Family Law Flashcards
Breach of promise to marry
Action for breach of promise to marry has been abolished in most states.
Gifts in contemplation of marriage
If the marriage does not take place, engagement gifts (those made in anticipation of marriage) must be returned.
Limitations on who may marry
Parties must:
1) be a minimum age
2) not be too closely related
3) be of the opposite sex
4) have capacity to consent
5) not have a prior unresolved marriage to a living spouse
Procedural requirements for a marriage
1) license-require the persons intending to marry obtain a license prior to the solemnization
2) solemnization-a marriage maybe solemnized by a ceremony performed by a judicial officer or a member of the clergy
State of mind requirement for a marriage
Parties must understand their actions and voluntarily agree to them.
If one party is induced to marry because of fraud, duress, coercion, or force, the marriage is subject to attack.
Requirements for a common-law marriage
1) exchange of consents between two people with capacity
2) cohabitation
3) a holding out publicly of living together as husband and wife
Premarital contracts
Pertain to the distribution of property upon divorce or death, and are valid contracts to which the principles of contract construction apply.
Content of premarital contracts
Can include any matter not in violation of public policy or a criminal statute except for child custody provisions.
Requirements for a valid premarital contract
1) agreement must be entered into voluntarily
2) contract must be in writing and signed by the party to be charged
3) both parties must make a full and fair disclosure of their financial worth
4) economic provisions must be fair and reasonable
Independent counsel and premarital contracts
Although not required, if both parties are represented by independent counsel, it is far less likely that a court will find overreaching and refuse to enforce the contract.
Void marriages and premarital contracts
If a marriage is found to be void, the premarital agreement is enforceable only to the extent necessary to avoid an inequitable result.
Choice of law in premarital contract
Premarital contract is governed by the law of the state in which it was executed or the state with the most significant relationship to the parties.
Spousal support during the marriage
Each spouse has an obligation to support the other during the marriage.
An annulment
A declaration that a marriage is invalid because there was an impediment at the time of the marriage.
Void marriage
Is a complete nullity. No subsequent act can ratify the marriage.
Parties may walk away from a void marriage without a court order, but an annulment action is usually brought to determine property distribution and child custody.
Any interested party may seek annulment of the void marriage, and the marriage is subject to collateral attack even after the death of one of the parties.
How a void marriage becomes voidable
Where the impediment causing the marriage to be void is removed the marriage becomes merely voidable and thus subject to ratification.
Voidable marriage
Deemed valid, but because of impediment that existed at the time of the marriage, one of the spouses may bring an action to have a marriage declared invalid.
If spouse with the cause of action ratifies the marriage by continuing in the relationship after the impediment is removed, or if one spouse dies, the marriage can no longer be invalidated.
Bigamy or polygamy
If either party has another living spouse, the marriage is void.
Consanguinity
Marriages between parties too closely related are prohibited and considered void.
Non-age
Spouse who was under the statutory age and married without getting required consent can have the marriage invalidated as voidable.
Incurable physical impotence
Inability to have normal sexual relations with the spouse is a ground for annulment and the marriage is voidable.
Lack of capacity
Lack of capacity sufficient to know annul a marriage may be:
1) a lack of understanding due to a mental condition with the influence of drugs or alcohol
2) a lack of mutual assent to the marriage
3) duress
4) fraud going to the essentials of marriage
(all grounds for a voidable marriage)
Defenses to annulling a marriage
Ratification is the most common defense in an action to annul a voidable marriage.
Spousal support in an annulment
Generally spousal support is not awarded in annulment actions.
No-fault divorce
Requires a showing that:
(1) the marriage is irretrievably and/or (2) the parties have been living apart for a specified time.
Only defense is to deny one of the above grounds.
Fault grounds for divorce
1) adultery
2) willful desertion for a specified time
3) extreme physical or mental cruelty
4) voluntary drug addiction or habitual drunkenness
5) a spouse’s mental illness
Collusion
Agreement between the spouses to simulate grounds for divorce or to forego raising a valid defense is sometimes a defense to a divorce.
Connivance
Willing consent by one spouse to the other spouse’s misconduct abolished in many states.
Condonation
Forgiveness of marital offenses with full knowledge of the commission. Resumption of marital relations after the forgiveness is the key element of this defense.
Recrimination
Defense that arises when the party seeking a divorce was also guilty of misconduct for which a divorce may be granted.
Defense is no longer recognized.
Legal separation
Does not terminate the marriage but the parties may have all of their rights regarding property, spousal support, custody, and child support adjudicated in this proceeding.
Residency requirement for divorce jurisdiction
One of the parties must be domiciled in the jurisdiction where the action is brought.
Most states set a durational residency requirement before an action may be filed.
