Family Law Flashcards
Gifts in contemplation of marriage
if marriage does not take place, engagement gifts must be returned
Limitations on who may marry
both parties must be
- be 18, 16 with one parent’s consent or under 16 with both parents consent + judicial consent
- not be too closely related
- have mental capacity to marry
- not have prior undisolved marriage
Procedural requirements for getting married
- license (72 hour waiting period)
2. solemnization by judicial officer or member of the clergy
State of mind reqs for marriage
Must understand and voluntarily enter into marriage. May be invalid because of intoxication.
Common law marriage
not recognized in MI but MI will recognize a common law marriage formed in other states
Prenups: consideration
marriage is the consideration
Prenups: content of contract
MI doesn’t have reqs. Agreements concerning child custody will not bind the courts
Prenups: Requirements for enforcement by courts
- agreement entered into voluntarily
- k in writing and signed by party to be charged
- Both parties must make a full and fair disclosure of their finances
- economic provisions must be fair and reasonable
Prenups: Reprensentation by counsel
Much more likely to be enforced.
Prenups: Limitations on limiting Spousal support
courts less likely to enforce if it will leave one spouse a pauper.
Prenups: when courts won’t enforce
if the facts and circumstances have changed in such a way that was unforseeable at the time of the K’s making
Spouses taking property in their joint names…
creates a tenancy by the entirety presumptively. Includes right so survivorship and prohibits conveyance or encumberance of the property by one spouse. Upon divorce, couple becomes tenants in common
Property rights in martial property
Each spouse controls their own property. Marital property includes most property acquired during the marriage and the court has broad discretion to distribute it in an equitable distribution
Can a spouse be liable on their spouse’s debts
no. MI abolised the doctrine of necessities
Constitutional privacy
right of privacy implicit in the concept of liberty under DPC. it is a fundamental right t/f any regulation is invalid unless necessary to compelling government interest
Spousal Immunity
A married person cannot be compelled to testify against their spouse in a civil, admin or criminal proceeding. In a civil proceeding, the witness spouse can be barred from testifying by the defendant spouse. In a criminal proceeding, the witness spouse can choose to tesfiy over the objection of the defendant spouse. Can be invoked only during a valid marriage
Martial communications privilege
Either spouse can refuse to disclose a confidential communication exchanged during the marriage. In civil proceeding, defendant spouse can prevent witness spouse from disclosing. In a criminal proceeding, the witness spouse has the privilege. Communication must be made in reliance on the intimacy of a marriage relationship. survives divorce.
Annulment
declaration that a marriage is invalid because there was an impediment at the time of marriage. Parties treated as if never married
Void Marriage: definition
Void marriage is total nullity. No subsequent act can ratify the marriage. Parties can walk away from marriage without a court order. Annulment action brought to distribute property
Void Marriage: who can challenge
Any interested person can seek annulment. Subject to collateral attack even after death of one of the parties.
Void Marriage: what happens if the impediment to marriage is removed?
Marriage becomes voidable and subejct to ratification. Only will see in a bigamy situation.
Void Marriage: grounds
bigamy or consanguity
Voidable marriage: definition
Deemed valid, but because of imepdiment that existed at time of marriage, one of the spouses may bring an action to have the marriage deemed invalid. If spouse with cause of action ratifies by continuning when impediment is removed or if one spouse dies, it cannot be invalidated.
Voidable Marriage: grounds
nonage, lack of physical capacity (incurable impotence), lack of mental capacity
Voidable marriage: nonage–who can challenge
a parent or guardian can ask that the marriage be invalidated but whether to do so is in court’s discretion
Voidable marriage: duress and fraud
voluntary cohabitation with knowledge of facts leading to duress or fraud ratifies marriage
Voidable marriage: insanity
those who are insane are not capable of contracting and any marriage they enter into is void
Annulment: children of annulled marraige
treated as marital children
Annulment: spousal support and division of property
SS not awarded. Courts attempt to parties in position they were in before the annulled marriage
Divorce:
terminates marriage relationship. Divorce is granted without a showing of fault. Only showing is that the marriage is irretrievably broken. Only defense is that it is not
Separate Maintenance
An order of legal separation. Does not terminate the marriage. But rights of parties to property and children are adjudicated at this proceeding.
Divorce: residency requirement
ONE of the parties must be a bona fide resident of the jurisdiction where the action is brought. Must have resided in MI for 180 days and in the county of filing for at least 10 days preceding filing. 10 req waived if D from another country and fear of child be taken out of the country
Divorce: in rem action
means that certian types of constructiveservice is ok. But to have jurisdiction over spousal support/property division, court must have PJD over the defendant.
