Family Law Flashcards
Separation Agreements Standard
Court will enforce UNLESS:
(1) unconscionable or
(2) based on fraud
Factors: voluntary, time-pressure, parties’ previous business experience opportunity to be represented by independent counsel.
Fault Divorce and Distribution of Property
Majority– at- fault ground is NOT a factor in the distribution of property
**but MAY be used in spousal support depending on jx
Fault Divorce and Spousal Support
Marital misconduct MAY be taken into account for spousal support in many states
The weight/applicability of it depends on jx
Spousal Reimbursement
A court can use its equity power to award a spouse reimbursement for his actual contribution toward the other spouse’s educational and related living expenses.
Types Spousal Support
lump sum permanent limited duration rehabilitative, or reimbursement.
Permanent Alimony
Typically awarded only when the marriage was one of long duration (usually 15 years+)
Rehabilitate Alimony
For a limited time, such as until the spouse receives education or employment.
Purpose: enhance and improve the earning capacity of the economically dependent spouse.
Factors:
couple’s standard of living during the marriage,
time it will take for a spouse to complete edu or training, length of the marriage, and
parties’ age and
parties’ health.
premarital agreement is enforceable if
- full disclosure
- agreement is fair and reasonable
- voluntary
UPA premarital agreement
Party against whom enforcement is sought must prove
(1) involuntariness or
(2) both
(a) unconscionability at the time of execution AND
(b) lack of disclosure and adequate knowledge of the other’s assets and obligations.
Court may not refuse to enforce a premarital agreement based on substantive unfairness UNLESS it also finds lack of adequate disclosure or knowledge.
voluntarily
no fraud
no duress
no misrepresentation
Factors:
time-pressure,
parties’ previous business experience,
opportunity to be represented by independent counsel
**A party’s insistence on the agreement as a condition to marriage is NOT considered duress.
equitable distribution
Objective: fair distribution of all marital property, taking into consideration all of the circumstances
Majority, all property acquired during the marriage is marital property
Appreciation in nonmarital property will depend on whether appreciation can be attributable to spousal labor.
Factors in the distribution of marital property
length of the marriage age health earning potential needs of both spouses value of separate property spouses’ standard of living economic circumstances of each spouse at the time of divorce
Full disclosure
both parties MUST disclose:
all income
assets
liabilities
CL Marriage
Elements: Capacity, present agreement, co-haibtation, holding out a marital relationship;
CoL: valid in one state = valid in another, UNLESS strong long-held Public policy issues
SP can be turned to MP if
marital funds/ efforts enhance value
Property Division Modification
NOT ALLOWED b/c based on parties assets @ time of divorce
does NOT matter if there is a change in circumstances
Spousal Support Factors
(1) finances of both parties
(2) standard of living
(3) time to find employment
(4) length of marriage
(5) contributions to marriage
(6) age/ health
(7) marital misconduct
Modification of Spousal Support
CAN be modified
Party seeking modification show SUBSTANTIAL CHANGE IN CIRCUMSTANCES
voluntary reduction NOT enough
if receiving spouse remarries, support can be terminated
Support during marriage
spouses have a duty to support each other during marriage
can sue other spouse for necessary items (ie- medical care)
Jdx Issue: Divisible Divorce (Ex Parte)
ct hearing family dispute have SMJ + PJ
State ct CAN grant divorce to 1 spouse even w/ PJ over other spouse – LIMITATION: ct CANNOT address property/ support w/o PJ over other spouse
Child Support
parents legally reqd to support minor children
CANNOT bargain away child support payments
Statute re: child support and spousal support
Uniform Interstate Family Support Act (UIFSA)
UIFSA governs
when st has PJ over out of state parent
PJ when (1) personally served within state (2) resided with child in state in past (3) baby maybe conceived in state
UIFSA PJx
(1) personally served within state
(2) resided with child in state in past
(3) maybe made baby in state
Jx over EXISTING child support obligations
UIFSA- initial ct has continuing jx UNLESS-
(1) no one resides in state
(2) parties agree to permit another st to have jx
can enforce child support in another state
Amount of child support
income of paying parent best interest of child age special needs assets of both parties standard of living during marriage
Modification of Child Support
if there is a SUBSTANTIAL CHANGE IN CIRCUMSTANCES
will only change PROSPECTIVELY, not retrospectively
Termination of Child Support
usually terminates @ 18
some require extension for college
kid does NOT abide by rsnble parental demands
Child Custody
can be legal or physical custody, or both.
Legal- right to make decisions;
physical- reside with them;
joint- cooperate with decisions
UCCJEA
goal: prevent jx disputes re child custody
Initial Custody Determination
Home Jx
Significant Connection Jx
Default Jx
Home Jx
(1) been home state for 6 months/ since birth OR
(2) was childs home state in past 6 months AND one parent still lives there
Significant Connection Jx
(1) no other st accepts jx
(2) child AND 1 parent have significant connection
(3) evidence concerning child connection in that state
Default
Neither home nor significant connection jx
adequate contacts to state
Exclusive Continuing Jx
cts that make initial ruling have jx in custody case UNLESS
(1) both parties NO LONGER reside in the state AND
(2) child NO LONGER has significant connections to stare
Custody Determination Factors
Best interest of child
preferences of mature child
give “special weight” to parents determination of her childs best interest
will NOT consider religion
presumption to give parents custody over third parties;
Visitation/ Parenting time
parents have right to visit child
unwed bio dads- have rights if they show commitment to responsibilities of childhood
Modification of custody order
require SUBSTANTIAL CHANGE IN CIRCUMSTANCES
relocation is OK for legitimate purpose.
Relocation Factors
(1) best interest of child
(2) relationship of non-relocating parent w/ child
(3) age/ need of child
(4) child preference
(5) quality of life of relocating parent/ child
Unwed biolgical father rights
14A due process- must show commitment to being a parent
Can object to adoption if commitment shown – if NOT, the court can deny the objection
Putative father registry- receive notice before rights terminated
Limits on parental authority:
cts can interfere for best interest of child
can set aside religious beliefs for medical purposes- if serious harm to child
Mediator Duties (and Misconduct)
- impartial
- disclose all potential bias/conflicts
- explain mediation process
- ensure parties’ decision on sufficient info & knowledge
- recognize domestic abuse and take appropriate steps and shape the mediation process accordingly.
