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Family Law Flashcards

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1
Q

What is the purpose of spousal support?

A

To ensure an adequate income stream for a spouse whose economic dependency resulted from the marital relationship.

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2
Q

Can fault impact determination of alimony?

A

No.

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3
Q

What is the general rule re: marital property and its division?

A

Property acquired during marriage is marital property unless acquired through gift, bequest, devise, or descent.

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4
Q

How does one determine whether a gift is marital property?

A

Can look at donor intent when gift is given to both parties. Wedding gifts are classified as marital property.

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5
Q

What are the factors that a court will consider in determining alimony/

A
  1. Standard of living during marriage
  2. Duration of marriagge
  3. Age and physical/emotional conditions of both parties
  4. Financial resources of each party (including how marital property was apportioned)
  5. Contribution of each party to the marriage (including homemaking, child care, education, career building)
  6. Time needed to obtain education or training to enable either party to find appropriate employment
  7. Ability of payor spouse to meet their needs
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6
Q

When will permanent alimony be awarded?

A

Neither resources nor ability to be self-sustaining.

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7
Q

What is child support based on?

A

Child’s monetary need and obligor’s ability to pay. Most states have guidelines, that dictate a formula based on the number of children, their ages, special needs, and parental income.

The court may deviate from the guidelines but must make findings of fact justifying the deviation.

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8
Q

May a court divide marital property if it does not have jurisdiction over both spouses?

A

Generally, a court cannot determine property rights or rights to support unless it has jdn over both parties.

Thus, in an ex parte divorce, the court can grant the divorce, but cannot award spousal support or divide property.

Limited exception: marital property located within the state. If the state has sufficient minimum contacts with the D and property, it can adjudicate parties’ rights to that marital property.

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9
Q

How is property divided, if it was acquired for before the marriage, but paid for after the marriage with marital funds?

A

Most courts will apportion the property between separate and marital interests in proportion to the contribution of separate and marital funds used to pay for the property.

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10
Q

What are the formal requirements for a premarital agreement?

A

In writing, voluntary, based on full and fair disclosure of financial worth.

Entry into marriage is deemed sufficient consideration.

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11
Q

What is required for a premarital agreement to be enforced?

A

Agreement must contain fair and reasonable economic provisions

Unconscionability is determined at the time the agreement was formed.

Against public policy to enforce a waiver of spousal support if the spouse would be dependent on the state

Courts are never bound by waivers of child support provisions

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12
Q

What are the factors a court looks to in awarding custody

A

Court decides based on best interest of the children

Factors:

  • whether they agree on joint custody
  • ability to communicate and cooperate
  • preference of children
  • level of involvement in children’s lives
  • proximity of parents’ homes
  • effect on children’s psychological development
  • DV
  • age/health of parents and child
  • other siblings
  • new partner
  • material advantages

if joint custody

  • parent’s ability to cooperate
  • geographic proximity

courts pay consider which parent was the primary careiver.

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13
Q

what is child support based on

A

monetary need and ability to pay. parents have an equal duty to support their children.

Lasts through entirety of child’s minority (most states age 18, can also be extended through BA if child can go to college and parent has resources). Parent can self-obligate to pay past 18 by agreement.

Duty terminates with death of parent. Recent trend imposes charge against estate of parent.

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14
Q

Is a breach of a promise to marry legally actionable?

A

No long since abolished

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15
Q

Can you recover a gift conditioned on a subsequent marriage that doesn’t happen?

A

YES (engagement ring)

Otherwise, you can’t recover gifts.

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16
Q

What can be adjudicated within a premarital agreemetn?

A

Anything but courts ignore custody shit.

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17
Q

What are the Statute of Frauds requirements for prenuptial agreements?

A
  1. Must be in writing (oral not enforceable)
  2. Signed by both parties

Only effective if the couple actually got married

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18
Q

What are the defenses to a premarital agreement?