Divorce: full faith and credit
as long as one of the parties was domiciled in the state that granted the divorce, FF&C is given.
Divorce: foreign divorce decrees
recognized via comity when one party domiciled in that country
Division of property: MI approach
Equitable division of marital property. But MI will look at all of the couple’s property where it is equitable to do so.
Division of property: are they modifiable?
No
Division of property: factors considered
CHAPEL END
Contributions to marital estate Health Age Past relations and conduct Earning abilities Life status
Equity
Necessities and circumstances
Duration of marriage
Division of property: Separate property
Generally spouse can take their own separate proprety owned prior to marraige or prop acquired during the marriage by gift, will or intestacy. Damage awards for pain and suffering are separate prop
Division of property: When may a court invade separate prop?
- after division other spouse demonstrates additional need or
- other spouse significantly assisted in its acquisition
Separate or marital: Pensions
portion earned during marriage = marital
Separate or marital: Professional license or degree
Subject to equitable division
Separate or marital: stock options
earned during marriage = marital even if not exercised until after divorce
Separate or marital: employment bonuses
Earned during the marriage = marital. Bonus contingent that does not occur until after divorce = separate
Separate or marital: worker’s comp benefits
martial to the extent they compensate for lost wages during the marriage. Retroactive wages = separate
Division of property: how does separate property become marital property?
- Separate property is inextricably mingled with marital prop or with spouse’s separate prop to the extent it can no longer be traced
- or treated in such a way that indicates an intention for the property to be martial property
Division of property: what happens when separate prop is improved with martial funds?
Still separate property but subject to reimbursement
Spousal Support: Amount factors
- past relations and conduct
- duration of marriage
- ability to work
- source and amounts of property awarded to parties
- age
- ability to pay
- present situation of parties
- needs of parties
- health
- SOL
- contributions to estate
- fault
- effect of cohabitation on party’s financial status
- equity
Types of SS: Permanent periodic payment
Paid regularly for lifetime of recipient
modifiable upon substantial change of circumstances
termiantes upon death or remarriage
Types of SS: Lump sum
Payable all at once or in a series of payments.
Nonmodifiable
survives the death of either spouse
Types of SS: Rehabilitative
Paid regularly for a limited period of time.
Modifiable upon substantial change of circumstances
Terminates on death or remarriage
Types of SS: Reimbursement
Similar to lump sum but for a specific reason
Tax consequences of SS
Executed before 2019 = SS is deductible by payor and income to recipient.
Current rule = not deductible and not income
Attorney’s fees and divorce
Court can order if one party unable to pay
Child Support: Amount
MI follows the statutory guidelines which consider 1. financial resources 2. family size 3. age of children 4. childcare expenses 5. Healthcare expenses 6. other criteria Courts will deviate where just
Child Support: independent from parenting time rights
Parenting time cannot be withheld because of failure to pay CS
Child Support: termination of duty to support
Ceases upon child’s death, marriage or turning 18, termination of parenting rights or death of supporting parent. May be indefinite for disabled child.
Child Support: tax consequences
Not deductible and not income
Modification: Spousal support
Either party may request mod. Permitted only where new facts or changed circumstances arise. Only permanent or rehabilitative support may be modified
Modification: Waiver of right to modify SS
Parties can waive by agreeing to a binding, nonmodifiable support award that clearly states both. Cannot agree to waive rights to modify a court ordered arrangement
Modification: SS –self-induced reduction in income
not sufficient to have SS reduced
Modification: Child Support
Mod where there is a substantial change of circumstances affecting needs of child or ability to pay.
Modification: overdue payments of child support
Past due installments of support can be retroactively modified but are restricted to the time after the petition for modification was filed
Enforcement of support awards: means
- hold non-payor in contempt
- judgment against
- seizure of real estate
- attachment of wages
- payment of attorney’s fees
- suspension of licnese
- automatic wage withholding
- interception of tax return
Also a felony
Enforcing out of state support orders: What act?
Uniform Interstate Family Support Act
UIFSA: things that can be done
- Income withholding order can be mailed to Obligor’s out of state employers and automatically triggers withholding
- Can mail order to support agency out of state for enforecmnet
- can register order through court action to be registered as foreign judgment
UIFSA: modifying order
Out of state court is just enforcing. If parties no longer live in issuing state or consent to have it modified there, the out of state court can do so
Separation agreements
Entered into during the marriage. Parties agree to live apart and resolve economic issues and custody rights. To be enforceable must be voluntary and provide a full and fair disclosure. Consideration in mutual promises.
