3) Full & fair disclosure - both parties must fully and fairly disclose their financial worth
Amendment - may be revoked or amended by written agreement signed by both parties; amendment is enforceable without consideration
Enforcement - courts strictly scrutinize premarital Ks under the Uniform Premarital Agreement Act (UPAA)
>Scrutiny focuses on voluntariness and full and fair disclosure requirements, as well as whether terms are unconscionable or waived
>Whether parties were represented by legal counsel may be a factor, and is required in some states
Child custody provisions - not binding, and void in some states
Property & Support Rights & Responsibilities
Before and during marriage, each spouse owns and controls their own property, but property acquired during marriage may become owned as tenancy by the entirety
Tenancy by the entirety - in many states, where spouses take real property jointly, a tenancy by the entirety is presumptively created
>If marriage is dissolved, parties hold property as tenants in common
Support - each spouse has an obligation to support the other, and one spouse may be held liable for another spouse’s purchases
>I.e., under agency principles, one spouse can be held liable to third parties for purchases made by the other spouse where expressly or impliedly authorized
Necessaries doctrine - one spouse may be held liable to creditors for necessaries purchased by other spouse
>E.g., food, medical care, shelter, clothing, etc
Annulment
Annulment is a judicial declaration that the marriage was invalid due to some impediment at the time of marriage and, therefore, never occurred
>A marriage can be annulled if it is void or voidable (a distinction that varies by state)
Grounds for annulment - considered voidable unless otherwise noted:
>Bigamy of polygammy - marriage is considered void
>Consanguinity - marriage is considered void
>Non-age - one spouse under statutory age at the time of marriage
>Incurable physical impotence - inability to have normal sexual relations
>Incapacity to consent - lack of capacity to consent to marriage can be due to:
»Mental incompetence (did not understand due to, e.g., mental infirmity, drugs, alcohol)
»Fraud or duress
Spousal support - many states allow for temporary support during the annulment suit, although fewer states allow for spousal support following an annulment
Division of property - most courts attempt to divide property in such a way that puts parties in the position they were in before the marriage commenced
Divorce
A divorce decree terminates the marriage relationship
>Fault v. no-fault - traditionally, divorce required proof of fault; while some states retain fault grounds, every state offers a form of “no-fault” divorce, which is what is dicussed unless otherwise noted
Grounds for divorce - can be any or all of:
>Irretrievably broken (a.k.a. “irreconcilable differences”) - most common ground and the only ground in some states (in such states, the two additional factors below are merely evidence of an irretrievably broken marriage)
>Living separate - parties have been living separate and apart for a given time
>Incompatibility
Defenses - defenses to divorce exist in some states, but a court will not force a marriage to continue if one party wants a dissolution
Separation - a legal parting that does not terminate the marraige
>Not a divorce and does not terminate marriage; parties cannot remarry
>Parties seek to have rights regarding property, spousal support, custody, child support, etc. determined in a separation proceeding
>Can become an absolute divorce in some states at the request of the parties after a specified period of time
Jurisdiction Over Annulment & Divorce
Jx over marriag actions is vested in state courts
Annulment - a state where either party is domiciled has jx to enter an annulment decree
>Most states also give jx to the court in the state where the marriage was entered into and recognized
Divorce:
>Residency requirement - the establish jx over a divorce, one or both parties must be domiciled in the jx where the action is brought
»Some states require a minimum durational residency before the action can be filed; designed to prevent forum shopping
>Full Faith & Credit Clause (“FFCR”) - under the Constitution’s FFCR, a divorce decree obtained in one state is recognized in other states as long as one or both parties was domiciled in the state that granted the decree
Marriage vs. marital property - a court does not have jx to determine rights to property located outside the state or support decrees unless it has jx over both parties
Division of Property Overview & Approach
When property is divided upon marriage dissolution, there are two main approaches used, depending on the state
Approaches:
1) Equitable division of marital property - each spouse takes their separate property and the court divides property acquired during marriage on an equitable basis
»Most popular approach - assume this approach for MEE purposes unless provided otherwise
2) Community property - property acquired during the marriage is 50-50 by each spouse, unless acquired by gift or bequest then it is considered separate property
Approach to property division - courts will do the following:
1) Categorize property - classify property as marital or separate
2) Determine equitable distribution of marital property - distributed between spouses based on relevant factors
»Note - if asked to divide marital property, make sure to discuss the approach and how it works, then how the relevant factors will influence how the court would divide the property
Modification - property distribution decrees are generally not modifiable in most states
Categorizing Property (Separate vs. Marital Property)
In categorizing property, courts must distinguish between separate and marital property
Separate property - generally includes:
>Before marriage - property acquired before marriage by either spouse
>By gift or bequest - property acquired by gift, bequest, devise, or descent (i.e., family money) during marriage by either spouse
>Separate property proceeds - property acquired with separate property proceeds by either spouse
>Appreciation b/c of time - appreciation of separate property due to passage of time (as oppsed to efforts of either spouse)
Marital property - generally includes all property acquired during marriage that is not separate property, regardless of who holds title
