Family Law Flashcards
Categories
- Before marriage
- Marriage
- Getting out of marriage
- Who owes what after divorce
- Children
Before marriage breach of promise
Sounds like K claim with torts damages of actual and punitive
Gift of ring is condition so must be returned if marriage does not occur
Premarital agreements
Valid K that provides for distributions of assets upon divorce or death, varying from what law would otherwise acquire
Premarital reqs
- Writing and signed
- Entered voluntarily
- Full disclosure of independent knowledge of assets
Enforcement of premarital agreements
Court scrutiny focuses on voluntariness and full and fair disclosures, as well as other fairness factors
Any child custody is not binding
Can waive spousal support unless spouse will become public charge
Marriage reqs
Legal union of 2
- License
- Ceremony with authorized officiant
- No legal impediment
- Capacity to consent
Legal impediment and capacity to consent
Legal impediment: too closely related, polygamy
Capacity to consent: substance, lack of mental capacity, and nonage
Common law marriage
Legally considered married without registering or performed legal reqs
Reqs: (a) consent to marry, (b) cohabitation, and (c) holding selves out as spouses
Consent = capacity and no legal impediment
Marriage by estoppel or putative
Equitable remedy for invalid marriage
Rights and responsibilities b/w spouses
Before and during marriage there are rights and responsibilities related to property, support, necessaries, and tortious interference
Property rights
During marriage, each spouse owns and controls property in own name but title not dispositive
IF joint title, presumed tenancy by entirety
Obligation to support
Each spouse has obligation to support
Doctrine of necessaries
Can be used to make other spouse liable to third parties if purchases for necessary expenses
Spousal abuse orders
Every state has laws protecting victims of DV and all states allow battered spouse to seek some form of protective order against violent spouse; initially can be ex parte
Tortious interference
Alienation of affection and criminal conversation
Alienation of affection
- Genuine love and affection between validly married spouses,
- Evidence that love/affection is destroyed and
- Proof that D’s actions caused loss of love and affection
Criminal conversation
- Valid marriage
- Adultery
Annulment
Backward-looking doctrine, declaring marriage invalid b/c of impediment that existed at time of marriage that makes legally void or voidable
Void
Utter nullity where no action necessary, can be attacked by 3rd party
If impediment causing void is removed, some states holds it becomes valid if co-habitating
Voidable
Issues of consent are voidable, but valid until declared otherwise, no collateral attacks
Can be remedied by continued habitation after removal and ratification; means cannot be annulled
Effect of annulment
Marriage set aside as if never existed; children born during this time get support
Divorce jurisdiction
Terminating marriage
Jurisdiction only one spouse must be domiciled in a state but if spouse wants anything more than judicial decree there must be PJ
Grounds for no fault
- Both spouses agree irreconciliable differences
- Living separate and apart for specified time
- Both spouses agree that incompatible
Defenses to no-fault
Deny existence of one of above, or reconciled so time apart clock starts over
Grounds for fault
Adultery: circumstantial evidence of opportunity and inclination
Desertion: unjustified departure with no intent to return
Cruelty: extreme physical or mental
Substance use: voluntary addiction or habitual drunkenness after marriage
Insanity
Defenses for fault-based
Collusion, connivance (willing to consent), condonation (forgiveness with full knowledge), and recrimination (P also committed fault)
Legal separation
Does not terminate but parties can have all their rights regarding property, spousal support, custody, and child support adjudicated in proceeding
IF court divides, any after-acquired is separate
Property division
- Community property: all acquired deemed owned one-half
- Equitable division: divides all property owned by either spouse
- Equitable division of all marital property: spouse takes separate and courts equitably divides property acquired during marriage
Process to property division
- Classify: determine what is marital property and what is separate
- Determine distribution: make equitable division based on relevant factors
Property distribution = final decrees, so cannot be modified
Separate property
Property owned before marriage, acquired by gift or inheritance, acquired in exchange for separate property, income and appreciation of separate property, pain and suffering awards, personal damages, and property acquired after legal separation
Marital property
Property acquired after marriage, earnings, employment benefits, lost wages, reimbursements and recovery for damage to marital property
Appreciation: b/c of effort even if separate property
Pensions: portion earned during marriage
Commingling and transmutation
Commingling: separate property inextricably intertwined with marital or separate spouse such that indivisible
Transmutation: separate becomes marital with intent
Equitable distribution
Once court categorizes as separate or marital, equitable distributes b/w spouses and courts have significant discretion over this
Factors: duration, income, employability, source of funds, health of parties, presence of children, needs, etc.
