FAMILY LAW Flashcards
1
Q
MARRIAGE
A
The legal union of 2 individuals, with the accompanying obligations and liabilities.
2
Q
CONTROVERSIES ARISING IN ANTICIPATION OF MARRIAGE
A
- BREACH OF PROMISE TO MARRY: Though abolished by statute in most states, Georgia retains the action for breach of promise to marry as a contract ation.
- GIFTS IN CONTEMPLATION OF MARRIAGE: If the marriage does not take place, engagement gifts (those made in anticipation of marriage) must be returned.
3
Q
LIMITATIONS ON WHO MAY MARRY
A
To get married in GA, the parties must:
(i) Be at minimum 18 years of age (persons 16 or 17 years of age may marry with parental consent);
(ii) Not to be too closely removed;
(iii) Have capacity to consent (the ability to comprehend and voluntarily agree); and
(iv) Not have a prior undissolved marriage to a living spouse.
4
Q
PROCEDURAL REQUIREMENTS
A
- License
2. Solemnization
5
Q
MARRIAGE LISCENSE
A
- Marriage licenses are issued only by the judge of the probate court or his clerk at the county courthouse.
- GA no longer requires a blood test or other medical examination prior to the issuance of a marriage license.
- The license may be issued immediately, without waiting period after application for the license has been made.
6
Q
SOLEMNIZATION
A
- A marriage may be solemnized by any judge (including federal judges), minister, or other person of any religious society or sect authorized by the rules of such society to perform the marriage ceremony.
- However, GA law specifically provides that the validity of a marriage is not affected by lack of authority of the person performing the ceremony.
7
Q
STATE OF MIND REQUIREMENTS
A
- The parties must understand their actions and voluntarily agree to them.
- Thus, someone under the influence of alcohol or drugs may lack the mental capacity to enter into a valid marriage
- Also, because the parties must intend to enter into marriage, if one party is induced to marry because of fraud, duress, coercion, or force, the marriage is subject to attack.
8
Q
COMMON LAW MARRIAGE
A
A valid CL marriage requires:
(i) An exchange of consents between tow capacity with capacity;
(ii) Cohabitation;
(iii) A holdin out publicly of living together as spouses;
- No solemnization is required.
- CL marriages were abolished in GA beginning January 1, 1997.
- Valid CL marriages entered into GA prior to that date continue to be recognized in GA, as those validly established under the laws of another state.
9
Q
PREMARITAL CONTRACTS
A
- Premarital contracts, which usually pertain to the distribution of property upon divorce or death, are valid contracts to which the principles of contract construction apply.
- The marriage is sufficient consideration to support a premarital contract.
10
Q
PREMARITAL CONTRACTS MADE IN CONTEMPLATION OF MARRIAGE (MARRIAGE ARTICLES)
A
- Contracts entered into by prospective spouses that involve only settling property rights of the parties during marriage and at death are termed “marriage articles,” and they are subject to certain statutory requirements.
- Marriage articles may be oral or written, but if written, must be attested to by two witnesses.
11
Q
PREMARITAL CONTRACTS: MADE IN CONTEMPLATION OF DIVORCE
A
- GA recognizes premarital agreements made in contemplation of divorce.
- The statutory attestation requirement for written marriage articles does not apply to premarital contracts in contemplation of divorce
- Note, however, that any agreement that does not specifically reference divorce or incidents of divorce may be construed as an agreement in contemplation of marriage subject to the attestation requirement – even when applied at divorce.
12
Q
ENFORCEMENT BY COURTS
A
The party seeking to enforce a premarital agreement has the burden of proof to demonstrate taht the agreement:
(i) Was not the result of fraud, duress, mistake, misrepresentation, or nondisclosure of material facts;
(ii) Is not unconscionable; and
(iii) Is neither unfair nor unreasonable in light of current circumstances.
