Family Law Flashcards

Question

Effects of Legal Separation

Answer 1

(1) parties still married (2) parties can seek to have rights re: support, child custody, and child support decided (3) Courts MAY permanently divide marital property. After acquired property is separate. If no final property decision-- divided at divorce.

Answer 2

(1) Community property (2) Equitable division of ALL property (3) Equitable division of MARITAL property

Answer 3

All property acquired during the marriage is owned 1/2 each by each spouse; property owned before marriage is separate.

Answer 4

Pretty much what it sounds like.

Answer 5

Each spouse takes his separate property and property acquired during marriage is divided equitably.

Answer 6

Property distribution decrees are NOT modifiable

Answer 7

(1) Classification: what is marital and what is separate? (2) Division: make an equitable division of marital estate (regardless of title). Equitable does NOT mean equal

Answer 8

(1) All real and personal property owned by spouse before marriage, incl. assets in IRA (2) Property acquired at any time by gift, bequest, devise or descent (inheritance) (3) Property acquired in exchange for property acquired before the marriage (4) Income from and appreciation of separate property (5) Pain and suffering awards, victim of crime compensation funds, future medical expenses/lost wages (6) Property acquired by a spouse after an order of legal separation w/ a court-ordered final disposition

Answer 9

All property acquired by either or both spouses during the marriage up to final divorce decree. Includes earnings, vested and unvested pension, stock options, retirement or other fringe benefit rights relating to employment that accused during period of marriage. Includes recovery in personal injury, workers comp, SSD, and other actions for lost wages during the marriage, reimbursement for medical bills incurred and paid with marital property, property damage.

Answer 10

Separate property can become marital if the property is inextricably intertwined. Courts will attempt to trace property.

Answer 11

Separate property can become marital property based on the intent of the parties.

Answer 12

When separate property is improved by the use of MARITAL FUNDS or the EFFORTS OF EITHER SPOUSE, courts in most jurisdictions will grant the marital estate or non-owning spouse reimbursement for the value added.

Answer 13

Courts are split. Majority: property should be apportioned between separate and marital estates in proportion to the contribution of separate and marital funds used to pay for the property.

Answer 14

Considered marital property subject to division even if the non-working spouse did not contribute

Answer 15

NOT considered marital property subject to division. To avoid unfairness, some jurisdictions consider it when awarding alimony. Minority jurisdictions value the degree, the award more property or alimony to the other spouse based on the valuation.

Answer 16

NOT a taxable event

Answer 17

(1) Age, education, background, earning capabilities (2) Duration of marriage, prior marriages (3) Standard of living during marriage (4) Present income, vocational skills, employability (5) Source of $ used to purchase property (6) Health (7) Assets, debts, liabilities (8) Needs (9) Provisions for custody of minor children (10) Alimony (11) Opportunity to acquire future income/assets (12) Contribution to acquisition/enhancements of existing marital assets (13) Contribution as homemaker to family unit (14) Whether each party dissipated marital property (economic fault, NOT marital fault).

Answer 18

(1) Paid to economically dependent spouse (2) 4 Types (AKA spousal support, maintenance). Can award more than one type (3) Trend= award less money b/c two earner households, and less economic dependence (4) trial court has great discretion

Answer 19

Example: $2000/month until death or remarriage. Duration: indefinite Modification: Can be increased, decreased, terminated upon proof of substantial change of circumstances

Answer 20

Example: $36000 paid at $1000/mo for 36 months Present value of permanent periodic support to make a clean break. Duration: specified time periods, can be payable in installments or in a lump sum. Modification: none. Treated like a contract right; binding on payor's estate.

Answer 21

Example: $1000 a month for 36 months to gain education or skills. Duration: specified time period unless modified by court. Modification: can be increased/decreased/terminated based on proof of substantial change of circumstances. Designed to restore disadvantaged spouse's earning capacity to relieve dependence. Can be combined with permanent periodic or lump sum support

Answer 22

(1) Permanent Periodic Support (2) Lump Sum Support (3) Rehabilitative Support (4) Reimbursement Support

Answer 23

Example: $20000 as repayment for the supporting spouse's contribution to increased education provided to other spouse. Duration: for specified period of time; can be payable in installments or lump sum. Modification: none. Treated as contract right and can be awarded even if supporting spouse is not otherwise eligible for spousal support. Can be combined with permanent periodic support or lump sum support.