Alimony
Spousal support can be awarded while still married, during divorce, or party of divorce decree—very discretionary
Purpose: ensure sufficient income for spouse who became dependent due to marriage
Terms: short, indefinite, or lump-sum
Types of alimony
Permanent periodic: paid regularly to spouse who has neither resources nor ability to self-sustain (modifiable)
Lump sum: fixed amount up front or over time
Rehabilitative: period payments for limited time to enable spouse to gain skill to become self-supporting (modifiable)
Reimbursement: spouse who supported other through degree (fixed sum, modifiable)
Factors for alimony
Discretionary
Broadly needs of claimant and ability of other to pay, considering financial resources, standard of living during marriage, contribution of each during marriage, etc.
Modification and termination of alimony
Modify: substantial change in circumstance (not voluntary nor intent prior to divorce)
Terminate: recipient remarrying or dying and, in most places, cohabitation with another
Separation agreement
Entered after marriage where parties agree to live apart and resolve economic issues and custody rights
Reqs for separation agreement
- Agreement voluntarily entered after marriage
- Full/fair disclosure
- Consideration
Ks b/w unmarried cohabitants
Express Ks b/w unmarried cohabitants regarding earnings and property rights are generally valid and enforced unless only consideration is sex
Child support
Generally, both have duty to support based on ability to pay and needs of child; child support guidelines dictate amount
Duration: generally until age of majority
Visitation: independent from support, cannot be basis for denial
Child custody jurisdiction
FFCC given to orders issued in other states if issuing court had proper jx (PJ required) and parties had reasonable notice and opportunity to be heard
Modifying child custody/support
Issuing court has continuing and exclusive control/jx to modify
UNLESS no parties still reside there or parties consent elsewhere
Jx to enforce child support
Another state can also enforce through (a) direct out of paycheck, or (b) registration of order
Grounds for child support modification
Based on substantial and continuing change of circumstances affecting needs of child OR ability to pay
E.g., employment, growth of child, inflation, income, retirement, etc.
Child custody
Initial determination of legal, physical, or joint is home state where child has lived with parent for at least 6 consecutive months
Grounds for modifying child custody in different jx
Issuing has continuing and exclusive
Another state can only exercise IF (a) no child/parent continues residing in state, or (b) child no longer has significant connection and substantial evidence relating to matter no longer exists
Declining jx
Court w/ jx can decline to exercise IF it determines that it is inconvenient forum under circumstances and court in another state is more appropriate
BIOC
Standard applied in awarding custody and visitation
Factors: parents’ wishes, child’s preferences if over 8, child’s relationship, adjustment to school/community, parties’ health, and primary caregiver
Types of custody
Joint: encouraged
Sole: if strong evidence demonstrating BIOC
Nonparent: if no voluntary relinquishment, harm to child or parent unfit
Visitation
When 1 parent granted sole physical, other parent entitled to visitation UNLESS endangers well-being
Visitation by non-parents
May be given if non-parent has substantial relationship w/ child and in BIOC but judge must give special consideration to wishes of parent
Burden and standard for modification
Always modifiable, burden on party seeking change to show substantial change/material affecting child well-being
Burden and standard for modification
Always modifiable, burden on party seeking change to show substantial change/material affecting child well-being
Relocation
Generally requires notice and hearing, but allowed if BIOC, move motivated by benefit to family, and not intended to thwart
Non-marital children
Intermediate scrutiny
Paternity may be brought to establish and, once done, duty of support and right to visit attaches
TPR
Parents may voluntarily relinquish but raising child is constitutional right so DPC before termination if involuntary
Adoption
Consent generally required unless TPR
Unwed father consent N/A if has not tried to assume parental responsibility unless infant then right to opportunity to develop
