Family Law Flashcards
Pre-Marriage: Breach of Promise to Marry
Not legally enforceable
Pre-Marriage: Gifts
If an engagement is broken, generally, cannot recover gift unless contingent on subsequent marriage (e.g., engagement ring)
Pre-Marriage: Pre-Marital Agreement
Purpose: primarily to settle economic issues between the parties; contingent planning documents, mainly for in event of divorce
Basic principles:
(1) Statute of frauds: must be in writing and signed by both parties
(2) Agreement is only effective if couple got married
(3) Subject to usual contractual defenses:
(a) Duress: coercion, states split re emotional)
(b) Unconscionability: half states have UPMAA – (i) make showing if richer party fails to disclose assets at time of agreement and other party did not waive disclosure and there was no independent knowledge of the other party’s assets; (ii) unconscionable if any alimony or support provision would leave recipient in “unforeseen, extreme hardship” (i.e. need public assistance); (iii) general factual clues: one party represented, business sophistication of parties, knowledge of rights given up
Enforcement:
(1) Property provision: fair and reasonable (note unconscionability determined at time agreement was formed)
(2) Spousal support: against public policy to enforce waiver if would leave spouse dependent on the state
(3) Custody: review for best interests
(4) Child support: equal duty to support, cannot waive
Ceremonial Marriage
In 40 states, this is the only way to get married
Two requirements:
(1) Need a license (to determine legal capacity to marry)
(2) Ceremony: (a) An officiant to conduct the ceremony, usually a member of the clergy or a public officer who can administer oath as part of responsibilities; (b) during ceremony must exchange promises
Common Law Marriage
Valid in 10 states (but is portable)
Requirements:
(1) Co-habitation: living together and having sex
(2) Holding yourselves out as a married couple
Ways to End a Marriage
Two ways:
(1) Annulment
(2) Divorce
Annulment: Void Marriage - Definition
Void marriage: if you are in a void marriage, you do not need to get an annulment because you are not legally married. A marriage is void if the grounds that make the marriage cannot be waived because they are against public policy
Why do this? Clarity in the record; adjudicating/resolving collateral issues
Annulment: Voidable Marriage - Definition
If the marriage is voidable, you are actually married and need an annulment
A ground that makes a marriage voidable is waivable because it only implicates equities between the two parties
Annulment: Grounds for VOID Marriage
(1) Bigamy: in order to have capacity to marry, you have to be single (i.e. not married)
(a) In many states, bigamy is a crime
(2) Consanguinity (incest): cannot be too closely related to your spouse
(a) Forbidden: ancestors (parents, grandparents); descendants (children, grandchildren); siblings (half or whole); lineal relatives up or down one generation (aunts, uncles, nieces, nephews)
(b) Jurisdictions are split on cousins
Annulment: Grounds for VOIDABLE Marriage
(1) Parties are underage: in majority of states, must be 18, but in some states 16 with parental consent
(a) Waiver by continuing to cohabit after reach majority
(2) Mental incapacity:
(a) Disease of the mind (mentally ill) – waive by staying together after mental illness is cured (annulment must usually be through legal guardian)
(b) Developmental disability (e.g., low mental functioning) – permanent condition, so as practical matter cannot waive (annulment must usually be through legal guardian)
(c) Under influence of drugs or alcohol at time of ceremony – waive by staying in marriage after sobering up
(3) Incurable physical impotence: inability to consummate the marriage/have sex (presupposes couple has opted to refrain until after marriage);
(4) Duress: must have free will to marry
(a) Waive by continuing marriage after physical threat ends
(5) Fraud: Any misrepresentation or concealment of information by one party prior to the date of marriage, where the information goes to an essential aspect of the marriage
(a) Religion:
(b) Procreation: ability to have children, paternity
(c) Past sexual history (e.g., was a sex worker)
(d) Not fraud to lie about money, property, career, social status
Annulment: Economic Remedies
Split whether you can get economic remedies from an annulment
In most states, you can get property division
Whether or not you get alimony is a mater of dispute
No Fault Divorce
Only need to prove that the marriage has irretrievably broken down
Prove:
(1) One of the spouses moves out of the marital home and during that period the spouses refrain from having sex
(2) Satisfy designated period of time: usually a shorter period of time if both spouses agree that marriage is broken
Trend is away from no fault and towards fault divorce
Preferable to fault divorce because more private, cheaper, and less emotionally draining
Fault Divorce: Adultery
Cheating, being sexually disloyal to your spouse
Fault Divorce: Desertion
Generally, desertion is an unjustified departure from the marital home with no intent to return
Absence of intent to return is inferred from failure to return for a specified period of time, usually one year
Fault Divorce: Physical Cruelty
A single episode of domestic violence is sufficient – don’t need a pattern of abuse
Fault Divorce: Mental Cruelty
More open-ended and flexible grounds
Usually involves a repeated conduct
Discretionary
Examples: one spouse perpetually verbally abuses the other (particularly in front of others); one spouse is cold and aloof; persistent refusal to be physically intimate; one spouse stops being hygenic
Fault Divorce: Habitual and Voluntary Drug Addiction or Drunkeness