Answer 24

(1) NEEDS OF SPOUSE AND ABILITY OF THE OTHER SPOUSE TO PAY (2) Duration of the marriage (3) Age and emotional conditions of both parties (4) Financial resources of each party; consider marital and separate property, child support (5) Contribution of each party to marriage, incl. homemaking, childcare, education, and career building (6) Time needed to obtain education/training (7) Ability of payor to meet needs and pay support (8) May consider marital fault.

Answer 25

Spousal support is modifiable based on substantial and material change of circumstances affecting needs of recipient spouse or ability of other spouse to pay. Generally, a voluntary reduction in income will not be sufficient to reduce obligation. May consider new legal obligations to another spouse or children (but not stepchildren), but change must be unanticipated. So if spouse intended to remarry upon divorce, change in not unanticipated and will not constitute a sufficient change in circumstances

Answer 26

Period payments generally terminate: (1) remarriage of the recipient-- once terminated by remarriage, will not be reinstated following annulment of that marriage (2) death of either spouse (3) in some jurisdictions, on cohabitation w/ another person Lump sum awards survive death and are not modifiable.

Answer 27

Post 2019- not taxable as income, not deductible Pre 2019- deductible by payor, taxable as income to recipient unless the agreement is modified to comport with the new rule

Answer 28

Entered into after marriage and enforceable if supported by consideration. Must be full and fair disclosure, and agreement must be entered into voluntarily. Can waive alimony or property division; can agree on custody and child support, but court is not bound by parties' contract concerning children.

Answer 29

If divorce decree includes the terms of the agreement or expressly merges them, the provisions become part of the contract order. Modifiable by the court and subject to contempt.

Answer 30

If parties do not submit agreement to the court, contract is non-modifiable, and enforceable only by contract remedies.

Answer 31

Contracts valid unless sex is the only consideration (giving up a career or taking care of home can be enough). Express contracts re: earnings and property rights will generally be enforced. Implied contracts (partnership or constructive trust) may be used to award property

Answer 32

Both parents share equally in the duty to support their children based on child's needs and ability of the parent to pay. Agreement that does not meet the needs of the child will not be enforced by the court. Court's discretion cabined by child support guidelines. Courts have discretion to add for health insurance and extraordinary education expenses. Child support is paid independent of visitation.

Answer 33

Income Shares

Answer 34

Generally, age of majority, OR - death of child OR - emancipation of child OR - termination of parental rights OR - may continue past 18 if child still in high school until some age or completion of education. Most states will not extend to college unless agreed by parties/provided by statute. May continue longer if the child is disabled.

Answer 35

Jurisdiction is proper where the first petition under UIFSA is filed. Another state can only exercise jurisdiction if: (1) 2nd petition is filed before time to answer first petition has expired (2) Petitioner objected to jurisdiction in the first case (3) Second state is child's home state

Answer 36

Issuing court has continuing jurisdiction to enforce. Another state can enforce by: DIRECT ENFORCEMENT or REGISTRATION

Answer 37

Obligee mails order to obligor's employer in another state and employer will withhold wages.

Answer 38

Child support order is registered in another state and subject to enforcement

Answer 39

Once the court enters a valid child support order it maintains continuing exclusive jurisdiction during the life of the order unless no parties reside in the issuing state or the parties consent to another state's jurisdiction.

Answer 40

Modifiable based on substantial change of circumstance affecting the needs of the child or the ability of the parents to pay. Voluntary reduction in income is not grounds for modification. Past due child support cannot be modified and is not a basis for prospective modification.

Answer 41

NOT income to the recipients or deductible by the payor.

Answer 42

Can be enforced through traditional civil and criminal contempt proceedings. As a result of federal legislation, parties may seize property, use wage withholding, interrupt tax refunds, and revoke licenses.

Answer 43

Home State Either (1) The state where the child has lived w/ a parent for at least 6 consecutive months OR (2) State that was the child's home state within the last 6 months and the child is absent from the state, but a parent continues to live in the state.

