Family Law Flashcards
Damages for Breach of Promise to Marry
tort damages for actual damages
AND
mental anguish and loss of reputation
(mostly abolished)
Requirements to Form Pre-Nuptial Agreements
(1) in writing and signed
(2) entered into voluntarily (no fraud, duress, overreaching, etc)
(3) full disclosure of assets OR independent knowledge of assets so you know what you’re waiving
NOTE: youre only going to consider factor #3 if court finds the agreement unconsionable - otherwise you’ll never look at it
UPAA: couples can agree to
(1) keep property separate
(2) waive spousal support (unless those waivers will render the spouse a public charge)
courts are NOT bound by provisions re child custody/support bc not in BIOC
governing law for premarital contracts
the state law of the state with the most significant connections
OR
where the contract was executed
What are the Methods to get Married
(1) Ceremonial Marriage
(2) Common Law Marriage
(3) Marriage by Estoppel
Ceremonial Marriage Requirements
(1) License (waiting period and no diseases) - failure here won’t invalidate marriage
(2) Ceremony w officiant
(3) No legal impediment to wed (i.e. bigamy, close relation etc)
(4) Capacity to Consent at the time of the ceremony (check for drugs, alcohol, age, or parental/judiciary consent)
Common Law Marriage Requirements
(1) consent to marry not just consent to cohabitate
(2) Capacity + no Legal impediment
(3) cohabitation
(4) hold out as spouses (check for legal documents and community recognition)
Marriage by Estoppel (Putative Marriage)
Equitable remedy to invalid marriage, used to protect innocent party and provide benefits (i.e., get married then find out that spouse is married to someone else, this gives you marital rights)
Enter in good faith
What are the Marriage Relationship Rights and Obligations (General)
Property
Obligation to Support
No spousal Abuse
Tortious Interference w Marraige
Tortious Interference w Marriage (generally)
claim against 3P regard tort affecting the marriage (heart bomb
Marriage Relationship Right to Property
own and control in own name, but not dispositive during divorce to divide proeprty
Marriage Relationship Obligation to Support
liable for the “necessaries” i.e. purchases for food clothing medical care etc
“Marriage Relationship “No Spousal Abuse”
state statutory protections can grant protective orders ex parte
Name the Tortious Interference w Marriage Claims
Alienation of Affection
Criminal Conversation
Alienation of Affection
(1) general love and affection
(2) valid marriage
(3) alienation
(4) D caused the loss/alienation
NOTE: doesn’t have to be adultery, it can be an in-law’s fault
Criminal Conversation Elements
(1) Valid Marriage
(2) Adultery during the marriage
Annulment Definition
applies to invalid marriages only - if your marriage was valid you’d need a divorce to end it.
Annulments are available for void and voidable marraiges
Void Marriage
*Utterly null and don’t need to bring a case
* Can be attacked by third party like IRS, insurance, etc.
* Some states permit remedy if continuing to live with someone after impediment is cured (other states say have to remarry once impediment is gone)
* Examples: Bigamy; Too closely related
Voidable Marriage
*Valid until nullified
* Consent Issue (i.e. were on drugs)
* No collateral attack by third parties (sometimes only the one suffering lack of consent)
* Remedy re ratification
* Examples: Nonage, Lack of Capacity (influence, mental infirmity, duress), Impotence, Fraud affecting essential element of marriage (pregnant by another man)
Effect of Voidable Marriage
children are marital children
but never married re property
Divorce - Jursidiction
Jurisdiction over the divorce: only one (at least) party seeking divorce is domiciled in the state; if in place for “residing period” then domiciled. First to file is irrelevant. Possible more than one state has jurisdiction.
