Family Law Flashcards
UPAA requirements for pre-nups? Grounds to challenge?
Prenups only valid (1) if in writing & (2) signed by the parties
Grounds to challenge validity:
(1) the agreement was NOT voluntary (entered into as product of fraud, duress, misrepresentation)
(2) the agreement is unconscionable under the particular circumstances (“shocks the conscience”)
(3) at time of dissolution, agreement would leave spouse in situation of extreme hardship due to unforeseen circumstances at the time of formation
Requirements for marriage in IN?
Ceremonial Marriage, requires: (1) License & (2) Solemnization
Solemnization requirements
(1) proper officiant (govt official or clergyman)
2) parties must exchange a solemn promise to enter into marriage (no magic words required
CL marriage in IN
CL marriage is abolished in IN, but IN will recognized as valid if a valid CL marriage is formed under laws of another state
“Annulment”
An annulment is a declaration that the marriage is invalid due to an impediment that existed AT TIME OF MARRIAGE
Void vs. Voidable marriages
Void: do not need annulment because marriage is a complete nullity/never existed; grounds that make marriage void are NON-waivable
Voidable marriage: deemed valid UNLESS annulled; grounds = waivable if parties continue to cohabit (live together + sex) after the impediment has been removed
3 void grounds
(1) bigamy
(2) consanguinity (IN - 1st cousins can marry if both 65 or older)
(3) mental incompetence
4 voidable grounds
(1) non-age
(2) lack of capacity due to mental incompetence
(3) duress
(4) fraud
Age requirement? Exceptions?
Must be 18 to marry
Exception: 17 if signed and verified consent of both parents or 1 parent if legal custody/other died/abandoned OR judge authorizes
Exception: 15 or 16 if (1) consent outlined above; (2) individual is pregnant/putitive father of expected child/is father of a child; & (3) individuals desire to marry e/o
Exception: 16 or 17 - can petition ct for emancipation and approval to marry someone no more than 4 yrs older if it finds that its in minors best interest and minor demonstrates maturity and capacity for self-sufficiency (no parental consent required, but if both parents oppose, rebuttable presumption that its not BIC)
Lack of capacity due to mental incompetence?
incapable of consenting to marriage b/c of lack of understanding due to (1) mental infirmity OR (2) under influence of drugs/alcohol
Duress?
Lack of mutual, voluntary assent
Fraud?
Prior to wedding, one party conceals or misrepresents from other a fact that “Goes to the essentials/heart of the marriage”
- lying about religion & about procreation/sex = sufficient
- lying about $, property, social status = insufficient
Which state has SMJ to enter a divorce decress/adjudicate a divorce?
IN has nation so long as (1) at least 1 party is domiciled in IN for at least 6 months & (2) resident of county where petition is filed for 3 months
“Divisible Divorce”
Need to litigate divorce in both states
Ct can grant dissolution without PJ over defendant; but to enter collateral orders (property distribution, alimony, etc.) ct must have PJ over defendant
— EXCEPTION: marital property in the state: if state has sufficient minimum contacts with the defendant and the property, ct can adjudicate parties rights to that property
Venue for dissolution/divorce?
County of residence (either county if both parties are domiciled in IN
Once petition for dissolution is filed, ct must…
Wait at least 60 days before having a hearing
At hearing, ct will…
Determine collateral issues
If there are no disputes, ct can enter “summary dissolution order”
Recognition of divorce decrees - full faith & credit
A dissolution decree obtained in 1 state is recognized as valid in another state as long as 1 of the parties was domiciled in state that granted the decree
For other provisions of divorce decree (re alimony, property rights, child support) to be given FF&C — the ct must have had PJ over the defendant
Grounds for divorce in IN
(1) IN is no fault state, so parties may simply allege “irretrievable breakdown” of the marriage has occurred
(2) incurable insanity arising after date of marriage (mental illness for at least 2 yrs before petition)
(3) felon convictions after date of marriage
(4) impotency existing at time of marriage
Requirements for legal separation? How long does it last?
Ct may grant decree for LS if it finds that:
(1) conditions in/circs of the marriage currently make it intolerable for both parties to live together
(2) the marriage should be maintained &
(3) neither party has filed for dissolution
Last up to 1 yr
What property is subject to distribution in IN?
Equitable distribution of ALL PROPERTY, not excluded by valid prenup, owned by either spouse, whether acquired before or during the marriage (“one pot theory”)
Property acquired after date of final separation (date of filing petition) - excluded from division
How is property distributed in IN?
Rule: property is to be distributed in “just and reasonable manner” & there is rebuttable presumption that 50/50 is just and reasonable (if ct deviates, must state reasons in findings of opinion)
5 Factors ct considers whether division is just and reasonable?
(1) contribution of each to acquisition of the property, regardless of whether the contribution was income-producing (ex. house keeping or emotional support)
(2) the extent to which the property was acquired prior to the marriage or through inheritance/gift
(3) economic circumstances of the parties
(4) the conduct of the parties during the marriage as related to the disposition or dissipation of property
(5) earning capacity of each party
3 ways court can implement distribution
(1) in kind distribution (dole out pieces of property one by one)
(2) lump sum payment
(3) periodic payments
Debt division in property division?
