Family Law Flashcards
Prenups
(1) in writing and signed
(2) entered into voluntarily
(3) full and fair disclosure of assets or proof of knowledge (only addresses if the agreement is unconscionable)
(4) fair and reasonable (only in some jdxs)
Marriage
(1) license
(2) ceremony w authorized officiant
(3) no legal impediment (no close relatives or prior undissolved marriage)
(4) consent - alcohol, drugs, age
common law marriage
(1) consent to marry (capacity + no legal impediments
(2) cohabitation, and
(3) holding out publicly as spouses
marriage by estoppel
equitable remedy to protect innocent party who acted in good faith when entering into an invalid marriage
Annulment
backwards looking doctrine that declares a marriage invalid because an impediment that existed at the time of the marriage makes it void or voidable
- parties are treated as if they were never married, prop returns to pre-martial position
Void vs voidable marriage
Void marriages failed to meet an essential req for a legal marriage (ex: close relatives or prior marriage)
- null, claim to nullify subject to collateral
- can only be ratified by removal of impediment
Voidable marriages have a condition that affects the adequacy of consent. These marriages are valid until declared null, and action to nullify must be brought by one of the spouses
Divorce decrees
If the court had PJ over the defendant, the decree and its provisions are given full faith and credit in other jdxs
Grounds for divorce
No fault divorce
(1) irretrievably broken (irreconcilable differences)
(2) incompatibility
(3) living apart for a specified and continuous amount of time
fault divorce
(1) adultery (opportunity and inclination)
(2) desertion / abandonment (departure + no intent to return)
(3) cruelty
(4) insanity
(5) voluntary addiction commencing after the marriage
Defenses to divorce
no fault
denial that the marriage is broken or that the parties have lived apart
fault divorce
connivance (consent)
Condonation (forgiveness)
recrimination (also guilty)
collusion (agreement to simulate divorce grounds)
legal separation
Does not terminate the marriage, but adjudicates the rights of the parties prior to divorce
- can also be done by a separation agreement (same req as prenups)
property division
1 step - classify the prop
- marital prop vs separate prop. consider comingling and transmutation
2 step - divide in proper way
- community prop - marital prop 50/50
- equitable division - consider income, education, vocational skills, employability, duration of marriage, std of living, assets, debts, liabilities, contributions, etc
Alimony
- Permanent periodic spousal support – paid regularly to spouse that cannot self-sustain – modifiable
- Lump sum – fixed amount payable all at once or in installments – not modifiable
- Rehabilitative support – payment to enable spouse to gain skills to be self-supporting – modifiable
- Reimbursement support – awarded for supporting spouse obtaining a degree – not modifiable
Factors – standard of living, duration of marriage, financial resources, ability to meet their own needs
child custody
Std= Best interest of the child
Courts are given great discretion, considers the parents and child’s wishes, ability and willingness to provide, adjustment to the home, school and community, previous role as caregiver
jdx for child custody
home state (where child is currently domiciled or where they were domiciled in the last 6 months if one parent still lives in the state) OR, if that does not apply, a state where the child and a parent still have a significant connection + substantial evidence is found in the state
Parentage
Discrimination between marital and non-marital children is subject to intermediate scrutiny
- Presumption of parentage – the mother’s husband is presumed to be the father of the child – rebutting it req. C&C evid.
- Paternity suits – can be brought by child, mother, or the state. Once paternity is established, duties / inheritance attach
