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Family Law Flashcards

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1
Q

breach of promise to marry

A

Kind of a hybrid between a contract and tort cause of action. Elements:
1. promise to marry
2. breach
3. damages (including actual damages (for example, money already spent on the wedding) and damages for loss of reputation, mental anguish, and injury to health. Punitive damages may be available.)

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2
Q

does donee have a right to a gift made in contemplation of marriage?

A

Yes. Engagement ring is the main example. Must be made in contemplation.

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3
Q

antenuptual (premarital) agreements

A

Content
* Can cover disposition of property, choise of law, etc. unreasonable provisions might not be enforced.
* Can cover alimony but court may find provision unenforcable if disadvantaged spouse is a public charge.
* Child custody and support provisions are unenforceable.

Requirements
* must be in writing and signed
* must be entered into voluntarily (look out for night before duress)
* there must be fair and full disclosure of the parties’ assets.

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4
Q

What are the requirements for marriage?

A

1) License
* minority : communiciable disease certificate
* majority: waiting period.

2) Ceremony with authorized officiant

3) No legal impediments
* not too closely related. (no ascendants, descendents, siblings [including half-sibilings], aunt/uncle, niece/nephew. first cousins sometimes ok)
* no prior undissolved marriage

4) capacity to consent at the time of ceremony.
* intoxication.
* 18 is age of majority. 16+ with parental consent. 15- judicial consent.

  • procedural failure does not inalidate
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5
Q

What are the requirements for common law marriage?

A
  1. Consent to marry, which includes having capacity and a lack of legal impediments
  2. Cohabitation
  3. The couple holding themselves out publicly as spouses

Abolished in most states but full faith and credit applies.

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6
Q

Marriage by estoppel

A

A good faith spouse of a prior married person may aquire legal rights.

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7
Q

Propery in marriage

A
  • If spouses take title to real estate jointly, a tenancy by the entirety is presumptively created.
  • Most property acquired during marriage is marital property no matter how titled. court has discretion to distribute.
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8
Q

The doctrine of necessaries

A

One spouse may be liable to third parties for the other spouse’s purchases for necessary expenses, such as food, clothing, and health care.

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9
Q

spousal abuse orders

A
  • All states allow protective orders against violent spouse.
  • May be ex parte and can last from one month to several years by state.
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10
Q

tortuous interference with marriage for alienation of affecition

A

A claim against a third party for alienation of affection. Elements:
1. Genuine love between validly married spouses
2. Evidence that love or affection was aliented
3. The defendant’s actions caused the loss of love and affection.
4. Damages

Adultery is not required! Can be someone turning one spouse against another

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11
Q

tortuous interference with marriage for “criminal conversation”

A

A claim against a third party for adultery with the plaintiff’s spouse. Elements:
1. valid marriage
2. adultery

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12
Q

Constitutional privacy rights

A

The following rights fall within the constitutionally protected right to privacy under the due process clause of the 5th amendment:
* The right to marry
* The right to procreate
* The right to use or sell contraceptives
* The right of related persons to live together
* The right of parents to educate their children outside the public schools
* The right of parents to decide issues concerning the care, custody, and control of their children

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13
Q

Annulment

A
  • Declares a marriage invalid if void or voidable.
  • Marriage set aside as never existing
  • Children are still considered married children.
  • Generally spousal support is not awarded in annulment actions
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14
Q

Annullment for void marriage

A
  • There is no marriage at all.
  • Essential requirement of marriage missing.
  • Cannot be ratified
  • Annulment brought to determine property distribution and child custody.
  • Can be brought by third parties (IRS, insurance companies)

Void marriages inlcude:
* bigamy
* consanguity

Exceptions
* Some state statutes provide that the marriage becomes valid if the parties continue to cohabit after impediment removed
* States generally presume that the most recent marriage is valid, and a party must overcome the presumption by strong evidence that the prior marriage subsists.
* A bigamous marriage might become valid if former spouse dies.

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15
Q

Annullment for voidable marriage

A
  • Valid until declaired null.
  • An imediment may allow one of the spouses to bring an anullment action.
  • No third party action.
  • Can be ratified after impediment removal by continued cohabitation.

