Family Law Flashcards
Breach of promise to marry
- rare today in most states
- tort damages including actual damages/loss to reputation/mental anguish. Punitive damages available
Gifts in Contemplation
- Gfits made condition on the subsequent marriage null if marriage fails to take place (goes back to donor)
- consider type of property given, conditions attached, intent of donor
Antenuptial (Premarital) agreements
- Many states adopted Uniform Premarital Agreements Act
- Premarital agreements address rights of parties in event of death or divorce
- Parties can agree to disposition of property at divorce and alimony
- Gen waiver of alimony upheld unless doing so would cause disadvantaged spouse to beocme public charge
- Cannot be bound to provisions in agreement regarding children
Requirements for validity of prenups
- In writing and signed
- Entered into voluntarily (no fraud, duress, overreaching)
- Full disclosure of assets or proof that party had independent knowledge (under UPAA court must first determine that agreement was unconscionable when executed and whether fair disclosure of assets or independent knowledge)
- Some courts consider fairness, whether parties rep by indept counsel
- parties can agree on state law to apply
- if no agreement, law of state with most sig relationship to parties OR law where agreement executed apply
Marriage requirements
(1) have a license (failure to meet procedural req will not invalidate marriage)
(2) Ceremony w/ authorized individuals
(3) No legal impediments to marriage (can’t be too closely related & can’t be married to someone else)
(4) capacity to consent (mental -e.g. not under influence of alcohol/drugs- and must be age of majority -usually 18 or 16-17 with parental consent or 16 with judicial consent)
Common Law Marriage
(1) must consent to marriage (capacity, no legal impediments)
(2) co-habit as husband and wife
(3) hold selves out as husband and wife
Marriage by estoppel or putative marriage
- equitable remedy may be given in some courts to innocent party who acted in good faith when entering invalid marriage
- in some states, putative spouse can acquire all rights of legal spouse
Rights and Responsibilities of spouse -property
- each spouse owns and controls own property but in event of divorce title will not be dispositive in equitable division of property
- gen if take real estate title in joint names, tenancy by entireties presumed so one spouse cannot convey or encumber property without consent of other spouse
Rights and Responsibilities of spouse -spousal support
- during marriage, spouse owes support to one another
- doctrine of necessities: can be used to make one spouse liable to third parties for other spouse’s purchases for necessary expenses, such as food, clothing, and health care
Rights and Responsibilities of spouse -tortious interference with marriage -alienation of affection
(1) genuine love and affection between spouses who are validily married
(2) Love and affection was alienated and destroyed
(3) D’s acts caused loss of love and affection
- adultery not equirement
- proof of damage req (highly subjective). Maybe punitive
- if marriage already falling apart, no award
Rights and Responsibilities of spouse -tortious interference with marriage -criminal conversation
(1) marriage of the spouses
(2) adultery between D and spouse during marriage
(3) proof of damage requried. Maybe punitive
Annulment
Declaration that marriage invalid (void or voidable)
Effect:
- marriage set aside as if never existed
- children remain legit, child support can be awarded
- child support may be awarded, but not all states
- property gen treated as if never marriged (pre-marital state)
Void marriage
fail to meet essential requirements, can be attacked by one of parties or third party collaterally, may or may not be remedied by continued habitation after removal of impediment
-e.g. bigamy, too closely related
Voidable marriage
(1) event or condition affecting adequacy of consent to marriage K
(2) treated as valid until annulled
(3) can be attacekd only by or on bhealf of party to marraige and sometimes only party sought to be protected
(4) marriage can be ratified by continued cohabitation after removal of infirmity
-e.g. underage, incurable physical impotence, lack of capacity, duress, fraud (must affect essential element of marriage)
Divorce and Separation -Jurisdiction
(1) one of spouses must be domiciled in state seeking to enter divorce
(2) generally if spouse is resident of state for min period of time presumption domiciled there and court have juris
(3) To determine financial issues, court must have PJ over both parties
Grounds for divorce
(1) No-Fault divorce: irreconcilable differences, livin sep and apart for specified period, incompatibility
(2) Fault based divorce (must plead and prove): adultery (circ evidence of opportunity/inclination, corroboration), desertion for specified time (unjustifieable departure from marital home for specified period with no intent to return), cruelty (physical or mental), habitual drunkenness or abuse of drugs commencing after marriage, insanity
