Family Law Flashcards
What is marriage?
The legal union of two individuals, with the accompanying obligations and liabilities
What are the requirements to marry?
(1) Be a minimum age (usually 18, although frequently younger with parental or judicial approval)
(2) Not be too closely related
(3) Have capacity to consent (the ability to comprehend and voluntarily agree)
(4) Not have a prior undissolved marriage to a living spouse
What state of mind is required to consent to marriage?
The parties must understand their actions and voluntarily agree to them
- Someone under the influence of drugs or alcohol may lack the mental capacity to enter into a valid marriage
A marriage is subject to attack if one party was induced by fraud, coercion, duress, or force
What are the elements of common law marriage?
An exchange of consent between two people with capacity
Cohabitation, and
A holding out publicly of living together as spouses
Common law marriage has been abolished in most states, but if a common law marriage is formed in a state that recognizes common law marriage and where the couple lived, it will generally be regarded as valid in a state that abolished common law marriage
What is a premarital contract?
A contract entered into prior to marriage that usually pertain to the distribution of property upon divorce
They are valid contracts to which the principles of contract construction apply
Marriage is sufficient consideration to support a premarital contract
What can premarital contracts contain under the Uniform Premarital Agreement Act (UPAA)
The parties’ rights and obligations in property of either or both of them
The right to buy, sell, lease, assign, dispose of, or control property
Disposition of property upon separation, dissolution, death, or any other event
Modification or elimination of spousal support
The making of a will, trust, or other arrangement to carry out the provisions of the agreement
Choice of law governing construction of the agreement
Any other matter not in violation of public policy or criminal law
Courts may refuse to enforce provisions that would eliminate or severely limit spousal support, especially if a spouse would be left in need of public assistance
Are child custody provisions in a premarital contract binding?
Never
In some states they are void as against public policy
In other states they are subject to judicial review
What do most courts require for premarital contracts to be enforceable?
(1) Entered into voluntarily
(2) In wiring and signed by both parties
(3) Both parties must make a full and fair disclosure of their financial worth, and
(4) Economic provisions must be fair and reasonable
What are the rights of each spouse regarding property?
Each spouse controls her own property
If spouses take title to real estate in their joint names, a tenancy by the entirety is presumptively created
- Upon dissolution, tenants by the entirety become tenants in common
Marital property includes most property acquired during marriage.
Upon dissolution, the court has broad discretion in equitable distribution of marital property
What are the rights for spousal support?
Each spouse has an obligation to support to the other during the marriage.
Principles of agency may require that one spouse be held liable to a third party for the other spouse’s authorized purchases.
Even in the absence of agency authority, one spouse is liable for necessaries (food, clothing, medical care) purchased by the other spouse
What are the rights of privacy?
The internal affairs of a family cannot be regulated by the courts
Families have the right to expect privacy for actions within their homes and freedom from governmental interference in their domestic affairs
Which rights of privacy are fundamental rights subject to strict scrutiny?
The right to marry
The right to procreate
The right to use or sell contraceptives
Within limits, the right to abortion
The right of related persons to live together
The right of parents to educate their children outside public schools
The right to decide the care, custody, and control of their children
What is an annulment?
A declaration that a marriage is invalid because there was an impediment at the time of the marriage
Once an annulment decree has been entered, the parties generally are treated as though they were never married
An annulment action in a void marriage is usually brought to determine property distribution and child custody
What is the difference from a void and a voidable marriage?
A void marriage is a complete nullity. No subsequent act can ratify a void marriage.
- Grounds include bigamy or polygamy (prior marriage in existence), consanguinity (marriages between parties too closely related), and nonage (under the statutory age without getting required consent; voidable instead of void in some states)
A voidable marriage is deemed valid, but because of an impediment that existed at the time of the marriage, one of the spouses may bring an action to have the marriage declared invalid.
- If the spouse with the cause of action ratifies the marriage by continuing in the relationship after the impediment is removed, or if one spouse dies, the marriage can no longer be invalidated
- Grounds include nonage, incurable physical impotence (inability to have normal sexual relations, not inability to procreate), lack of capacity (mental incompetence, duress, fraud involving the essentials of marriage)
How do you defend an action to annul a void marriage?
The only way is to deny the existence of the defect
If the impediment has been removed and the parties continue the relationship, the marriage becomes valid in states following the UMDA
The children of annulled marriages are still marital children to which rules of spousal and custody support apply
How is division of property treated in annulled marriages?
The courts attempt to place the parties in their pre-marital position
Spousal support is generally not awarded in annulment cases
What is a divorce?
