Family law - assessment Flashcards
In a divorce action - If the D spouse proves that the party seeking divorce is also guilty of misconduct - what is his defense?
Recrimination -
The party seeking divorce also has dirty hands, i.e., is also guilty of misconduct
Result: Fault-based divorce against D spouse denied
In a divorce action - If the accused D spouse proves that his misconduct was a set-up by “innocent” spouse - what is his defense?
Connivance [Entrapment]
– The accused D spouse proves that his misconduct was a set-up by “innocent” spouse - he was lured into it, so this misconduct/fault-based behavior should not be counted against him
Result: Innocent spouse cannot divorce against the D spouse on grounds of D’s “misconduct”
In a divorce action - what is required for accused-D spouse to defend based on argument that his spouse forgave his misconduct?
Condonation
Requirements:
1) Innocent spouse knew of the marital offenses/wrongful conduct in the past
2) Innocent spouse had forgiven fault spouse
3) Parties must resume marital relations after the forgiveness
Result: Innocent spouse cannot now seek divorce against the D spouse on fault-based grounds
Void vs voidable marriage
Voidable marriage: marriage is valid until a spouse seeks to have it annulled because of an impediment existing at the time of marriage
Void marriage: never existed
– any interested party may seek to annul a void marriage – doesn’t have to be one of the spouses
Grounds: Bigomy, incest
What court has jurisdiction to initially enter or modify a child custody order under the UCCJEA?
Court has jurisdiction to initially enter or modify a child custody or visitation order if the state
(i) Is the child’s home state
Child’s home state = where the child has lived with a parent or person acting as a parent (e.g., guardian) for at least 6 consecutive months immediately before the proceeding
OR
(ii) WAS the child’s home state within the past 6 months and child is absent from the state, but a parent continues to live in that state
I.e., for the first 6 months after a move, the old state retains jurisdiction
After 6 months, the new state has jurisdiction
Fallback: If no state has home state jurisdiction or a court of the home state has declined to exercise jurisdiction, then a court will have jurisdiction to modify the custody order if:
(i) the child and at least one parent (or person acting as a parent) have a significant connection with the state, and (ii) substantial evidence is available in the state concerning the child’s care, protection, training, and personal relationship
If parents do not agree on joint custody, and the court has determined based on all factors that both parents are qualified, who will usually get custody?
The parent that has been the primary caregiver
– the one who has been most involved in the parent’s day to day life
Rationale: the child has formed the closest emotional + physical ties to this parent
Laws based on classification of marital and nonmarital children - what standard of review?
EP Clause - intermediate scrutiny -
- nonmarital children must be treated the same way as marital children
- strike down govt action unless it is substantially related to an important govt interest
To enter into a valid marriage, what is required?
- each spouse possesses the ability to comprehend and voluntarily agree
- each spouse must intend to enter into the marriage
- License + Solemnization (ceremony)
Basic requirements of a common law marriage
1) consent
2) cohabitation
3) holding out publicly as living together as spouses
=> Only recognized by about 10 states - but if you enter into a common law marriage in a state that allows it and then move, the new state will treat you as married
Are professional degrees subject to equitable distribution at divorce?
Majority: no - spouse’s earning capacity or professional degree is not marital property and is not distributable. This is even if attainment was during marriage and made possible through support of other spouse.
But states might compensate supporting spouse for contribution during the spouse’s education in other ways:
- A factor to consider in awarding alimony
- Reimbursement alimony
Minority of states will take this into account in equitable distribution - award percentage of its value to the spouse in the form of additional marital property or alimony
Main factors influencing the amount of spousal support
Requesting spouse’s needs and paying spouse’s ability to pay
Also: standard of living established during the marriage, time needed to get education/training to find appropriate employment
What factors are generally considered when dividing up marital property?
- Provisions for the custody of minor children
- assets, debts, and liabilities of each party
- needs of each party
- standard of living during the marriage
- present income + earning capacities
- duration of the marriage
- each party’s contribution as a homemaker to the family unit
Can the custodial parent move to another state with the child?
- Yes - as long as it is motivated by a legitimate reason and benefit to this custodial parent
- it may be a violation of the custody order - parent needs to give prior notice and should seek to modify the custody order before moving
- Other party has right to request judicial hearing
What is an ex parte divorce and what is the effect of it?
Divorce granted in plaintiff’s domicile even though other spouse was not subject to the jurisdiction of this court
- Under FF+C, it has binding effect to dissolve the marriage
- but does not affect the monetary or property rights of the nonresident party – if a court doesn’t have jurisdiction, it can’t impose alimony or a child support obligation against that party, or make any division of property in which that party has an interest
Grandparent’s visitation rights (or other non parents)
A fit parent’s decision to prevent grandparents (or other nonparents) from having visitation rights must be given the most weight over the best interest of the child standard
- judge may NOT override this decision merely because it feels that visitation would be in the best interests of the child
Burden of proof: Grandparents would have to show that there will be a detriment/HARM to the child by denying them visitation rights
2 grounds for prenup being unconscionable:
Could void prenup in whole or in part -
1) Nondisclosure -
i) If richer spouse failed to disclose his assets at the time prenup was made;
ii) other spouse did not waive disclosure (no waiver clause in prenup); AND
iii) other spouse had no independent knowledge of richer spouse’s assets
2) Unconscionable if any alimony or support provision would leave recipient in unforeseen extreme hardship
- - i.e., so poor that you would need to seek public assistance
- - unforeseen = something changed btwn time prenup was made and now divorce
Grounds for annulment
Grounds that make the marriage voidable:
1) Parties are underage
- - waived if they continued to cohabitate after 18th birthday – underaged party must move out after turning 18 to be able to seek annulment
2) Mental capacity: mentally ill or developmental disability (intellectual functioning of a child)
- - Waived only if mental illness is cured (gain lucidity)
- - If there is desire for annulment, will be sought by the legal guardian
3) Under influence of drugs/alcohol at the time of marriage
- - Waived by staying in the marriage after sobering up - need to get annulment promptly
4) Interible physical impotence - inability to consummate the marriage
5) Duress
- - Waived if threat is removed and you continue cohabitation
6) Fraud - any misrepresentation or concealment by one party prior to marriage, of information going to the essential aspect of marriage
- - Waived if they continue cohabitation after lie is discovered
