Family Law Flashcards
To be married, must satisfy
(1) minimum age
(2) not too closely related
(3) mental capacity
(4) physical capacity
(5) license
(6) soleminzation
Common law marriage elements
(1) exchange of CONSENT between two people with capacity
(2) COHAB
(3) holding out PUBLICALLY LIVING TOGETHER r as husband and wife
What types of premarital contracts OK?
YES, can agree to
(1) property
(2) modification or elimination of spousal support
(3) wills/trusts
(4) choice of law
(5) any other matter not in violation of public policy
NEVER CHILD CUSTODY
Elements for a valid premarital contract
(1) Agreement entered into voluntarily
(2) K must be in writing and signed by party to be charged
(3) Full and fair disclosure of financial wealth (ok not to disclose if there is a proper waiver)
(4) Economic provisions must be fair and reasonable
What does property become if spouses take title in their joint names?
Tenancy by the entirety. After dissolution it becomes tenancy in common
Rights and responsibilities of spouse: agency theory
Must support other spouse during marriage, agency theory may require one spouse be held liable for other spouses authorized purchases - especially if it goes to necessaries
Can government regulate family activity?
Invasion of right to privacy, and therefore due process comes into play. Government can regulate if it is necessary to a compelling governmental interest.
What are marital agreements and are the y legal?
Agreement that alters rights and obligations during marriage - allowed and treated the same as premarital contract.
Annulment definition
Marriage is invalid due to an impediment at the time of the marriage. Treated as though NEVER MARRIED
Void Marriage definition
It’s a complete annulity
deemed not valid (ex. has another spouse).
Cannot be ratified
Any interested party can seek annulment
Subject to collateral attack even after death of one of the parties
Ratification - However, if act that causes it to be voidable is removed, marriage becomes valid if the parties continue living together
Voidable marriage definition
Can be ratified
Valid until declaration of annulment
Not subject to interested party attack
Not subject to collateral attack even after death of one of the parties
Ratification - However, if act that causes it to be voidable is removed, marriage becomes valid if the parties continue living together
What are some void marraiges
Bigamy
Consanguinity
Nonage
What are some voidable marriages
Nonage
Incurable physical impotence
Lack of capacity (mental incompetence, duress, fraud involving essentials of marriage)
Defenses to void marriage
Just that impediment does not exist, or
Ratification - Impediment removed and continued cohabitation
Defenses to voidable marriage
Impedeiment does not exist Ratification Laches Estoppel Unclean hands
No Fault Divorce definition
(1) marriage is irretrievably broken
(2) parties living apart for a specified time
Fault Divorce definition
(1) Adultery
(2) Willful desertion for a specified time
(3) Extreme physical or mental cruelty
(4) Voluntary drug addiction or drunkenness
(5) Spousal illness
Defense to fault divorces
(1) Collusion
(2) Connivance - consent by spouse to the fault
(3) Condonation - forgiveness of the fault (look at resumption of marriage)
Legal separation impact on marriage
Doesn’t terminate it - but all rights may be adjudicated (property, custody, spousal support, etc.)
Jurisdictional time limit to bring an action for divorce
Must be a resident in that state for at least 90 days
Three approaches to division of property
(1) Community Property
(2) Equitable Division of all property
(3) Equitable division of marital property
Community property division approach
All property acquired during marriage is deemed owned one half by each spouse, and all property brought into the marriage or given as a gift remains separate
Equitable division of all property division approach
Divide everything whether acquired before or after marriage
Equitable division of marital property (Most common approach)
Each spouse takes his separate property and the court divides the marital property (marital property is property acquired during the marriage).
Factors court considers when dividing property
(1) Earning capacities
(2) Duration of the marriage, any prior marriages
(3) Standard of living
(4) Present incomes
(5) Source of money used to purchase property
(6) Health of parties
(7) Assets/debts
(8) Child custody provisions
(9) Ability to acquire future income
What is marital property subject to distribution between spouses acquired during marriage?
(1) Pensions
(2) Professional License or Degree
(3) Damage awards in torts
(4) Stock options
When does separate property become marital property therefore subject to the court dividing it up in a divorce?
(1) Mingled with marital property
(2) Can no longer be traced
(3) Property treated in a way that evidences intention to be marital property
When can spousal support be awarded
during marriage
pendency of divorce
divorce decree
Types of spousal support
Permanent
Rehabilitative
Lump Sum
Reimbursement
Permanent spousal support
(1) Payable to lifetime of other spouse
(2) Modifiable upon substantial changes
(3) Terminates upon death of spouse or remmariage
Rehabilitative spousal support
(1) Payable for a limited time
(2) Modifiable upon substantial changes
(3) Terminates upon death of spouse or remmariage
Lump Sum or Reimbursement support
(1) Payable all at once or series of payments
(2) NONmodifiable
(3) Survives the death of either spouse
Child Support
Based on formula taking into consideration (1) number of kids, (2) ages, (3) special needs, (4) parent’s income. Modifiable by substantial change in circumstances but past payment due are not modifiable
Terminated on kid turning 18, death of supporting parent, marriage by kid.