13
Q
NO FRAUD, DURESS, MISTAKE, MISREPRESENTATION OR NONDISCLOSURE
A
- TO be valid, the agreement must not have been teh result of fraud, duress, mistake, misrepresentation or nondisclosure of material facts.
- To satisfy this prong, the party must show that:
(i) there was full and fair disclosure of the parties’ assets prior to the execution of the agreement, and
(ii) the party opposing enforcement entered into the agreement freely, voluntarily, and with full understanding of its terms after being offered the opportunity to consult with independent counsel.
14
Q
NOT UNCONSCIONABLE
A
- The agreement must not be unconscionable
- An unconscionable contract is one abhorrent to good morals and conscience where one party takes fraudulent advantage of another
- It is one that no sane person would make that no honest person would take advantage of.
15
Q
NEITHER UNFAIR NOR UNREASONABLE IN LIGHT OF CURRENT CIRCUMSTANCES
A
- Assuming the above requirements are satisfied, a premarital agreement will be enforced only if, taking into account all relevant facts and circumstances, including changes beyond the parties’ contemplation when the agreement was executed, enforcement of the agreement would be neither unfair nor unreasonable.
- A change of circumstances that would render an agreement unenforceable must have been unforseeable at the time the agreement was executed.
16
Q
EXAM TIP* Watch for child custody provisions in premarital agreements.
A
These provisions NEVER bind in court
- In some states, custody provisions are void as against public policy, while in others they are subject to judicial review.
17
Q
PREMARITAL AGREEMENTS CHOICE OF LAW
A
- If a premarital agreement does not contain a choice of law provision, its enforceability is governed by the law of the state in which it was executed or the state with the most significant relationship to the parties and the transaction.
18
Q
PROPERTY IN MARRIAGE
A
Each spouse owns and controls her own property before and during the marriage.
19
Q
TENANCY BY THE ENTIRETY
A
- GA does not recognize tenancy by the entirety (which, if spouses take title to real estate in their joint names, includes a right of survivorship and prohibits the conveyance or encumbrance of the property by one spouse).
- Unless otherwise provided by deed, spouses in GA take as tenants in common.
20
Q
MARITAL PROPERTY
A
- Marital property includes most property acquired during the marriage
- Upon dissolution, the court has broad discretion in the equitable distribution of this property.
21
Q
RIGHTS & RESPONSIBILITIES OF SPOUSES:
SUPPORT
A
- Each spouse has an obligation to support the other during the marriage.
- In addition, 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 (e.g., food, clothing, medical care) purchased by other spouse.
22
Q
SUITS BETWEEN SPOUSES
A
- Many states have abolished the doctrine of interspousal immunity
- Although GA has a code section that continues interspousal tort immunity, this doctrine has been judicially eroded.
23
Q
FAMILY PRIVACY
A
- In general, the internal affairs of a family cannot be regulated by the courts.
- Families have the right to expect privacy for actions w/in their homes and freedom from governmental interference in their domestic affairs.
24
Q
CONSTITUTIONAL PRIVACY
A
- SCOTUS has recognized the right of privacy as implicit in the concept of “liberty” w/in the protection of the DP clause
- Privacy is a fundamental right; therefore, any regulation of it (other than in the abortion area) is invalid unless it is found to be necessary to a compelling government interest.
25
THE FOLLOWING RIGHTS ARE CONSIDERED TO FALL WITHIN THE CONSTITUTIONALLY PROTECTED RIGHT TO PRIVACY:
1. The right to marry;
2. The right to procreate;
3. The right to use or sell contraceptives;
4. Within limits, the right to abortion;
5. The right of related persons to live together;
6. The right of parents to educate their children outside the public schools; and
7. The right of parents to decide issues concerning the care, custody, and control of the children.
26
SPOUSAL EVIDENTIARY PRIVLEGE
- A married person cannot be compelled to testify against her spouse in any criminal proceeding.
- This "spousal immunity" can be involved only during a valid marriage.
- In addition, either spouse, whether or not a party, is privileged to refuse to disclose and to prevent the other from disclosing a confidential communication he made to the other spouse while they were married.