Defenses to divorce
(1) for no fault traditional defenses generally unavailable but one spouse can claim reconciliation to restart time clock for living separate and apart
(2) defenses for fault based grounds rarely used but still exist: collusion (agreed to simulate grounds for divorce), connivance (P willfully consented to other spouse’s misconduct), condonation (P forgave marital offense with full knowledge of offense), recrimination (P also guilty of marital fault -doctrine of unclean hands)
Legal separation
- often permitted for same grounds as divorce
- effect: still married, can seek to have rights regarding property, spousal support, child custody, child support decided
- if permanently divide marital property when legal separation granted, after acquired property is separate property
Property Division -Types
(1) Community property: all property acquired during marriage owned by one-half by each spouse and property owned before marriage is separate
(2) Equitable Division of all property, applies to property owned by either spouse
(3) Equitable Division of marital property. Each spouse takes separate property and property acquired during marriage divided equitably
-#3 most popular
Property Division -Process
(1) Classification -determine what marital property is and what is separate property
(2) Division -make an equitable division o fmarital estate no matter how property titled (equitable division does not necessarily mean equal)
Property Division -Separate property
- all real and personal property owned by spouse before marriage including assets held in individual retirement accounts
- property acquired by spouse at any time by gift, devise, or descent
- property acquired in exchange for property acquired before marriage
- income from and appreciation of separate property
- pain and suffering awards, victim of crime compensation awards, future med expenses, future lost wages
- property acquired after order of legal separation where court made final disposition of property
Property Division -marital property
- all property acquired by either or both spouses during marriage up to the final divorce decree
- includes value of vested and unvested pension, vested and unvested stock options, retirement or other fringe benefit relating to employment and accrued during period of marriage
- reovery in personal injury, worker’s compensation, SSI disability, wages lost during marriage, reimbursement for med bills incurred and paid with marital property, property damage to marital property
Property Division -Comingling
- Separate property can become marital if property is inextricably intertwined
- court will attempt to trace property
Property Division -Transmutation of separate property
Separate property can become marital property based on the intent of the parties
Property Division -Improvement of separate property
-when separate property is improvd by use of marital funds OR the efforts of non-owning spouse will grant reimbursement
Property Division -property acquired before marriage but paid for after marriage
- Courts split two way to do this but
- Majority view: property should be apportioned between separate and marital estates in proportion to contribution of separate and marital funds to pay for the property
Property division -pensions
- considered to be marital property subject to division even if non-working spouse did not contribute
- courts differ in how to divide
Property division -professional license or degree
- not considered to be subject to marital property subject to division
- some juris consider when awarding alimony/spousal support to avoid unfairness
- minority juris value degree and then award more prop or alimony to other spouse based on valuation
Tax consequences
- property division is not taxable
- alimony is taxable (taxable income of recipient, deductible by payor)
- child support not income so not deductible
Property division -equitable division
- Once court ID’s and values marital property, will make equitable division (cannot be modified after finalized)
- Factors to consider:
(1) age, education, background, earning capabilities of both parties
(2) duration of marriage and if any prior marriage
(3) standard of living during marriage
(4) present income of both parties, vocational skills, employability
(5) source of money used to purchase property
(6) health of the parties
(7) assets, debts, and liabilities of parties,
(8) needs of each of the parties
(9) provisions for custody of minor children
(10) whether distribution is in leiu of additional alimony
(11) whether party’s opportunity to acquire future income/assets
(12) each party’s contribution to acquisition of, or enhancemetn of, existing marital assets
(13) each party’s contribution as a homemaker of the family unit