Voidable marriages include:
* invalid consent
* Nonage
* incurable physical impotence.
* duress
* fraud on essential element of marriage (ex. misrepresentation of fertility)

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16
Q

Which state has jurisdiction over divorce

A
  • One spouse has to be domiciled for a minimum period (at least 90 days)
  • Two states can have jurisdiction. The one that renders judgement first causes the other to lose SMJ for mootness.
  • For jurisdiction over financial aspects of divorce the court will need personal jursidiction over the defendant.
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17
Q

Divorce Grounds - No Fault Divorce

A
  • Allow spouses to get a divorce without need to assert marital fault.
    3 types:
  • Irreconcialable difference - bilateral consent
  • incompatibility - bilateral consent
  • Spouses living apart for statutory period - unilateral - reconciliaition defense (resets statutory period)
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18
Q

Divorce Grounds - Fault grounds

A

Typical grounds:
* Adultery - circumstantial evidence of opportunity and inclination. Corroboration usually required.
* Willful and unjustified desertion (or abandonment) for statutory time period.
* Extreme physical or mental cruelty
* drug addiction or habitual drunkenness commencing after the marriage.
* Insantiy

Defenses
* Collusion (no real adultery)
* Connivance (swingers can’t sue on adultery)
* Condonation (knowledge of adultery and forgiveness).
* Recrimination (unclean hands with adultery)

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19
Q

What is “legal separation”

A
  • Does not terminate the marriage, but the parties can have all of their rights regarding property, spousal support, custody, and child support adjudicated in this proceeding.
  • Often used for religious reasons or by older people.
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20
Q

Two step process for property division

A
  1. Classification - marital property or separate property?
  2. Division - how to divide marital estate (title doesn’t matter)
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21
Q

What is equitable division of marital property?

A
  • court have the autority to order an equitible distribution of all marital property, no matter how title is held.
  • The majority approach to property division. Each spouse takes their separate property, and the court only divides the property acquired during the marriage.
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22
Q

What is considered separate property?

A

Separate property inlcudes:
* Property owned before marriage
* Property acquired by gift or inheritance
* Property acquired in exchange for separate property
* Income from and appreciation of separate property (unless improved)
* Pain and suffering awards
* Personal damages awards
* Any property acquired after an order of legal separation that includes a final disposition of property

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23
Q

What is considered marital property?

A

Marital property inlcudes all other property acquired during the marriage. Marital property is subject to equitable distribution by the court.

Includes:
* Property acquired during the marriage
* Earnings - even if only made by one spouse
* Employment benefits, pensions, and stock options (even if they will not be exercised or vested until after the divorce)
* Lost wages awards
* Reimbursement for medical bills incurred and paid with marital property
* Recovery for damages to marital property

Some jurisdictions use the date of separation as the end of the marital estate, and others use the date of filing for divorce.

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24
Q

Methods by which separate property becomes marital property

A

Comingling - The separate property is inextricably intertwined with marital property or with the separate property of the other spouse and cannot be traced by the court. (bank account)

Transmutation - The separate property is treated in a way that evidences an intention for the property to be marital property (for example, placing separate property in the names of both spouses)

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25
Q

Improvement of separate property during marriage

A

When separate property is improved by the use of marital funds or the effort of a spouse, courts generally hold that the property remains separate property, but most jurisdictions grant the marital estate or the nonowning spouse reimbursement for the value added to the separate property.

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26
Q

Property Acquired Before Marriage But Paid for After

A

Majority - Property Acquired Before Marriage But Paid for After should be apportioned between separate and marital estates in proportion to the contribution of separate and marital funds to pay for the property. (such as a house mortgage). Initial buyer keeps property but has to reimburse other spouse for value of their share of input during marriage.

Lots of state variation

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27
Q

Treatment of pensions earned during marriage

A
  • The portion of a pension earned during a marriage is marital property subject to distribution.
  • Some courts will give the non-earning spouse other funds from the marital estate to offset the amount of the pension plan.
  • Often one of the most valuble parts of a marital estate.
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28
Q

Professional License or Degree and Alimony

A

Some jurisdictions use alimony to compensate supporting spouses for their contribution during the other spouse’s education or training.

