family law Flashcards

1
Q

requirements to be married (cars)

A
  1. capacity to consent
  2. of marital age (or with judicial or parental consent)
  3. not closely related to other person
  4. single
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2
Q

Common law marriage requirements

A
  1. capacity to enter into a marital contract
  2. present agreement to be married
  3. cohabitation
  4. holding out a martial relationship to the community
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3
Q

recognition of marriage in other states and bigamy

A

marriage valid under hte law of hte place in which it was contracted will be valid else unless it violates a strong public policy of hte state that has the most significant relationship with the spouses

bigamy. bigamous marriage void from beginning. 2 marriage saving doctrines - presumption that most recent marriage is valid. removal of impediment (divorce) will render subsequent marriage valid

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4
Q

doctrine of necessities

A

a creditor may recover from the non-purchasing spouse on ad ebt that the purchasing spouse owes for necessaries furnished by the creditor

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5
Q

family privacy doctrine and spousal/intra family tort immunities

A

family privacy - disputes of intact families are treated by courts as private matters that should be resolved at home. this does not extend to parental decisionmaking that endangers the child.

spousal immunity - at common law, spouses could not sue each other. this has been mostly abolished.

intra-family tort immunity - members of a family could not sue each other. abolished in most states.

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6
Q

no-fault divorce

A

irreconcilable differences, and
a minimum period of separation (usually one year or less)

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7
Q

at-fault divorce

A

proving fault can increase alimony or property division award. grounds:
adultery, desertion without reasonable cause, cruelty, addiction, mental illness, felony conviction.

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8
Q

annulment

A

marriage void or voidable, invalid from date of inception. reasons for annulment:
1. fraud (in the essentials of marriage, ie, sex)
2. inability to consummate marriage
3. not allowed by law,
4. duress

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9
Q

putative spouse doctrine

A

spouse can seek divorce like remedies when an annulment is granted so long as there was a marriage ceremony and good faith belief in the marriage

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10
Q

custody determinations

A

best interest of the child:
1. child preferences
2. parents religious faith (court cannot pick one faith or other, but can inquire into religion if it damages children)
3. any other factor relevant to the child

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11
Q

kinds of child custody

A

physical/legal, joint/sole.
physical is right of parent to have child live with them.
legal is decisionmaking power.
joint is cooperative parents,
sole is when only one has it (usually when one is unfit)

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12
Q

when can you modify custody?

A

substantial change in circumstances

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13
Q

child support guidelines

A

reubttable presumption that the award that results from applying the guideliness is correct.

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14
Q

modification of child support

A

must show a substantial change in circumstances
1. significant involuntary income reduction would warrant relief.
2. voluntary reduction approach 2 ways: refuse to modify is shift was voluntary, multi-factor - see whether reduced party had good faith

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15
Q

retroactive modifications of child support

A

absolutely forbidden absent circumstances like fraud

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16
Q

relocation of parent and child approaches

A
  1. relocating parent must show the move is in the child’s best interest
  2. the objecting parent must show the move is not in the child’s best interest.
  3. a parent may relocate with the child unless the parent is vindictive
17
Q

parents rights to make decision

A
  1. fit parents decisions, including religious upbringing and medical care, must be given some deference
  2. a parents decision can be limited if it jeopardizes teh childs health or safety or has potential for significant social burdens
18
Q

father rights

A
  1. biological fathers generally do, with due process. establishing paternity statutes are usually upheld. required to support child even if did not want
  2. right of parent when another wants to adopt: must show a full commitment to the responsibilities of parenthood.
19
Q

grandparent/third party rights

A

if there is a custody contest bt third party and parent, custody in parent is presumed to be in best interest. to rebut, Third party must prove:
1. parent is unfit, or
2. granting custody to parent would be highly detrimental to a child

20
Q

2 approaches to property division

A
  1. majoirty approach - court divides all marital assets but not separate
  2. minority hotchpot approach - all assets are divided.
21
Q

what is marital v separate property

A

marital = any proeprty acquired during marriage, title does not control. (a home acquired during marriage, lottery winnings, debts acquired, etc)
separate = property acquired before marriage, inheritance, or gift.

22
Q

when will a court uphold a premarital agreement

A

court will enforce as long as:
1. voluntarily made,
2. substantively fair, and
3. full disclosure of assets and obligations were made.

court will not enforce an agreement regarding child custody or support if it is not in the best interest of the child.

23
Q

cohabitation agreement and property division

A

cohabitatnts agreeing to divide property a certain way is allow as long as agreement does not involve the explicit exchange of money for sex.

24
Q

division based on settlement agreement (marriage)

A

may be set aside based on fraud, overreaching, or duress, that results in a substantively unfair agreement.

25
Q

types of alimony

A
  1. permanent alimony (long marriage, long gap between each parties economy prospects. does not end until death, remarriage, etc)
  2. temporary alimony
    look at parties financial resources and needs, marital contributions and marital duration. TC has substantial discretion
26
Q

modificaiton and termination of alimony

A

modification: substantial and unanticipated change in circumstances
termination of alimony: death of either spouse, or a specified time has elapsed, or if there is a remarriage of the spouse receiving alimony

27
Q

Jurisdiction over divorce

A

Court only needs jurisdiction over one party. however, unless it has jurisdiction over both, it cannot issue a bidning order affecting personal rights, such as property divison or spousal support.

28
Q

jurisdiction to modify child support order

A

the state originally isssuing the order has continuing and exclusive jurisdiction to modify the order if
a. the obligee obligor, or child resides in teh state, and
one party does not consent to another forums jurisdiction

29
Q

home state test for child custody

A

the childs home state has exclusive and continuing jurisdiction to issue and modify a custody order unless more than six months have elapsed since hte child’s departure from teh state
2. a home state is the state where teh child lived with a parent or person acting as a parent for a t least six consectutive months immediately before child custody proceeding commences

30
Q

significant connections test:

A

if a child has no home state, a state may exercise jurisdiction based on significant connections with the child and least one parent, and the evidence of substantial evidence relating to child custody in the forum jurisdiction.

31
Q
A