Jurisdictional requirements for spousal support and property rights orders
To have jurisdiction over spousal support, property rights, etc., the court must have personal jurisdiction over the defendant.
Full faith and credit to recognize divorce decrees
As long as one of the parties was domiciled in the state who granted the divorce, the divorce decree is recognized as valid in all other states.
Provisions of the decree relating to property right, spousal support, child support, etc., are given full faith and credit only if the court has personal jurisdiction over the defendant.
Modification of property distribution decrees
Property distribution decrees are not modifiable.
Separate property
Each spouse can take separate property that she owned prior to the marriage as well as any separate property acquired during the marriage by gift, bequest, or descent.
Marital property
All other property acquired during the marriage is subject to equitable distribution by the court.
Professional license or degree
A professional license or educational degree is not distributable property.
Some jurisdictions have compensated supporting spouse for their contribution during the other spouse’s education or training.
Amount of spousal support awarded
Portcrest great discretion in awarding as much Stossel support as necessary for the maintenance of the requesting spouse.
Courts can consider a variety of factors but marital fault is not one of them.
Permanent periodic spousal support
Support paid regularly to support a spouse who has neither the resources nor the ability to be self-sustaining.
Rehabilitative spousal support
Consist of periodic payments for a limited time to enable a spouse to gain skills to become self-supporting.
Modification of spousal support decrees
Only permanent periodic and rehabilitative spousal support awards can be prospectively modified for changed circumstances.
Lump sum payment
Nonmodifiable fixed amount payable either all at once or broken down into a series of payments.
Reimbursement spousal support
Payment to a spouse who supported the other spouse while the later obtained a professional license or degree.
Termination of spousal support
Periodic spousal support terminates upon the death of either spouse or the remarriage of the recipient spouse.
Child support
Both parents share equally a duty to support their children.
Amount of support usually arrived at by the use of formula based on the number of children, their ages and special needs, and the parents’ incomes.
Child support independent from visitation rights
Child support obligation is independent of the noncustodial parent’s visitation rights.
Visitation cannot be withheld because of failure to pay child support.
Termination of child support
Duty to support a child ceases upon a Child’s reaching the age of 18, the child’s marriage, the termination of parental rights, or the death of the supporting parent.
Child support maybe indefinite for severely disabled child.
Modifying spousal support
Periodic spousal support maybe modified if there is a substantial change in circumstances regarding the needs of the recipient spouse or the ability of the payor spouse to pay.
Modifying child support
Child support is modifiable based on a substantial change of circumstances affecting the needs of the child or the ability of the parent to pay.
Full faith and credit must be given to the child support court orders of a court in another state.
Past-due installments of child support cannot be retroactively modified.
Enforcing a child support order
Court that issues controlling child support order has continuing and exclusive jurisdiction to modify it.
Role of court in another state is only to enforce the original order unless: (1) the parties no longer reside in issuing state or (2) the parties consent in a record to the non-issuing court’s assertion of jurisdiction to modify the order.
Custody
Custody of the minor can mean legal custody (the right to make major decisions affecting the child’s life) or physical custody (actual possession and control of the child).
Jurisdiction of custody matters
Court has jurisdiction to initially enter or modify a child custody or visitation order if the state (1) is the child’s home state, or (2) was a child’s home state within the past six months and the child is absent from the state, but a parent or person acting as a parent continues to live in the state.
Definition of home state
A child’s home state is the state in which the child lived with the parent for at least six consecutive months immediately before the commencement of the proceeding.
When home state rules do not apply
A court has jurisdiction to enter or modify a child custody or visitation order if no other state has or accepts home state jurisdiction and the child and at least one parent have a significant connection with the state and substantial evidence concerning child is available in the state.
Exclusive continuing jurisdiction over child custody matters
The court that made the initial child custody or visitation determination has exclusive continuing jurisdiction over the matter until the court determines that neither the child nor the child’s parents continue to reside in the state or the child no longer has a significant connection with the state and substantial evidence relating to the matter is no longer available in the state
Enforcement of a another state’s custody order
Custody or visitation order of one state can be registered in another state and enforced in that state in the same manner as one of its own orders.
Best interest of the child standard
Standard applied in awarding custody and visitation is the best interest of the child. Variety of factors are considered by the court when making this decision.
Child visitation
When an award of sole physical custody is made to one parent, the other parent must be given reasonable visitation rights.
Limitation on visitation rights imposed for misconduct
The court may limit a parent’s right to visitation if that parent engages in conduct that might injure the child, but absolute denial of visitation is rare.
Enforcement of child visitation order
Full faith and credit must be given to another state’s custody or visitation determination if the jurisdictional element I met.
Modification of custody decrees
Custody awards will be modified only if there’s a substantial or material change in circumstances.
