Family Law 2024 Flashcards
Modifying Spousal Support Awards
spousal support awards normally can be modified if there is a substantial change of circumstances.
Child custody and visitation
If the spouses have children, the court will decide issues of child custody and visitation based on the best interest of the child.
Gifts in contemplation of marriage
If the marriage does not take place, gifts conditioned on the marriage (for example, an engagement ring) must be returned.
Premarital Agreements
AK antenuptial agreements.
Valid contracts that address the rights of the parties upon divorce or death. The marriage is sufficient consideration to support a premarital contract.
Requirements for an enforceable PREMARITAL CONTRACT to be valid?
- K must be IN WRITING and signed by party to be charged, and
- Agreement must be entered into voluntarily (no fraud, duress, or overreaching), and
- Both parties must make a Full and fair DISCLOSURE of financial worth (proof of assets or proof that party against had independent knowledge of the assets).
[If agreement is UNCONSCIONABLE…]
*some cts: Economic provisions must be fair and reasonable.
Independent Counsel: NOT required, if both parties are represented by independent counsel, courts are far less likely to find overreaching and refuse to enforce the contract.
Contents of premarital contract. What can it have? What can it NOT have?
disposition of property in the event of death or divorce;
the making of a will, trust, or other arrangement to carry out the provisions of the agreement;
the choice of law governing construction of the agreement; and
any other matter not in violation of public policy or criminal statute.
Generally, parties can make agreements regarding alimony (also known as spousal support), but a court may find the provision unenforceable if it leaves the disadvantaged spouse a public charge.
BUT, no provisions in pre-marital agreements for CHILD support and child custody. Never bind the court.
Pre-marital agreements:
void marriages?
Choice of Law provisions? What law governs of not?
Void Marriage: If a marriage is found to be void, a premarital agreement is enforce- able only to the extent necessary to avoid an inequitable result.
Premarital agreements often contain valid choice of law provisions.
If the agreement at issue does not contain a choice of law provision, then its enforceability is governed by the law of the state where it was executed or the state with the most significant relationship to the parties.
Marriage Requirements
No Legal Impediments to marry:
Both minimum age
Parties not too closely related
Both parties have capacity to consent (ability to comprehend and volutnarily agree)
Both parties must NOT have a prior UNDISSOLVED marriage to a LIVING spouse (Bigamy)
Procedural requirements:
License
Solemnization (ceremony)
WHo can marry: legal impediments to marriage
Both minimum age
Parties not too closely related
Both parties have capacity to consent (ability to comprehend and volutnarily agree) [at time of the ceremony]
Both parties must NOT have a prio UNDISSOLVED marriage to a LIVING spouse (bigamy)
Capacity to consent = must understand their actions and voluntarily agree to them. parties must intend to enter into marriage, so a marriage may also be subject to attack if one party is induced to marry because of fraud, duress, coercion, or force.
Procedural requirements for a marriage
License (most states)
Solemnization (ceremony with authorized officiant)
BUT, the failure to meet procedural requirements of a license will not invalidate the marriage.
To get license, some states require that each party obtain a certificate from a physician stating that the party is free from particular communicable diseases.
Most states require a waiting period between getting the license and having the ceremony (often, 48 or 72 hours).
Requirements for a COMMON LAW marriage
Requires 3 things:
Exchange of Consent to marry between two people (includes capacity and lack of legal impediments)
Cohabiatation (no specified time is required)
Couple Holding Out publicly of living together as spouses
[C, C, Hop]
CL Marriage abolished in most states. BUT, if a valid common law marriage is formed in one state BEFORE moving, it will generally be regarded as valid even in those states that do not recognize common law marriage.
Marriage by estoppel or Putative Marriage
Equitable remedy that some states use to protect an innocent party who acted in good faith when entering into an invalid marriage.
In some states, the putative spouse can acquire all of the rights of a legal spouse.
Ex: married someone who you did not know was married to someone else- this provides marital rights invalid marriage who enter in good faith.
Property during marriage and after
DURING marriage, each each spouse owns and controls the property in their own name, BUT title is not dispositive in the event of divorce.
Look to how spouses take title to property.
Tenancy by the Entirety
if spouses take title to real estate jointly, a tenancy by the entirety is presumptively created.
A tenancy by the entirety includes a right of survivorship, and one spouse cannot convey or encumber the property without the consent of the other spouse.
Upon dissolution of the marriage, tenants by the entirety become tenants in common.
Marital property
property acquired DURING marriage is marital property, no matter how titled. Upon dissolution of the marriage, the court has broad discretion regarding the equitable distribution of this property.
Approaches to Dividing Property Upon Divorce
Community property
(all property acquired during the marriage is deemed owned one-half by each spouse, and all property brought into the marriage or acquired by gift or bequest is separate property)
Equitable division of all property owned by either spouse, whether acquired before or after the marriage
Equitable division of marital property (most common)
Obligation to Support spouse
During marriage, each spouse has an obligation to support the
other.
The doctrine of necessaries can be used to make one spouse liable to third parties for the other spouse’s purchases for necessary expenses (food, clothing, and health care).
Spousal Abuse Orders
Every state has laws protecting the Vs of domestic abuse, both within and outside of a marriage.
All 50 states allow a battered spouse to seek some form of protective order against a violent spouse.