(14) whether each party has dissipated marital property
-marital fault generally not a consideration but can be
Alimony/Maintenance
- paid to economically dependent spouse
- 4 types, can be awarded more than one
- trend to award less money than in past
- trial court vested with great discretion
Alimony -Types
(1) Permanent periodic support -indefinite but can be modified or terminated upon proof of substantial change of circumstances
(2) Lump sum support: for specified time period, can be payable in lump sum or installments, cannot be mod because treated like K right
(3) Rehabilitative support: for specified time period unless modified by court, can be mod or termianted upon proof of substantial change of circ (designed to restore disadvantaged spouse’s earning capacity to the point no longer economically disadvantaged relative to spouse)
(4) Reimbursement support: for specific period of time, can be payable in installments or lump sum, no mod b/c treated like a K right
Alimony -Factors to be considered
Two Primary considerations:
(1) need of claimant spouse
(2) ability of other spouse to pay
Factors:
(1) standard of living during marriage
(2) duration of marriage
(3) age and physical and emotional conditions of both parties
(4) financial resources of each party
(5) contribution of each party to marriage
(6) time needed to obtain education or training to find appropriate employment
(7) ability of payor spouse to meet needs and pay support
(8) some juris may consider marital fault
Alimony -Modification of spousal support
- modifiable based on a substantial and material change of circumstances
- voluntary reduction in income will not be sufficient to reduce obligation (e.g. leaving job or incarceration)
Alimony -Termination of spousal support
(1) Periodic payments will generally terminate upon remarriage of recipient, death of either spouse, in some states cohabitation of other person
(2) Lump sum awards survive death and not modifiable
Marital Contracts -separation agreements
- entered into after marriage and enforceable if supported by consideration
- full and fair disclosure and agreement must be entered into voluntarily
- courts not bound by any K regarding children
Marital contracts -modifications
- if divorce decree incldues terms of agreement or expressly merges them, provisions become part of court order -modifiable by court and subject to contempt
- if parties to not submit agreement to court, K nonmodifiable and enorceable only by K remedies
Contracts between cohabitants
- Contracts valid unless sex is the only consideration
- Express K regarding earnings and property rights will generally be enforced
- implied K (partnership or constructive trusts) may be used to award property
Child support
- both parents equally share duty to support children based on child’s need and ability of parent to pay
- courts have less discretion b/c of child support guidelines
- majority of jurisdictions follow the income shares approach: considers number of children and income of parents to determine a base line of child support
- courts have discretion to add amounts for health insurance and other extraordinary educational expenses
- child support paid indept of visitation
Duration of child support
Generally age of majority OR death of child OR emancipation of child OR termination of parental rights
Some states allow past age 18 if chld still in high school until some age or completion of education (most will only extend for college if agreed upon by parties/statute)
Support lasts longer if child is disabled
Jurisdiction over Child Support Orders -original juris
- Uniform Interstate Family Support Act (UIFSA) adopted by all 50 states + DC
- Original jurisdiction where first petition under UISFA filed
- Another state can only exercise juris if: (i) second petition filed before time to answer first has expired; (ii) petitioner objected to juris in first action; (iii) second state is child’s home state (where kid lived with parents for 6 consecutive months)
Jurisdiction over Child Support Orders -juris to enforce
(i) issuing court has continuing juris; (ii) another state can enforce by direct enforcement
another state can enforce by:
(1) direct enforcement (obligee mails order to obligor’s employer in another state and employer will withold wages)
(2) registration: child support order registered in another state and is then subjec to enforcement in that state
Jurisdiction over child support orders -juris to modify
-once court enters a valid child support order it maintains continuing exclusive juris during life of order unless no parties reside in issuign state or parties consent to another state’s juris
Modification over child support orders
- modifiable based on substantial change of circ
- voluntary reduction in income will not be grounds for mod, past due child support cannot be mod
Enforcement of child support awards
enforced through traditional civil and criminal contempt proceedings