In most states, there is a specified period of time over which the behavior must endure
(probably doesn’t include getting hooked on painkillers after surgery)
Fault Divorce: Insanity
If the other spouse was sane when you got married, but became insane, can have ground for divorce
In most states, requires that the party is institutionalized, and in many there is a time requirement (e.g. 3 years)
Fault Divorce: Affirmative Defenses
(1) Condonation: marital equivalent of waiver
(a) Elements: (i) Knowledge of the misconduct; (ii) Forgiveness (express or implied); (iii) Resumption of marital relations
(2) Connivance: family law equivalent of entrapment – defendant proves she was lured into the misconduct by the other party
(3) Recrimination: equivalent of dirty hands – if you ask for something other than damages, you plaintiff must be free of misconduct (trend to abolish this)
Legal Separation
Judicial proceeding in which the court will adjudicate economic issues; parties are still married at the end of it
Procedure for Divorce: Subject Matter Jurisdiction
Any state where on spouse is domiciled has subject matter jurisdiction over the divorce
Procedure for Divorce: Personal Jurisdiction
Don’t need PJ over the defendant spouse because the marriage is a physical thing located in the state where a spouse is
BUT do need PJ over both parties to get economic remedies
Procedure for Divorce: Divisible Divorce
Substantive divorce happens in one state and economic remedies happen in another state
Recognition of Out-of-State Divorces
Out-of-state divorces are given full faith and credit by other states, provided jurisdiction was proper
If there is a dispute about the legitimacy of the domicile, it can be relitigated
Recognition of Divorces Outside of US
Discretionary, case-by-case decision whether or not to recognize
Property Division: Separate Property
(1) Property owned prior to the date of marriage
(2) A gift or inheritance received after the date of marriage by one spouse in that spouse’s sole name
(3) Appreciation in value of the property above
Tracing assets: most states use tracing, meaning money used from one of these on something else will continue to be separate property; but, if converted to marital property loses status as separate property
Property Division: Marital Property
(1) Gifts given to the couple as a couple
(2) Everything outside of separate property – doesn’t matter who earned it or whose name is on the title
Property Division: Distribution of Separate and Marital Property
(1) Spouses keep their separate property
(2) Marital property is divided using equitable distribution
Property Division: Equitable Distribution
About 40 states use this method
Factors for equitable distribution
(1) Age and health of spouses
(2) Education and earning capacity
(3) Custodian of minor children
(4) Length of marriage
(5) Wastefulness of a spouse
(6) Whatever the court thinks is relevant and important
* *Marital fault is not considered
Spousal Support: Concept
Logic of spousal support order: when you are a married person, there is a reciprocal duty to support each other. This duty terminates with divorce, but alimony is intended to ease the transition.
Spousal Support: Factors
(1) Standard of living during the marriage
(2) Duration of the marriage
(3) Age and physical and 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, and career building of the other party)
(6) Time needed to obtain education or training to enable either party to find appropriate employment
(7) Ability of the payor spouse to meet his needs
Spousal Support: Permanent, Periodic Payments
Order that one party make regular payments to the other party indefinitely into the future to provide for the maintenance and support of a spouse who has neither the resources nor the ability to be self-sustaining
(a) Subject to future modification upon showing of substantial change in circumstances
(b) Some states terminate upon new cohabitation or conjugal relationship
Spousal Support: Rehabilitative Support
Periodic payments for a limited period of time calculated to enable a spouse to gain the skills or education necessary so that he can then enter (or re-enter) the workforce and become self-supporting
(a) Subject to modification upon a showing of a substantial change in circumstances
Spousal Support: Lump Sum Support
A fixed amount payable either all at once or broken down into a series of smaller payments.
(a) It is generally not modifiable
(b) Because it is vested, it is binding on the payor’s estate
(c) Does not terminate upon recipient spouse’s remarriage
Spousal Support: Reimbursement Support
Fixed sum awardable to a spouse who supported the other spouse while the latter obtained a professional license or degree. The amount is based on the amount of the supporting spouse’s contribution, not the value of the professional license or degree
(a) Not modifiable
(b) Not terminable
(c) Can be given even if spouse is not otherwise eligible for spousal support
Spousal Support: Tax Consequences
As a general rule, spousal support payments are includible in the income of the recipient spouse and are deductible by the payor (unless stated otherwise in the divorce or separation instrument)
Child Support: Duty to Pay Support
General rule: both parents equally share a duty to support their children
(a) In most states, duty continues until 18
(b) In many states, continues through BA if child can pursue the degree and parent can afford
(c) Parents can obligate themselves to continue obligation beyond majority if they choose
(d) Duty to support may go on indefinitely if the child is severely disabled and has not capacity to be self-supporting as an adult
Child Support: Amount of Award
States have guidelines that limit courts’ discretion more than for spousal support.
