Family Law Flashcards
Types of Marriage
Ceremonial
Common Law
Ceremonial Marriage
License
Solemnization
Exchange of promises to be valid
Requirements of License - Marriage
18 or parental consent) in all JDX
Waiting period in most JDX
Premarital medical testing in some JDX
Generally has an expiration date.
Exceptions to License - Marriage
Married to someone else
Too closely related
Sham
Incapable of understanding nature of act
Solemnization - Marriage
No particular form required
Most states require at least two witnesses
Requirements of Common Law Marriage
Agree they are married
Cohabit as married
Hold out in public as married
Requires capacity and intent (present tense)
Recognition of Common Law Marriage
Most states have abolished
Almost all states recognize if
Entered into in jurisdiction that does recognize
UNLESS violates strong public policy
Marital Property
All property acquired during marriage
Subject to equitable distribution
Maj: equitable distribution
Min: community property
Property division not modifiable
Equitable Distribution of Marital Property
Distribute marital property fairly
All circumstances between parties
Does not mean 50/50.
Factors for Division of Marital Property
Length of the marriage
Prior marriages
Age, health, earnings potential, liabilities, and needs of spouse
Contributions to education
Needs for future acquisitions
Income, medical needs, retirement of spouses
Contributions to increases in marital property (including child-rearing)
Value of separate property
Reduction in value in marital property by one spouse
Standard of living
Economic circumstances of each spouse at time of divorce
Custodianship of any minor children.
Community Property
Treats marriage as a partnership
All marital property is 50/50
Exceptions to Marital Property
Property acquired prior to marriage
Excluded by agreement
Property acquired by gift, bequest, devise, or descent
Property sold, granted, conveyed, or disposed of in good faith and for value before date of final separation
Property mortgaged or otherwise encumbered in good faith for value before date of final separation
Award or settlement payment received received or accrued before marriage (regardless of when received)
Types of Common Marital Property Commonly Tested
Professional Licenses/Degrees
Retirement/Pension Benefits
Personal Injury Claims
Goodwill
Sick and Vacation Days
Future Interest
Social Security
Post-Separation Property
Stock Options
Professional Licenses/Degrees
Generally not marital property but
Can affect alimony or give reimbursement for actual contribution
Toward other spouse’s education or living expenses to obtain
Retirement/Pension Benefits
If acquired during marriage
Considered marital property
Two Scenarios for Personal Injury
Considered Marital
Allocation
Considered Marital for Personal Injury (some JDX)
If cause of action between date of marriage and final separation
Proceeds marital property even if paid later
Allocation for Personal Injury (some JDX)
Look to the nature of award
Compensatory damages for pain and suffering considered separate property of injured spouse
Lost wages, loss of earning capacity, and medical expenses are allocated between spouses
Goodwill Marital Property
Considered marital property in some jurisdictions.
Sick/Vacation Days Marital Property (split JDX)
Accrued vacation and sick days marital property and subject to division at time of divorce
Accrued vacation and sick days subject to distribution when received OR
Accrued vacation and sick days not marital property
Future Interest Marital Property
Possible future interests not distributable
Social Security Marital Property
Subject to distribution
Post-separation Property Marital Property
Maj: property acquired until decree granted marital property
Min: treat property after permanent separation to be separate property.
Min: Determine character as date of filing
Stock Options Marital Property
Marital if acquired during marriage
Even if exercised after divorce
Requirements of Premarital Agreements
Full disclosure
Agreement is fair and reasonable
Voluntary
Full Disclosure Premarital Agreement
Full disclosure of financial status, including
Income, assets, and liabilities of all parties
Fair and Reasonable Premarital Agreement
Parties’ wealth, age, and health
Agreement obtained by fraud, duress, or undue influence
May be set aside as procedurally unfair
Courts look to terms of agreement to see if unconscionable
Voluntary Premarital Agreement
Time pressure
Previous business experience
Opportunity to be represented by independent counsel
Impoverished Spouse Premarital Agreement
Even meets all requirements
May be set aside if would leave one spouse
Woefully impoverished to point of becoming
Dependent of state
Modification Premarital Agreement
Regarding child support and custody b/c not enforceable
Annulment
Voids a marriage and declares as
Having never been valid
Void Marriage Annulment
Prior existing marriage
Incest OR
Mental incapacity
Voidable Marriage Annulment
Under age w/out parental approval
Impotence (natural and incurable)
Intoxication (unless continues to voluntarily live together), then ratified
Fraud (goes to essence and must separate as soon as discovered)
Misrepresentation, duress, coercion, or force
Lack of intent (i.e. jest)
Distribution Annulment
May seek equitable distribution, spousal support, and/or
Child support (children still considered marital children)
