Family Law Flashcards
What are the components of a valid common law marriage?
A valid common law marriage creates marital rights and obligations identical to a ceremonial marriage. A CL marriage requires that the spouses:
- Live together for a specified amount of time
- Be legally able to marry
- Have a present agreement that they are currently married
- Hold themselves out as being married
How can a common law marriage be dissolved?
After it has been established — Divorce or annulment
When will a court refuse to honor a CL marriage?
Most states will honor a CL marriage even if it does not recognize one within their own state.
However, a court can refuse to honor a CL marriage when
- the spouses have limited contacts to the state where the common law marriage was allegedly established
What is a premarital agreement? When are they enforceable?
Contractual agreements executed by spouses prior to the marriage.
Generally such agreements are enforceable UNLESS procured by fraud, duress, or coercion
What are the requirements for a valid premarital agreement under the UPAA?
Under the UPAA, the first premarital agreement MUST be
- In writing AND
- Signed by both parties.
The agreement does not need consideration
When is a PM agreement unenforceable under the UPAA?
Is the spouse against whom enforcement is sought proves that:
The agreement made was involuntary
OR
It was unconscionable when it was executed AND before execution the spouse was
- not given fair disclosure of property and financial obligations of other spouse
- did not waive the disclosure in writing
- did not have (or reasonably could have had) knowledge of such info
How can courts determine whether Or not a premarital agreement was made voluntarily?
They consider whether there was fraud, duress, or coercion.
The factors they consider include:
- Presence of indep counsel
- Length of time between the date of the agreement and the wedding
3: parties ability to understand the agreement - Other reasons like pregnancy financial loss and embarrassment from canceling the wedding.
A party’s insistence that the document be sign does NOT in itself invalidate the agreement or make it involuntary
Are provisions regarding child custody and support in a premarital agreement binding on a court?
No. Also, any provision that adversely affects a child’s right to support is unenforceable.
If it’s not in the best interests of the child, the court can order one or both parents to pay an amount reasonable or necessary for the child’s support
Are premarital agreements regarding spousal support enforceable?
Under the UPAA - yes, permitted but they will not be enforced if doing so would make the spouse eligible for welfare. A court can order the spouse to provide enough support to the extent they can avoid this outcome.
In some jur - provisions modifying or eliminating Spousal support are invalid because they are against public policy
What can be put in a premarital agreement?
Any matter (including personal rights and obligations) that is not in violation of a public policy or criminal law.
They may agree to allocate financial responsibilities, but this is not binding on 3p.
Agreements to limit SS during the marriage are void acc to pp.
What courts have jur over marital actions?
What jur is needed in actions involving economic or CC/CS issues?
State courts have SMJ over marital actions ( div, annul, CC, CS, SS)
In a economic/CC/CS action, the court must have PJ over the defendant spouse in order for the judgment to be entitled to full faith and credit.
What types of divorce are there? (Ex parte, divorce, divisible divorce)
Ex parte: can be maintained without PJ over absentee spouse, if P is domiciliary of rendering state. Some states have a directional residency req (set time before you can bring div action).
Divorce: whether ex parte or bilateral, validly granted is entitled to FF&C
Divisible divorce: allows one party to terminate the marriage in one proceeding and reserve the other issues, like property distribution and support, for later. Ct needs SMJ jur but not PJ over defendant spouse to maintain an action for economic/CS/Cc issues.
What kind of jur is needed for CC issues?
The ct must have PJ over the defendant spouse
When can a court decide custody over the parental kidnapping prevention act?
ONLY if ONE is met:
- Home state of the child/where the kid lived w parent for at least 6 months
- Significant connection when : 1. No home state, and 2. Child and at least one parent have sig connection with state.
- Emergency jur: when kid is physically present in state and has been abandoned/necessary in an emergency to protect the child
- More appropriate forum jur: when no other state has home state, sig conn, continuing or emergency jur.
What are the requirements for CC under the child custody jurisdiction and enforcement act?
Usually the same as pkpa but the main diff I significant connection. Here = no home state OR home state has declined to exercise jur