- The communication must have been made in confidence in reliance upon the intimacy of the marital relationship.
- This privilege for confidential communications survives divorce and death.
- Neither of these privileges applies in actions between the spouses or in cases involving crimes against the testifying spouse or the children.
27
TORTIOUS INTERFERENCE W/ THE MARITAL RELATIONSHIP
1. Alienation of Affections
2. Criminal Conversion
3. Negligent Interference w/ Consortium or Services
28
ALIENATION OF AFFECTIONS
- If a third person diverts the affection of one spouse so that the other is deprived of a marital relationship, the deprived spouse has a cause of action for alienation of affections against the third person.
- These actions have been abolished in most states, including Georgia.
29
CRIMINAL CONVERSATION
- When one spouse has sexual relations with a third person, the other spouse has a cause of action against the third person.
- Only the act need be proved, and the spouses may have been living apart at the time of the act.
- Criminal conversation actions have been abolished in most states, including Georgia.
30
NEGLIGENT INTERFERENCE W/ CONSORTIUM OR SERVICES
Either spouse may maintain an action for loss of the other's consortium due to injuries from a defendant's negligence.
31
TERMINATION OF THE MARRIAGE
1. Annulment
| 2. Divorce & Separation
32
ANNULMENT
- An annulment is 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 if they had never been married.
33
VOID MARRIAGE
- A void marriage is a complete nullity
- No subsequent act can ratify a void marriage.
- Parties may walk away from the void marriages without a court order; an annulment action is usually brought to determine property distribution and child custody.
- Any interested party may seek annulment of a void marriage, and the marriage is subject to collateral attack (in actions other than for annulment) even after the death of one of the parties.
34
VOIDABLE MARRIAGE
- 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 the relationship after the impediment is removed, or if one spouse dies, the marriage can no longer be invalidated.
35
GROUNDS FOR VOID MARRIAGE:
1. Bigamy/ Polygamy
2. Consanguinity
3. Nonage
4. Incurable Physical Impotence
5. Lack of Capacity
36
BIGAMY/ POLYGAMY
If either party to the marriage has another living spouse, the marriage is void.
37
CONSANGUINITY
- Marriages where the parties are too closely related are prohibited (e.g., direct lineal ascendants or descendants, or aunt, uncle, brother, sister, niece or nephews).
- Most states consider these marriages void.
38
NONAGE
- A spouse who was under the statutory age and married without getting the required consent can have the marriage invalidated.
- These marriages are usually voidable; thus the underage spouse may ratify the marriage by continuing in the relationship after reaching the statutory age.
39
INCURABLE PHYSICAL IMPOTENCE
- The inability to have normal sexual relations with a spouse is a ground for annulment.
- These marriages are voidable and thus subject to ratification.
40
LACK OF CAPACITY
- A lack of capacity sufficient to annul a marriage may be:
(i) A lack of understanding due to a mental condition or the influence of drugs or alcohol;
(ii) A lack of mutual assent to the marriage;
(iii) Duress; or
(iv) Fraud going to the essentials of marriage (e.g., misrepresentation as to ability or willingness to engage in sexual relations or bear children).
41
DEFENSES
- The only way to defend an action to annul a void marriage is to deny the existence of the defect that allegedly caused the marriage to be void
- If the impediment has been removed, the marriage may be ratified
42
THE MOST COMMON DEFENSE TO ANNUL A VOIDABLE MARRIAGE
Ratification
43
OTHER EQUITABLE DEFENSES THAT MAY BE USED TO ANNUL A VOIDABLE MARRIAGE
- Laches, estoppel ETC.
44
OTHER EQUITABLE DEFENSES THAT MAY BE USED TO ANNUL A VOIDABLE MARRIAGE
- Laches, estoppel ETC.
45
CHILDREN OF ANNULLED MARRIAGE
- The children of an annulled marriage are marital children.
