Family Law Flashcards
What is the purpose of a pre-marital agreement?
To address economic matters in case the marriage fails
Governed by the Uniform Premarital Agreement Act.
List the requirements for a valid pre-marital agreement.
- Freely made (no duress)
- In writing
- Signed by both parties
- Full financial disclosures
- Fair and reasonable economic provisions
True or False: A pre-marital agreement can set forth grounds for divorce.
False
What happens to a pre-marital agreement if the couple does not marry?
It is void.
What is required for spousal support in a pre-marital agreement?
It cannot make one spouse poor.
What happens to gifts in contemplation of marriage if there is no wedding?
They are recoverable by the other party.
Is breaking an engagement actionable in any state?
No
What rights do non-marital children have compared to marital children?
- Can inherit
- Get economic support from biological parents
- Bring wrongful death suit
- Participate in government programs
What are the basic requirements for who may marry?
- Mutual consent
- Mental capacity
- Legal age (or parental/judicial approval)
- Must be single
- No close relation
- Same-sex marriage legal in all 50 states
What are the procedural requirements to marry?
- Obtain a license
- Participate in a solemnization ceremony
- No duress
- Not under the influence
What are the requirements for a ceremonial marriage?
- Solemn vow to wed
- Before an officiant
- Witness (usually one each)
What characterizes a common law marriage?
- Consenting parties with capacity
- Circumstantial showing of marriage
- Co-habitation and holding out as husband and wife in public
True or False: Common law marriage is recognized in all states.
False
What are the responsibilities of marriage?
- Sexual exclusivity
- Economic support of one another
What is the requirement for economic support in marriage?
Fair and reasonable support based on resources.
What is interspousal immunity?
Allows suing a spouse unless it is for private activity.
What can a spouse seek damages for in tortious interference with marriage?
Loss of consortium.
List the five ways to terminate a marriage.
- Declaration of nullity
- Annulment
- Divorce
- Death
- Divorce by mutual consent
What makes a marriage void?
- Bigamy
- Incest
- Blood relation
- Non-age subject to collateral attack
What is annulment?
Setting aside a voidable marriage due to an impediment at the time of marriage.
What conditions can make a marriage voidable?
- Non-age
- Mental incapacity
- Duress
- Fraud
- Incurable physical incapacity
What are the grounds for divorce?
- Cruel and inhuman treatment
- Adultery
- Desertion
- No-fault divorce
- Voluntary drug addiction/alcoholism
- Insanity
What is required for a no-fault divorce?
Unilateral decision that the marriage is irretrievable, with separation for more than 6 months.
What defenses exist for fault grounds in divorce?
- Recrimination
- Condonation
- Connivance
- Collusion
What is legal separation?
A status where spouses live apart with economic rights adjudicated, yet retain husband and wife status.
Grounds include same as divorce plus failure to support economically.
What is the difference between legal separation and dissolution?
Dissolution has the same result as divorce, but fault issues are not considered, and there is no court involvement until an agreement is reached.
What is the subject matter jurisdiction for divorce?
If one spouse is domiciled in a state for at least 90 days, that state has jurisdiction to adjudicate the marriage.
What is personal jurisdiction in the context of divorce?
Personal jurisdiction over the defendant is required for collateral orders, such as alimony and child support.
What does Full Faith and Credit refer to in divorce proceedings?
Full Faith and Credit is given if the spouse is domiciled in the issuing jurisdiction.
What are the types of maintenance (alimony)?
- Temporary
- Permanent Periodic
- Rehabilitative
- Lump Sum
- Reimbursement
What is temporary maintenance?
Awards that maintain the status quo while the case is in process and can be adjusted by the court.
What factors does the court consider for permanent periodic maintenance?
- Fault
- Age/health
- Education/earning capacity
- Duration of marriage
- Custody effects on ability to work
What is rehabilitative maintenance?
Awarded to assist a spouse in obtaining education or job training.
What constitutes marital property?
- Property acquired during marriage
- Gifts made in contemplation of marriage
- Vested intangibles (e.g., stocks, pensions)
- Value of professional licenses acquired during marriage
What are the considerations in equitable division of marital property?
- Loss of health insurance
- Loss of inheritance rights
- Need of custodial child to occupy home
- Duration of marriage
- Education
- Incomes
- Earning capacity
- Health
- Assets and liabilities
- Contribution to acquire property
- Homemaker contribution
What is the duty of parents regarding child support?
Both parents have a duty to provide support typically until the child is 18, though this may vary.
Who else can be liable for child support?
- Parent who relinquishes control
- Person who acted as a parent and created reliance
How is child support amount calculated?
Based upon a percentage of income and number of children.
What is the Uniform Interstate Family Support Act (UIFSA)?
Provides that once an initial support order is entered, all states must defer to that order, and the initial state has exclusive jurisdiction.
What are the grounds for termination of maintenance?
- Death of either party
- Spouse receiving payments remarries
What is the process for division of property in divorce?
First classify assets as separate or marital, then distribute them.
What is the best interests of the child standard in custody determinations?
A standard that considers factors like keeping kids together, their wishes, parents’ situations, and history of domestic violence.
What is the presumption regarding custody between parents and non-parents?
There is a presumption it is in the best interest of the child to be with the biological parent unless extraordinary circumstances exist.
What is joint custody?
Each parent gets significant, but not necessarily equal, time with the child, requiring frequent and meaningful contact with both.
What is required for a custodial parent to relocate?
Must get permission from the court and show it is in the child’s best interest.
What is the rebuttable presumption regarding the father of a child born during marriage?
The husband is presumed to be the father.
What is the legal status of unmarried cohabitants regarding contract rights?
They have contractual rights, but sex cannot be the only consideration.
What are the grounds for termination of parental rights?
- Abandonment
- Neglect
- Abuse
Who can adopt a child?
Almost any adult can adopt.
What is the Uniform Parentage Act concerning assisted reproduction?
If a woman consents to assisted inception and gives birth, she and her husband are legal parents, while the donor has no legal rights.
What is required for a surrogacy arrangement to be enforceable?
The court must approve the written gestational agreement before conception.
