family law Flashcards
premarital agreements
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
non-enforceable premarital agreement terms
Child custody and support agreements
ceremonial marriage requirements
(1) capacity to consent
(2) ceremony w/officiant
(3) license (may impose waiting period)
(4) no legal barriers
common law marriage requirements
(1) cohabitation
(2) holding out to community as marriage
(3) consent to marry (capacity and lack of legal impediments)
marital property rights
tenants in equity (real estate)
marital property (property gained during marriage separate from separate gifts, bequests, devisees)
marital obligations of support
doctrine of necessities: spouse must pay for necessary expenses other spouse incurred
law of agency: liable for authorized purchases
torts of marriage
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
annulment
invalidation of marriage based on impediment to marriage
void marriage
marriage invalid w/o court order
third party can seek annulment
polygamy and consanguinity
defense to void marriage
impediment does not exist
removed impediment and spouses continue to cohabitate
voidable marriage
marriage is invalid with court order, if spouse seeks to invalidate marriage
voidable marriage examples
lack of consent (fraud, duress, intoxication, not of age)
defense to voidable marriage
Condition no longer exists and parties subsequently ratified marriage
Impediment to legal marriage is removed and parties continue to cohabitate
divorce
lawful proceeding to end marriage
jurisdiction in in rem action (divorce)
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
no fault grounds for divorce
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
fault grounds for divorce
- adultery
- abandonment
- addiction
- mental or physical cruelty
- insanity
defense to no-fault divorce
deny that the reason for divorce exists
ex. upon reconciliation, the parties repaired relationship and live together again
defenses to fault divorces
foregiveness: condonation
dirty hands: recrimination
connivance: consent to marital misconduct
collusion; agreement to commit fault grounds so to get divorced
common law approach to property division in case of divorce
equitable division of all marital property
separate property
- 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
marital property
- 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
mixed property
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
transmution
separate property spouses treat as marital property becomes marital property
improvement
improvements caused by marriage/partner’s action, partner is entitled to a share of that property
pensions
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
equitable division
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
spousal suport
court has broad discretion to grant spousal support so to aid a spouse who was financially dependent upon the marriage
periodic payment
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
lump sum
alimony given to support spouse in single sum or in periodic payment; temporary duration
contract right
no modification
rehabilitative alimony
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
reimbursement
alimony payment given to compensate spouse for support they provided while other spouse pursued license or degree
contract right
no modification
factors to consider for alimony
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
modification of spousal support
- can only modify periodic or rehabilitative alimony if there is a substantial change in circumstances
termination of spousal support
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
child support duties and guidelines
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
child support jurisdiction to issue
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
child support jurisdiction to enforce
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
child support jurisdiction to modify
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
child support modification
based on substantial and continuing change in circumstances
enforcement of child support
- 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
child custody jurisdiction
Uniform Child Custody Jurisdiction and Enforcement Act
home state rule (UCCJEA)
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
standard for child custody cases
Best interests of the child
courts have much discretion
best interest of child factors
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)
joint custody
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
sole custody
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
parental vs. nonparental custody
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
parental visitation
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
nonparental visitation
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)
modification of child custody order
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
relocation of child
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
marital presumption
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
voluntary termination of parentage
natural parents may voluntarily terminate parental rights
involuntary termination of parentage
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)
adoption
requires termination of natural parental rights and creation of new parental rights