Uniform Interstate Family Support Act
Provides methods for enforcing support orders issued in another state.
Court that issues child support order has continuing and exclusive jurisdiction to modify it. The other state court sought to enforce it can only enforce, unless (1) parties no longer reside in that state or (2) parties consent.
Taxation of spousal and child support
Spousal: Included in income and deductable by payor
Child: Not included in income and not deductable
Mediation
Allowed - and court will enforce the conclusive bargaining, as long as
(1) mediator explained the process
(2) explained right to independent counsel
(3) parties have enough info for decision making
(4) impartial
(5) controls for power imbalance
Separation Agreements valid?
Yes
Entered into during marriage and parties work out the economic issues and spousal/custody rights. Agreement must be VOLUNTARY and FULL DISCLOSURE by both parties.
court can always overturn child custody/support issues
Separation agreements and divorce decrees - merger doctrine
If separation agreement merged into divorce decree, then the whole agreement gets status of a court judgement. If they are not merged then separation agreement remains a separate contract.
Child Custody - UCCJEA
Uniform Child Custody Jurisdictional Enforcement Act
PRIMARY TEST - HOME STATE JURISDICTION - Court can modify child custody or visitation if
(1) court is in child’s home state (home state is where child lived for preceding six months with a parent);
(2) was the child’s home state within the last six months, child no longer there, but one parent is there.
At the end of the day, court always has discretion to decline jurisdiction if it finds it’s the inconvenient forum, or exercise emergency jurisdiction
Whats the child’s home state?
State in which the child lived with the parent for at least six consecutive months immediately before commencing of the proceeding
What if home state jurisdictional rule does not apply?
Then court can modify child custody if
(1) no other state accepts jurisdiction
(2) the child and at least one parent has significant connection with the state
(3) substantial evidence concerning the child is available to the state.
At the end of the day, court always has discretion to decline jurisdiction if it finds it’s the inconvenient forum, or exercise emergency jurisdiciton.
When does this child custody jurisdiction end for forum purposes?
Court will have continuing exclusive jurisdiction until
(1) neither the child nor parents continue to reside in the state, OR
(2) child no longer has a significant connection with the state
What is the standard for awarding child custody?
BEST INTEREST OF THE CHILD
Look at
(1) Parents wishes
(2) child’s relationship with parents
(3) child’s adjustment to home, school, community
(4) physical/mental health of individuals involved
(5) Child preference given little weight if under 8, or great weight if over 12.
What does court consider for joint custody?
Pretty much everything
(1) fitness of both parents
(2) child’s preference
(3) geographical proximity of the homes
(4) parent’s ability to cooperate
Visitation considerations
Must give other parent visitation rights, and cannot be withheld for failure to pay child payments. Absolute denial is rare - if situation dangerous, then provide ordered supervision.
Custodial parent can move away as long as it is for benefit of parent and not to hinder visitation
Nonmarital children nuiances
Subject to intermediate scrutiny (versus strict scrutiny for married couples)
Tort recovery - mother can automatically recover, but father must have shown he is legally recognized child
Foreign Citizenship - kid born abroad auto US citizen if it was mother. If it was father’s kid, must take steps to make kid american citizen
US Citizenship - auto assumed kid of mother. Lawful child of father only if parents married after birth, father holds child out as biological kid, consents to be named on birth certificate, or formally acknowledges paternity, judicial decree establishing paternity
Suits to establish paternity allowed?
YES - can be brought by mom, child, or state. Once established father starts paying. can use all types of evidence - resembelance, blood, genetic tests.
How do you terminate parental rights
It’s a fundamental right to raise one children - so must be proved by clear and convincing evidence (ex. sexual abuse, failure to pay support, mental illness, unfit, etc.).
Adoption jurisdiction of court elements - UAA
Most states haven’t adopted UAA, added adoption jurisdiction under UCCJEA, but if they did adopt UAA then they get jurisdiction if:
(1) child lived in state with parent for six months before proceeding
(2) prospective adoptive parent lived in the state for six months before the proceeding
(3) agency that placed the child for adoption is located in the state
(4) child, adoptive parent are physically present in the state and child has been abandoned or neglected, OR
(5) best interest of child that court assumes jurisdiction
Adoption procedural considerations
(1) Consent of natural parents required unless terminated
(2) consent of adoptee required if over 12
(3) Court approval
(4) Payment of money prohibited
Gestational Agreement
Gestational mother and father agree to relinquish their rights when the child is conceived.
If it’s not approved, gestational mother and her husband (marriage presumes he is the father) are the parents
Court’s jurisdictional requirements over spouses to grant divorce
As long as one state has jurisdiction over one of the spouses - then provisions of the decree given full faith and credit in other jurisdictions.
However, if related to property rights, spousal support, or child support, court must have personal jurisdiction over both spouses (need only minimum contacts for spouse less attached to the state exercising jurisdiction).
Adoption
Terminate rights of child and biological parents and grant new rights in adoptive family.
