Family Law Flashcards
Premarital Agreements: Uniform Premarital Agreements Act (UPPA)
WV SUD
1. In writing
2. Entered into voluntarily:
3. Signed
4. Unconscionable (not)
5. Disclosure (full)
Marriage
Requirements:
CLIC- ceremony, license, impediments (no), capacity.
Common Law Marriage: Requirements:
(i) Consent to marry, (ii) cohabitation, (iii) hold themselves publicly as spouses.
Three main approaches to dividing Property at time of divorce:
- Community Property: All property acquired during marriage is owned one half by each spouse. (Not Maj Rule)
- Equitable Division of all property: Court divide all property bw spouses, acquired before or after marriage. (Not Maj Rule)
- Equitable Division of Marital Property: Each spouse takes home his or her own separate property and the marital property is what gets divided.
Considerations to award alimony:
FACTS – -Financial resources of each party (age) -Ability of the spouse paying support to meet their own needs -Contributions of the parties -Times necessary for the party seeking support to obtain employment -Standard of living established during the marriage.
Types of alimony
Types of alimony
Permanent Periodic
Rehabilitative
Lump sum
Reimbursement
Void Marriage
- Void Marriage – Parties fails to meet an essential requirement of marriage. No legal action needed.
(i) marriage with a bigamist, (ii) spouses too closely related.
Can be attacked collaterally by a 3rd party. (insurance companies, IRS, etc)
cannot be ratified
Voidable marriage
- Voidable marriage – Issues in consent. Marriage considered valid until declared null.
(i)Nonage, (ii) Incapacity, (iii) Duress, (iv) Fraud,
Can only be attacked by one of the parties to the marriage, and in some cases, only by the party lacking consent.
can be ratified
Divorce - Jurisdiction
One of the spouses just be domiciled in the state. (Lower 90 days).
Defenses for fault based Divorce
FACA – forgive (Condonation), Agreement (Collusion), Consents (connivance), Also at fault (recrimination).
- Permanent Periodic Support
Awarded to spouse with neither resources nor ability to be self-sustaining. Pay a spouse regularly (monthly) until death or marriage. – Cohabitation is as well a termination of the obligation.
Rehabilitative Spousal Support:
Rehabilitate one spouse so spouse earning capacity can increase and not depend financially on another spouse. (e.g. to gain education or skills)
Lump Sum Support:
Present value of permanent periodic support. What would have been paid over several years.
Reimbursement Spousal support:
Spouse who supported the other spouse while the latter obtained a professional license or degree, and the spouse did not enjoy the increased earning power bc of the divorce.
Child support award factors:
Number of children, ages, special needs and income of parents to determine a baseline amount of support.
Duration of child support
- Until the age of majority, typically 18
- Death of the child
- Emancipation of the child
- Termination of parental rights
may b extended
Jurisdiction to award child support under (UIFSA)– Uniform Interstate Family Support Act
- Original jurisdiction: Proper where first petition of UIFSA is filed.
Another state may exercise jurisdiction if:
* Second petition is filed before the time to answer the first has expired
* Petitioner objected jurisdiction in the first action
* Second state is the child’s home state.
Modification of Child Support:
Any substantial and continuing change of circumstances that affect the ability to pay.
jurisdict modify: continuing exclusive exists with the original court
UCCJEA – Uniform Child Custody Jurisdiction and Enforcement Act
Initial Award of Custody:
Child home state (Child have lived with a parent for at least 6 consecutive months or, was the child home state for past 6 months,
Another state can exercise juris to modify child support only if:
(i) no parent or child continue to reside in the issuing state, (ii) child no longer has a significant connection with the issuing state and substantial evidence is no longer available in that state. (only issuing state can decide this).
Best interests of the CHILD factors used:
FLIP DADS
F - financial ability of parents
L - lifestyle of parents
I – Initial custody
P – Primary caregiver
D – Desires of the child (Maybe a 6 year old can’t decide… but a 14 year old? That will be given weight).
A – Availability of parents and their respective living arrangements.
D – Domestic violence.
S – Siblings should not be separated
Types of Custody:
-Joint
-Sole
-Custody to the non-parent
Presumption of parentage
if married – (i) if child born during marriage, OR (ii) if child is born within 300 days of termination of marriage.
Unwed fathers’ presumption:
(i) Marrying child’s mother, (ii) holding out child as biological child, (iii) consenting to be named in BC, (iv) acknowledging paternity, (v) court order.