- Support and custody issues are handled in the same way as in a divorce action
- However, in GA except in the case of a prior undissolved marriage, annulments may not be granted when children are born or are to be born as a result of the marriage.
- In that case, divorce is the method used to dissolve the marriage.
46
SPOUSAL SUPPORT
- Generally spousal support is not awarded in annulment actions
- Also, once spousal support has been terminated by marriage, it will be reinstated following an annulment of that marriage.
47
DIVISION OF PROPERTY
Courts attempt to place the parties in their pre-marriage position, and usually give each party that property to which he has legal or equitable title.
48
JURISDICTION
- In states without statutes on the subject, annulment actions are heard by the equity courts.
- Among states, the state of domicile of either of the parties has Jx to hear the annulment action
- Many states also provide that the place of the celebration of the marriage also has Jx.
- Annulment decrees rendered w/ proper Jx are entitled to full faith & credit.
49
DIVORCE
A decree of absolute divorce terminates the marriage relationship.
50
"NO-FAULT" DIVORCE
- The GA divorce statute provides for divorce w/out regard to marital fault.
- This requires a showing that:
(i) The marriage is irretrievably broken (irreconcilable differences or incompatibility); and/or
(ii) The parties have been living apart for at least 30 days.
- The only defense to a no-fault divorce is to deny the existence of one of the above grounds.
51
FAULT GROUNDS
The usual fault grounds for divorce are:
(1) Adultery;
(2) Willful desertion for a specified time;
(3) Extreme physical or mental cruelty;
(4) Voluntary drug addiction or habitual drunkenness; and
(5) a spouse's mental illness.
- In addition to these grounds, GA recognizes as fault grounds:
(6) The conviction of either party for an offense involving moral turpitude, under which the party is sentenced to imprisonment in a penal institution for a term of 2 years or longer;
(7) Incest;
(8) Mental Incapacity;
(9) Impotency at the time of marriage;
(10) Force, menace, duress or fraud in obtaining the marriage; and
(11) Pregnancy of the wife by a man other than the husband at the time of the marriage, unknown to the husband.
52
DEFENSES TO FAULT GROUNDS
1. Collusion
2. Connivance
3. Condonation
4. Recrimination
53
COLLUSION
- Defense to fault
- Collusion is an agreement between the spouses to simulate grounds for divorce or to forgo raising a valid defense
- Will prevent the granting of a divorce
54
CONNIVANCE
- The willing consent by one spouse to the other spouse's misconduct.
- This is usually limited to adultery cases
55
CONDONATION
- The forgiveness of marital offenses w/ full knowledge of their commission
- Resumption of marital relations after the forgiveness is the key element of the defense.
56
RECRIMINATION
- A defense that arises when the party seeking divorce is also guilty of misconduct for which a divorce may be granted.
- This defense is no longer recognized.
- Even though it remains on the books, courts avoid applying it.
57
LEGAL SAPARATION
- 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 this proceeding.
- A legal separation is usually capable of being enlarged into an absolute divorce if the parties so request.
58
Jx & RECOGNITION OF DECREES:
RESIDENCY REQUIREMENTS
- One of the parties must be a bona fide resident of the Jx where the action is brought
- GA has a 6 month residency requirement before an action may be filed.
59
Jx & RECOGNITION OF DECREES:
IN REM ACTION
- The divorce itself is viewed as an in rem action; thus, certain types of constructive service (e.g., publication) are permitted.
- To have Jx over spousal support, property rights, etc., however, the court must have personal Jx over the D.
60
SPOUSAL SUPPORT & PROPERTY RIGHTS
- Generally, a court cannot determine property rights or rights to support unless it has personal Jx over both parties.
- Thus in an ex parte divorce (i.e., only the plaintiff is before the court) the court can grant the divorce, but cannot award spousal support or divide property.