Initially, protective orders can be granted ex parte (that is, WITHOUT NOTICE to the other spouse) and can last from one month to several years.
Alienation of Affection
If 3rd party diverts affection from one spouse, the deprived spouse has a tort claim for this against the 3rd party.
need genuine love and affection between validly married spouses, alienated or destroyed, and causation.
Criminal Conversation
need 1) valid marraige and 2) adultery.
Negligent Infterference with Consortium or services
Action for Loss of other’s consortium due to injuries from D’s negligence.
Family Privacy
Families have the right to privacy in their homes and freedom from governmental interference in their domestic affairs.
Parents have authority to make decisions about most matters concerning the upbringing of their child, but certain state interests (for example, prevention of abuse and neglect, compulsory education) take precedence over parental autonomy.
The United States Supreme Court has recognized a constitutional right of privacy as implicit in the concept of “liberty” and protected by the Due Process Clause. Because privacy is a fundamental right, any regulation of it is invalid unless it is necessary to protect a compelling government interest.
Constitutiaonlly protected rights within right to privacy
Right to/of
marry
procreate
use or sel contraceptives
related persons to live together
parents to EDUCATE their children outside the public schools
parents to decide issues concerning CARE, CUSTODY , and CONTROL of their children.
Divorce vs Annulment
ANNULMENT: Marriages that are invalid due to an impediment at the time of the marriage can be annulled. Annulment declares marriage INVALID due to impediment that existed at the time of the marriage (made it VOID or VOIDABLE).
DIVORCE: Valid marriages can be dissolved by either a fault-based or no-fault divorce.
Void marriage
GROUNDS:
Bigamy
Consanguinity
Nonage (some states)
Invalid utter nullity, failed to meet essential reqs for legal marriage. No ratification of void marriage. Parties can walk away with NO legal action, but usually bring annulment action to determine property distribution and child custody.
Validation of void marriage: if impediment causing it to be void is removed, and the parties continue to cohabit. (under the UMDA)
EFFECT:
cannot be ratified. But if impediment removed, continued cohabitation results in validation in some js).
A complete nullity even without a court order
Any interested party may seek annulment
Subject to collateral attack (for example, in probate proceedings)
Subject to attack after death of one of the parties
VOIDABLE Marriage
Valid until declared null. Because of impediment that existed at the time of the marriage, ONE of the spouses may bring an action to have it annulled. No collateral attacks.
Voidable marriages can be remedied (or RATIFIED) by continued habitation after the removal of the impediment, and ratification means the marriage cannot be annulled.
EFFECT:
Can be ratified (continuing in relationship after impediment removed.
Valid until declaration of annulment
Only spouses may seek annulment
Not subject to collateral attack
Not subject to attack after death of one of the parties.
VOIDABLE marraige grounds
GROUNDS:
Nonage (most states)
Incurable physical impotence
Lack of capacity
Mental incompetence
Duress
Fraud involving the essentials of marriage
Grounds for ANNULMENT of marriage:
(VOID or VOIDABLE marriage examples)
Bigamy or polygamy
Cosanguitity (incest)
Nonage
Incurable physical impotence
- Lack of capacity/Mental incompetence
Lack of consent
Duress
- Fraud involving the essentials of marriage
Bigamy
BIGAMY or POLYGAMY: if either party has a living spouse.
Void
BUT, the subsequent spouse has two possible arguments:
(a) the strong presumption that the latest marriage is valid, and,
(b) if the prior marriage is later terminated by divorce, annulment, or death, continued cohabitation validates the second marriage under the UMDA and similar statutes.
Cosanguinity
Cosanguitnity
(AKA incest)
Parties are too closely related (direct lineal ascendants/descendatns, aunt, uncle, siblings, niece/nephew.
Nonage
Nonage
(spouse under statutory age and married without getting required consent).
underage spouse may ratify the marriage by continuing in the relationship after reaching the statutory age.
Usually voidable, but maybe void depending on state law
- Incurable physical impotence
- Incurable physical impotence
Inability to have normal sexual relations with a spouse.
Impotence is NOT inability to have children.
(voidable)
- Lack of capacity/Mental incompetence
- Lack of capacity/Mental incompetence
Lack of understanding, whether due to mental infirmirtty or drugs/alcohol
(voidable)
- Lack of assent
- Lack of assent
(voidable)
- Duress
- Duress
Affects consent
(voidable)
- Fraud as grounds for voidable marriage
- Fraud involving the essentials of marriage
Fraud Affects consent IF it involves an ESSENTIAL elemnt of marriage (like ability/willingness to have sex or have kids).
(voidable)
Effect of Annulment
Effect on property?
Defenses of void?
Defenses of voidable?
Marriage set aside as if it never existed.
Property: place parties in pre-marriage position.
For VOID marriages:
ONLY defense is to deny the existence of the defect.
Also, if the impediment has been removed and parties continue the relationship, marriage becomes valid in some js (UMDA).
For VOIDABLE marriages:
Ratification is the most common defense
Also laches or estoppel.
Children: still marital children, support and child custody issues are handled the same way as divorce.
Spousal Support: Generally not awarded. No reinstatement of SS from previous marriage terminated by remairrage later annulled. if spousal support from a previous marriage has been terminated by remarriage, it will not be reinstated following an annulment of that marriage.