>Appreciation b/c of effort - appreciation of separate property due to efforts fo either spouse is usually marital property
>Pensions - portion earned by one spouse during marriage is considered marital property
>Professional license or degree - in some states reimbursement may be ordered if one spouse provided support that contributed to the other spouse’s degree or license
Commingled property - separate property that is enextricably mingled with marital property or separate property of the other spouse can become marital property
Distribution of Property
Once a court categorizes property as separate or marital, it equitably distributes marital property between both spouses
>Courts have significant discretion in determining equitable distribution
Factors - courts look at all relevant factors concerning how marital property was accumulated and each party’s needs going forward, including:
>Income, educational/vocational skills, employability of each party;
>Duration of the marriage;
>Standard of living during the marriage;
>Assets, debts, and liabilities of the parties;
>Obligations for support arising out of a prior marriage;
>Contributions made by each spouse towards accumulation of marital property (including contributions to the home/household);
>Needs of the parties;
>Provisions for custody of minor children;
>Whether distribution is in lieu of alimony/spousal support; and
>Health of the parties
Fault as a factor - marital fault of either spouse is not a relevant factor
Note - if a question asks you to divide property, be sure to utilize facts of the question in discussing relevant factors
Spousal Support
Spousal support (a.k.a. “maintenance” or “alimony”) can be awarded if a spouse’s separate property is insufficient for maintenance
>Discretion - courts have significant discretion in determining whether and to what extent to award spousal support; needs are determined under the totality of the circumstances
>Purpose - ensures sufficient income for a spouse who became economically dependent, in whole or in part, due to the marriage relationship
>Terms - can be awarded short-term or indefinitely, and as a lump sum or periodic payments
Types of spousal support - Permanent Periodic Spousal Support, Rehabilitative Spousal Support, Lump Sum Spousal Support, and Reimbursement Spousal Support
Factors - relevant factors to determining spousal support include:
>Financial resources of each party
>Standard of living established during the marriage
>Time necessary for party seeking support to obtain employment
(including education and training)
>Contribution of each party to the marriage, including childcare, career support of the other spouse, contributions to the home, etc.
>Ability of the spouse paying support to meet their own needs
Marital fault - martial fault (e.g., infidelity) is not a relevant factor in most states
Child Support
Both parents have an absolute duty to support their children
Guidelines & forumlas - each state has guidelines to determine the proper amount of child support owed
>Guidelines are usually based on a formula that considers number of children, their ages, healthcare needs, any special needs, and parents’ incomes
>Time share - how much time the children live with each parent - is also a factor
Duration - child support obligations generally last until the child reaches the age of majoirt or is otherwise emancipated
Independent from visitation rights - custodial parents cannot deny visitation rights based on a parent’s failure to make child support payments
Jurisdiction - full faith and credit is given to child support orders issued in other states as long as the issuing court had proper jx (personal jx required) and the parties had reasonable notice and an opportunity to be heard
>The issuing court has continuing exclusive jx to modify the order if the child or one of the parties resides in-state (unless parties have moved out of state but consent to the issuing court’s ongoing jx)
Child Custody & Visitation Rights
Types of custody:
>Legal custody - right to make major decisions affecting the child’s life
>Physical custody - possession and control of the child
>Joint custody - can be either or both of:
»Parents share decision-making but child lives with one parent
»Child divides time between each parent’s home
Custody factors - in determining custody, courts focus on the child’s best interests, looking at multiple factors, including:
>Parent’s wishes;
>Child’s wishes (given more weight if child is older, but significantly less weight for young children, i.e., under age eight);
>Ability and willingness of each parent to provide for child’s needs;
>Interaction and interrelationship of child with parents, siblings, and others who affect the child’s best interests; and
>Child’s adjustment to home, school, and community
Visitation - when one parent is granted sole physical custody, the other parent is entitled to visitation
>Exception - visitation rights may be denied if court determines it would endanger the child’s wellbeing
>Non-parents - may be given visitation rights if:
»i. The non-parent has a substantial relationship with the child; and
»ii. Non-parent visitiation is in the child’s best interests
»>Fact finder must give special consideratio to the wishes of fit parents regarding visitation rights
Modification of Support & Custody Decrees
Once a court enteres a decree regarding spousal support, child support, or child custody, the decree generally is only modificable upon a showing of significant change in circumstances
>Significant change in circumstances required - standards differ slightly for each, but if modification arises on the exam, look for and note any significant change in circumstances
Spousal support - changing a support award requires a substantial, material, and unanticipated change in either party’s circumstances
>Self-induced changes - generally will not justify modifying a support order (e.g., party cannot voluntarily take a lower-paying job and get reduced support obligations)
Child support - child support orders are modificable based on a substantial change in circumstances that affects either:
>a) The needs of the children, or
>b) The ability of the parent to pay
»Self-induced changes - same rules as for spousal support
Child custody - modification of a child custody order requires the parent to show a substantial, material change in circumstances
>Courts will not change a custody order unless the change is in the child’s best interests