* If suing re financial matters then need jurisdiction over both
No Fault Divorces
(1) don’t want to litigate any fault
(2) proof of irreconcilable differences (Agree)
(3) separate and apart for stat. period (unilateral is longer; bilateral is shorter)
(4) incompatible
Fault Divorces (General - no elements)
(1) Adultery
(2) Desertion
(3) Cruelty (mental or physical)
(4) habitual drugs/drinking
(5) insanity
Defenses to No-Fault
reconciliation restarts the clock
Defenses to Fault
(1) Collusion
(2) Connivance Consent to Conduct (swingers) - Absolute Defense
(3) Condonation - knowledge of offense + forgiveness
(4) Recrimination (unclean hands)
Fault: Adultery
Fact driven inquiry, requires proof by circumstantial evidence of:
(1) opportunity
(2) inclination or propensity
Fault: Desertion
unjustified abandonment AND no intent to return (asked to come home and they refused)
Fault: Cruelty
proven physical or mental cruelty via pattern or practice
Legal Separation
divorce of bed and board - permitted on same divorce grounds
still married and property division can occur
Name the Division of Property Approaches
(1) community property (equal division marital property)
(2) equitable division of all property (individual and marital)
(3) equitable division of marital property
Separate Property
(1) all real and personal property owned before marriage
(2) property received at any time because of a bequest, gift, devise, inheritance
(3) property acquired during marriage in exchange for separate property (i.e. purchased w own funds)
(4) income from and appreciation of separate property (remains separate property)
(5) pain and suffering awards (personal injury award) - damages paid for marital estate; future lost wages
(6) property acquired after marriage/final legal separation
Marital Property
(1) Acquired during the marriage by either spouse (ends either date of separation or the date of filing a divorce)
(2) Earnings (even if it’s the sole wage earner)
(3) Vested and/or Unvested stock options/fringe benefits re employment or pension
(4) Replacement Damages – (a) lost wages (b) medical bills paid with martial property and (c) damages re dam marital prop
Special Classification Issues (General)
(1) Commingling
(2) Transmutation
(3) Improving Separate Property
(4)Acquired before the marriage but paid with funds from after the marriage
(5) Pensions
(6) Licenses and Degrees
Equitable Division of Marital Property Rule
After classification, the court will make an equitable judgement of property division. Once entered, this judgment is final and not subject to modification. Court will consider numerous equitable factors when awarding.
Equitable Division of Property Factors
(1) Age, education, background, earning capabilities
(2) Standard of living during the marriage
(3) Duration of marriage (short then back to the OG)
(4) Present income and employability
(5) Source of funds
(6) Health of parties
(7) Assets, debts, and liabilities
(8) Needs
(9) Custody of minor children
(10) In Lieu/Alimony (considered together)
(11) Opportunity to acquire future income and assets
(12) Contribution to marital assets
(13) Contribution as homemaker
(14) Economic Fault (Dissipation of marital property – martial fault won’t affect division of property, but it will for alimony)
List the Alimony Types
(1) Permanent Periodic Support
(2) Lump Sum
(3) Rehabilitative
(4) Reimbursement
Permanent Periodic Alimony Rule
paying X amount per time period until they remarry or die (can be increased, decreased, or terminated upon substantial change in circumstances)
Lump Sum Alimony Rule
can be paid overtime, but high acrimony cases so they can obtain certain amount at time. Final no modification. Binding on estate
Rehabilitative Alimony Rule
support used to rehabilitate spouse so their earning capacity can increase (like helping them finish a degree)
- in conjunction w periodic permanent/lump sum
- for specified purposes
- modifiable
Reimbursement Alimony Rule
when one spouse pays for the other to get a degree but doesn’t get to reap the benefits
a. In conjunction with periodic or lump sum
b. To the extent of financial contribution that increased earning power and didn’t enjoy the benefits
c. No modification
d. Enforceable against estate
What Factors Do we Consider for Alimony
Overarching rule: Need of claimant spouse and the Ability of the other spouse to Pay
(1) Standard of Living during marriage
(2) Duration (no dependence if short marriage)
(3) Age/physical/emotional condition of each party
(4) Financial resources of each party/type of property owned
(5) Contribution of each to marriage
(6) Time needed to obtain education/training (may result in rehabilitative alimony)
(7) Ability
(8) Fault
Modifying (modifiable) alimony
substantial change in circumstances (either in need or ability)
voluntary reduction in earning won’t relieve your obligations
Terminate the Alimony
(1) recipient re-marries
(2) either spouse dies (but can still collect from estate for reimbursement and lump sum)
(3) cohabitation
Alimony Tax Consequences
before 2019, alimony was “deductible” and “income” unless the instrument was modified to comport w the new rule
Separation Agreement Requirements
(1) entered into after marriage
(2) enforceable with consideration
(3) voluntary
(4) full and fair disclosure of assets
What can you contract for in a separation agreement
(1) can waive alimony and property division here