Separation agreements: What will be enforced by the court
things other than child custody or support unless court finds they are in the BIOC
Separation agreements: and divorce decrees
Can be merged into divorce decree to gain status of court judgment. If not merged, is still enforceable as a contract.
Child custody definitions
Legal custody = right to make major decisions affecting child’s life
physical custody = actual possession of child
joint custody = can mean either joint legal, joint physical or both
UCCJEA: what court has jurisdiction to initially enter or modify a child custody or visitation order?
If state is
1. Child’s home state
or
2. Was the child’s home state within the past 6 months and child is absent from the state but a parent lives in the state
UCCJEA: what is a home state?
State in which child lived with a parent for at least 6 consecutive months immediatey before the commencement of the proceeding. Disregard temporary absences.
UCCJEA: When home state does not apply
A court has JD to enter or modify a child custody or visitation order if
- no other state has or accepts home state JD AND
- the child + at least one parents have a significant connection with the state AND
- substantial evidence concerning the child is available in the state.
UCCJEA: exclusive continuing juridiction
The court that made the initial custody or visitation determination has exclusive continuing JD until court determines that
- neither the child or the child’s parents reside in the state
- Or the child no longer has a significant connection with the state and substantial information is no longer available there
UCCJEA: When a court may decline JD
A court with JD may decline if it determines it is an inconvenient forum and another court is more appropriate. Also where the party seeking to invoke JD engaged in unjustifiable conduct
UCCJEA: Temporary emergency JD
A court has temporary emergency JD if the child has been abandoned or it is necessary in an emergency to protect child because child or sibling is threatened with abuse
UCCJEA: Enforecement of another state’s order
Custody/visitation order of another state can be registered in another and enforced in the same manner.
Best Interest of the Child standard
Standard applied in awarding custody. Court may consider any relevant factor including
- love affection and other emotional ties bettewn the parties and child
- ability of parties to provide child with love and raise him in his religion
- ability to provide child with things like food, clothing and medical supplies
- time the child has lived in a stable environment and desire for continuity
- permanence of custodial home
- mental, physical and morel fitness of parents
- child’s home, school and community record
- child’s preference
- willingness of parents to foster good relationship with other parent
- domestic violence
Child custody: counsel for child
court can appoint guardian ad litem to represent child’s interest if court feels they are being inadequately represented.
Division of Property: when is the appreciation in value of separate property marital?
When it occurs during the marriage and is not a passive appreciation
Visitation/parenting time
when an award of sole physical custody is made to one parent the other parent must give reasonable visitation rights.
Visitation/parenting time: factors considered
- special needs of child
- whether child is nursing
- likelihood of abuse during visitation
- likelihood of abuse as result of visitation
- traveling impact on child
- whether parent can be expected to do visitation in accordance with court order
- whether parent has frequently failed to exercise visitation
- threatened or actual detention of child from custodial parent
- any other factors
Visitation/parenting time: modification
change in circumstances if there is clear and convincing evidence that change is in BIOC
Visitation/parenting time: limitations for misconduct
may occur if parent engages in conduct that might injure child
Visitation/parenting time: remedy for violation of visitation order
contempt. consistent and willful denial in visitation rights could result in modification of custody
Visitation/parenting time: Children of criminal sexual misconduct
parenting time not granted unless after conviction parents cohbaitate and establish a mutual custodial evinronment for child. if parent commits sexual misconduct agianst the child, will not having parenting time unless other parent consents
Removal of child from jurisdiction by custodial parent
if relocating parent has sole legal custody, court must approve request.
court approval required before moving more than 100 miles away or out of state. 5 prong test to determine if the move is in the BIOC
1. Whether relocation tends to imporve the quality of life for parent and child
2. whether it is intended to frustrate the parenting time
3. Whether it is possible to issue a parenting time order that will preserve the relationship
4. extent to which opposing parents’ resistance is motivated by financial adnvantage
5. domestic violence agains the child
Grandparent visitation rights
Judge cannot override a fit parents decision as to grandparent visitation rights.
