Family Law Flashcards
What is required for a state to enter a valid divorce decree?
At least one spouse must be domiciled in that state
Domicile is based on residence with the intent to remain permanently or indefinitely.
What is the limitation of an ex parte divorce regarding property and support rights?
The court lacks the power to adjudicate property and support rights
The divorce decree is considered ‘divisible’; jurisdiction to terminate a marriage does not establish jurisdiction over other divorce claims.
Do temporary visits constitutes minimum contacts for personal jurisdiction in family law?
A defendant must have sufficient contacts with the forum state; temporary visits do not suffice.
What are typical grounds for fault-based divorce?
Cruelty or similar concepts
Cruelty is defined as bodily harm or reasonable apprehension of bodily harm that renders cohabitation unsafe.
What factors can lead to the invalidation of a separation agreement?
Fraud or unconscionability
The unconscionability test varies by court.
What types of property are subject to division in divorce?
Only marital property is subject to division
Marital property includes assets acquired during the marriage except by gift, devise, or inheritance.
What is a marital asset?
An asset acquired by either spouse during the marriage, other than by gift or inheritance.
What must courts consider when awarding alimony?
- Parties’ financial resources and needs
- Marital contributions
- Marital duration
Some states also consider spousal misconduct.
What is the doctrine of non-intervention in spousal support?
It disallows judicial intervention in an intact family.
Can property-division awards be modified after a divorce decree?
No, property-division awards may not be modified after entry.
Under what condition can spousal-support awards be modified?
Based on a substantial change in a party’s circumstances.
What is the significance of the home state in child custody jurisdiction?
The home state has exclusive jurisdiction over custody actions involving the child.
What defines a ‘home state’ under UCCJEA?
The state where the child lived with a parent for at least six consecutive months before custody proceedings.
What is the role of UIFSA in child support orders?
It enforces registered child support orders issued in other states.
What is the basis for child custody determination?
The best interests of the child
Factors include parental wishes, child’s adjustment, and health of all individuals involved.
What must be shown to deprive a parent of custody due to infidelity?
Evidence must show that the parental conduct adversely affects the child.
How are the views of mature children considered in custody decisions?
They are relevant and typically given substantial weight.
What did Troxel v. Granville establish regarding parental rights?
A statute that does not give special weight to a parent’s custody decision is unconstitutional.
What is required for custody modification?
A substantial change in circumstances.
Can a court retroactively modify a child support order?
No, federal law forbids retroactive modification.
What is the Supreme Court’s stance on parental rights?
Parental rights are constitutionally protected but not absolute.
What rights do parents have over visitation decisions?
Parents have a fundamental constitutional right to control their children’s upbringing.
What is the approach of American courts regarding disputes of intact families?
They treat such disputes as private matters to be resolved at home.
What can a state do when parental decisions endanger a child?
Obtain an order overruling the parental decision and ordering appropriate services.
What do all states permit regarding premarital agreements?
Spouses may contract premaritally with respect to rights.
What can a state do when parental decisions endanger a child?
A state may obtain an order overruling a parental decision and ordering appropriate services, including medical care.
Are parental rights constitutionally protected?
Yes, but this does not prevent the state from intervening when child-rearing decisions endanger the child.
What is the general enforceability of premarital agreements across states?
All states permit spouses to contract premaritally regarding property rights and obligations.
What three factors may affect the enforceability of a premarital agreement?
- Involuntariness
- Unconscionability
- Inadequate disclosure
Under the UPAA, what must the party against whom enforcement is sought prove?
1) Involuntariness or 2) The agreement was unconscionable and the party lacked adequate disclosure of the other’s assets.
What does involuntariness in a premarital agreement imply?
It implies fraud, duress, or coercion.
Can an agreement be invalidated based on unconscionability even with full asset disclosure?
Yes, courts may still invalidate the agreement based on unconscionability.
What is the public policy regarding child custody provisions in premarital contracts?
Provisions relating to child custody and visitation are generally unenforceable.
What are the requirements for forming a valid common law marriage?
- Cohabitation
- Agreement to be married
- Holding themselves out as a married couple
How is a common law marriage recognized in another state?
It is valid if contracted in a state that recognizes it, unless it violates the strong public policy of the other state.
What is the putative-spouse doctrine?
It treats a would-be spouse with a good-faith but mistaken belief in the validity of a marriage as a spouse for equitable distribution.
What is the legal implication of bigamy?
Bigamy is illegal; a second marriage has no legal effect if the first marriage has not been legally terminated.
What presumption exists regarding marriages in a series?
There is a presumption that the latest marriage is valid unless strong evidence shows otherwise.
What rights does the Married Women’s Property Acts grant to wives?
The wife is given the power to contract and full rights to her own earnings.
Can a court overrule a spouse’s spending decisions based on the partner’s conclusions?
No, a court may not overrule spending decisions of a spouse.
What obligations does marriage create according to the Supreme Court’s decisions in Orr v. Orr?
Marriage creates gender-neutral support obligations.
What is the necessaries doctrine?
It allows a creditor who provided necessaries to sue the spouse of the purchaser for recovery on the debt.