Answer 44

Court can assume jurisdiction if the child has a significant connection with the state and there is substantial evidence of the child's wellbeing in the state

Answer 45

If a state w/ Home State or significant connection jurisdiction declines, a state can assume deferred jurisdiction

Answer 46

If no other state exercises jurisdiction, any state can by default

Answer 47

The issuing state exercises continuing exclusive jurisdiction UNLESS (1) no child or parent continues to reside in the state OR (2) the child no longer has significant connection with the state and no substantial evidence in the state *only issuing state can decide if no connection*

Answer 48

May not exercise jurisdiction if: (A) proper proceeding already pending elsewhere when petition is filed unless the other court defers OR (B) person seeking to invoke court's jurisdiction has engaged in unjustifiable conduct. A court may decline to exercise jurisdiction if it determines it is an inconvenient forum

Answer 49

(1) Child is physically present in the state AND (2) the child has been abandoned OR (3) Necessary to protect child b/c the child, sibling, or parent is subject to abuse

Answer 50

Legal Custody: right to make decisions regarding child Physical Custody: possession and control of child Hallmark consideration: best interest of the child

Answer 51

(1) Wishes of parents (constitutionally protected) (2) Preference of the child - if under 8, not considered - if 12 and up, given great weight (3) Relationship w/ child/parents/siblings/others (4) Home/school/community (5) Physical and mental health of parties (6) Primary caregiver-- no gender preferences! or preferences for financial ability

Answer 52

Can mean joint legal, physical, or both. Intended to promote involvement of both parents. Encouraged and awarded if both parents agree. If parents openly hostile/unable to agree, court will not award joint custody.

Answer 53

Can be awarded to one parent when strong evidence demonstrates it is in the best interest of the child. Other parent is entitled to rxble visitation unless harm will result to child.

Answer 54

B/c of constitutional parent protections, parent usually wins. Nonparent may prevail if can show: - harm to the child OR - unfitness (abandonment, neglect, abuse, surrendered custody)

Answer 55

Absolute denial to a parent is rare. May deny and restrict (i.e. supervise) if injury to child may result

Answer 56

Allowed by state statute. Generally, applies in extraordinary circumstances, such as divorce, separation, or death. Determinative factor is the prior relationship between the child and the third party SCOTUS: if a parent is fit, their wishes regarding nonparent visitation are constitutionally protected ("special weight")

Answer 57

Generally brought by motion of a party or the court in the original action. Party seeking modification bears the burden of proof. Standard requires substantial and material change of circumstances affecting the child's wellbeing since prior determination of custody. Overriding concern: best interest of the child. May be time-barred (e.g. cannot seek modification within certain period of time following entry of order/modification)

Answer 58

State statutes generally require notice to other parent and a court hearing to determine whether relocation is permitted. Courts consider: - Is it BIOC? - Motivated by benefit to family? - Not intended to thwart relationship w/ other parent?

Answer 59

(1) Violations of custody and visitation can be enforced thru civil contempt proceedings (2) State habeas corpus proceedings (for physical custody of child) (3) Suit in equity (asks court to enjoin conduct in violation of outstanding order) (4) Out of state decrees will be enforced if a certified copy is filed with the clerk of court. Will not remove continuing exclusive jurisdiction of another state, but will allow enforcement of the order in the state.

Answer 60

If child is removed from state, custodial parent must file custody order in new jurisdiction and seek enforcement or obtain writ of habeas corpus from new jurisdiction. Child kidnapping is a state crime (felony). Federal Parental Kidnapping Prevention Act mandates states give full faith and credit to another state's child custody determination if jurisdiction is proper. International Parental Kidnapping Prevention Act provides international relief.

Answer 61

Intermediate scrutiny in equal protection analysis (substantial relationship to an important government interest). SCOTUS will not uphold discriminatory legislation intended to punish the offspring of illicit relationships.

Answer 62

Can be brought to establish a biological relationship and settle issues of paternity. Once parentage established, parent owes support and has rights of custody and visitation. Records of paternity actions usually kept sealed

Answer 63

Husband of the mother is presumed father if: (1) child born during the marriage OR (2) child is born within 300 days of the termination of the marriage OR (3) child born during a void/voidable marraige Can be rebutted but requires heightened proof-- generally clear and convincing. In some states, even if father is NOT the biological father, disestablishment of paternity is prohibited (BIOC).

