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family law Flashcards

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1
Q

premarital agreements

A

valid contracts that address party’s rights upon death or divorce

content: usually concern property; spousal support agreements not valid if they leave a spouse as a public charge (dependent on state resources)

validity: (1) consideration (promise to marry), (2) in writing and signed, (3) full and fair disclosure of assets

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2
Q

non-enforceable premarital agreement terms

A

Child custody and support agreements

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3
Q

ceremonial marriage requirements

A

(1) capacity to consent
(2) ceremony w/officiant
(3) license (may impose waiting period)
(4) no legal barriers

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4
Q

common law marriage requirements

A

(1) cohabitation
(2) holding out to community as marriage
(3) consent to marry (capacity and lack of legal impediments)

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5
Q

marital property rights

A

tenants in equity (real estate)

marital property (property gained during marriage separate from separate gifts, bequests, devisees)

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6
Q

marital obligations of support

A

doctrine of necessities: spouse must pay for necessary expenses other spouse incurred

law of agency: liable for authorized purchases

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7
Q

torts of marriage

A

criminal conversion: hold third party liable for committing adultery with spouse

alienation of affection: hold third party liable for diverting spouse’s affections so other spouse is deprived of marital relationship

negligent interference with consortium: tort made it so spouse is unable to enjoy spouse’s company

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8
Q

annulment

A

invalidation of marriage based on impediment to marriage

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9
Q

void marriage

A

marriage invalid w/o court order
third party can seek annulment

polygamy and consanguinity

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10
Q

defense to void marriage

A

impediment does not exist

removed impediment and spouses continue to cohabitate

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11
Q

voidable marriage

A

marriage is invalid with court order, if spouse seeks to invalidate marriage

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12
Q

voidable marriage examples

A

lack of consent (fraud, duress, intoxication, not of age)

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13
Q

defense to voidable marriage

A

Condition no longer exists and parties subsequently ratified marriage

Impediment to legal marriage is removed and parties continue to cohabitate

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14
Q

divorce

A

lawful proceeding to end marriage

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15
Q

jurisdiction in in rem action (divorce)

A

to issue a divorce degree, personal jurisdiction over the defendant is not required; court must have personal jurisdiction over plaintiff

defendant is entitled to right to notice/opportunity to be heard

for remedies beyond divorce (alimony, property division) the court must have personal jurisdiction over defendant and property

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16
Q

no fault grounds for divorce

A

bilateral: both parties agree that the marriage is irreparably broken

bilateral: both parties agree that they have irreconcilable difference

unilateral: parties have been separated for statutory period

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17
Q

fault grounds for divorce

A
  • adultery
  • abandonment
  • addiction
  • mental or physical cruelty
  • insanity
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18
Q

defense to no-fault divorce

A

deny that the reason for divorce exists

ex. upon reconciliation, the parties repaired relationship and live together again

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19
Q

defenses to fault divorces

A

foregiveness: condonation
dirty hands: recrimination
connivance: consent to marital misconduct
collusion; agreement to commit fault grounds so to get divorced

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20
Q

common law approach to property division in case of divorce

A

equitable division of all marital property

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21
Q

separate property

A
  • gifts or bequests during marriage to spouse
  • property purchased before marriage
  • property acquired in exchange for separate property
  • separate property’s income or appreciation

pain and suffering awards

personal damages

property acquired after order of legal separation

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22
Q

marital property

A
  • property gained during marriage
  • earnings, employment benefits, pensions, stock options, lost wages, reimbursement for medical bills paid for w/marital property, recovery for damages to marital property
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23
Q

mixed property

A

property acquired before marriage but paid for after

courts are split
majority: property should be apportioned between separate and marital estates in proportion to contribution of marital and separate funds

24
Q

transmution

A

separate property spouses treat as marital property becomes marital property

25
Q

improvement

A

improvements caused by marriage/partner’s action, partner is entitled to a share of that property

26
Q

pensions

A

portion of pension earned during marriage is marital property subject to distribution portion of pension earned during marriage is marital property subject to distribution

can offset with other property

27
Q

equitable division

A

court has broad discretion

factors:
- age, education, background, earning capabilities
- duration of marriage
- standard of living
- incomes and employability
- health
assets, debts, liabilities
needs
-child custody
- property division in lieu of alimony
-contribution to marital assets
- contribution as homemakers
- economic fault

28
Q

spousal suport

A

court has broad discretion to grant spousal support so to aid a spouse who was financially dependent upon the marriage

29
Q

periodic payment

A

alimony given to support spouse who has no ability to support themself

Modifiable
Indefinite duration
Ends upon supported spouse’s marriage/cohabitation/death of both

30
Q

lump sum

A

alimony given to support spouse in single sum or in periodic payment; temporary duration

contract right
no modification

31
Q

rehabilitative alimony

A

alimony given to support spouse who has no ability to support themself but to give them enough to become self-sufficient

Modifiable
Indefinite duration, ends when spouse can support

32
Q

reimbursement

A

alimony payment given to compensate spouse for support they provided while other spouse pursued license or degree

contract right
no modification

33
Q

factors to consider for alimony

A

main question: needs of claimant and other spouse’s ability to pay

  • standard of living during marriage
  • duration of marriage
  • age physical, and emotional condition
  • financial resources (property division)
  • party’s contribution to marriage
  • time needed for party seeking support to obtain training for employment
  • ability of payor to meet their own needs while paying spousal support
  • marital support
34
Q

modification of spousal support

A
  • can only modify periodic or rehabilitative alimony if there is a substantial change in circumstances
35
Q

termination of spousal support

A

terminates upon supported spouse’s remarriage or either spouses’ death (unless contract right like lump or reimbursement)