A

Subject to the usual contract defenses. The most common ones are duress and coercion.

Duress: state split whether physical required, or whether emotional/psychological will suffice.

19
Q

When will a premarital agreement be declared unconscionable?

A

UMPAA, which spells out:

  1. If party defending agreement kept finances a secret, AND
  2. The other party did not contractually waive disclosure, AND
  3. No independent knowledge of other party’s assets
  4. THEN will be found unconscionable if any alimony/support provision would leave recipient in “unforeseen, extreme hardship” (extreme = seek public assistance; unforeseen = new circumstance, like crazy inflation even)

Facts to be aware of:

  • both parties represented by counsel?
  • business or economic sophistication of the individuals?
  • poorer party understood the rights they were giving up?
20
Q

what are the requirements to enter into a marriage

A
  1. license to marry (purpose: to ascertain legal capacity)
  2. officiant (religious clergy or public officer capable of performing oath; if officiant wasn’t qualified but spouses didn’t know that, it doesn’t affect validity of marriage)
  3. exchange of promises (solemn promises)
21
Q

What is a common law marriage?

A

10 states recognize.

Private promises. Evidenced by circumstantial evidence (co-habitation, sexually intimate, holding themselves out as married couple).

If enter into CL marriage in a state that recognizes it and then move to a state that doesn’t, state recognizes you as marriage.

22
Q

What is an annulment?

A

Predicated on grounds that predate the marriage, backwards-looking.

Grounds are almost always problem of capacity.

Either void or voidable.

23
Q

What are grounds for annulment that void the marriage?

A

Note: legal nullity; don’t need an annulment (though you can get one - recommended for clarity of record and adjudicating collateral issues). These are not waivable; can’t stay married even if they want to b/c the grounds offend public policy.

  1. Bigamy
  2. Consanguinity (even if you didn’t know) (state by state: core relationship includes ancestors, descendants, siblings, lineal relatives; majority: can marry first cousin)
24
Q

What are grounds for annulment that are voidable?

A

Note: married unless and until you receive an annulment from the court. Grounds are waivable. Considered waived if they continue to cohabitate.

  1. Parties underage
    - majority: 18; minority 16-17 with parental consent
    - waivable by continuing to cohabitate after reach age
  2. Mental incapacity
    - Disease of the mind - waived if/when cured, regain lucidity, continue to be married
    - Developmental disability (of intellectual functioning) - can never waive
    - Under influence of drugs/alcohol - waive by staying in marriage once you sober up
  3. Incurable physical impotence
    - must be truly incurable by medicine
  4. Duress
    - gun to head, must be obvious
  5. Fraud
    - Misrepresentation or concealment of information by one party prior to the marriage, where the information goes to an essential aspect of the marriage
    - YES: your religion, fertility, genetic diseases, the baby i’m pregnant with is yours, significant lie about past sexual history or sexual proclivities
    - NO: lying about money, property, career, social status
25
Q

Can one receive economic remedies post-annulment?

A

State split. Most states say yes to property division, no re: alimony (since it’s a continuing stream of money)

26
Q

What is required for a no-fault divorce ground?

A

Accepted in all states, “irretrievable breakdown” of the marriage.

To establish: one spouse move out, live separately, refrain from sex for statutorily specified period of time. Shorter time period if both parties agree, longer if one party disagreed.

27
Q

What are the fault-based grounds of divorce?

A
  1. Adultery
  2. Desertion (unjustified departure from marital home with no intent to return, absence of intent inferred after specified period of time)
  3. Physical cruelty (1 incident sufficient)
  4. Mental cruelty (open-ended, flexible, discretionary; repeated pattern over time)
  5. Habitual and voluntary drug addiction or alcohol abuse (specified period of time; must be voluntary)
  6. Insanity (hospitalized, institutionalized for 3 years)
28
Q

What are the defenses to a fault-based ground for divorce?

