Family Law Flashcards
Ceremonial Marriage Requirements
- The parties obtain a marriage license;
- The marriage is solemnized by a ceremony that is
conducted by an authorized cleric or judge; AND 3. Both parties consent.
Common Law Marriage Requirements
- Cohabitated for the statutory period;
- Held themselves out as married; AND
- Intended to be married.
Pre-Marital Contracts Valid if:
- In writing and signed by both parties;
- Executed after full disclosure of the property and
financial obligations of both parties; AND - Voluntary – courts 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., pregnancy).
Pre-Marital Contracts Unenforcable Terms
Most courts decide child custody according to the best interests of the child, regardless of any premarital agreements. Similarly, a premarital contract that adversely affects a child’s right to support is unenforceable.
Annulment
a judicial declaration that a marriage never existed and was invalid from when the parties entered into it (e.g., bigamy, underage minors, etc.).
Grounds for a No-Fault Divorce
- A minimum duration of separation; AND/OR
2. Irreconcilable differences.
Marital Action Jurisdiction
Under the majority view, a state where either party is domiciled has jurisdiction to enter an annulment decree.
Divorce Full Faith and Credit
A divorce validly granted in one state is entitled to full faith and credit in other states if the petitioning party:
1. Was domiciled in the state the granted the divorce;
AND
2. Provided adequate notice of the proceeding to the other spouse.
Property Division Approaches
Community Property vs Equitable Division
Equitable Division Analysis
- Categorize the property as separate or marital; THEN
2. Determine an equitable distribution of the marital property between the spouses.
Marital Property
All property acquired during the marriage that is not separate property.
Separate Property
- All property acquired by either spouse before the marriage;
- All property acquired by a spouse during marriage by gift, bequest, devise, or descent;
- All property either spouse acquires with the proceeds of the spouse’s separate property; AND
- All passive appreciation of separate property.
Factors in Distribution of Marital Property
- The income, property, and liabilities of each party; 2. The duration of the marriage;
- The obligations for support arising out of a prior marriage;
- The lifestyle each spouse is accustomed to; AND
- The contributions made by each spouse toward the accumulation of marital property.
Eligibility for Spousal Support
The spouse seeking support:
- Lacks property sufficient for his or her reasonable needs and is unable to support himself through appropriate gainful employment; OR
- Is the custodian of a child that it would inappropriate for him to work.
Factors in determining spousal support
- The financial resources of the party seeking maintenance;
- The time needed for the spouse seeking support to obtain an appropriate job;
- The duration of the marriage;
- The standard of living established during marriage;
- The physical/mental condition of the spouse seeking maintenance; AND
- The ability of the spouse paying support to meet her own needs while meeting those of her spouse.
Child Support
Parents have an absolute obligation to support their children.
How is Child Support Calculated
Federal law requires every state to provide guidelines to determine the proper amount of child support owed by a non-custodial parent, which must:
- Consider the income of the non-custodial parent;
- Provide for the child’s healthcare needs; AND
- Be based on specifically descriptive numeric criteria.
Modification of Support Orders
Most States: only when there is a substantial change in circumstances of either party making the prior order unreasonable.
UDMA: only upon a showing of changed circumstances so substantial and continuing to make the terms unconscionable.
Generally, no modification if change of circumstances was voluntary
Child Custody
BEST INTEREST OF THE CHILD
Modification of Child Custody
Parent must show that:
1. The circumstances have substantially changed; AND
2. The modification would be in the child’s best
interests.
Establishing Paternity
Uniform Parentage Act, establish by:
- An effective acknowledgement of paternity by the man (unless rescinded or successfully challenged);
- A valid adoption of the child by the man; OR
- An adjudication of the man’s paternity.
Paternity Presumptions
Paternity presumed if:
- He and the child’s mother are or have been married to each other and the child is born during the marriage, or within 300 days after the marriage is terminated;
- Before the child’s birth, he and the child’s mother attempted to marry each in apparent compliance with law, although the attempted marriage is or could be declared invalid, and the child is born during the invalid marriage or within 300 days after its termination; OR
- While the child is under the age of majority, he receives the child into his home and openly holds out the child as his own.
Equitable Estoppel
a man who is not the biological father will be estopped from denying paternity if:
- He has held himself out as the father; AND
- Paid support.
Legitimation by Petition
To establish his rights, the father may file a petition seeking to legitimate his child.
Generally, the father must show that he has:
1. Assumed parental responsibilities; AND
2. Established a substantial parent-child relationship.
Legitimation by Marriage
The marriage of the mother and biological father renders the nonmarital child legitimate so long as the father recognizes the child as his child.
Effect of Legitimation
the father stands in the same position as any other parent regarding parental and custodial rights with respect to the child.
Adoption Defined
Adoption is a statutory procedure that terminates the rights of the biological parents and establishes the rights of the adoptive parents.
In most states, the biological parents lose the right to visit their child after the adoption.
However, some states will permit visitation if it is in the child’s best interests
Consent to permit adoption
Generally, the consent of both parents is required to place a child up for adoption. However, if the child is born out of wedlock, consent of the father is only required when he has assumed parental responsibility.
Moreover, an unwed father who knew of his child’s pending birth is not entitled to notice of the adoption if he did not take steps to establish a parent-child relationship with the child.
Consent Challenges
A biological parent may challenge the validity of his/her consent to an adoption on the ground that his/her consent:
- Was procured by fraud or duress; OR
- Failed to comply with statutory formalities.
Approaches to Revocation of Consent
- Consent is revocable until the final adoption decree is entered with the court;
- Consent is revocable at the court’s discretion up to a specified amount of time so long as the revocation is in the child’s best interests; OR
- Absent fraud or duress, consent is not revocable.