Marital debt = considered in the pot and split equally, absent proof of unjust result (includes debts incurred by 1 spouse prior to the marriage)
Modification of property division orders?
Property division orders are NOT modifiable.
EXCEPTION: evidence of fraud (party concealed assets) BUT must be asserted within 6 years after the property division order is entered
Alimony/Spousal Maintenance in IN - 3 circumstances
Ct MAY (has discretion) order spousal maintenance if:
(1) spouse seeking maintenance is physically/mentally incapacitate to the extent that ability to support self is materially affected
(2) spud seeking cannot work to provide for own needs b/c custody/caring for disable/incapacitated child
(3) “rehabilitative alimony” to allow spouse to continue education in order to obtain job skills BUT CANNOT exceed 3 yrs
4 Factors ct considers in determining whether to award alimony/how much to award
(1) financial resources of spouse seeking maintenance
(2) standard of living established during the marriage
(3) duration of marriage
(4) ability of obligor spouse to meet own needs
Tax implications of spousal maintenance
Not deductible by obligor and not income by recipient
Termination of spousal maintenance occurs upon (2 circumstances)…
(1) death of either party
(2) remarriage of recipient
Modification of maintenance awards?
Maintenance awards can be modified by either party upon showing of substantial and continuing change in circumstances
- generally, must be in place for 12 months before it can be modified
Can separation agreements be modified?
If agreement says they are not modifiable, then no.
If agreement is silent, can be modified.
6 Methods of enforcing spousal maintenance awards
(1) civil contempt (incarceration, but “hold the keys to the jailhouse” and can pay to get release)
(2) criminal contempt (for willful failure to pay)
(3) judgment against non-complying party
(4) attachment of wages (wage reduction order)
(5) seizure of RE
(6) order to pay attny’s fees
Rule regarding paternity of child born to MARRIED woman?
Child born to married woman = rebuttable presumption to be child of husband (even if child born within 300 days after termination of marriage)
Rule regarding paternity of non marital child? (2 ways to establish paternity)
(1) man who claims to be dad can execute paternity affidavit, acknowledging that he is the dad
(2) litigate paternity
Who may file paternity suit?
Mom; child, acting through guardian ad litem; state (DCS or prosecutor’s office)
Statute of limitation for paternity suit?
2 yrs after childs birth
EXCEPTION: if brought by child itself, 2 yrs after majority (ie, 20 y/o)
Rebuttable presumption of paternity in paternity suit if:
(1) DNA test indicates with 99% probability that man is child’s dad
(2) married/300 days after;
(3) void/voidable marriage/300 days after
Once paternity is established…
duty of support attaches (child support) and father’s rights to visitation/custody may be asserted
Child support order = mandatory part of decree at end of paternity suit
Retroactivity of child support in paternity suit?
CS is always retroactive to time of filing
In cts discretion, can make retroactive to time of birth
Generally, duty of child support terminates when… (6)
(1) C dies
(2) C turns 19
(3) C is legally emancipated
(4) C is on active duty in military
(5) C is married
(6) C is 18 + has not attended school in last 4 months + capable of self-support
There are exceptions to these rules…
— No auto-reduction/termination; MUST continue to pay until petition ct to modify CS
Exceptions to termination of child support (2)
(1) If C has severe disability & as a result can’t support self –> CS can continue indefinitely
(2) Ct may order expenses while C gets undergrad degree (in addition to or in lieu of CS) BUT
(A) must ask for b4 C turns 19 &
(B) must ask for in separate petition (“Petition for Educational Support”)
— FACTORS ct considers re college expenses: if ct finds it appropriate based on
(1) C’s aptitude and ability to pay;
(2) C’s ability to contribute to own educational expenses
(3) P’s ability to meet those needs
Amount of CS award generally based on? Determined by? Can ct deviate?
Based on monetary need & ability to pay
Determined by IN’s Child Support Guidelines (based on # of kids and combined parental income - noncustodial P pays the percentage of support equal to their percentage of the combined parental income)
Ct can deviate from Guidelines if CG guideline would produce an unjust result;
In IN, amount will be reduced based on # of days of regular visitation (the more visit, the less they pay)
CS re unforeseen medical expenses?
