Family Law Flashcards
Requirements for Who Can Marry
(1) 18 y/o unless parental or judicial approval; (2) not be too closely related (no direct ancestors/descendants, no nieces/aunts); (3) capacity to consent, and; (4) no prior undissolved marriage to a living spouse
Common Law Marriage
(1) exchange of consents between two ppl with capacity; (2) cohabitation, and; (3) holding out publicly of living together as spouses (no solemnization)
Premarital Agreement (Contents)
Rights and obligations in property, right to buy/sell property, disposition of property upon separation, modification or elimination of spousal support, making of a will, trust, or other arrangement to carry out the provisions of the agreement, choice of law governing agreement. NOT child custody or child support provisions (always subj to review).
Premarital Agreement (Requirements)
(1) Agreement was entered into voluntarily; (2) K was in writing and signed by party to be charged; (3) Parties made full and fair disclosure of financial worth, and; (4) Economic provisions were fair and reasonable [UPAA] [look for unconscionability]
Marital Property
Most property acquired during the marriage (incl. pensions, damage awards in tort suits, stock options. NOT professional degrees)
Void v. Voidable Marriage
Void: Complete nullity; nothing can ratify it; you can walk away without even getting an annulment (but might want one to divide property) (nonwaivable)
Voidable: Valid, but because of an impediment that existed at time of marriage, one spouse can have it declared invalid (waivable)
Annulment - Grounds (Voids Marriage)
Bigamy or Polygamy; Incest; Underage (some states)
Annulment - Grounds (Makes Marriage Voidable)
Underage (most states); Incurable Physical Impotence; Lack of Capacity (mental condition, no mutual assent, duress, fraud about essential aspect of marriage)
Waiving Voidable Grounds
You waive if you continue to cohabitate after the impediment has been removed [Note: only way to waive void grounds is to insist the impediment doesnt exist]
Divorce - No Fault
Marriage is irretrievably broken (irreconcilable diffs) AND/OR parties hae been living apart for a specified time [to defend, must deny one of the above]
Divorce - Fault Grounds
(1) adultery, (2) willful desertion for specified time; (3) extreme physical or mental cruelty; (4) voluntary drug addiction / habitual drunkenness; (5) mental illness; (6) conviction of a felony requiring jail time
Divorce - Defenses to Fault Grounds
(1) Collusion (couple created the grounds as a sham); (2) Connivance / Entrapment (consent by one spouse to the other spouse’s misconduct); (3) Condonation (forgiveness and resumption of sex); (4) Recrimination (unclean hands – both of yall are adulterers)
Legal Separation
No termination of marriage, but all of the rights regarding property and custody are adjudicated
Division of Property - Approaches
Community Property (all marital prop is split 50-50); Equitable Division of All Property (all marital and separate property is split); Equitable Division of Marital Property*** (each spouse gets separate property and court equitably divides marital property)
Equitable Division of Marital Property - Factors to Consider
(1) Age, education, background, and earning capacities; (2) duration of marriage; (3) Std. of living during marriage; (4) Present incomes and employability; (5) Source of money sued to purchase property; (6) Health; (7) Assets and liabilities; (8) Needs; (9) Child custody provisions; (10) Spousal support provisions; (11) Contributions to marital assets and family unit; (12) Dissipation of property
Mixed Property
Separate property inextricably mingled with marital property or with the separate property of the other spouse to the extent it can no longer be traced or separate property treated in a way that shows intent for it to be marital property
Spousal Support - Amount
Court has discretion and will consider (1) duration of marriage / std of living; (2) age / phys/emotional conditions; (3) financial resources; (4) contributions to marraige; 95) time needed for party to get training; (6) ability of payor spouse to meet his needs while paying SS
Spousal Support Types
(1) Permanent Periodic SS: regularly for life to support spouse who doesn’t have resources to be self-sustaining, modifiable; (2) Rehabilitative Periodic SS: regularly for a ltd period of time until spouse gains skills to be self-supporting, modifiable; (3) Lump Sum: nonmodifiable fixed amount payable all at once or in a series of payments; (4) Reimbursement SS: nonmodifable payment of a fixed sum to a souse who supported the other spouse while they obtained a degree
Termination of Spousal Support
Periodic SS terminates upon the death of either spouse or the remarriage of the recipient spouse; lump sum / reimb survives cuz fixed payment
Child Support - Amount
Formula based on number of children, ages, special needs, and parents’ income. Courts have discretion.
Child / Spousal Support - Enforcement
Contempt of court or going after pay check, assets, tax refunds, property, license, etc. If support order was issued in another state, UIFSA funnels everything back to the original state; gives state “continuing exclusive jx” over support order
Custody - UCCJEA Home State Test
A court has jx to initially enter or modify a child custody or visitation order if the state (1) is the child’s home state or (2) was the child’s home state within the past 6 months and a parent still lives there.
If there is no home state, court will give jx to the state that has a significant connection with the child and a parent and there’s substantial evidence that child is available there.
Custody - “Home State” Defined
Child lived with a parent for at least 6 consecutive months immediately before commencement of proceeding
Custody - BIC Standard
Best Interest of Child Standard: (1) wishes of child and parents (if child is >12); (2) child’s relationship with parents/siblings/others; (3) child’s adjustment to home/school; (4) physical and mental health of individuals involved