- However, GA has a "domestic relations long arm statute" which provides for the exercise of personal Jx w/ respect to proceedings for alimony, child support, or division of property in connection w/ an action for divorce or with respect to an independent action for support of defendants, if the nonresident:
(i) maintains a matrimonial domicile in GA at the time of the commencement of the action;
(ii) Resided in GA preceding the commencement of the action, whether cohabitating during that time or not.
61
RECOGNITION OF DECREES- FULL FAITH & CREDIT
- A divorce decree obtained in one state is recognized as valid in other states as long as one of the parties was domiciled in the state that granted the decree
- For other provisions of divorce decrees regarding alimony, attorneys fees, child support, and property rights to be given full faith and credit, the court must have had personal Jx over the D.
62
COMITY
Courts are most likely to recognize foreign decrees when one party was domiciled in the country rendering the judgment
63
PRELIMINARY INTERLOCUTORY DECREES & FINAL ORDERS
- In GA, although a court may, in appropriate cases, grant judgment on the pleadings or summary judgment that the moving party is entitled to divorce as a matter of law, no divorce decree will be granted unless all contested issues in the case have been finally resolved
64
EXAM TIP* Watch for a fact pattern that states that a decree was granted but is not yet final. Why?
B/C during that time, the parties cannot remarry, and they continue to inherit from one another.
65
DIVISION OF PROPERTY
The three approaches to division of property upon divorce are:
(1) Community Property
(2) Equitable Division of all Property
(3) Equitable Division of Marital Property
66
DIVISION OF COMMUNITY PROPERTY
All property acquired during the marriage is deemed owned 1/2 by each spouse, and all property brought into the marriage or acquired by gift of bequest is separate property
67
EQUITABLE DIVISION OF ALL PROPERTY
Owned by either spouse, whether acquired before oR after the marriage.
68
EQUITABLE DIVISION OF MARITAL PROPERTY
- Each spouse takes his separate property and the court divides the property acquired during the marriage.
69
FACTORS CONSIDERED IN DIVISION OF PROPERTY
Unlike most states, GA allows evidence of marital fault to be considered in division of property.
- The other factors considered in dividing the property usually include:
(1. ) Age, education, background & earning capacities of both parties;
(2. ) Duration of the marriage, and whether there were any prior marriages;
(3. ) Standard of living during the marriage;
(4. ) Present incomes of both parties, and their vocational skills and employability;
(5. ) Source of the money used to purchase the property;
(6. ) Health of the parties;
(7. ) Assets, debts and liabilities of the parties;
(8. ) Needs of the parties;
(9. ) Child custody provisions;
(10. ) Whether the distribution is in addition to, or in lieu of, spousal support;
(11. ) Each party's opportunity to acquire future income assets;
(12. ) Each party's contribution to the acquisition of, or enhancement of the value of, the existing marital assets;
(13. ) Each party's contribution as a homemaker to the family unit; and
(14. ) Whether either party has dissipated marital property.
70
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.
71
MARITAL PROPERTY
Marital property which is all other property acquired during the marriage, is subject to equitable distribution by the court.
72
MARITAL PROPERTY:
| PENSIONS
The portion of a pension earned during the marriage is marital property subject to distribution.
73
MARITAL PROPERTY:
| PROFESSIONAL LICENSE OR DECREE
- In GA, a professional license or educational degree is NOT distributable property.
- However, to avoid unfair results, some Jx have compensated supporting spouses for their contribution during the other spouse's education or training (e.g., by amending statutes to make the supporting spouse's contribution a factor on which alimony may be based).
74
MARITAL PROPERTY:
| DAMAGE AWARDS IN TORT SUITS
- GA treats the portion of the tort award paid for noneconomic and strictly personal loss as the injured spouse's separate property, while the portion of damages pdi for lost wages, lost earning capacity, etc is marital property
75
MARITAL PROPERTY:
| 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.
