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Bar Review > Family Law > Flashcards

Family Law Flashcards

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1
Q

Marriage

A

A civil contract between two parties

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2
Q

Ceremonial Marriage Elements

A
  1. Age of consent usually 18
  2. Waiting period between license and ceremony
  3. Premarital medical testing
  4. Licenses can expire
  5. Solemnization ceremony requires 2 witnesses, an officiant, govt. issued license.
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3
Q

Common Law Marriages

A
  1. Agree that they are married
  2. Cohabit as spouses
  3. No ceremony and no license
  4. Most states have abolished
  5. must have capacity
  6. must have intent that they intent to be married (hold themselves out as married)
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4
Q

Heartbalm Actions

A

No longer legal, assume so unless said otherwise. Action by jilted party if marriage fails to take place.

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5
Q

Ending a Marriage

A
  1. Annulment
  2. Divorce
  3. Death
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6
Q

Annulment (Void marriages)

A

Does not require judicial dissolve, any party may seek

  1. Prior existing marriage
  2. incest
  3. Mental incapacity
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7
Q

Annulment (Voidable Marriage)

A

Requires judicial decree, sought by spouse.

  1. age
  2. Impotence
  3. Intoxication
  4. Fraud, misrepresentation, coercion, force
  5. Lack of intent
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8
Q

Fraud for Annulment

A
  1. Fraud must go to the essence of the marriage
  2. Fraud must be present at the time of the marriage
  3. Parties must immediately cease living together once discovered
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9
Q

Putative Marriage Doctrine

A

One spouse is unaware of impediment, may still use divorce proceedings even though marriage is void.

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10
Q

Divorce

A

Legal dissolution, most states have a residency requirement.

1. No fault or Fault

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11
Q

No Fault Divorce

A

Most states have

  1. Irretrievably Broken OR
  2. Incapacity
  3. Generally require a separation period
  4. Desire to reconcile does not bar dissolution
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12
Q

Fault Divorce

A
  1. Adultery
  2. Cruelty
  3. Desertion
  4. Habitual Drunkenness
  5. Bigamy
  6. Imprisonment
  7. Indignity
  8. Institutionalization
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13
Q

Defense to Divorce

A

(Only for Fault Based)

  1. Recrimination and Unclean hand
  2. Connivance
  3. Condonation
  4. Collusion
  5. Provocation
  6. Insanity
  7. Consent
  8. Justification
  9. Religion
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14
Q

Community Property

A

Marriage is a partnership; equal distribution of property.

Only in 9 states.

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15
Q

Equitable Distribution

A

Most states. “Fair” distribution

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16
Q

Marital Property Includes:

A
  1. Property acquired during the marriage
  2. Increases in non-marital property that result of either spouses efforts
  3. Gifts between spouses
    4
    - Party claiming something is NONMARITAL has the burden of proof.
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17
Q

Exceptions to Marital Property

A
  1. Property Acquired Before the marriage
  2. Property that is excluded pursuant to a valid agreement
  3. Property acquired by gift or inherentance
  4. Property sold, mortgaged or conveyed for value I good faith prior to final separation.
  5. Award or settlement for cause that accrued before the marriage.
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18
Q

Factors for distributing marital property

A
  1. Length of marriage
  2. Economic circumstances of each spouse
  3. age, health, earning potential, needs.
  4. Contributions to education or career of other
  5. income, medical needs
  6. Standard of living
  7. Economic circumstances of each at divorce
  8. Custodianship of any minor children
  9. Dissipation of assets
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19
Q

Accumulated Sick Days (marital property)

A

Jurisdictions are split

  1. They Are
  2. They are not
  3. Only those accrued during the marriage are
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20
Q

Factors in determining the amount of spousal support

A
  1. Financial resources of both parties
  2. Standard of living in the marraige
  3. Time to find a job
  4. Contributions to marriage
  5. Length of the marriage
  6. Age and health of the parties
  7. (some jurisdictions) misconduct.
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21
Q

Types of Alimony

A
  1. Lump Sum
  2. Permanent Alimony
  3. Durational Alimony
  4. Rehabilitate Alimony
  5. Reimbursement Maintenance
  6. Palimony
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22
Q

Factors that Affect Modification of Alimony

A
  1. Death
  2. Remariage
  3. Cohabitation
  4. Voluntary Retirement
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23
Q

Jurisdiction Over Support Awards

A
  1. Must be both personal and subject matter
  2. Duration of residency (6 weeks to 2 years)
  3. Matrimonial courts have full equity powers
  4. Court can grant divorce ex parte but not support order
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24
Q

Obtaining PJ over out-of-state parent

A
  1. Personal service on D
  2. Consent
  3. Past residency with Child
  4. D directed child to reside in state
  5. D engaged in act of conception in state
  6. D asserted parentage in state
  7. Any other basis consistent with Const.
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25
Q

Child Support guidelines

A
  1. Parents have a fundamental obligation to support their children
  2. Combined in come as if home were intact
  3. Minimize litigation
26
Q

Calculating Support

A
  1. Income Shares - allocate support relative to each net income
  2. Percentage of Income - use percentage of non-custodial parent’s income.
27
Q

Modification of Child Support

A

Must be substantial change in parent’s circumstances

28
Q

Termination of Child Support

A
  1. At age of majority (except for college, disability, HS)
  2. Child marries
  3. Child emancipates
29
Q

Enforcing Child support

A
  1. Civil contempt
  2. Criminal Contempt
  3. Other sanctions like suspension of licensing, etc.
30
Q

Enforcing Child support in other jurisdications

A

Uniform Interstate Family Support Act. Register support order. Adopted in all jurisdictions.