Grandparent visitation rights: when can they be sought
- parents are divorced or separated
- child’s parent/grandparents child is deceased
- childs parents never married, do not live together, paternity is established and putative father provides substantial and regular support
- legal custody is in someone other than child’s parents
- grandparents provided a custodial environment for the child
Grandparent visitation rights: presumption of fit parents
presumption that fit parents decision to deny grandparenting does not create substnatial risk of harm to child. GP must prove by POE that decision creates a substantial risk of harm to child
Grandparent visitation rights: if GP rebuts the presumption what happens next?
Court considers whether it is in BIOC to enter order of GP time. Factors include:
- love and emotional ties between child an dGP
- length and quality of relationship between the two
- GP’s moral fitness
- GP’s physical and menatl health
- childs preferences
- effect of hostiltity between the child and GP
- willingness of GP to foster relationship between parent and child
- history of abuse by GP
- whether the parents deicsion to dney time is related to child’s well being
- any other factor
Grandparent visitation rights: what if parents agree?
if two parents sign affidavit stating that they both want to deny GP time, court must dismiss complaint
Joint custody
To detemine whether JC is appropriate courts look to these factors:
- fitness of both parents
- whether parents agree
- parents ability to communicate
- Child’s preference
- involvement of parents in child’s life
- geography of two homes
- similarity of homes
- afffect of award on child
- parents ability to carry out the JC order
Enforcement of custody/visitation orders: contempt
violations can be punished by contempt orders or order to have parent participate in parenting, work or drug program
Enforcement of custody/visitation orders: habeus proceedings
A state habeus corpus proceeding is a way a person claiming custody who is not in possession of child can be heard by court. Cannot be used for visitation rights.
Enforcement of custody/visitation orders: suits in equity
to enjoin violation of custody orders
Enforcement of custody/visitation orders: out of state orders
will be enforced if registeed with the clerk of the court. OG court retains JD to modifiy but the new court can do so if
-foreign court declines JD and JD is proper under UCCJEA
-notice is given
Court can ask foreign court to do evidentiary hearing
Kidknapping: what to do if noncustodial parent takes child to another state
file cudosty decree in the foreign state and obtain order enforcing it or get a habeus order
Kidknapping: what about fact that child custody orders are not final judgments and can be modified
Will be recognzied in foreign states if comply with jurisdictional standards similar to UCCJEA
Modification of custody decrees
ALWAYS modifiable
Modification of custody decrees: procedural issues
Mod made by motion of one party or the court. file petition in original action. Other party must have notice and opportunity to be heard. Evidentiary hearing must be held if that are contested fatual issues. To modify in another state, new action must be brought (suit in equity/habeus).
Modification of custody decrees: standard for Mod
Must establishe either proper cause or material change in circumstances first. If established custodial environment is shown, need clear and convincing evidence that change is in BIOC. If not shown, need POE that change is in BIOC
Modification of custody decrees: Proper cause
must show grounds relevant to BIOC factors that have a significant effect on child’s well ebing such that reevaluation should be had. Facts that were known at time of order usually not enough. But will be enough if procedural problems prevented them from being raised
Modification of custody decrees: material change in circumstances
CHange must be after the order was entered
Modification of custody decrees: established custodial environment
one of significant duration in which parent provides care, discipline, love guidance etc established if over an appreciable time child naturally looks to that parent for guidance, love, necessities, etc.
Established custodial environment and impact of temporary custody orders
does not preclude finding of custodial environment. can be created in violation of custody order or in absences of one.
Unmarried Co-habs: contracts
Express contracts regarding earning and property rights will be enforced so long as sex is not consideration. MI will not imply a contract between unmarried cohabs
Unmarried Co-habs: division of property
MI does not equitable distribute property unless there’s something like quantum meruit or an express k
Non-marital children: C limits on discrimination
Distinctions made between marital and non-marital chdilren are subject to intermediate scrutiny. Striken unless substantially related to an important gov interestt. Law cannot have a punitive purpose
Treatment of unmarried parents: tort recovery
M may recover in tort for death of child but F cannot if did not previously recognize the child
Treatment of unmarried parents: Child born to unmarried American abroad
M’s child granted US citizenship without formally recognzing paternity. Child of unmarried US man must establish paternity to make child US citizen
Acknowledgement of Parentage Act
M & F sign acknowlegment of parentage, M has custody without prejudice to determination of either P’s custodial right until a court determines otherwise or parties agree to otherwise
Unwed Father’s Due Process Rights
If F is part of the family unit taht includes child the relationship is protected if F has demonstrated commitment to child. TO have due process protection of newborn child, F must be willing to assume custody HIMSELF
Child is lawful child of father if
- parents married after child’s birth
- father holds child out as child
- father consents to name on BC
- F has acknowledged paretneiry
- Judicial decree establishing paternity
Suits to establish paternity: who may bring
Mother, Child, Family INdependence agency if child is receiving support from state, or putative father
Suits to establish paternity: when to bring
during pregnancy or any time up child’s 18th brithday
Suits to establish paternity: Standard of proof
POE
Suits to establish paternity: COurt order to submit to testing
Court may order. If person refuses, default judgment against refusing party may be entered.
