Family Law Flashcards
1
Q
Family Law
- Marriage
- Requirements
A
- Requirements - Most states by statute
1. Must be minimum age - 18 or parental or judicial approval.
2. Must not be too closely related, either by consanguinity or adoption, or often marriage.
3. Must have capacity to consent - Ability to comprehend and voluntarily agree (fraud, duress, coercion)
4. Must not have prior undissolved marriage to living spouse.
5. Majority require to be of opposite sex.
6. Most state require a license before solemnization. - DOMA - Allows states to refuse to recognize marriages which violate state policy (same sex)
2
Q
Family Law
- Marriage
- Common law marriage
A
- Most states have abolished, but recognize from other states.
a. Consent to the relationship as a marriage, consent to permanent and exclusive treatment as husband and wife.
b. Must cohabitate
c. Must have capacity to comprehend and agree voluntarily and give consent.
d. Must not have impediment which would bar a marriage license.
e. Must hold out publicly as living together as man and wife. - If impediment exists, as with licensed marriage, the marriage will be recognized when lifted.
3
Q
Family Law
- Child Custody
- Best interest of child standard
A
- Best interest of child is standard applied in awarding custody and visitation.
- Factors
a. Wishes of child - over 12 given greater weight
b. Wishes of parents.
c. Relationship with parents (custodial parent)
d. Relationship with siblings and others.
e. Child’s adjustment to home, school, and community.
f. Physical and mental health of all involved.
g. age and gender of child - Primary caregiver - Tie generally goes to the primary caregiver.
- Joint custody - Factor in every aspect of everyone and their life to see if in best interest.
4
Q
Family Law
- Child Custody
- Jurisdiction
A
- Primary Jurisdiction - For original custody orders, home state.
- Home State - Where child has lived for six months immediately prior to proceeding.
- Secondary - Extended home state - State that was the home state, but child moved, and one parent continues to live in state.
- Significant Connection - If no state has home or extended, or jurisdiction has been declined as inconvenient. A state has jurisdiction if the child and at least one parent have a significant connection with the state and substantial evidence is available concerning the child’s car.
- Exclusive Continuing - Court making initial determination has exclusive continuing jurisdiction for modifications until a court determines
a. Neither child nor parents live in the issuing state.
b. There is no longer a significant connection and evidence in the issuing state.
5
Q
Family Law
- Premarital Contracts
A
- UPAA - Most states adopt and require.
a. Must be entered voluntarily.
b. Must be in writing signed by the person to be charged.
c. Both must make full and fair disclosure of their financial worth.
d. Economic provisions must be fair and reasonable. - Jurisdiction - State where executed, or state with most significant relationship to parties.
6
Q
Family Law
- Federal law in Jurisdiction
A
- FFCCSOA - Full faith and credit must be given to another court’s child support order, if
a. the court had jurisdiction over the matter and parties.
b. The parties had reasonable notice and an opportunity to be heard. - UIFSA - A court may serve as an initiating tribunal to request a court with exclusive continuing jurisdiction to enforce or modify a support order, even though that court does not have PJ over the person charged.
- PKPA - A state may not modify a custody order if one of the parties continues to reside in the issuing state, and the issuing court has and does not decline jurisdiction.
UCCJEA - The court making a custody determination has continuing, exclusive jurisdiction until court determines that (see jurisdiction card)
7
Q
Family Law
- Divorce
- Jurisdiction
A
- Over Divorce - Subject matter jurisdiction exists if
a. There is a valid marriage.
b. The petitioner has a statutory minimum number of days residency - IN 6 mos., 3 mos in county where brought - Personal jurisdiction - Court has in rem jurisdiction over divorce itself, if petitioner is resident (Most claim that spouse not domiciled, and challenge full faith and credit not appropriate)
- Over Support and property determinations.
- Personal jurisdiction required.
a. Personal service in state.
b. If resident of state, personal service anywhere.
c. If not resident, long arm statute.
i. Must be constitutional
ii Generally one spouse must continue to reside in state.
8
Q
Family Law
- Spousal Support
- Standard
- Factors
A
- Standard - Based upon need. Whether spouse is able to meet reasonable needs through appropriate employment.
- Factors
a. Financial resources of each party - Need
b. Employability
c. Standard of living – Generally only in long term marriages.
d. Duration of marriage
9
Q
Family Law
- Spousal Support
- Modification
A
- Standard - Most states - Modification made if (i) substantial, (ii) continuing change in circumstances make the original order unreasonable.
- Reasonable needs - The support should not exceed that needed for reasonable needs, but can be increased if was not enough to begin with.
10
Q
Family Law
- Spousal Support
- Factors
A
- Duration of marriage and standard of living established.
- The age and physical and emotional condition of the parties.
- Financial resources of the parties.
- Contribution of each party to the marriage.
- Time needed for requesting spouse to get trained and find employment.
- Ability of payor spouse to meet needs while paying.
11
Q
Family Law
- Majority view property division
- See IN card
A
- Majority uses the Equitable division of marital property method.
- Majority uses a just division of marital property standard.
- Factors
a. Economic circumstances of the spouses, usually finding need based on earning ability
b. Contribution by the spouse
c. value of the property
d. Duration of marriage. - Minority will consider fault.
12
Q
Family Law
- Transmutation of separate property
A
- Separate property can become marital property
1. Property inextricable mingled with marital property or with other spouses separate property.
2. Treated in a way showing intent for property to become marital (placing in both names)
3. Property improved by marital funds or efforts of other spouse. Usually remains separate but reimbursement required for added value from marital contributions, efforts, etc. - Tax treatment - Funds received as part of settlement are not income nor deductible expense.
13
Q
Family Law
- Child Support
- Standard for determining.
A
- Both parents are obligated to support a child, regardless of marital status.
- Standard is mostly based upon income of parents.
- States have guidelines based upon income for minimum support obligations.
- Factors – Used in setting a child support amount.
a. Needs of the child, including special needs.
b. Resources of parents.
c. The standard of living the child would have enjoyed if marriage remained in tact.
14
Q
Family Law
- Child Support
- Termination
A
- Death of child or paying parent.
- Emancipation - occurs when child marries, joins active military, or becomes self-supportive.
- Child turns 18 years old.
Exceptions exist in some states. College until 21, disability, wait until high school complete even if 18.
15
Q
Family Law
- Child Support
- Modification
- Standard
- Income changes
A
- If allowed, modified by substantial and continuing changed circumstances that make the original order unreasonable.
- Court will not modify if decrease in income is voluntary and not for a good reason justifying modification either temporarily or permanently.