31
Q

Legal Child Custody

A

The right to make major decision about education, health etc,.

32
Q

Physical Custody

A

Right to have child physically present and establish daily routine and care

33
Q

Home-State Jurisdiction for Initial Custody Determination

A
  1. Home state where child lived with parent for 6 months
    2,. Significant Connection jurisdiction- child and one parent have significant connection. There is substantial evidence there
  2. Default jurisdiction - appropriate connections
34
Q

Exclusive continuing jurisdiction

A

Initial court has continuous jurisdiction until none of the parties reside in the state or child has not significant connection and no substantial evidence is in that state.

35
Q

Enforcement of Another State’s order

A
  1. Get certified Copy
  2. Register with court
  3. new court can then grant relief
36
Q

Standard for determining child custody

A

Best interest and welfare of the child.

Primary factor: who was caretaker before divorce

37
Q

Considerations in Child custody

A
  1. No race or religion
  2. No past sexual conduct
  3. Child’s preference
  4. Guardian ad litem
  5. Siblings
  6. DV
38
Q

Calculating Support

A
  1. Income Shares - allocate support relative to each net income
  2. Percentage of Income - use percentage of non-custodial parent’s income.
39
Q

Modification of Child Support

A

Must be substantial change in parent’s circumstances

40
Q

Termination of Child Support

A
  1. At age of majority (except for college, disability, HS)
  2. Child marries
  3. Child emancipates
41
Q

Enforcing Child support

A
  1. Civil contempt
  2. Criminal Contempt
  3. Other sanctions like suspension of licensing, etc.
42
Q

Enforcing Child support in other jurisdications

A

Uniform Interstate Family Support Act. Register support order. Adopted in all jurisdictions.

43
Q

Legal Child Custody

A

The right to make major decision about education, health etc,.

44
Q

Physical Custody

A

Right to have child physically present and establish daily routine and care

45
Q

Home-State Jurisdiction for Initial Custody Determination

A
  1. Home state where child lived with parent for 6 months
    2,. Significant Connection jurisdiction- child and one parent have significant connection. There is substantial evidence there
  2. Default jurisdiction - appropriate connections
46
Q

Exclusive continuing jurisdiction

A

Initial court has continuous jurisdiction until none of the parties reside in the state or child has not significant connection and no substantial evidence is in that state.

47
Q

Enforcement of Another State’s order

A
  1. Get certified Copy
  2. Register with court
  3. new court can then grant relief
48
Q

Termination of Parental Rights

A

Clear and conniving evidence Of:

  1. abuse
  2. incapacity
  3. termination of rights over a sibling
  4. abuse or neglect of the child over time
49
Q

Considerations in Child custody

A
  1. No race or religion
  2. No past sexual conduct
  3. Child’s preference
  4. Guardian ad litem
  5. Siblings
  6. DV
50
Q

Modify Child Custody

A

Some allow for an unforeseen change in circumstances.

Must be in the Child’s best interest.

51
Q

Parental Consent required For

A
  1. Medical procedures (even some emergencies)
  2. Religious Belief
  3. Upbringing
52
Q

Types of Marital Agreements

A
  1. Premarital
  2. Seperation Agreements
  3. Property Settlement Agreements
53
Q

Premarital Agreements

A
  1. Contracts relating to division of assets.
  2. Marriage is valid consideration
  3. Not enforceable concerting child custody
54
Q

Seperation Agreement

A

Can decide property division, child support , maintenance etc.
Enforcable so long is there is no fraud and not unconsionable

55
Q

Property Settlement Agreement

A

Purpose - settle the economic issues of marital estate, Entered into before divorce

56
Q

Marital Agreements must have

A
  1. Full disclosure
  2. Be fair and reasonable
  3. Be voluntary
57
Q

Adoption

A

Same rights and obligations as a natural parent

58
Q

Domestic Violence Relief

A
  1. Ex parte order with TRO

2. Notice to defendant and a hearing

59
Q

Rights and Obligations of Children

A
  1. Right to medical care
  2. Liable for torts but by more moderate standard
  3. Limits on parental authority when in the best interest and welfare of the child.
60
Q

Termination of Parental Rights

A

Clear and conniving evidence Of:

  1. abuse
  2. incapacity
  3. termination of rights over a sibling
  4. abuse or neglect of the child over time
61
Q

Parens Patriae

A

Often incases where contradicts with religious beliefs. Court intervention to protect a child when medical intervention is necessary to prevent serious harm

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