76
MIXED PROPERTY:
| SEPARATE PROPERTY MAY BECOME MARITAL PROPERTY IF:
(i) The separate property is inextricably mingled w/ marital property or w/ the separate property of the other spouse to the extent that it can no longer be traced,
(ii) The separate property is treated in a way that evinces 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 Jx grant the marital estate or the nonowning spouse reimbursement for the value added to the separate property.
77
TAX CONSEQUENCES OF PROPERTY DIVISION
- Property division is not considered a taxable event;
- Therefore, any payments made as part of a property settlement are not income to the recipient spouse and may not be used as a deduction by the payor spouse.
78
SPOUSAL SUPPORT
- Spousal support (alimony or maintenance) may be awarded while the parties are still married, during the pendency of a divorce, or as part of the terms of a divorce decree.
- Either spouse can be ordered to pay spousal support to the other.
79
AMOUNT OF SPOUSAL SUPPORT
- The court has great discretion in awarding as much spousal support as necessary for the maintenance of the requesting spouse.
80
FACTORS CONSIDERED IN DETERMINING AMOUNT OF SPOUSAL SUPPORT
1. Duration & standard of living est. during the marriage;
2. Age & physical & emotional condition of the parties;
3. Financial resources of the parties;
4. Contribution of each party to the marriage;
5. The time needed for the party seeking support to obtain the training necessary to find appropriate employment;
6. The ability of the payor spouse to meet his needs while paying spousal support.
81
EFFECT OF MARITAL FAULT IN DETERMINING SPOUSAL SUPPORT
In GA, adultery or desertion is a bar to alimony if it was the cause of the separation between the parties.
82
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.
- Prospectively modifiable for changed circumstances
- Or court can award a lump sum (a nonmodifiable, fixed amount payable either all at once or broken down into a series of payments).
83
REHABILITATIVE SPOUSAL SUPPORT
- Consists of periodic payments for a limited time to enable a spouse to gain skills to become self-supporting.
- Prospectively modifiable for changed circumstances
- Or court can award a lump sum (a nonmodifiable, fixed amount payable either all at once or broken down into a series of payments).
84
REIMBURSEMENT SPOUSAL SUPPORT
A growing minority of jurisdictions occasionally award reimbursement spousal support to a spouse who support the other spouse while the latter obtained a professional license or degree.
- Such support is 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.
85
EXAM TIP
- To determine the type of support, look carefully at the language used in the facts.
- Lump sum support is specified as a total amount (e.g., "$30,000" or "$30,000 payable in $500 monthly installments"), whereas periodic or rehabilitative support is set out in periodic payments with no grand total (e.g., "$500 per month" or even "$500 per month for 60 months").
86
TERMINATION OF SPOUSAL SUPPORT
- Periodic spousal support terminates upon the death of either spouse or the remarriage of the receipt spouse
- Some states would also terminate spousal support if the recipient spouse enters into a cohabitating relationship
- Lump sum spousal support is not modifiable and survives the death of either spouse.
87
TAX CONSEQUENCES OF SPOUSAL SUPPORT
- As a general rule, spousal support payments are includible in the income of the recipient spouse and are deductible by the payor, unless stated otherwise in the divorce or separation instrument.
88
ATTORNEYS FEES
- The grant of attorneys' fees as part of the expenses of litigation is made within the court's discretion, and in making its determination, the court must consider the financial circumstances of both parties.
- A final judgment as to the amount granted may be enforced by attachment for contempt of court, whether the parties reconcile or not.
- An award of attorneys fees is authorized for litigation over alimony disputes, divorce and alimony disputes, or contempt of court arising out of either an alimony case or a divorce and alimony case, including but not limited to contempt of court orders involving property division, child custody and child visitation rights.
89
CHILD SUPPORT
- Both parents share equally 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.
- Parties can also be ordered to provide medical insurance for the children.
90
AMOUNT OF CHILD SUPPORT AWARD - GUIDELINES
- Child support is set in accordance with a child support obligation table promulgated by the Georgia Child Support Commission.
- To determine the presumptive award of child support, the court first determines the monthly income of both parties, including all income from any source except public assistance.