If there are unforeseen medical expenses, P’s supposed to pay/split in proportion to their incomes (over and above monthly CS)
CS relationship to visitation rights
Obligation to pay CS is separate from visitation rights (b/c visitation is primarily for benefit of the C)
So, custodial P generally cannot deny visitation to noncustodial P that fails to pay CS; nor can parties agree to forgo visitation as a means to eliminate CS obligation
Tax consequences of CS
Not deductible by payor & not income to custodial P
Personal exemption (claim C as dependent) usually belongs to custodial P, but ct may order it be assigned to noncustodial P for nay reason it thinks just (factors in outline, p. 18)
Modification of CS order
Once CS order is entered, it is subject to modification based on substantial & continuing change in circs OR showing that payor is obligated to pay amount that differs 20% than would currently be obligated to pay
Generally, must be in place for 12 months before modifying
Past due CS (arrears) are NOT modifiable
Remedies/enforcement for non-pay of CS
(1) income withholding order
(2) civil or criminal contempt
(3) formal charges (its a crime not to pay CS)
(4) go after property
(5) take away driver’s license, professional license, or hunting/fishing license
Non-payment of CS: UIFSA does 2 things:
(1) provides direct enforcement of CS order across state lines (if you move OOS, CS order will still be honored); &
(2) provides that state that initially entered CS order retains nation (has continuing & exclusive jxtion) as long as either (1) the C or (2) P continues to reside in that state
2 kinds of child custody?
(1) legal custody (which P makes important life decisions - medical, educational, religion)
(2) physical custody (where C lives)
Either can be shared by P’s or only 1 P has or ct can mix & match
Standard for determining child custody? 7 factors
Best interest of the child standard (BIC)
(1) wishes of the P’s (if P’s fit, should give special weight)
(2) age and sex of child
(3) wishes of child, especially if 14y/o
(4) C’s adjustment to home, school, community
(5) C’s interrelationships and interactions with P’s, siblings, or other persons effecting child’s best interest
(6) mental and physical health of all involved
(7) evidence or pattern of domestic or family violence
BIC:
preference cannot be shown on basis of?
Gender or financial ability
BIC: if otherwise 2 fit P’s, ct will often….
Award will often go to P who has been “primary caregiver” up to that point
(most involved in C’s day to day life - feeding, clothing, carpooling, etc.)
BIC: if anything suggests shared custody should be discussed, there are two more variable in the mix of BIC to discuss:
(1) whether the P’s have cooperative relationship
(2) geographic proximity, especially if shared physical custody
BIC: non-P vs. P
presumption for P (ie, non-P only wins if P shown to be unfit)
Modification of child custody orders
Always modifiable; substantial & continuing change in circs that alters BIC analysis
Custody: what if custodial P intends to relocate with C?
P must file “Intent to Move” with court & notify non-custodial P
- Filing not required if move decreases distance OR results in change of no more than 20 miles & C can stay in same school
Visitation (“parenting time”) general rule
The strong policy of the law to promote the relationship btwn C & P requires that when award of sole physical custody is awarded to 1 P, the other P is given rsbl visitation rights UNLESS visitation might endanger C’s physical health or significantly impair emotional development
(even then, ct likely to award supervised visitation rather than none at all)
What is physical custody P interferes with visitation rights of non-custodial P?
P can bring contempt proceeding
Visitation rights of grandparents?
Troxel: DP right of P’s to raise C how see fit
Post-Troxel: GP’s will be granted visitation rights only if show denial would create detriment to C
Custody: UCC JEA - which state can enter initial custody order?
“Home state rule”: custody orders can be entered by (1) state that is currently “home state” of C OR (2) if there is none, state that was home state of C in last 6 months
(Home state: where C has lived with P for 6 continuous months prior to custody case commencement)
If NO state meets home state test: (1) C & at least 1 P have significant connection with state & (2) substantial evidence is available in the state concerning the C’s care, protection, training, & personal relationships
UCC JEA - modifying custody orders?
Once state under HS rule & state acts/enters an order adjudicating custody –> that state has continuing & exclusive jxtion (all state must defer/no state can modify) SO LONG AS either 1 P or C continues to live in that state
“Adoption”
Legal proceeding whereby the legal rltshp between bio P’s and C is terminated & new legal relationship of P & C is established
Adoption 1st step
Usually accomplished by obtaining consent of bio P’s
Whose consent is required for adoption?
If minor –> generally, both P’s consent is required (if mother is unmarried, must give notice if someone registered as putative father) (do not need F’s consent if conceived by rape/incest)
If adoptee is over 14 y/o –> need adoptee consent
If adoptee married –> need spouse’s consent
If adoptee is minor in govt custody –> need consent of govt agency
If adoptee in custody of other (legal guardian) –> need their consent
Parent consent can be dispensed/not required if:
- if P’s rights previously terminated (CHINS)
- if P abandoned C > 6 months
- if C living with noncustodial P and P failed to maintain contact/provide support for 1 yr
Withdrawal of consent?
Consent can be withdrawn at any time before decree of adoption is entered; can be withdrawn within 30 days after consent signed if ct finds withdrawal is in BIC
After consent…
Will be investigation of adoptive P’s
If all checks out, hearing to finalize adoption (standard: BIC)
Challenge to adoption
Once a decree of adoption is entered, it may be challenge if it is established by C&C evidence that modifying or setting aside decree is in BIC
In any event, it may not be challenge any later than 6 months after decree is entered OR 1 yr after adoptive P’s obtain custody - whichever is later