A court-issued decree terminating the marriage
What is the difference from a no-fault and a fault divorce?
Most states allow for divorce without marital fault
- Reasons include (1) the marriage is irretrievably broken (irreconcilable differences), and/or (2) the parties have been living apart for a specified time
If a state allows for a fault divorce, the usual grounds are (1) adultery, (2) willful desertion for a specific time, (3) extreme physical or mental cruelty, (4) voluntary drug addiction or habitual drunkenness, and (5) a spouse’s mental illness
What is an order of legal separation?
An order of legal separation does not terminate the marriage, but the parties may have all of their rights regarding property, spousal support, custody, and child support adjudicated in the proceeding.
A legal separation is usually capable of being enlarged into an absolute divorce if the parties so request
Watch for a fact pattern that states that a divorce decree was granted but is not yet final. During that time, the parties cannot remarry and continue to inherit from one another
What is a separation agreement?
An agreement entered into during marriage under which the parties agree to live apart and resolve economic issues (spousal support, property division, child support) and custody rights
To be enforceable, the agreement must be voluntary, and there must have been a full and fair disclosure by both parties
Provisions relating to property and spousal support will be enforced by the court
Provisions relating to child support and custody will be enforced only if they are in the child’s best interest (the court is not bound by child and custody support provisions).
How does the full faith and credit clause impact divorce?
As long as one party was domiciled in the state that granted the divorce, the decree is recognized as valid in all other states
Courts are most likely to recognize foreign decrees when one party was domiciled in the country rendering the judgment (known as comity)
What are the three approaches to division of property?
Community property - all property acquired during the marriage is deemed owned one-half by each spouse, and all property brought into the marriage or acquired by gift or bequest is separate property
Equitable division of all property - owned by either spouse, whether acquired before or after the marriage
Equitable division of marital property - each spouse takes his separate property and the court divides the property acquired during the marriage
- Most common approach
Property distribution decrees are not modifiable
What factors are considered in equitable division of property?
The age, education, background, and earning capacity of both parties
The duration of the marriage, and whether there were any prior marriages
The standard of living during the marriage
The present incomes of both parties, and their vocational skills and employability
Each party’s opportunity to acquire future income and assets
The source of money used to purchase the property
Each party’s contribution to the acquisition of, or enhancement of, the value of the existing marital assets
The health of the parties
The assets, debts, and liabilities of the parties
The needs of the parties
Child custody provisions
Whether the distribution is in addition to, or in lieu of, spousal support
Each party’s contribution as a homemaker to the family unit, and
Whether either party has dissipated marital property
What is the standard for separate property?
Generally, each spouse can take the separate property that she owned prior to the marriage as well as any separate property acquired during the marriage by gift, bequest, or descent
What is the standard for professional licenses or degrees?
Most jurisdictions that have considered the matter have held that a professional license or educational degree is not distributable property
Some jurisdictions have compensated supporting spouses for their contribution during the other spouse’s education or training (e.g. the supporting spouse’s contribution may be a factor on which alimony may be based)
What is the standard for pensions?
The portion of a pension earned during a marriage is marital property subject to distribution
What is the standard for damages awarded in tort suits?
Many states hold that if a cause of action for personal injury accrues between the date of marriage and final separation, the proceeds from the settlement or award are marital assets subject to distribution
Some states differentiate between lost wages (marital property) and pain and suffering (separate property)
What is the standard for stock options?
The majority rule is that stock options earned during marriage are marital property even if they will not be exercised until after the divorce
What is the standard for mixed property?
Separate property may become marital property if:
- (1) The separate property is inextricably mingled with marital property or with the separate property of the other spouse to the extent it can no longer be traced, or
- (2) The separate property is treated in a way that evidences an intention for the property to be marital property (e.g. placing separate property in the names of both spouses)
When separate property is improved by the use of marital funds or the effort of a spouse, courts generally hold that the property remains separate property, but most jurisdictions grant the marital estate or the non-owning spouse reimbursement for the value added to the separate property
What are the types of spousal support?
Permanent periodic spousal support - paid regularly (e.g. monthly) to support a spouse who has neither the resources nor the ability to be self-sustaining
Rehabilitative spousal support - periodic payments for a limited time to enable a spouse to gain skills to become self-supporting
Lump sum payment - a nonmodifiable, fixed amount payable to either all at once or broken into a series of payments
Reimbursement spousal support - paid to a spouse who supported the other spouse while the latter obtained a professional license or degree. Awarded as a fixed sum, which is neither modifiable nor terminable, and is based on the amount of the supporting spouse’s contribution, not the value of the professional license or degree
- A growing minority of jurisdictions are implementing reimbursement support
What types of spousal support are prospectively modifiable for changed circumstances?