A
  1. Condonation (waiver)
    (a) Innocent party has knowledge
    (b) Express or implied forgiveness
    (c) Resumption of marital relations
  2. Connivance (entrapment)
    Guilty party lured in
  3. Dirty hands - offset claim of adultery
29
Q

What is a legal separation?

A

A limited divorce (“divorce for bed and board”)

Judicial proceeding in which the court will adjudicate economic issues, asset division, alimony/child support. At the end of the marriage, they will still be lawfully married (religious reasons, economic/practical considerations)

30
Q

What state has jurisdiction to enter a divorce?

A
  1. Any state where one spouse is domiciled
  2. Most states add a minimum residency requirement (90 days, e.g.)
  3. Don’t need PJ over D spouse, since marriage is a physical thing, but if you can’t get PJ you can’t get economic remedies (divisible divorce).
31
Q

What is the deal with recognition of out-of-state divorces?

A

Rule: given FFC from other states, provided one state domiciled.

If domicile can be disputed, then can be litigated.

Discretionary whether judges can recognized divorces from out of country

32
Q

What is equitable property division?

A

Property division during divorce.

Assets include real property, personal property, intangible economics (stock options etc.)

33
Q

What are separate items that will not be counted toward equitable division?

A
  1. Anything owned by party prior to date of marriage (but see house thing above)
  2. Any git/inheritance after date of marriage received by one spouse, in that spouse’s sole name,
  3. Appreciation in the value of either of those.

Note: if you use separate stock to buy marital home, converted to marital asset

34
Q

What is marital property for purposes of property division?

A

Anything acquired during the pendency of the marriage, no matter who earned the money, and no matter whose name on title.

35
Q

What are the factors for equitable property division?

A
  1. Age and health of spouses
  2. Education and earning capacity
  3. Frugality/not so much

Marital fault not considered in most jurisdictions.

36
Q

What are the three major types of alimony?

A
  1. Permanent, periodic payments (modifiable, no time limit)
  2. Rehabilitative (specified period of time to allow recipient to obtain education and training, theoretically modifiable)
  3. Lump sum award (richer spouse who is elderly or dying)

Terminates either on death of a party or on remarriage of the recipient

37
Q

When is CS modifiable?

A

Substantial change in circumstances

Self-induced reduction of income inappropriate.

Arrears never modifiable

38
Q

What are remedies that courts can use to garnish CS $?

A
  1. Bank account
  2. Paychecks
  3. Intercept state/fed tax refund
  4. Intercept state lottery
  5. Suspend driver license or hunting license
  6. Hold in contempt of court.

If out of state, invoke Uniform Support Law (Uniform Interstate Family Support Act) - direct enforceability of child support across state lines

39
Q

What does the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) say re: jurisdiction over child custody determination?

A

Jdn to enter a first/initial custody determination belongs to whatever is now the home state of the child, or was the home state within the last 6 months.

Home state - lived w/ parent for 6 months prior to proceeding.

For the first 6 months, old home keeps jdn.

If no home state, look to where “greatest connections with child” (most of life or where now)

All states follow UCCJEA

40
Q

What is standard in parent v. nonparent custody determination?

A

Presumption is that BIC is served by being reunited and kept with bio parent. Nonparent petitioner must show parent unfit.

41
Q

What is required for parental relocation?

A

Prior notice, other party right to request prior hearing, need showing of bona fide reason to move

42
Q

What is the standard for determining grandparent visitation?

A

Grandparents must show that there would be a detriment to the child in denying access to the grandparent visitation. State then has sufficient interest in overriding parental due process rights.

43
Q

What are grounds for TPR?

A

Consent of parent can be either given in advance or contemporaneously.

Standard of proof: clear and convincing evidence

Grounds:
abuse
abandonment
failure to communicate/support
neglect (failure to provide care)
failure to pay support for psecified time
severe mental illness or drug abuse

if adoptee is over 12-14 or adult, then must consent.

fuck

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