Family Law Flashcards
property division at divorce
at divorce, courts divide marital property between spouses pursuant to state law. Some
states follow the community property approach; however, most states have adopted the equitable distribution approach for division
Separate property
Separate property generally includes:
(a) All property acquired by either spouse BEFORE marriage;
(b) All property acquired by a spouse during marriage by gift, bequest,
devise, or descent;
(c) All property either spouse acquires with the proceeds of the spouse’s
separate property; AND
(d) All passive appreciation of separate property (appreciation in value due
to the passage of time rather than the efforts of either spouse).
When can a gift be marital property?
Joint gift to both spouses
Marital property
Marital property generally includes all property acquired
during marriage (regardless of who holds title) that is NOT separate property.
Active appreciation (appreciation in value due to the efforts of either spouse) of
separate property is usually categorized as marital property.
Professional Degrees
In almost every state, professional
degrees and licenses are considered separate property not subject to
distribution at divorce. However, reimbursement may be available for
any support provided by a spouse that contributed to the other
spouse’s degree or license.
Factors considered for distribution
1) income, property, of each party
2) duration of marriage
3) obligations for support arising out of prior marriage
4) lifestyle
5) contributions made by each spouse
Marital “Fault” in distributions
In most states, the marital “fault” of either spouse (e.g., adultery) is NOT
a factor considered in the division of marital property.
Modification of Property Division
Generally, courts may NOT modify a property division award (whether it results from a
divorce settlement agreement or judicial determination) UNLESS exceptional
circumstances exist (e.g., fraud).
Spousal Support
The purpose of spousal support is to ensure an adequate income stream for the spouse whose economic dependency has resulted, at least in part, from the marital relationship
Marital Fault and Alimony
Some states will consider marital fault when awarding alimony. In others, alimony is not based on marital fault.
Factors court considers for spousal support
1) standard of living during marriage
2) duration of marriage
3) age and physical or emotional conditions of both parties
4) financial resources of each party
5) contribution of each party to marriage
6) time needed to obtain education or training
7) ability for payor spouse to meet his needs while paying spousal support
Permanent spousal support
Permanent spousal support is awarded to a spouse who has neither the resources nor the ability to be self-sustaining
Temporary spousal support
More likely to be awarded when a spouse has the sources to enter the profession and have their own profession
Modification of Spousal Support
In most states, a spousal support order can only be modified when there is a substantial
change in circumstances of either party making the prior order unreasonable. Under
the UDMA, a modification of spousal support is allowed only upon a showing of changed.
Some courts will not permit modification if the change in circumstances was anticipated or voluntary.
State court jdx over Child Support
The state that originally issued the child support order has continuing exclusive jurisdiction to modify the order so long as that state remains the residence of the
obligee, child, or obligor (i.e., no other court can attempt to modify a child support order if the obligee, child, or obligor remains a resident of the state that issued the
order).
Standard for Child Custody
courts determine child custody based on the best interests of the child. A parent’s misconduct (e.g., adultery) generally may NOT be considered unless it causes significant harm to the child.
Federal law requirement for modification of child support
Requires states to give full faith and credit to child support awards from other states.
Factors considered for Child Custody
1) needs of the child for a meaningful relationship with both parents
2) ability and willingness of the parents to actively perform their functions
3) interaction of child with parents
4) adjustment to child’s home
5) mental and physical health of all individuals
6) intention of either parent to relocate the child
7) wishes of parents and child
Parental Visitation rights
When one parent is granted custody of a child, the other parent is usually always
entitled to visitation rights UNLESS the court determines that visitation would seriously
endanger the child’s wellbeing
Third Party Visitation Rights
Court may order visitation for a non parent if:
- in the best interest of the child
- non parent has a substantial relationship with the child
Joint Custody
Generally, a court must determine that joint
custody is in the child’s best interests in order to award the parents joint custody. Thus,
joint custody is usually only an option for cooperative parents, as it may be harmful to
the child if the parents are hostile toward each other.
Modification of Child Custody
In order to modify a child custody order, the parent must show that:
(1) Circumstances have substantially changed; AND
(2) The modification would be in the child’s best interests.
State jurisdiction over child custody order
The state that issued the child custody order has continuing exclusive jurisdiction to
modify the order so long as that state remains the residence of any party involved.
Moving the Child
Most courts will permit a custodial parent to move the child is in 1) best interest and 2) motives are not vindictive
Express Contacts for Cohabitants
In most states, an express agreement (written or oral) between unmarried cohabitants to share property or otherwise engage in forms of economic sharing is enforceable, so long as the economic sharing is NOT intended as payment for
sexual services.
However, some states refuse to recognize such contracts between unmarried cohabitants as against public policy.
Paternity Actions
Paternity actions typically arise when a man wishes to avoid child support obligations by
denying paternity of the child. A mother or government agency may bring a paternity
action to establish the father’s paternity. Once paternity is established, the law imposes
all rights, privileges, duties, and obligations on the father.
Presumption of paternity
Under the UPA, a man is presumed to be the father of the child if:
(1) He and the child’s mother are or have been married to each other and the child
is born during the marriage, or within 300 days after the marriage is terminated;
(2) Before the child’s birth, he and the child’s mother attempted to marry in
apparent compliance with law, although the attempted marriage is or could be
declared invalid, and the child is born during the invalid marriage or within 300
days after its termination; OR
(3) While the child is under the age of majority, he receives the child into his home
and openly holds out the child as his own.
(4) NOTE. A presumption of paternity under the UPA may only be rebutted by clear
and convincing evidence.
Parens Patriae
Under the parens patriae authority of the state, a state can intervene
to protect children when their parents deny them needed medical care (usually based
on abuse or neglect grounds).