- Income is imputed to a parent who is voluntarily unemployed or underemployed.
- The guidelines provide the basic child support obligation based on the combined incomes of the parents and the number of children.
- The court determines each parent's pro rata share based on income.
- To determine the presumptive award, additional expenses (e.g., health insurance, child care) are added and then divided pro rata, with credit given for payment of those expenses.
91
DEVIATIONS
- If supported by the required findings of fact and in the child's best interest, deviations from the presumptive amount may be permitted.
- Reasons for possible deviation include: high or low income, life insurance, travel expenses, alimony, extraordinary expenses, and parenting time.
92
SPLIT PARENTING
In cases where children are split between parents, the child support is calculated separately for each child.
93
INDEPENDENT FROM VISITATION RIGHTS
- The child support obligation is independent of the noncustodial parent's visitation rights.
- Visitation cannot be withheld because of failure to pay child support.
94
TERMINATION OF DUTY TO SUPPORT
- The duty to support a child cases upon the child's emancipation (usually age 18), the child's marriage, the termination of parental rights, or, traditionally, the death of the supporting parent.
- Child support may be indefinite for a severEly disabled child
- In GA, a court may use its discretion to direct parents to provide financial assistance to their child while he is still enrolled in secondary school up to age 20.
95
MODIFICATION OF SPOUSAL SUPPORT
- Only periodic spousal support (i.e., permanent or rehabilitative) may be modified.
- Periodic spousal support may be modified if there is a substantial change in circumstances re: the needs of the recipient spouse or the ability of the payor spouse to pay.
- Legal obligations to a new spouse or children (but not stepchildren) may be a sufficient change in circumstances.
- Remember, however, that the change must be unanticipated.
- So, if a spouse intended to remarry upon divorce, the change is not unanticipated and will not constitute a sufficient change in circumstances.
96
EXAM TIP* MODIFICATION IN SPOUSAL SUPPORT
Note that a self-intended reduction in income by the payor spouse is not sufficient to have spousal support reduced.
- Be alert to this issue if a fact pattern involves a payor spouse who quits his job.
97
MODIFICATION OF CHILD SUPPORT
- Child support is modifiable based on a substantial change of circumstances affecting the needs of the child or the ability of the parent to pay, such as: changes in employment, the growth of the child, inflation, income, retirement or disabling illness.
- Under the federal Full Faith and Credit for Credit Support ORders Act, full faith and credit must be given to the child support orders of a court in another state.
98
OVERDUE PAYMENTS NOT MODIFIED
Past due installments of child or spousal support cannot be retroactively modified.
99
ENFORCEMENT OF AWARDS
- Spousal support and child support awards may be enforced by holding the non-paying party in contempt of court (usually civil contempt, but may be criminal if failure to pay is willful).
- Other sanctions include:
a. A judgment against the non-complying party;
b. Seizure of his real estate;
c. Attatchment of wages;
d. And the Order of payment of attorneys fees
Child support can be enforced through automatic wage withholding once the court has issued a support order; interception of the noncomplying parent's tax return; or non-renewal or refusal of a professional or driver's license.
100
UNIFORM INTERSTATE FAMILY SUPPORT ACT "UIFSA"
Provides methods of enforcement and guidelines for modifications of support orders issued in another state.
101
METHODS FOR ENFORCING A SUPPORT ORDER
An income withholding order may be mailed to:
- (i) The obligor's out-of-state employer, automatically triggered withholding unless there is a timely objection;
- (ii) the support enforcement agency in the obligor's state.
UIFSA also provides for registration of a support order with a sister state through court action: The issuing state sends the order to the state where the obligor resides, where it is registered and filed as a foreign judgment, and then the order is subject to the same enforcement procedures as if the order had been issued in that state.
102
UIFSA MODIFYING A SUPPORT ORDER
- Generally, the court that issues the controlling child support order has continuing and exclusive jurisdiction to modify it.