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29
Q

Is property division or alimony a taxable event?

A

Neither, but alimony was before 2019.

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30
Q

How does the court make an equitable division of a martial estate?

A

The factors considered in dividing the property usually include:
* The age, education, background, and earning capabilities of both parties
* The duration of the marriage, and whether there were any prior marriages
* The standard of living during the marriage
* The present incomes of both parties, their vocational skills, and employability
* The source of the money used to purchase the property
* The** health** of the parties
* The assets, debts, and liabilities of the parties
* The needs of the parties
* The child custody provisions
* Whether the distribution is in addition to, or in lieu of, alimony
* Each party’s opportunity to acquire future income and assets
* Each party’s contribution to the acquisition or enhancement of the existing marital assets (not necessarily earning - homemaking also)
* Each party’s contribution as a homemaker to the family unit
* Economic fault (that is, whether either party has dissipated marital property such as gambling or use on an illicit lover)

Notes
* Court have great discretion. Focus on your analysis rather than the conclusion.
* Equitable division is not modifiable.
* Courts can divide in kind or by contribution
* Martial fault not relevant for property division but IS relevant for Alimony

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31
Q

What is alimony?

A

Alimony (also known as spousal support or maintenance) is paid to an economically dependent spouse.

There are four types of alimony:
* Permanent Periodic Spousal Support
* Lump Sum
* Rehabilitative Spousal Support
* Reimbursement Spousal Support

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32
Q

Permanent Periodic Spousal Support Alimony

A
  • Paid regularly for the life time of the recipient. never calculated by grand total.
  • Modifiable upon substantial changes in circumstances.
  • Terminates upon the death of either spouse or the remarriage of the recipient spouse.
33
Q

Lump Sum Alimony

A
  • Paid all at once or in a series of payments (often the present value of permanent periodic support).
  • nonmodifiable
  • survives the death of either spouse (can be collected or paid to death estate).
34
Q

Rehabilitative Spousal Support Alimony

A
  • Paid regularly for a limited period of time (often to allow the supported spouse to gain skills to become self supporting). never calculated by grand total.
  • modifiable upon substantial change in circumstances
  • Terminates upon the death of either spouse or the remarriage of the recipient spouse
35
Q

Reimbursement Spousal Support Alimony

A
  • Used sometimes when one spouse had supported the other while the other was obtaining a professional license or degree.
  • Paid all at once or in a series of payments
  • Nonmodifiable. treated as a contract right and can be awarded even if the supporting spouse is not otherwise eligible for spousal support.
  • Survives the death of either spouse (can be collected or paid to death estate).
36
Q

Factors considered when Awarding Alimony

A

Trial court has a lot of discretion.
Broadly, the two primary considerations are the needs of the claimant and the ability of the other spouse to pay. Specific factors considered include:
* The standard of living established during the marriage
* The duration of the marriage
* The age and physical and emotional condition of the parties
* The financial resources of the parties
* The contribution of each party to the marriage
* The time needed for the party seeking support to obtain the training necessary to find appropriate employment
* The ability of the payor spouse to meet their needs while paying spousal support
* Marital fault (considered in most states for alimony but generally not considered for property division).

37
Q

When is spousal support terminated?

A
  • remarriage of the recipient spouse
  • the death of either spouse.
  • Majority - recipient spouse begins cohabiting with someone in a marriage-like relationship
38
Q

When may spousal support be modified?

A
  • Periodic spousal support may be modified if there is a substantial unforeseen change in circumstances regarding the needs of the recipient spouse or the ability of the payor spouse to pay.
  • Voluntary unforeseen changes in income don’t releive paying spouse of liability.
39
Q

What is a separation agreement

A
  • An agreement in which which the parties agree to live apart and resolve economic issues (that is, spousal support, property division, and child support) and custody rights.
  • In a separation agreement, parties can waive alimony or property division and parties can agree on custody and child support, but the court is not bound by the parties’ contract concerning children.