Parents Right to Direct Child’s upbrining
Parents have a fundamental right to direct their child’s upbringing, which includes
a right to control their child’s religious education. Generally, courts will not interfere
with parental decisions regarding their child’s upbringing and education UNLESS the
child’s wellbeing is endangered.
Duration of Child Support:
1) age of majority/ 18
2) death of child
3) emancipation of child
4) termination of parental rights
Adoption
Generally, consent of the child’s natural parents is required. But parental consent is not necessary if parental rights were terminated.
Involuntary termination of parental rights
- infliction of serious physical harm
- Abandonment
- Neglect
- Failure to provide support
- Mental health of parent
- Unfitness (drug abuse, etc.)
Requirements for adoption
1) termination of biological parent rights
2) creation of adoptive parents rights
Waiver of parental consent requirement for adoptions
Parental consent requirement can be waived if the court concludes it is being unreasonably withheld against the best interest of the child. A non consenting parent is entitled to notice of the hearing and an opportunity to be heard.
Consequences of adoption
Termination of biological parents rights and creation and adoptive parents rights.
Some states say that adopted child can still inherit from biological parent.
Assisted Reproduction
UPA: Uniform Parentage Act
Many states have not yet adopted the Act; therefore, it is best to discuss both general legal principles and the UPA if a question does not specify the law of the particular jurisdiction.
Parent Child Relationship for Assisted Reproduction
Under the UPA, the parent-child relationship is established between an individual and a child by: (STATE LAWS CAN CHANGE THIS!)
Adoption by the mother
A husband who is married to a woman who has a child through assisted conception is the child’s father unless he proves his lack of consent within two years after birth
Sperm Donor Rights
If a gamete provider consented in writing that their gametes could be used after death to conceive a child, that child can be considered the child of a deceased parent.
Surgacy Agreement Requirements
1) Must be in writing and approved by court
2) be voluntary
3) Any consideration must be reasonable
If unenforceable, gestational mother is the mother of the child
If agreement is enforceable: intended parents must file notice of birth and court will issue an order of parentage
Gifts in comptemplation of marriage
Subject to condition of marriage, so if dont get married, condition is failed and K is void
Requirements for valid premarital agreement:
- In writing and signed
- Entered into voluntarily (if night before wedding, duress)
- Full disclosure of assets or independent knowledge of assets
UPAA Rule on Prenup
UPAA: Agreement was unconscionable? Then analyze full disclosure of assets
Requirements of Ceremonial Marriage
1) license
Failure to meet procedural requirements of license do not invalidate the marriage
2) ceremony with authorized officiant
3) no legal impediment
A. Cant be too closely related (family up and down, siblings)
First cousins can sometimes marry depending on state
Second cousins are NOT too closely related
B. Can’t be married to someone else (bigamy)
4) capacity to consent at time of ceremony
Alcohol, drugs, age (18+ has capacity)
Minors and marriage
In nearly every state, persons must be 18 years of age to marry. However,
some states allow 16 or 17 year olds to marry with parental consent or judicial approval.
Common Law Marriage
Most states have abolished common law marriage. In jurisdictions that recognize
common law marriage, the proponent of the marriage must prove that the parties:
(1) Cohabitated (i.e., lived together) for the statutory period;
(2) Held themselves out as married; AND
(3) Intended to be married.
Doctrine of Necessaries:
3rd party can go after other spouse for necessaries/medical bills even if separated
annulment
Annulment is a judicial declaration that a marriage never existed and was invalid from
when the parties entered into it. A marriage can be annulled if it is void or voidable.
Void Marriage for Annulment
Ex. Bigamy, too closely related, already married to someone else at time of being married - no legal action needed
Voidable marriage for annulment
Valid until declared null
Ex. age, capacity, duress, fraud (shotgun weddings)
Can only be attacked by party to marriage, no collateral attacks
ONLY the person who is suffering from lack of consent
Remedy for Voidable marriages
CAN be remedied/ratified by continually living together when impediment removed (had the ability to consent)
effect of an annulment
marriage set aside as if it never existed
Jurisdiction for divorce
one spouse must be domiciled in the state:
1) residence
2) intent to remain
Multiple divorce filings
First to file does not matter. It is possible for multiple states to have jdx over a divorce, and multiple causes could proceed until one court renders a judgment causing the other to lose SMJ
BUT, whichever court comes to a judgment first is binding. The other one is moot now, because marriage is gone.
Grounds for Divorce - No fault
No fault
Irreconcilable differences
Living separate and apart (unilateral decision or bilateral)
Incompatibility
Grounds for Divorce - Fault
Adultery (generally proven through circumstantial evidence)
Proving opportunity and inclination. Corroboration is often required
Desertion (abandonment)
Departure has to be unjustified with NO intent to return
Cruelty (extreme physical or mental cruelty)
Habitual drunkenness or drug abuse (has to commence after marriage)
Insanity
many states have completely abolished fault as a ground for divorce
3 approaches to dividing property at divorce
1) Community Property: All property acquired during the marriage
is deemed owned one-half by each spouse, and all property
brought into the marriage or acquired by gift or bequest is sepa-
rate property
2) Equitable Division of all property: The court divides all property
owned by either spouse, whether acquired before or after the
marriage
3) Equitable Division of marital property: Each spouse takes their
separate property, and the court only divides the property acquired during the marriage
2 step process for division after divorce
1) classification
2) division
termination of spousal support
Recipient remarries
Either spouse dies
Most jdxs: cohabitation with another
modification of spousal support
Permanent and Rehabilitative: Modifiable upon substantial change in circumstances
Not that you were a lawyer and want to be a florist
Lumpsum and reimbusement: nonmodifiable