Most jdx terminate if recipient spouse begins cohabitating with someone in marriage-like relationship

36
Q

child support duties and guidelines

A

Both parents have duty to support child

guidelines, concern number of children and parents’ income

Court can deviate from guidelines, including to include child’s health insurance and extraordinary medical expenses

37
Q

child support jurisdiction to issue

A

UIFSA: Uniform Interstate Family Support Act

OG jurisdiction: proper where first petition under UIFSA is filed
Another state can exercise JDX only if (1) Second petition is filed before time to answer the first has expire, (2) The petitioner objected to jdx in first action and (3) The second state is the child’s home state

38
Q

child support jurisdiction to enforce

A

Direct enforcement: obligee can mail order to obligor’s out-of-state employer, automatically triggering withholding unless timely objection

Registration: obligee can register support order w/ another state

39
Q

child support jurisdiction to modify

A

court that issues controlling child support order has continuing and exclusive jdx to modify it

Role of court in another state is only to enforce OG order UNLESS no party resides in issuing state or parties consent to JDX elsewhere

40
Q

child support modification

A

based on substantial and continuing change in circumstances

41
Q

enforcement of child support

A
  • contempt of court (civil, criminal if willful
  • Interception of tax refund
  • Forfeiture of licenses
  • Seizure of real estate
  • Attachment of wages
    Order to pay attorney fees
42
Q

child custody jurisdiction

A

Uniform Child Custody Jurisdiction and Enforcement Act

43
Q

home state rule (UCCJEA)

A

First test: home state jurisdiction: Court has jurisdiction to initially enter or modify a child custody or visitation order if the state: (1) Is the child’s home, or (2) Was the child’s home within the bast six months and a parent or guardian continues to live in state
Exception: home rule does NOT apply when: (1) Court has jurisdiction to modify a child custody or visitation order, if no state has or accepts home state jurisdiction and (2) The child and at least one parent have significant connection within the state, and
Substantial evidence concerning the child is available in the state

44
Q

standard for child custody cases

A

Best interests of the child

courts have much discretion

45
Q

best interest of child factors

A

Parent’s wishes (constitutional right to care, custody, control of children)

Child’s preference (Under 8, not considered, Over 12, great weight)

Child’s relationship with parents, siblings, and others involved

Child’s adjustment to home, school, and community

Mental and physical health

Who has been the child’s primary caregiver (no gender preference)

46
Q

joint custody

A

most jurisdictions encourage, will award if parents agree

Will not award if parents are openly hostile or unable to communicate

Factors to consider:
- Fitness of both parents
- Whether parents agree on joint custody
- Parent’s ability to communicate and cooperate
- Child’s preference
- Level of involvement of both parents in child’s life
- The geographical proximity of the two homes
- The similarity or dissimilarity of homes
- The effect on child’s psychological develop development
- the parent’s ability to physically carry out joint custody order

47
Q

sole custody

A

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 entitled to reasonable visitation with the child

Difficult to deny visitation rights unless some type of harm to child will result

48
Q

parental vs. nonparental custody

A

Absent voluntary relinquishment, a parent is entitled to custody unless nonparent can show it will result in harm to child/parent is unfit

Abandonment, neglect, abuse: court will find bio parent lost right to rear child, nonparent gets custody

49
Q

parental visitation

A

court may limit parent’s right to visitation if the parent engages in conduct that might injure the child

Absolute denial is rare

Visitation cannot be withheld for failure to make child support payments

50
Q

nonparental visitation

A

Nonparental visitation: nearly all states have statutes entitling some third parties (i.e. grandparents) to visitation

Applied in extraordinary circumstances such as when child’s parents have divorced or died

Nonparent may seek visitation if it is in best interest of child

Note: fit parent’s wish for nonparent visitation is constitutionally protected, must be given special weights (cannot override, because it would be in best interest of child)

51
Q

modification of child custody order

A

always modifiable
burden is on party seeking change

standard: substantial and material change in circumstances affecting the child’s wellbeing; must be changed if in best interest of child

52
Q

relocation of child

A

change in child’s primary residence

Must notify other parent, must be a court hearing to determine whether relocation is permitted

Courts allow parent to move out of state if it is in the child’s best interest, intended to benefit family, not intended to thwart relationship with other parent

53
Q

marital presumption

A

Every child is lawful child of mother

Every child is lawful child of unwed father IF:
(1) Parents married after child’s birth
(2) Father holds child out as his biological child
(3) Gather consents to be named on birth certificate
(4) Father formally acknowledges paternity, or
There is a court order establishing paternity

54
Q

voluntary termination of parentage

A

natural parents may voluntarily terminate parental rights

55
Q

involuntary termination of parentage

A

Parents are owed due process before rights are terminated involuntarily

Right to counsel (appointment if indigent)

Grounds for termination must be proved by clear and convincing evidence

grounds:
- serious physical harm
- abandonment
-neglect
-failure to provide support
- mental illness makes child care impossible
-parental unfitness (harms child physically or psychologically)

56
Q

adoption

A

requires termination of natural parental rights and creation of new parental rights

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