Answer 64

(1) After the birth, the father marries the mother (2) Father holds child out as biological child (3) Father consents to name on the birth certificate (4) Father acknowledges paternity (usually requires formality) (5) Judgment decreeing paternity

Answer 65

Unwed fathers are protected by Due Process Clause and can have rights to custody of child if they demonstrate parental responsibility: acknowledgment of paternity, supervision, education, protection, care, support. May be precluded from tort recovery for death of a child he did not legally recognize.

Answer 66

Generally used by unwed mother to obtain child support from father. Once paternity is established, father can assert right of custody and visitation. Statute of limitation tolled during minority of child, so will last at least until 18. Level of proof varies: clear and convincing or preponderance Blood/tissue sampling best Testimonial and other medical evidence sufficient

Answer 67

May voluntarily relinquish all rights to child (often in preparation for adoption)

Answer 68

State may not interfere in family decision-making unless decision endangers wellbeing of child. May seek termination for: (1) Infliction of serious physical harm on the child or other children in the household (2) Abandonment (3) Neglect (4) Failure to provide support w/o cause for specified time period (usually 1 yr) (5) Mental health of parent (6) Parental unfitness (physical/psychological) *Parent cannot terminate rights of other parent* Must be established by CLEAR AND CONVINCING evidence

Answer 69

Licensed adoption agency acts as intermediary

Answer 70

Private persons act as intermediaries to arrange adoption

Answer 71

(1) Termination of biological parents' rights | (2) Creation of new parents' rights

Answer 72

(a) Consent of biological parents required unless - Rights already terminated - Unreasonably withheld against BIOC (b) Consent of unmarried father - required if actively involved in child's life - may not be required if parent abandoned the child, failed to support for certain length of time, or never attempted to establish a relationship.

Answer 73

(a) Consent of adoptee (if over 12/14 yo) (b) Home study-- can be waived for relative adoptions (c) Payment of money prohibited; exception for medical costs of pregnancy

Answer 74

Generally sealed unless bio parents consent to contact

Answer 75

Severs all rights and obligations of bio parents to child and creates duties to adoptive parents and child. In some states, child still has right to inherit from bio parents.

Answer 76

Mother-child relationship established by birth (unless valid gestational agreement) Adjudication of woman's maternity Adoption by mother Adjudication confirming mother of child born to gestational surrogate

Answer 77

Husband who is married to a woman who has a child through assisted conception is the child's father unless he proves his lack of consent within 2 years after birth

Answer 78

1) Egg/sperm donors are NOT parents of a child conceived through assisted conception 2) Some jurisdictions allow sperm donor to have rights if agreed in writing by DONOR and the WOMAN

Answer 79

If gamete provider consented in writing that his or her gametes could be used after death to conceive a child, that child can be considered child of the deceased parent

Answer 80

Use of carrier's own gametes

Answer 81

Gametes are not the carrier's

Answer 82

(1) Gestational mother, her husband (if married), and intended parents must enter into written agreement (2) Court must approve agreement if: - Court has jurisdiction - Child welfare conducted home study unless waived - Agreement is voluntary - Provision for health care costs until birth-- cannot limit surrogate's rights to make medical decisions - If surrogate promised consideration, that consideration must be reasonable - Subsequent marriage or divorce of intended parents does not invalidate agreement - Agreement can be terminated by any of the parties at any time before the embryo transfer - If agreement unenforceable, gestational mother= mother, regardless of biology - if agreement approved, intended parents must file notice of birth and court will issue order of parentage

Answer 83

SCOTUS has recognized the right of privacy as implicit in the concept of "liberty" within the protection of the DPC. Any regulation of it is invalid unless necessary to a compelling government interest.

Answer 84

Agreement between spouses who intend to remain married. Usually alters or confirms marital rights or obligations during the marriage or at separation, dissolution, death. Most often, concern property rights. Most states treat these the same as premarital agreements.