Requirements:
* Voluntary
* Full and fair disclosure by both parties
* Consideration (mutual promises)

40
Q

separation agreement, divorce proceedings, and modification

A
  • A separation agreement may be merged into the divorce decree and the whole agreement assumes the status of a court judgment, is enforceable as such (that is, subject to contempt), and can be modified by the court.
  • If it is not merged, it can only be enforced with contract remedies.
  • Child support and custody provisions can always be modified if it is in the best interest of the child.
41
Q

Contracts between unmarried cohabitants

A
  • Express contracts between unmarried cohabitants regarding earnings and property rights are generally valid and will be enforced.
  • Unenforceable if sex is the only consideration.
42
Q

connection between child support and visitation

A
  • The child support obligation is independent of the noncustodial parent’s visitation rights. Visitation cannot be withheld because of failure to pay child support.
43
Q

When does the duty to pay child support cease?

A
  • child reaches age of majority (18)
  • death of child
  • emancipation of child (legally considered adult)
  • termination of parental right

may be extended if child is disabled.

44
Q

What law governs child support orders?

A

The Uniform Interstate Family Support Act (“UIFSA”), which has been adopted by all 50 states, provides methods of enforcement and guidelines for modifications of support orders issued in another state.

45
Q

What factors are considered in awarding child support?

A
  • Primary considerations are the monetary needs of the child and the parent’s ability to pay.
  • Most states have a formal guidline to make awards more uniform, based on number of children, their ages, any special needs, and the parent’s income.
  • Court may deviate from guidelines under special conditions.
46
Q

Jurisdiction over child support orders

A

Original jurisdiction to enter a child support order is proper where the first petition under UIFSA is filed.

Another state can enforce a child support order in two ways:
Direct enforcement - allows the obligee to mail the order to the obligor’s out-of-state employer, automatically triggering withholding
Registration of a support order with another state - The issuing state sends the order to the state where the obligor resides, where it is registered and enforced.

Only the court that issues the controlling child support order has continuing and exclusive jurisdiction to modify it.

47
Q

Modification of child support awards

A
  • Future child support is modifiable based on a substantial and continuing change of circumstances affecting the needs of the child or the ability of the parent to pay, such as changes in employment, the growth of the child, inflation, income, retirement, or disabling illness.
  • A voluntary reduction in income will not be a ground for modification.
48
Q

How are child support awards enforced

A

Child support awards (and alimony) may be enforced by holding the nonpaying party in contempt of court.

49
Q

the Uniform Child Custody Jurisdiction and
Enforcement Act (“UCCJEA”)

A

Designed to avoid jurisdictional disputes regarding child custody and visitation, promote interstate cooperation, and facilitate the interstate enforcement of custody and visitation orders.

50
Q

In which state can the initial child custody determination be made?

A

Primary Test—Home State Jurisdiction
* A court has jurisdiction to initially enter or modify a child custody or visitation order if the state:
* Is the child’s home state (the state in which the child lived with a parent or guardian for at least six consecutive months immediately before the commencement of the proceeding, or
* Was the child’s home state within the past six months and the child is absent from the state, but a parent or guardian continues to live in the state.

51
Q

What if there is no home state for child custody? (significant connnection, substantial evidence test)

A

A court has jurisdiction to enter or modify a child custody or visitation order if:
* No other state has or accepts home state jurisdiction and:
* The child and at least one parent or guardianvhave a significant connection with the state, and
* Substantial evidence concerning the child is available in the state

52
Q

What if no other state has child custody jurisdiction or defers jurisdiction?

A

another state can exercise jurisdiction.

53
Q

Which states may modify an existing child custody decree?

A

The issuing court has continuing exclusive jurisdiction. Another state can only exercise jurisdiction if:

  • No child or parent/guardian continues to reside in the issuing state, or
  • The child no longer has a significant connection with the issuing state and substantial evidence relating to the matter is no longer available in that state. (Only the issuing state can decide if there is no substantial evidence)
54
Q

May a state decline jurisdiction of modification of a child custody decree.

A

A court that has jurisdiction may decline to exercise its jurisdiction if:
* it determines that it is an inconvenient forum under the circumstances and that a court in another state is a more appropriate forum.
* the party seeking to invoke the court’s jurisdiction has engaged in unjustifiable conduct (for example, a parent wrongfully took the child from another state).

55
Q

When can a state exercise temporary emergency jurisdiction over child custody?