Permanent periodic and rehabilitative spousal support
There must be a substantial change in circumstances and the changes must be unanticipated
- A self-induced reduction in income by the payor spouse is insufficient. Be alert of this issue in a fact pattern where the payor spouse quits her job
When does spousal support terminate?
Periodic spousal support terminates upon the death or either spouse or the remarriage of the recipient spouse
Some jurisdictions also terminate spousal support if the recipient spouse enters into a cohabitating or conjugal relationship
Lump sum spousal support is not modifiable and survives the death of either spouse
What are the basics of child support?
Both parents share equally in a duty to support their children
The amount of the award of support to the custodial parent is usually arrived at by the use of a formula based on the number of children, their ages and special needs, and the parents’ income
Parents can also be ordered to provide medical insurance for children
Support obligations are independent of the noncustodial parent’s visitation rights
Visitation can be withheld for failure to pay child support
Child support may be indefinite for a severely disabled child (e.g. does not terminate at 18)
What are the standards for modification of child support?
Child support is modifiable based on a substantial change in circumstances affecting the needs of the child or the ability of the parent to pay
Circumstances include changes in employment, growth of the child, inflation, income, retirement, or disabling illness
Full faith and credit must be given to child support orders issued in a different state
What are the standards for enforcement of spousal and child support?
Contempt of court (usually civil, but may be criminal if failure to pay is willful); judgment against the noncomplying party; seizure of real estate; attachment of wages
Child support may be enforced through automatic wage withholdings once the court has issued a support order; interception of the noncomplying party’s tax return; nonrenewal or refusal of a professional or driver’s license
What is the difference from a separation agreement and a divorce decree?
If the divorce decree says that the separation agreement is merged into the decree, or if the specific provisions of the agreement are repeated in the decree, the whole agreement assumes the status of a court judgment and is enforceable.
If the agreement is not merged, it retains its separate characteristic as a contract and is enforceable as such
A statement by the court that it is incorporating the agreement by reference is generally insufficient to constitute merger
What are the three types of child custody?
Legal custody - the right to make major decisions affecting the child’s life
Physical custody - actual possession and control of the child
Joint custody - either joint legal custody, joint physical custody, or both
When does a court have jurisdiction to enter or modify a child custody or visitation order?
When the state (1) is the child’s home state and (2) was the child’s home state within the past six months and the child is absent from the state, but a parent or person acting as a parent (e.g. guardian) continues to live in the state
What is a child’s home state? (frequently tested)
The state in which the child lived with a parent (or person acting as a parent) for at least six consecutive months immediately before the commencement of the proceeding (or the state where the child has lived since birth if younger than six months old), disregarding temporary absences
A custody or visitation order of one state can be registered in another state and enforced in that state in the same manner as one of its own orders
When does the Home State Rule not apply?
A court has jurisdiction to enter or modify a child custody or visitation order if no other state has or accepts home state jurisdiction and
- (1) the child and at least one parent (or person acting as a parent) have a significant connection with the state, and (2) substantial evidence concerning the child is available in the state
In addition, a court has jurisdiction to enter or modify a child custody or visitation order if no other state has jurisdiction under another test
When does the court stop having exclusive continuing jurisdiction over the matter?
Until the court determines that (1) neither the child nor the child’s parents continue to reside in the state, or (2) the child no longer has a significant connection with the state (e.g. a close relationship with a parent who lives in the state) and substantial evidence relating to the matter is no longer available in the state
When can a court decline jurisdiction over child custody cases?
Even if a court has valid jurisdiction, it may decline jurisdiction if it determines that it is an inconvenient forum under the circumstances and that a court in another state is a more appropriate forum
A court may also decline jurisdiction if the party seeking to invoke jurisdiction has engaged in unjustifiable conduct (e.g. wrongfully taking the child from another state)
When does a court have temporary emergency jurisdiction?
If the child has been abandoned or it is necessary in an emergency to protect the child (e.g. abuse)
What factors are considered in the “best interest of the child” standard?
Factors:
- The wishes of the child and the parents
- The child’s relationship with the parents, siblings, and others
- The child’s adjustment to home, school, and community
- The physical and mental health of the individuals involved
The standard is applied in awarding custody and visitation
Preferences of children over 12 are given weight; preferences of children under 8 may be disregarded or given little weight
If, after considering all of the relevant factors, the court is left to decide between two qualified parents, the award often goes to the parent who has been the primary caregiver (the one most involved in the child’s day-to-day life)
If parents agree to joint custody, the court will usually go along unless it is not in the child’s best interest
What factors do courts consider when awarding joint custody?