Answer 85

Marriages between parties who are too closely related

Answer 86

Spouse who was under the statutory age and married without getting required consent can have marriage invalidated

Answer 87

Inability to have normal sexual relations with a spouse. Grounds for annulment-- marriage is voidable and subject to ratification. Inability to have children is NOT impotence

Answer 88

Lack of understanding due to a mental condition or influence of drugs or alcohol Lack of mutual assent to marriage Duress Fraud going to the essentials of the marriage (misrepresentation as to ability or willingness to engage in or have sexual intercourse)

Answer 89

Heard by equity courts in states without statutes on the subject. State of domicile of either party has jurisdiction Place of celebration of the marriage also has jurisdiction

Answer 90

During period was decree of divorce granted but not yet final, parties cannot remarry, and they continue to inherit from each other

Answer 91

Court may refer parties to a divorce action to a court-approved mediator. Mediator is a neutral party who helps the divorcing parties work through issues like child support, custody, visitation. Agreement reached by parties is to be based on the decision of parties and not decision of mediator, who may not advocate for either party, or coerce a party to make a decision. Mediator misconduct may result in court setting aside the agreement. All mediator proceedings and records are confidential.

Answer 92

(1) Must explain mediation process, including right to independent counsel (2) Ensure parties have enough information for informed decision-making (3) Be impartial and disclose any potential bias (4) Control for any power imbalance between the parties

Answer 93

Avoid jurisdictional disputes with courts of other states in matters of child custody and visitation, promote interstate cooperation, facilitate interstate enforcement of custody and visitation orders

Answer 94

Court may appoint guardian ad litem for child in a custody dispute, but only when counsel can provide substantial assistance in reaching the result in the child's best interest

Answer 95

Most states refuse to terminate an established parent-child relationship, but some states have made it possible for men (even fathers of maternal children) to establish nonpaternity. If man proves that he cannot be the father of the child, his paternity will be disestablished and child support obligation eliminated.

Answer 96

When an unmarried American woman gives birth abroad, her child may be granted US citizenship without formally establishing her parentage. Child of unmarried American man born abroad: father must take specific steps to establish his paternity in order to make child a US citizen

Answer 97

- May own and convey property, but can disaffirm any conveyance upon reaching age of majority - May enter into and enforce contracts, but may disaffirm at any time upon reaching age of majority and for reasonable time thereafter - Incapable of consenting to medical care-- Exceptions for abortion, birth control, or treatments for STIs. State can override withholding of parental consent if to do otherwise would cause irremediable injury to the child - Cannot make valid wills - Can commit torts, but may be judged by a more lenient standard - Children who commit crimes are generally adjudicated under delinquency laws rather than criminal statutes

Answer 98

Removal of disabilities of minority, and child is considered adult Most states consider married minors to be emancipated

Answer 99

Either spouse may maintain a tort action against the other -Parent-child immunity abolished by most states; not applied for intentional tortious conduct and in some automobile accident cases. These are personal injuries.

Answer 100

Child many not recover against one who tortiously injures his parent Parent may recover when child is tortiously injured

Answer 101

Parent whose lawful custody is interfered with may recover tort damages in actions for abduction or enticement Parties who conspire to conceal information about a newborn child's birth or location may be held liable for participation in a civil conspiracy

Answer 102

Except for claims based on direct interference (e.g. abduction), these actions are DERIVATIVE-- recovery depends on success of injured family member's own action. In addition to defenses against plaintiff, any defense that would prevent recovery by the injured family member (ie contributory negligence) will also prevent recovery in the interference action.

Answer 103

Most states require person seeking to adopt be a resident of the county where the petition is filed. Some states permit filing in the county where the child resides or where office of child placement agency is located.

Answer 104

Court has jurisdiction if the child lived in the state with a parent or someone acting as parent for six months before the proceeding; the prospective adoptive parent lived in the state for six months before the proceeding; the agency that placed the child for adoption is in the state and it is in the child's best interest that the court assume jurisdiction because the child and the child's parents have a significant connection with the state, and there is substantial evidence concerning the child's care in the state; the child and the prospective adoptive parent are physically present in the state and the child has been abandoned, subjected to, or threatened with mistreatment or abuse, or is neglected; it appears that no other state would have jurisdiction or another state has declined to exercise jurisdiction and it is in the best interest of the child that the court assume jurisdiction.

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Family Law Flashcards

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