Child custody juris
-Uniform child custody jurisdiction and enforcement act (UCCJEA) applies to interstate custody disputes
Initial award of child custody
- primary test = child’s home state
- either where chlid lived with parents for last 6 months or state that was child’s home within last 6 months and child absent from state but a parent continue to live in state
- if no home state court can assume juris if child has significiant connection with state and substantial evidence of chld’s well-being in state
- state can assume deferred juris if state with Home State or sig connection juris decline
- any state can by default if no other state exercises juris
modification of existing child custody decree
-issuing state executes continuous exclusive juris UNLESS no parent or child remains in state OR child has no significant connection with state and no substantial evid in state
Temporary emergency injunction -child custody
(1) child physically present
(2) child has been abandoned OR
(3) necessary to protect child because child, sibling, or parent is subject to abuse
Hallmark consideration in child custody
best interests of child
Factors in child custody award
(1) wishes of parent
(2) preference of child (over age 12 more likely)
(3) relationship of child with parents and sibligns
(4) cihld’s adjustment to home, school, and community
(5) mental and physical health of parties
(6) parent who was the primary caregiver
-great deal of discretion in custody and visitation
Joint Custody
- encouraged in most juris and awarded
- if parents openly hostile or unable to communicate, courts will not award
- courts consider many factors like: geographic proximity, ability to communicate, whether parents agree
Sole Custody
can be awarded to one parent when strong evidence demonstrates that it is in hte best interests of child. Other parent entitled to reasonable visitation unless some harm will result
Custody to a nonparent
parent is entitled to custody unless the nonparent can show harm to child or unfitness (e.g. abandonment, neglect, abuse, surrendered custody)
After finding harm or unfitness then best interests analysis
Relocation of child
- state statutes, which generally require notice to other parent and court hearing to determine whether relocation permitted
(1) is it in child’s best interest?
(2) is it motivated by a benefit to the family?
(3) not intended to thwart relationship with other parent
Child kidnapping
(1) if child removed in state, custodial parent must file custody order in new juris and seek enforcement, or obtain writ of habeas corups from new juris
(2) state crime, generally a felony
(3) PKPA (Federal Parental Kidnapping Prevention Act): mandates that states give full faith and credit to another state’s child custody determination if juris proper
(4) International Parental Kidnapping Prevention Act (IPKCA) and Hague Convention on Child Abduction provide international relief when child wrongfully removed to foreign country
Nonmarital children
- intermediate scrutiny in EPC
- parentage action can be brought to establish biological relationship and settle issues of paternity -then parent owes support and rights of custody and visitation
- husband of mother is presumed to be father if: (1) child born during marriage; (2) child born within 300 days of termination of marriage; (3) child born during a void or voidable marriage
- rebutting presumption requires generally clear and convincing evidence
Unwed fathers
child will be considered child of unwed father if:
(1) after birth of child, father marries mother
(2) father holds child out as biological child
(3) father consents to his name on birth certificate
(4) father acknowledges paternity (formality)
(5) judgment decreeing paternity
- protected by DPC and can have rights to custody of children if demonstrate parental responsibility (acknkolwedment, education, suprvision, care, support)
- may be precluded from tort recovery for death of child did not legally recognize
Termination of parental rights
(1) Voluntary termination
(2) Involuntary termination: state may not interfere in family decision making unless endagners well-being of child, may seek to terminate for inflition of serious harm, abandonment, neglect or deprivation, failure to provide support, mental heatlh means inability to care, parental unfitness
Requirements to terminate parental rights
(1) consent of biological parents UNLESS rights already terminated, if unreasonably witheld against best intersts of child
(2) consent of unmarried father: required if father actively invovled in child’s life, may not be necessary if parent abandoned child, failed to support, never attempted to establish relationship
Creation of new parental rights
(1) consent of adoptee (in some states adoptee over age 12 or 14 must consent)
(2) home study: investigation of new home but can be waived for relative adoptions
(3) payment of money prohibited except for medical costs of pregnancy