Guidelines vary by state, but common factors are:
(1) Monetary need
(2) Ability to pay
(3) Number of children
(4) Age of children
(5) Any special needs of the children
(6) Parents’ income
Can be ordered to pay for insurance
Court can deviate from the guidelines with findings of fact
Child Support: Death of Supporting Parent
Duty to support will almost always terminate with the death of the parent
BUT, there is a trend towards allowing support orders against the deceased parent’s estate
Child Support: Effect on Visitation
Child support is independent of visitation. Custodial parent generally cannot deny visitation on the basis of nonpayment of child support.
Child Support: Full Faith and Credit for Child Support Orders Act (FFCCSOA)
Full faith and credit must be given to another court’s child support order if
(a) Court had jurisdiction over the matter and the parties, and
(b) The parties had reasonable notice and an opportunity to be heard
Ordering court maintains continuing, exclusive jurisdiction to modify if (1) order is controlling and child or one party resides in the state or (2) when child and parties no longer reside in state and parties consent in open court or on record
Child Support: Tax consequences
Child support payments are neither includible in the income of the custodial parent nor deductible by the payor parent
Child Support: Modification
General rule: to modify child support, must go to court and establish a substantial or material change in circumstances (e.g., loss of job, physical injury, change in child’s condition)
Almost never take into consideration parent’s self-induced income change
Child Support: Modification - Arrears
If child support order is modified, there is no similar effect on arrears
Child Support: Remedies for Non-Payment
(1) Wage withholding and payment to court clerk
(2) Interception of tax refunds
(3) Licenses not granted or revoked
(4) Child support recovery act: federal criminal offense to willfully fail to pay past-due child support to a child who resides in another state if the amount has been unpaid for more than one year or if amount is greater than $5000
(5) Provision of counsel not automatically required where civil contempt might lead to incarceration
Child Support: Uniform Interstate Family Support Act (UIFSA)
Purpose: simplify collection of child support or sometimes spousal support where original support order was issued in one jurisdiction but the obligor or the child resides in another
Separation Agreement
Parties can agree to spousal support, child support, property distribution
Pre-requisites:
(1) Full disclosure of assets
(2) Terms must be essentially fair
(3) De novo review of anything involving children
Physical Custody
Where the child will live
Legal Custody
Which parent gets to make major life decisions for the child
Custody: Jurisdiciton
Uniform Child Custody Jurisdiction and Enforcement Act:
(a) Jurisdiction to enter first or initial custody order belongs to the state that is (i) currently the child’s home state or (ii) was the home state within the last 6 months
(b) Home state: where minor child has lived with a parent for the six months prior to the proceeding
- If parent keeps moving around with the child, fall back provision kicks in - whichever state has the greatest connection to the child has jurisdiction
Custody Standard
Best Interests of the Child
General Factors:
(1) Age and health of the parents
(2) Age and health of the child
(3) Emotional issues of either parent
(4) Substance abuse of either parent
(5) Domestic violence (against parent or child)
(6) Parent has a new partner (relationship with that person)
(7) Will on placement allow all siblings to stay together v. splitting them up?
(8) Is one parent more likely to accommodate visitation by the other parent?
(9) Are their any material advantages of one household (e.g., safety, quality of schools)?
Joint Custody Factors:
(1) Fitness of both parents
(2) Whether parents agree on joint custody
(3) parents’ ability to communicate and cooperate concerning well-being of child
(4) Children’s preferences (depending on age)
(5) Level of involvement of each parent in children’s lives
(6) Geographic proximity of parents’ homes
(7) Effect joint custody will have on child’s psychological development
Non-Parent Applications for Custody
Presumption is that it is not in the best interests of the child to be with someone other than the biological parent
SO, non-parent must show that the parent is unfit to be the custodial parent (does not take into consideration low income, bad neighborhood etc.)
Custody given to third party only under special circumstances
Visitation / Parenting Time
Judge adjudicates on the equity of circumstance
Right to visit is nor contingent on child support compliance
If custodial parent denies visitation, can be held in contempt of court
Parent Relocation
If custodial parent wants to move, usually must give prior notice to the other party, who has opportunity to request a judicial hearing and custodial parent must provide bona fide/legitimate reason to moving (not merely spite)
Non-Parent Visitation
Parents have a right to raise children as they want, including denying visitation to people like grandparents.
If non-parents want visitation, must show there would be a detriment to the child in denying such visitation
Child Out of Wedlock
Discrimination against a child born out of wedlock – suspect class, so strict scrutiny
Paternity:
(1) If there is ambiguity over paternity, will need to litigate
(2) Usually commenced by mother or child acting through guardian, but sometimes the state
(3) Can usually litigate until child reaches age of majoirty
(4) Use DNA
Adoption
To adopt, need CONSENT from:
(1) Biological parents: (a) can be given in advance or at time of adoption; (b) no consent necessary if parental rights have been terminated (which happens in formal hearing, clear and convincing evidence to prove grounds)
(2) Adopting child if he or she is over the age of 14
(3) If somebody else or the state has legal custody over the child, need that person’s consent as well
Investigation of adopting parents
Court hearing to finalize adoption (usually BIC, but basically foregone conclusion)