Putative Spouse
Even if requirements not met
Innocent participant duly solemnized a matrimonial union
Void or voidable, because of some legal infirmity
If putative spouse exists, then putative marriage
Innocent Spouse Putative Spouse
Must not have known
Legal Infirmity Putative Spouse
Such as license invalid or
Other party married at time of marriage
Divorce
Legal dissolution of marriage
Maj: require at least one party to be resident of state
Types of Divorce
No Fault
Fault
No Fault Divorce
Every jurisdiction recognizes
Maj: require a party to allege marriage is irretrievably broken
Half require couple to separate for period of time before filing
Maj: abolished traditional defenses to divorce
Types of Fault Divorce
Adultery
Cruelty
Desertion
Habitual Drunkenness
Bigamy
Imprisonment
Indignity
Institutionalization
Adultery Fault Divorce
Party had opportunity and inclination to commit
Cruelty Fault Divorce
Course of conduct harmful to plaintiff’s physical or
Mental health and makes continued cohabitation
Unsafe or improper
Must be serious and not based on only one incident
Maj: permit for physical, while only some permit for mental
Desertion Fault Divorce
Requires abandonment for period of time or
May find desertion if one spouse forces other out with fear of returning
Habitual Drunkenness Fault Divorce
Does not require alcoholic but must be more than
Occasional level
May be rebutted with assumption of risk
Imprisonment Fault Divorce
Must be for specified period of time
Indignity Fault Divorce
One spouse’s behavior renders other spouse’s
Condition intolerable and life burdensome
Maj: No longer recognize
Institutionalization Fault Divorce
Must be specified period of time with
No reasonable prospect of discharge or rehabilitation
Defenses to Fault Divorce
Must be affirmatively plead:
Recrimination and unclean hands
Connivance
Condonation
Collusion
Provocation
Insanity
Consent
Justification
Religion
Recrimination and unclean hands Defense to Fault Divorce
When both spouses commit marital wrongdoing of like conduct
Connivance Defense to Fault Divorce
Consent to or participation in marital wrongdoing
Condonation Defense to Fault Divorce
One spouse has knowledge of wrongdoing and
Gives forgiveness and resumes marital relations
With guilty party
Collusion Defense to Fault Divorce
Both spouses conspire to fabricate grounds for divorce
Provocation Defense to Fault Divorce
If misconduct is provoked by moving party
Insanity Defense to Fault Divorce
One spouse does not know difference between
Right and wrong or lacks
Ability to understand it is wrongful
Justification Defense to Fault Divorce
One spouse left because of other’s misconduct
Religion Defense to Fault Divorce
When grounds for divorce based upon religion
Fails in all states
Limited Divorce
Recognized in most states
Used when parties do not sever
Marital tie and still legally married
Separate Maintenance Action
Provides decree generally for wife and minor children
Does not allow parties to live apart
Still considered legally married
Interlocutory Decree Divorce
Maj: do not permit divorce to be finalized for specified time
During period, neither party can remarry
Mediation Divorce
Must be a neutral
Must disclose all potential grounds of bias and conflicts of interest
Must explain how mediation works
Must investigate domestic violence
Property Settlement Divorce
Property division one-time award of assets
Based at time of divorce and cannot be modified post-divorce
JDX for Property Settlement Divorce
Must have PJ and SMJ:
State courts have SMJ over domestic relations issues
Petition to modify property settlement related to divorce is domestic relations issue
May exercise PJ over individual if voluntarily present in state and served with process while there
Spousal Support
Obligation of one party to provide
Other with support in form of income
Awarded if one spouse cannot provide for
Own needs with employment
Cannot be discharged in BK
Factors for Spousal Support
Financial resources
Standard of living during marriage
Time to find employment or finish school
Length of marriage
Contributions to marriage
Age and health of parties
Fault or marital misconduct
Types of Spousal Support
Lump sum
Permanent (for long-term marriage - 15 yrs)
Limited duration
Rehabilitative (until employment or completion of degree),
Reimbursement (sacrifice during marriage i.e. when other getting degree)
Palimony (support from unmarried cohabitant only allowed in few states)
Modification of Spousal Spouse
Must show “significant change” in
Dependent spouse or financial abilities of obligor
Spouse who voluntarily reduces income will
Not receive reduction in support payments
Significant Changes Modification of Spousal Support
Death
Remarriage
Cohabitation (not pendente lite)
Retirement (in some jurisdictions)
JDX Modification of Spousal Support
Must have PJ and SMJ
Divisible Divorce JDX Modification of Spousal Support
Court has PJ over one party but not other
Can grant divorce but cannot rule on property
Alimony or child support
Child Support
Payment by one parent to other for support of child
Both parents legally required to support minor children
Child support ends when child reaches majority
Min: require payment through college BUT can be
Conditional upon them taking it seriously
Incapable - Child Support
Can be continued indefinitely for child incapable of
Self support linked to physical or mental disability
