Family Law Flashcards
Premarital Agreement
A valid premarital agreement must be in writing, voluntary, and based on a full and fair disclosure of financial worth. Entry into the marriage is sufficient consideration for a premarital agreement.
Premarital Agreement - enforceability
For the court to enforce a premarital property agreement, the agreement must contain fair and reasonable economic provisions for the claiming spouse. Unconscionability is generally determined at the time the agreement was formed.
Spousal Support
The purpose of spousal support is to ensure an adequate income stream for persons whose economic dependency has resulted, at least in part, from the marital relationship. It is against public policy to enforce a waiver of spousal support if to do so would leave the spouse dependent on the state.
Child Support
Parents have an equal duty to support their children that they cannot contract away. Most states have specific statutory schemes for child support. Typically, the award of support is based on monetary need and ability to pay.
Child Custody
Courts will always consider the best interests of the child. As a matter of public policy, courts will not be bound by premarital agreements as they relate to child custody. Most courts tend to favor joint custody agreements, however, they will consider several factors: the fitness of the parents; whether the parents agree on joint custody; the parents’ ability to communicate and cooperate; the children’s preference; the level of involvement of each parent in the children’s lives; the geographic proximity of the parent’s homes; and the effect of joint custody on the children’s well being.
Family Law/ Conflicts - General rule + domicile
The general rule is that courts will give full faith and credit to divorce decrees of the courts of sister states if the sister state had proper jurisdiction and the decree is valid in the sister state. A state can grant an ex-parte divorce where only one of the spouses is domiciled in the state granting the divorce. Domicile is determined by the residence of the party plus a demonstration of their intent to remain there.
Family Law/ Conflicts - Property Rights
Generally, a court cannot determine property rights unless it has personal jurisdiction over both parties. The court may grant the divorce but not make a determination as to property except for marital property located within that state. If the marital property is located outside of the state, then the defendant must have minimum contacts in the state to divide the property.
Family Law/ Conflicts - Child Custody (home state)
Under the UCCJEA, a state may exercise jurisdiction if it is the home state of the child. A child’s home state is (1) the state in which the child lived with the parent for six consecutive months immediately before the commencement of the proceedings or (2) was the child’s home state within the past six months; the child is absent; and a parent continues to live in that state. The Parental Kidnapping Prevention Act requires state enforce a custody order from another state, but only if the state entering the custody decree had home state jurisdiction.
Family Law/ Conflicts - Determining Child Custody
Courts discourage separating siblings. The most important factor the court will consider is the best interests of the child. Generally, courts will consider these other factors: the wishes of the parents, the wishes of the child, the interaction and interrelationships of the child with parents, siblings and others; the child’s adjustment to home, school, and community, and the mental and physical health of the individuals involved.
