Family Law Flashcards
What are the requirements to make a marriage valid?
(CALF SAW) Consanguinity, Already Married Prohibition, License, Filed Certificate, Solemnization, Age of Majority, Witnesses
What are the requirements for a valid domestic partnership?
(SURE) Same household, Unmarried to another person, Registered in the state, Eighteen or older
What are the grounds for declaring a marriage invalid?
(DAFT LUV - any one will do)) Duress, Already Married, Fraud, Too Closely Related (Consanguinity), Lacked Capacity, Underage, Void Out of State Marriage
How will the court distribute/maintain property after a marriage dissolves?
(1) Identify all property: is it separate or marital? (2) value the property, and (3) justly/equitably divide/distribute the property (“just and equitable” are the magic words!)
What is marital/community property?
All property that is accumulated throughout the term of the marriage (real, personal, income, earnings, goodwill, etc.)
For assessing marital/community property, how is the “term of the marriage” measured?
Most states measure it by the date of separation - ends the term of the marriage. A few say it is when the divorce is finalized.
What factors should a court consider in forming a “just and equitable” distribution of property when a marriage is being dissolved?
(DEP) Duration of Marriage (5 years or less is short term, try to return them to position upon entering), Economic Circumstances, Property Amount
What factors need to be present for a pre-nuptial agreement to be valid?
(FOG): Full disclosure of material facts, Opportunity for both parties to seek independent counsel, Good faith w/o fraud or coercion
What factors will a court consider in assessing spousal maintenance (Aka alimony) awards?
The party seeking maintenance - need v. ability to earn money, education level, standard of living, and length of the marriage. The court has a high amount of deference in assessing this award.
What are the magic words any time you are discussing child custody or responsibilities of parents?
“Child’s best interest”
What are some of the factors to be analyzed in creating a parenting plan?
Primary Residential Placement, Residential Schedule, Decision Making, Dispute Resolution, Child’s Input (depends on his/her age/maturity level), Restrictions on Contact with Children – may be imposed, Negative Parent Characteristics
What must be shown for a parenting plan to be modified?
A “substantial change in circumstances.”
How can paternity be presumed under the UPA?
If kiddo is born during marriage, if kiddo is born within 300 days of a marriage dissolving, or if man marries the kiddo’s mom and he agrees to be the dad/signs a paper acknowledging paternity.
Under what circumstances would the UPA’s 2 year time limit to seek a declaration of non-paternity be set aside?
If man and mom never cohabitated or never had sex during probable time of conception or dude never treated the kid as his own
What are the consequences of a legal separation from marriage?
Parties are still technically married - to reconcile they need only dismiss the suit. However, the date of PHYSICAL separation is important for determining the “term of marriage” when property is later divided.
If a formerly-married couple has their marriage declared invalid, what is the next step?
This is the legal version of annulment - the marriage is void and a decree of dissolution (divorce) is the next step.
What is the minima waiting period for dissolving a marriage?
30-90 days, depending on the jurisdiction
In forming a parenting plan, why would a parent’s overall involvement be limited? HARA
History of domestic abuse, drug use, violence, Abuse, Refusal to perform parental functions, Abandonment of kiddos
What are the main factors in assessing how child support should be determined?
SODA THIEF:
a. Standard calculation
b. Other expenses – day care, lessons, future costs
c. Deviations
d. Adjustments/modifications
e. Transportation
f. Health care
g. Insurance
h. Educational support
i. Federal tax exemptions can be divvied between parents
What are the three main recipes to a presumption of paternity?
(1) Married to mom
(2) Kid born w/in 300 days of marriage to mom terminating
(3) Marries mom +
a. Acknowledges paternity OR
b. Dude is listed on birth certificate OR
c. Promises in writing to support the kid
What is the difference between terminating parental rights and awarding sole custody to one parent?
Termination of parental rights is really harsh - would require a factor like abandonment, abuse, etc. Awarding sole custody is less harsh - means the parent can still visit, etc.
How does the UCCJEA vest jurisdiction for child custody decisions?
The UCCJEA vests “exclusive [and] continuing jurisdiction” for child custody litigation in the courts of the child’s “home state,” which is defined as the state where the child has lived with a parent for six consecutive months prior to the commencement of the proceeding (or since birth for children younger than six months). If the child has not lived in any state for at least six months, then a court in a state that has (1) “significant connections” with the child and at least one parent and (2) “substantial evidence concerning the child’s care, protection, training, and personal relationships” may assume child-custody jurisdiction. If more than one state has “significant connections” and “substantial evidence…”, the courts of those states must communicate and determine which state has the most significant connections to the child.
When might the exclusive jurisdiction given to the court who made the child-custody determination originally (under UCCJEA) be relaxed?
A court which has made a child-custody determination consistent with UCCJEA has exclusive, continuing jurisdiction over the determination until either (1) that court determines that neither the child, the child’s parents, nor any person acting as a parent has a significant connection with the State that made the original order and that substantial evidence is no longer available in the State concerning the child’s care, protection, training, and personal relationships, or (2) that court or a court of another State determines that the child, the child’s parents, and any person acting as a parent do not reside in the State that initially made the child custody order.