The fitness of both parents
Whether the parents agree on joint custody
The parents’ ability to communicate and cooperate concerning the child’s well-being
The child’s preference
The level of involvement of both parents in the child’s life
The geographical proximity of the two homes
The similarity or dissimilarity of the homes
The effect of the award on the child’s psychological development, and
The parent’s ability to physically carry out the joint custody order
What are the standards for visitation rights?
When an award of sole physical custody is made to one parent, the other parent must be given reasonable visitation rights
A court may limit a parent’s visitation rights if the parent engages in conduct that might injure the child, but absolute denial of visitation is rare
- Supervised visitation may be an option
Most courts allow the custodial parent to move out of state as long as it is motivated by benefit to the parent and not merely to frustrate visitation rights
Consistent and willful denial of visitation rights could result in a modification of custody
What is the standard for modification of custody decrees?
Custody awards will be modified only if there is a substantial material change in circumstances
The party seeking the modification bears the burden of proof
The child’s best interest is the overriding concern
What is meant by a nonmarital child?
A child born out of wedlock
The child of a married woman is presumed to be the child of her husband
What is the constitutional standard for laws between marital and nonmarital children?
Such laws are subject to intermediate scrutiny and are stricken unless the action is substantially related to an important governmental interest
What is the treatment of unmarried parents for tort recovery of the child?
An unmarried mother may recover in tort for the death of her child, but an unmarried father may be precluded from recovery if he did not previously legally recognize the child
How are contracts between unmarried cohabitants enforced?
Express contracts between unmarried cohabitants regarding earnings and property rights will generally be enforced. These contracts are unenforceable only when sexual relations constitute the only consideration provided
Courts are likely to enforce an implied contract between unmarried cohabitants
How do courts handle division of property between unmarried cohabitants?
If no express contract, courts often grant an equitable distribution of property based on theories of constructive trust, resulting trust, or quantum meruit
What are an unwed father’s due process rights?
If an unwed father is part of the family unit that includes the child, the relationship between the father and child will be protected by due process
- The unwed father must demonstrate a full commitment to the responsibilities of parenthood by participating in the rearing of his child
The court will consider whether the father shouldered any significant responsibility with respect to the daily supervision, education, protection, or care of that child
To have due process rights with respect to a newborn infant, the unwed father must be willing to assume custody of the child, not merely block adoption by others
Other considerations include public acknowledgement of paternity, payment of pregnancy and birth expenses, steps taken in establishing legal responsibility for the child, and other acts showing a commitment to the child
What are factors showing a child is a lawful child of an unwed father?
The parents were married after the child’s birth
The father holds the child out as his biological child
The father consents to be named on the child’s birth certificate
The father formally acknowledges paternity
There is a judicial decree establishing paternity
Under most statutes, every child is the lawful child of his mother
Who may bring a paternity suit seeking support of a child?
The child, mother, or the state (if the child is receiving support from the state)
Once paternity is established, the duty of support attaches, and rights to visitation and custody may be asserted by the father
What evidence is admissible to establish paternity?
Exhibition of child to show resemblance to defendant
Statements regarding paternity
Medical testimony
Blood or genetic tests
- If blood or genetic tests show the defendant cannot be the father, the case must be dismissed
Some states require clear and convincing evidence while others require a preponderance
What is adoption?
A legal proceeding terminating the relationship between the child and his biological parents (if necessary) and establishing a new relationship between the child and his adopted parents
What are the rules for consent of natural parents regarding adoption?
The consent of the child’s natural parents is generally required, but the father’s consent may not be necessary if the parents are unmarried
Consent is not necessary if parental rights have been terminated
Consent may be waived if a court determines it is being unreasonably withheld against the best interest of the child
Prospective adoptees over a certain age, usually 12, must also consent to their own adoption
Consent cannot be withdrawn after an adoption decree has been entered
What are the rights of unmarried fathers in adoption proceedings?
The court considers the level of the father’s involvement with the child, such as whether he lived with and cared for the child, or visited the child regularly; admitted paternity; or paid child support
A father of a nonmarital child who has never attempted to establish a legal or personal relationship with that child has no right to notice prior to the adoption of the child by others
What are the consequences of adoption?
A new birth certificate is issued that lists the adoptive parents as the child’s parents
The adoption cuts off the biological parents’ rights and obligations, and creates new rights and obligations in the adoptive parents