Nonmarital Children
Same support benefits as marital children
Paternity must be proven before father dies
Paternity Nonmarital Children
Proven by blood test
Other evidence
Marital presumption (if parents married prior to birth)
Status Change Nonmarital Children
Parents marrying after birth
Father consents to putting name on birth certificate
Father holds himself out as father
Judicial decree
JDX (UIFSA) Child Support
PJ over an out of state parent:
Personal service
Consent
Past residency in state with child
Conception of child in state
Asserted parentage via putative father registry
Any other federal/state basis
Factors to Amount of Child Support
Wages or income of any kind
Age of child
Unusual needs of child
Support obligations of parents
Assets
Standard of living during marriage
Best interest of child
Modification of Child Support
Allowed when substantial change in circumstances
Regarding child’s needs or parent’s financial situation
Parent who VOLUNTARILY reduces income
Will not be enough to modify
OG state may modify if continuing, exclusive jurisdiction
Unless parties, including child, no longer
Reside in state or parties agree
Not retroactive
Enforcement (UIFSA) Child Support
Must be registered to be enforceable in another state
Home state can place parent in civil or criminal contempt
Garnish wages or place other sanctions
Child Custody
Can include Joint Custody by both parents
Parent in best position to care for minor child unless
Parent determined unfit
Joint Custody Restriction
Must be willing and able to cooperate for
Best interest of child and NEITHER parent has
Superior right to make unilateral decisions
Legal Custody
Gives parent(s) right to make major decisions including
Health, education, and religion of child
Physical Custody
Gives parent(s) right to have child reside with parent and
Gives obligations to provide routine daily care and
Control of child
Under Joint Custody, not necessarily require
50/50 time-sharing arrangement
Best Interest of the Child Standard
Standard for determining child custody is best interests and welfare of child
Parent considered to be in best position to care for minor child
Unless determined unfit
Factors to Best Interest of the Child
Primary caretaker prior to divorce
Excluding race, religion, or past sexual conduct unless negatively impacts child
Third-party rights
Child’s preference (if sufficient maturity)
Guardian ad litem
Siblings (generally won’t separate)
Presence of domestic violence
Visitation Child Custody
Parent allowed reasonable visitation because
Parents have constitutional right to have contact with child
Only denied if iwould seriously endanger child’s physical
Mental, or emotional health
Must give “special weight” to determine if parent fit
Home State JDX (UCCJEA) Child Custody
Child’s home (lived at least 6 months prior to custody proceeding)
Child’s home within last 6 months, now gone, but one parents still lives there
Significant Connection JDX (UCCJEA) Child Custody
No other state has jurisdiction
Child and at least one parent have significant connection to state
Substantial evidence in state concerning child’s care,
Protection, training, and personal relationships
Default JDX (UCCJEA) Child Custody
No state has home state or substantial connection jurisdiction
Then appropriate connections has jurisdiction
Temporary Emergency JDX (UCCJEA) Child Custody
No JDX may obtain temporary emergency jurisdiction if
Child in danger and requires immediate protection
If custody order, then court must allow reasonable time
Period for parties to return to OG jurisdiction
If no custody order, then temporary order remains until
Decision rendered by home state
Otherwise, emergency order continues in full effect
Enforcement Child Custody
Other states can enforce custody order if:
Parent registers with new jurisdiction and
Provides certified copy of court order
Modification Child Custody
Only by showing “change in circumstances”
Substantial and unforeseen at time of final judgment
In best interest of the child
Cannot be changed for violation of visitation orders or paying child support
OG state retains SMJ
Adoption
Prior child-parent relationship terminated and new one created
Records are sealed except for birth parents’ medical records
Voluntary Termination Adoption
Biological parents may voluntarily give up rights as parents
If putative father fails to register within particular period of time
Impliedly consents to adoption
Involuntary Termination Adoption
Only court can involuntarily terminate one’s constitutional right
Can be based on:
Abandonment
Incapacity
Abuse of sibling
Neglect
Must be clear and convincing evidence
Constitutional Rights Parental Custody
Fit parent has fundamental right to care, custody, and
Control of children
State courts must give “special weight” to fit parent’s
Decisions on care, custody, and control
Separation Agreement
Generally enforce unless
unconscionable or fraud
Must be voluntarily considering:
Time-pressure
Previous business experience
Opportunity to independent counsel
Not UPAA Fair and Reasonableness Premarital Agreement
Unconscionability at time of enforcement
As 0pposed to execution
Dissolution of Adoption
CL: cannot dissole for any reason
ML: Only in special circumstances such as
Discovery of undisclosed mental or physical illness
Factors of Dissolution of Adoption
Length of relationship
Child’s needs
Parent’s motives