Revocation of Paternity Act: definition
A court can set aside a finding of paternity where paternity was established by
- execution of acknowlegement
- actions of man who could have been father
- court order
- presumption arising from marriage
Revocation of Paternity Act: who can rbing suit
M, F or prosecuting attorney
Revocation of Paternity Act: standard of proof
Clear and convincing evidence
Revocation of Paternity Act: SOL
filed within 3 years after child’s brith or within one year of the acknowledgement or parentage or court order. Can be extended for shwoing of mistake or new evidence
Revocation of Paternity Act: order denying revocation
Court may refuse to set aside paternity where it is not in BIOC. Reasons must be stated in the record. Factors include:
- length of time F was on notice that maybe not the father
- Whether F is estopped
- nature of relationship
- age of child
- facts surrounding discovery
- harm to child
Legal disabilities of children: Property
C can own and convey prop but may disaffirm upon majroity
Legal disabilities of children: medical care
Below certain age C is incapable of consenting to medical care
Emancipation:
removal of legal disability of chidlren
Intrafamily tort immunities
Spouses can sue each. Parents and children can sue each other. Immunity recognized where parent uses parental authorit over child
Interference with parent-child relationship
CHild can recover from loss of consoritum from loss of parents
Termination of parental rights: child in need of supervision
Courts have JD over children whose debhavior does not meet certain standards. Child must remain with parents unless doing so has substnatil risk of harm
Termination of parental rights: generally
Right to parent is fundamental right. Parents must have due process before rights terminated. Grounds must be proved by CACE
Termination of parental rights: grounds
- desertion
- physical abuse to child or child’s sibling
- placement of child in limited guardianship
- failure to comply with court plan
- failure to support or communicate with child for 2 years
- failure to properly care
- imrpisonment for 2+ years
- termination of parental rights to sibling
- harm to child
Custody disputes between parent and 3rd party:
decision does not rest solely on BIOC. Natural parent has right to raise child. Courts presume natural parent is in BIOC. Need clear and convincing evidence otherwise
Custody disputes between parent and 3rd party: established custodial environment with 3rd party
PResumption in favor of parents outweighs even this
Custody disputes between parent and 3rd party: equitable parent doctrine
Spouse who is not the bio parent of a child born to his/her wife or conceived during their marriage may be treated as a natural parent of child if.
- spouse and child mutually acknowldege parent-child relationship or childs mother cooperates in forming this relatinship
- spouse desires to have parnetal rights
- spouse willing to support child
Custody disputes between parent and 3rd party: Standing to bring 3rd part suit
guardian to child or parents never married, parent dies and 3rd party is related to the 5th degree
Adoption: jurisdiction
filing of petition either
1. where p resides
or 2. where adoptee is found
unless both reside outside of MI, then where natural parent’s rights terminated
Adoption: Consent of both natural parents
Generally required. F’s consent may not be necessary if parents unmarried Consent not needed if rights terminated. Consent can be waived if court concludes that it is being unreasonably withhled against BIOC. Parent entitled to notice and opportunity to be heard.
Adoption: rights of unmarried fathers
in deciding if unmarried father can veto adoption court looks to level of F’s involvement.
Adoption: Consent of adoptee
child over 14 must also consent
Adoption: withdrawl of consent
Cannot be withdrawn after decree of adoption is issued. Can be withdrawn before that if court finds in BIOC. Notice with opportunity to be heard must be given to all including the agency
Adoption: Investigation and court approval
Must be full invesitgation of suitability of approval by court
Adoption: Payment of money
PROHIBITED other than medical costs related to pregnancy
Surrogacy
surrgoate parentage contracts are void and unefnfocebles.
What do you need to show to get a modification in parenting time?
Still need to show a change in circumstances or proper cause but be more loose with it. If modification would change the establshed custodial environment, you need to show more than just average life changes. Quintessentially look at like changes in going into high shcool to change parenting time.