- The role of a court in another state is only to enforce the original order, unless:
(i) the parties no longer reside in the issuing state, or
(ii) the parties consent in a record to the nonissuing court's assertion of Jx to modify the order.
103
MEDIATION
- In recent years, there has been a strong movement toward alternative means of dispute resolution in domestic relation cases.
- The GA SCT has promulgated Alternative Dispute REsolution Rules, including a uniform rule for ADR programs that has been adopted by many superior courts.
- In Georgia, mediators are referred to as "neutrals" and must meet extensive requirements for qualification, training and conduct.
- GA also provides for parents to agree to binding arbitration.
- Mediator misconduct may result in the court setting aside the agreement.
- All of the mediation proceedings and records are confidential.
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MEDIATOR DUTIES
- Mediators must explain the mediation process, including the right to independent counsel, to the parties;
- Ensure that the parties have enough information for informed decision making;
- Be impartial and disclose any potential bias;
- And control for any power imbalance between the parties.
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SEPARATION AGREEMENTS
- A separation agreement is an agreement entered into during marriage under the parties which 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;
- Consideration for the agreement is found in the mutual promises of the parties.
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EFFECT OF PROVISIONS
- Provisions relating to property and spousal support will be enforced by the court.
- Child custody and support provisions, however, will be enforced by the court only if they are in the child's best interest; i.e., the court is not bound by those provisions.
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SEPARATION AGREEMENTS AND DIVORCE DECREES
- If the divorce decree states 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 as such.
- If the agreement is not merged in this way, it retains its separate character 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.
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CHILD CUSTODY
- Custody of a minor can mean legal custody (the right to make major decisions affecting the child's life) or physical custody (actual possession and control of the child).
- Joint custody can mean either joint legal custody, joint physical custody, or both.
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PARENTING PLAN
In custody disputes in Georgia, parents are required to submit to the court a detailed "parenting plan," addressing such matters as:
1. Where the child will spend each day of the year, including birthdays, holidays, and other special occasions;
2. Transportation arrangements for exchanging the child between the parents; and
3. Allocation of decisionmaking authority with respect to the child and the means for resolution of any disagreements.
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THE UNIFORM CHILD CUSTODY JURISDICTION AND ENFORCEMENT ACT ("UCCJEA")
PURPOSE
- The purposes of the UCCJEA are to avoid jurisdictional disputes with courts of other states in matters of child custody and visitation, to promote interstate cooperation, and to facilitate the interstate enforcement of custody and visitation orders.
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"UCCJEA" INITIAL CUSTODY DETERMINATION:
PRIMARY TEST HOME STATE JURISDICTION
- A Court has Jx to initially enter or modify a child custody or visitation order if the state
(i) is the child's home state, or
(ii) was the child's home state within the past 6 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.
- A child's home state is the state in which the child lived w/ a parent (or a person acting as a parent) for at least 6 consecutive months immediately before the commencement of the proceeding (of the state where the child has lived since birth if younger than 6 months old), disregarding temporary absences.
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EXAM TIP: HOME STATE JX
is the most important jurisdictional test, and it is frequently tested on the bar exam.
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WHEN "HOME STATE" RULE DOES NOT APPLY
- A court has Jx to enter or modify a child custody or visitation order if no other state has or accepts home state Jx. AND
(i) The child and at least one parent (or person acting as a parent) have a significant connection w/ the state, and
(ii) substantial evidence concerning the child is available in the state.
- In addition, a court has Jx to enter or modify a child custody or visitation order if no other state has Jx under another test.
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EXCLUSIVE CONTINUING Jx
- The court that made the initial child custody or visitation determination ahs exclusive continuing Jx over the matter until the court determines that:
(i) neither the child nor the child's parents (or persons acting as parents) continue to reside in the state; or
(ii) the child no longer has a significant connection w/ the state (e.g., a close relationship w/ a parent who lives in the state) and substantial evidence relating to the matter is no longer available in the state.