A

A court in any state may exercise temporary emergency jurisdiction if the child has been abandoned or it is necessary in an emergency to protect the child because the child, sibling, or parent is subjected to or threatened with abuse.

56
Q

what is child custody?

A

Custody of a minor can mean legal custody (the right to make major decisions affecting the child’s life) or physical custody (actual possession and control of the child). Joint custody can mean either joint legal custody, joint physical custody, or both.

57
Q

What is the standard for awarding child custody?

A

The standard applied in awarding custody and visitation is the best interest of the child (BIOC). Court is given great discretion but factors inlcude:
* The wishes of the parents (Note: Parents have a constitutionally-protected right to care, custody, and control of their children.)
* Child’s preference (children under 8 not considered, over children over 12 given great weight)
* Child’s relationship with parents, siblings, and others involved with parents.
* ** Child’s adjustment to home, school, and community**
* Parties’ mental and physical health
* Who has been the child’s primary caregiver (tie breaker factor)

Preference cannot be shown based on gender or financial ability.

58
Q

When is Joint Custody given?

A

In most jurisdictions, joint custody is encouraged and will be awarded if the parties agree. However, courts will not award joint custody if the parents are openly hostile or unable to communicate.

When determining whether joint custody is appropriate, courts often consider:
* The fitness of both parents
* Whether the parents agree on joint custody
* The parents’ ability to communicate and cooperate concerning the child’s well-being
* The child’s preference
* The level of involvement of both parents in the child’s life
* The geographical proximity of the two homes
* The similarity or dissimilarity of the homes
* The effect of the award on the child’s psychological development
* The parents’ ability to physically carry out the joint custody order

59
Q

When is sole custody given?

A
  • Sole custody can be awarded to one parent if there is strong evidence that demonstrates it is in the best interest of the child.
  • Other parent will almost always be given visitation unless there is a risk of harm to child
60
Q

When is custody given to a non-parent

A

Absent voluntary relinquishment, the parent is entitled to custody unless the nonparent can show that it will result in harm to the child or that the parent is unfit, or in special circumstances such as abandonment, neglect, or abuse.

61
Q

Vistiation rights

A
  • Visitation is granted to the non-custodial parent.
  • When sole physical custody is given to one parent, the other parent is almost always entitled to reasonable visitation.
  • Nearly all states have statutes entitling some third parties (for example, grandparents) to visitation in “extraordinary circumstances” based on the best interest of the child.
  • However, the United States Supreme Court has stated that if a parent is fit, their wishes on nonparent visitation are constitutionally protected and must be given “special weight.”
62
Q

When can a custody decree be modified

A
  • Custody orders are always modifiable.
  • The burden of proof is on the party seeking the change.
  • Generally, custody awards will be modified only if there has been a substantial and material change in circumstances affecting the child’s well-being.
  • Best interest of the child controls.
  • Some states require a time period between modification requests.
63
Q

When is a custodial parent entitled to relocate?

A
  • Most courts allow the custodial parent to move out of state with the child if relocation is in the child’s best interest, the move is motivated by a benefit to the family (such as a better job), and it is not intended to thwart the relationship with the other parent.
  • Generally requires a court hearing to decided if relocation is permitted
  • Notice of relocation must be given to other parent.
64
Q

Enforcement of Child custody awards

A
  • Child custody awards may be enforced by contempt proceedings, state habeas corpus proceedings, and suits in equity.
  • Under UCCJEA, out-of-state decrees will be enforced if a certified copy has been filed with the clerk of court;
  • Under the federal Parental Kidnapping Prevention Act (“PKPA”), full faith and credit must be given to another state’s custody or visitation determination if the Act’s jurisdictional requirements are met.
  • If the child is removed from the original state, the custodial parent must file the custody order in the new jurisdiction and seek enforcement.
65
Q

Constitutional protections for children born out of wedlock.

A

Distinctions between marital and nonmarital children are subject to intermediate scrutiny (that is, they must be substantially related to an important governmental interest).