(2) can agree on child support and custody (but courts not bound)
Modification of Separation Agreements
modification allowed if it merges with the divorce decree but is otherwise not modifiable except for the “child” provisions”
Rights of Unmarried Persons
can contract by cohabitation and is enforceable if sex is not the only consideration
division of earnings and property
How do we assess child support amounts
income shares model: consider number of children and the gross annual income (noncustodial parent pays to custodial parent)
payments are independent of visitation
Duration of Child Support
lasts until:
(1) age of majority
(2) death of child
(3) emancipation
(4) termination of parental rights
Child Support Jurisdiction Issues
original jurisdiction may enter order
jurisdiction to enforce: original has continuing jurisdiction, but other states can enforce order in states that didn’t issue the original through (1) direct enforcement (2) registration of the order in the new state
modification jurisdiction: OG jurisdiction maintains continuous and exclusive JDX unless no one resides there anymore or parties waive/consent to jurisdiction elsewhere
Enforcement of Child Support
(1) intercepting federal tax refund
(2) forfeiture or license
(3) wage withholding
(4) property seizures
initial award of Child Custody
child home state (where lived w parent for at least 6 consecutive months)); previous domicile remains their domicile until the 6 months have passed
Significant connections/substantial evidence
if no home state, then assumed jurisdiction where there’s a significant connection
Child Custody Modification
the issuing state has continuing exclusive jurisdiction
only the OG can decide whether “not enough connection”
courts must decline JDX if wrongdoing
Emergency JDX to protect child where present if abandoned or unsafe (temporary)
Emergency JDX if
to protect child where present if abandoned or unsafe (temporary)
Factors in Deciding Child Custody
(1) Parent wishes
(2) Child preference (under 8 not mature enough, over 12 great weight)
(3) Relationship with child/parent/siblings/others
(4) Primary caregiver
(5) Party’s physical health
Custody Types (general)
(1) joint custody
(2) sole custody
(3) NonParent Custody
Joint Custody
shared 50/50 - encouraged but not if parents openly hostile
Sole Custody
strong evidence of BIOC
reasonable visitation to non custodial parent unless harm
Non-Parent Custody
granted if show that the child is harmed or parental unfitness (abandonment, neglect, abused)
burden is on moving party
Third Party Visitation
Third party can seek visitation (applies for extraordinary circumstances (i.e. divorce or death) then standing to seek visitation if in BIOC (remember constitutionality)
Relocation of Primary Residence of Child
(1) Give Notice to Other Parents + Opportunity to be heard
(2) Need BIOC (child’s interest)
(3) Is move motivated by benefit to family (i.e. Economically beneficial)
(4) Does it thwart relationship w other parent? (if yes, then relocation not allowed)
Parentage Actions - Non Marital Children
(1) Spouse is presumed the parents
(2) Spousal presumption continues if child is born within 300 days of termination of the marriage
(3) If child born during void/voidable marriage, need clear and convincing evidence of parentage – Even if can prove not the father, might estop the claim bc of passage of time (finding out when the kid is 15 etc.)
Parentage Actions – Unwed Fathers establish parentage of the child if –
(1) Father marries mother
(2) Holds child out as bio kid /acknowledges them
(3) Court order
(4) Can gain custody if demonstrates parental responsibility (supervising, educating, providing care or support) —- Gives due process protections)
Paternity Suit
often used to collect child support
Statute of limitations tolls during minority of child (available until kid reaches 18)
Blood/Tissue evidence to prove (majority); testimonial evidence (minority)
Termination of Parental Rights
Voluntary
Involuntary: state cannot interfere in family decision making unless the decision is harmful to child wellbeing infliction serious harm, abandonment, neglect, failure to provide support, mental health of parent; parental unfit
o Cannot seek to terminate the rights of the other parent
Adoption Purposes
reunification and BIOC
Requirements of Adoption
- Termination of bio parent rights or consent
- Creation of adoptive parents’ (consent adoptee) + consent of older adoptee
- No paying for the kid but you can pay pregnancy expenses
- Sealed record unless bio parents consent
Consequences of Adoption
Consequences: rights terminated then relieves all rights and obligations; creation of adoptive parents’ new rights and obligations; depends on state but child may still inherit from biological parents
Who is eligible for permanent spousal support/alimony
permanent spousal support is only granted to a spouse with neither the resources nor ability to be self sustaining (factual inquiry)
Rule for Property Acquired Pre Marriage paid for with After Marriage Funds
If property is acquired before the marriage but paid for after marriage with marital funds, then courts apportion property between separate and marital interests in proportion to contribution of separate and marital funds used to pay for it.
Purpose of Alimony
to ensure adequate income stream for the spouse whose economic dependence resulted from the marital relation
