FAMILY LAW Flashcards
Requirements for getting married
1) Consent of parties
2) Marriage license
3) Ceremony
Common Law Marriage requirements
1) Consent to marry, including capacity and lack of legal impediments
2) Cohabitation (determined by state statute)
3) The couple holding themselves out as married
4) Presently agree that they’re married
Validity of common law marriage across states
If a valid common law marriage is formed in one state, it will generally be regarded as valid even in those states that do not recognize common law marriage.
Premarital Contracts enforceability
Pre-marital agreements are enforceable UNLESS procured by fraud, duress, or coercion.
Requirements under UPAA for premarital agreements
1) In writing and
2) Signed by BOTH parties
Conditions making premarital contracts unenforceable
1) Involuntary (fraud, duress or coercion)
2) Unconscionable when executed
3) Lack of fair and reasonable disclosure of assets and obligations
Child support and custody in premarital contracts
Custody/child support are unenforceable due to strong public policy in favor of protecting children’s best interest.
Spousal support in premarital contracts
Permitted but not enforceable if it makes the spouse eligible for public welfare.
Jurisdiction for Divorce Actions
State of domicile of either party will have jurisdiction (some states have 90 day residency period).
Exparte Divorce conditions
May be maintained without personal jurisdiction over absentee spouse ONLY if plaintiff spouse is domiciled in rendering state.
Child Support jurisdiction requirements
Court MUST have personal jurisdiction over defendant spouse.
Child Custody jurisdiction requirements
Court MUST have UCC Jurisdiction and Enforcement Act jurisdiction to issue or modify custody order.
Adoption jurisdiction requirements
Same as UCCJEA.
UCCJEA Home State Jurisdiction
Court may decide child custody only if it has: 1) Child’s home state or where child lived with a parent for 6+ months before action was filed.
Significant Connection Jurisdiction under UCCJEA
If there’s no home state, child and one parent must have significant connection to state and substantial evidence in state exists.
More Appropriate Forum Jurisdiction under UCCJEA
If all other courts decline to exercise jurisdiction because more appropriate forum.
Emergency Jurisdiction under UCCJEA
Child is physically present in state AND child is abandoned or it’s an emergency to protect child.
Annulment conditions
Invalidates marriage if: 1) Lack of capacity (duress, fraud, mental incapacity)
2) Bigamy
3) Consanguinity
4) Underage at time of marriage.
Fraud in annulment
Fraud occurs when spouse made misrepresentation prior to marriage on an essential part of the marriage.
Grounds for Divorce
1) Cruel and inhuman treatment
2) Adultery
3) Abandonment for a set amount of time
4) Habitual drunkenness or drug addiction
5) No fault divorce.
Divorce settlement agreement conditions
May be set aside if mediator misconduct or it’s unfair and result of fraud, duress, coercion.
Separation agreement conditions
Invalid if unconscionable or was the result of fraud.
Property Division approach
Equitable Division Approach: marital assets are divided among the spouses by equitable distribution.
Marital Property approach
All property acquired during marriage except by gift, devise or inheritance, are subject to division at divorce.
Professional degrees as marital property
Majority of states: licenses are NOT marital property BUT allowed to receive reimbursement for support provided to obtain degree.
Spousal Support purpose
To maintain a spouse’s standard of living and limit any unfair economic effects of a divorce.
Conditions for awarding spousal support
Only awarded if spouse lacks sufficient property AND is unable to support themselves through employment or is the custodian of a child.
Termination of spousal support
Terminated upon death.
Factors considered in spousal support amount
1) Financial resources
2) Time necessary to obtain a job
3) Standard of living during marriage
4) Duration of marriage
5) Age/physical/emotional condition
6) Ability of spouse paying support.
Modification of spousal support
Only periodic spousal support may be modified if there is a substantial change in circumstances.
Child Support legal obligation
Parents have a legal obligation to pay child support.
Child Support guidelines
States set guidelines that account for all earnings and income of non-custodial parent.
Termination of child support
Terminated upon death but estate liable for past due payments.
Modification of child support conditions
Most states: order is modifiable based on a substantial and continuing change in circumstances.
Unmodifiable conditions for child support
A voluntary reduction in income will not be a ground for modification.
Best Interests Standard in child custody
Child custody is governed by the best interests of the child.
Factors in Best Interests Determination
1) Wishes of the parents
2) Wishes of child
3) Interaction/interrelationship of child with parent/siblings/others
4) Child’s adjustment to home/school/community
5) Mental/physical health of all involved
6) Age of child
7) Stability of home.
Preference in custody decisions
A fit legal parent is given preference, and it’s presumed that such custody is in the best interests of the child.
Modification of child custody conditions
Modifications allowed only if there is a substantial and material change in circumstances affecting the child’s well-being.
Paternity suit initiators
A paternity suit seeking support may be brought by the child, the mother, or the state.
Establishing paternity
Established by biological connection, legal presumption, paternity suit, or paternity by estoppel.
Adoption effects
Severs biological parent’s legal rights and responsibilities for the child.
Husband’s presumption of fatherhood
Husband is presumed to be legal father if he consented in writing and a medical doctor performed the procedure.
Surrogacy agreements enforcement
States that allow surrogacy agreements will enforce only under certain conditions.