Thus, the Court has held that:
* Nonmarital children cannot be precluded from inheriting from their fathers
* Statutes of limitations on paternity suits are discriminatory
* Nonmarital children have the same right to child support as marital children
* Government benefits may not be denied to nonmarital children merely because they are born out of wedlock
* Nonmarital children may not be precluded from suing for a parent’s wrongful death

66
Q

Parentage in marriage

A

A man is presumed to be a father if:
* they are the mother’s husband when the child was born, or
* the child was born within 300 days of the termination of the marriage.

The majority of states will not terminate established parents-child rights even if the husband can prove he is not the biological father.
Some state allow rebuttal of presumption of parentage by clear and convincing evidence.

67
Q

Parentage of unwed mothers

A

Under most state statutes, every child is the lawful child of his mother.

68
Q

Parentage of unwed fathers

A

The child is the lawful child of an unwed father only if:
* The parents married after the child’s birth
* The father holds the child out as his biological child
* The father consents to be named on the birth certificate
* The father formally acknowledges paternity or
* There is a court order establishing paternity

Unwed fathers are protected by the Due Process Clause and can have rights to custody if they demonstrate parental responsibility. This includes acknowledgment of paternity as well as supervision, education, protection, care, and support of the child.

69
Q

What is a parentage action?

A
  • Parentage actions can be brought to establish a biological relationship and settle issues of paternity or maternity, usually the former.
  • Once there’s a finding of parentage, that person has rights to custody and visitation in addition to a duty to pay support.
70
Q

What is a paternity suit?

A
  • A suit seeking support based on paternity.
  • May be brought by the child, the mother, or the state
  • results in duty to support, rights to visitation and custody, and rights of inheritance.
  • majority uses clear and convincing evidence and genetic testing is often used.
71
Q

Citizenship of children of unwed parents born abroad.

A

mothers automatically pass on citizenship, fathers must establish paternity to pass on citizenship.

72
Q

voluntary termination of parental rights.

A

Parents may voluntarily relinquish all rights to their children (often done in preparation for adoption).

73
Q

Involuntary termination of parental rights

A
  • parents must have due process before their rights can be terminated involuntarily, inlcuding right to counsel.
  • Grounds for termination must be proved by clear and convincing evidence.

Grounds for involuntary termination include:
* Infliction of serious physical harm on the child, including sexual abuse
* Abandonment
* Neglect or deprivation (failure to meet minimum standards of care)
* Failure to provide support without justifiable cause
* Mental illness or retardation so severe as to make the parent incapable of caring for the child
* Parental unfitness (conduct by the parent that seriously harms the child physically or psychologically)

Note:
* The state’s aim it not to permanently remove the child, but to find suitable care for the child while the parent gets back on track, and if that is not possible, enabling the child to be adopted.

74
Q

requirement for adoption

A
  • The parents either consent or their rights have been terminated.
  • Consent of adoptee if over 12 years old (majority)
  • (If adoption is by a non-relative) investigation of the suitability of the proposed adoption, and approval of the adoption by the court

payment of money for adoption is prohibited other than for medical costs related to pregnancy.

75
Q

Assisted reproduction

A

The Uniform Parentage Act (“UPA”) was drafted to deal with surrogacy. it is not yet widely adopted.

Under the UPA, the parent-child relationship is established between an individual and a child by:
* Having given birth to the child (except in cases governed by a surrogacy agreement)
* Adjudication of a woman’s maternity
* Adoption by the mother Adjudication confirming mother of child born to a gestational surrogate.
* 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

76
Q

gamete donors and parentage

A

Gamete donors not parents of the conveiced child unless agreed in writing by the donor.

77
Q

post humous conception

A

In some states. 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.

78
Q

types of surrogacy

A

genetic surrogacy - uses surrogates own gametes
gestational surrogacy - uses all donor gamates

79
Q

validity of surrogacy agreements

A

most states only allow gestational surrogacy, buecause the classify genetic surrogacy as the sale of a child.

To be valid, a gestational carrier agreement must:
* Be in writing and approved by the court
* Be accompanied by a child welfare agency home study unless waived
* Be voluntary
* Make provision for healthcare costs until birth
* For constitutional reasons, not limit the rights of the surrogate to make healthcare decisions
* Provide reasonable consideration if the surrogate

If the agreement is unenforceable, the gestational mother is considered the mother of the child, regardless of biology.

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