Family Law Flashcards
Common Law Marriage (10%)
a) Most states have abolished common law marriage. In jurisdictions that recognize common law marriage, the proponent of the marriage must prove that the parties:
(1) Cohabitated (i.e., lived together) for the statutory period;
(2) Held themselves out as married; AND
(3) Intended to be married.
b) Most states will recognize a common law marriage if it was validly obtained in a jurisdiction that permits common law marriages UNLESS doing so contradicts a powerful public policy of the jurisdiction with the greatest interest in the marriage of the parties.
Premarital Contract (14%)
a) Most states will enforce a premarital agreement as a valid contract if it is:
(1) In writing and signed by both parties;
(2) Executed after full disclosure of the property and financial obligations of both
parties; AND
(3) Voluntary – courts will consider the following factors to determine whether an
agreement was voluntary:
(a) The presence of independent legal counsel;
(b) The length of time between the agreement and the marriage;
(c) The sophistication of the parties; AND
(d) The presence of other pressing reasons to proceed with the marriage (e.g., a pregnancy).
b) Under the Uniform Premarital Agreement Act (UPAA), the party against whom enforcement is sought must prove that the agreement was:
(1) NOT voluntary; OR
(2) Unconscionable when it was executed AND that he or she did not receive or waive fair and reasonable disclosure AND did not have, or reasonably could not have had, an adequate knowledge of the other’s assets and obligations.
Child Custody and Support (14%)
a) Child Custody. Most courts decide custody according to the best interests of the child at the time of the custody hearing, regardless of any premarital agreements.
b) Child Support. Parents have an absolute obligation to support their children. A premarital contract CANNOT adversely affect a child’s right to support under any circumstance. Such agreements are NOT binding on the court and are unenforceable.
Marital Action Jurisdiction (12%)
a) Jurisdiction over marital actions is vested solely in the state courts (federal courts do not have subject matter jurisdiction over domestic relation matters).
b) Annulment. Under the majority view, a state where either party is domiciled has jurisdiction to enter an annulment decree. Ex parte annulments (an annulment action where only one party is appearing before the court) are allowed in the state where either party is domiciled.
c) Divorce. Under the Full Faith and Credit Clause, a divorce validly granted in one state is entitled to full faith and credit in other states. Generally, a divorce is valid and must be recognized by other states if the petitioning party:
(1) Was domiciled in the state that granted the divorce (regardless of whether that court had personal jurisdiction over the other spouse); AND
(2) Provided adequate notice of the proceeding to the other spouse.
d) Divisible Divorce. Under the concept of divisible divorce, a distinction is made between the marriage and the marital property. A state does NOT have jurisdiction to divide marital property that is located in another state in the absence of personal jurisdiction over the defendant spouse.
Property Division at Divorce: Generally (24%)
At divorce, courts divide marital property between spouses pursuant to state law. Some states follow the community property approach; however, most states have adopted the equitable distribution approach for division of property at divorce. The analysis is relatively similar under both approaches:
(1) Categorize the property as separate or marital; THEN
(2) Determine an equitable distribution of the marital property between the
spouses.
Property Division at Divorce: Categorization of Property (24%)
At divorce, under either approach, the court must categorize all property owned by the spouses as either separate property of each spouse or marital property owned jointly by both spouses. Generally, a court CANNOT divide separate property at divorce.
(1) Separate Property. Separate property generally includes:
(a) All property acquired by either spouse BEFORE marriage;
(b) All property acquired by a spouse during marriage by gift, bequest, devise, or descent;
(c) All property either spouse acquires with the proceeds of the spouse’s separate property; AND
(d) All passive appreciation of separate property (appreciation in value due to the passage of time rather than the efforts of either spouse).
(2) Marital Property. Marital property generally includes all property acquired during marriage (regardless of who holds title) that is NOT separate property. Active appreciation (appreciation in value due to the efforts of either spouse) of separate property is usually categorized as marital property.
(a) Professional Degrees and Licenses. In almost every state, professional degrees and licenses are considered separate property not subject to distribution at divorce. However, reimbursement may be available for any support provided by a spouse that contributed to the other spouse’s degree or license.
Property Division at Divorce: Distribution (24%)
Once the court categorizes the property as either separate or marital, the court will then equitably distribute the marital property between both spouses. Courts are afforded significant discretion in determining the equitable distribution of martial property at divorce. General factors include:
(1) The income, property, and liabilities of each party;
(2) The duration of the marriage;
(3) The obligations for support arising out of a prior marriage;
(4) The lifestyle each spouse is accustomed to;
(5) The contributions made by each spouse toward the accumulation of marital
property (including contributions as a homemaker).
(6) NOTE. In most states, the marital “fault” of either spouse (e.g., adultery) is NOT a factor considered in the division of marital property.
Modification of Child Support (10%)
a) In most states, a child support order can only be modified when there is a substantial change in circumstances of either party making the prior order unreasonable. Under the UDMA, a modification of child support is allowed only upon a showing of changed circumstances so substantial and continuing to make the terms unconscionable.
b) Some courts will NOT permit a modification of child support if the change
in circumstances was anticipated or voluntary. If the obligor voluntarily made this change, courts usually require that the obligor prove the change occurred in good faith, rather than to punish the obligee or deprive the child of support (e.g., voluntarily quitting a job to reduce income in order to pay less child support is usually not allowed).
c) The state that originally issued the child support order has continuing exclusive jurisdiction to modify the order so long as that state remains the residence of the obligee, child, or obligor (i.e., no other court can attempt to modify a child support order if the obligee, child, or obligor remains a resident of the state that issued the order).
d) Federal law:
(1) Bars courts from retroactively modifying child support orders; AND
(2) Requires states to give full faith and credit to child support awards from other states.
Child Custody: Best Interests Standard (16%)
a) Generally, courts determine child custody based on the best interests of the child. A parent’s misconduct (e.g., adultery) generally may NOT be considered unless it causes significant harm to the child. Courts consider multiple factors to determine what custody order will serve the child’s best interests. General factors include:
(1) The needs of the child for a meaningful relationship with both parents;
(2) The ability and willingness of the parents to actively perform their functions as mother and father for the child’s needs;
(3) The interaction and interrelationship of the child with parents, siblings, and any other person who may affect the child’s best interests;
(4) The child’s adjustment to the child’s home, school, and community;
(5) The mental and physical health of all involved individuals;
(6) The intention of either parent to relocate the principal residence of the child;
(7) The wishes of the child’s parents as to custody; AND
(8) The wishes of the child as to the child’s custodian.
(a) In some states, if a child has reached sufficient age, the court must award custody as the child wishes. However, most courts consider a child’s wishes as a factor, and, as the age and maturity of the child increases, the wishes are given greater weight.
b) When determining child custody between a parent and a third party, it is presumed that custody with the parent is in the best interest of the child.
Modification of Child Custody (10%)
a) In order to modify a child custody order, the parent must show that:
(1) Circumstances have substantially changed; AND
(2) The modification would be in the child’s best interests.
b) The state that issued the child custody order has continuing exclusive jurisdiction to modify the order so long as that state remains the residence of any party involved.
