Family Law/Community Property Flashcards
Requirements for a valid marriage
Procedural: license and ceremony
State of mind: capacity to consent and intent
Limitations on ability to marry
- Underage
- Too closely related
- Same sex
- Lacking in mental or physical capacity
- Commission of bigamy or polygamy
Reqs for Premarital contracts
- Conscionable
- In writing
- Signed by both parties
There must be:
- Full and fair disclosure of assets/debts/etc
- Capacity
- No duress
- No fraud
- No overreaching (look for independent counsel)
Spousal Duties/Responsibilities
- Fiduciary duty to the community
- Support of the other
- Payment of the other’s obligations
Annulment
For VOID marriage (that were invalid or illegal- bigamy, incest)
For VOIDABLE marriages (underage, impotence, duress, fraud)
Grounds for divorce
No Fault- Irretrievable breakdown of marriage (incompatibility)
Fault- Adultery, abandonment, cruel and inhuman treatment
Jurisdiction for Divorce
At least one party must be domiciled in NM (6mos plus intent to stay)
Petitioner must SERVE respondent
Requirements for Contents of Verified Petition for Dissolution of Marriage
- Allege that marriage is irretrievably broken (cite irreconcilable differences)
- Include Vitals of marriage (date, date of sep, request arrangements for division of property)
- Information on children, pregnancy, custody and child support
Mutual Restraining Order/Temporary Domestic Order
- Neither party may mess with property
- No harassment
- No taking the kids out of state
How to complete the divorce process
Marital Settlement Agreement and Parenting Plan (or trial)
Property Classified as Separate Property
- Acquired prior to marriage
- Acquired by gift, bequest, devise, or descent during marriage
- Acquired after entry of a decree of divorce or formal decree of legal separation
- Declared separate by court order
- Designated as separate by written agreement of partners
Transmutation
The process by which property changes status (SP to CP, one Sp to the other’s SP, CP to SP)
How to prove transmutation?
Happens by:
- Gift
- Commingling, or
- Agreement
Must be proved by CLEAR AND CONVINCING evidence (except for deeds- preponderance)
Accounting funds to find out SP or CP
Tracing
If all mixed up and can’t be traced: commingling
What happens when funds are traced and there’s no transmutation?
Equitable lien to reimburse community (or partner)
Quasi CP
Property acquired like CP would be in NM, but was acquired in a different state (so long as both spouses are domiciled in NM)
Criteria for Maintenance
Spousal support will be awarded based on
- Need
- Ability
Weight these factors:
- Age, health, means of support
- Current/future earning capacity
- Good faith efforts for self support
- Need
- Duration of marriage
- Liquid and non-liquid assets
- Debt
- Premarital agreements
Misconduct is NOT a factor
Termination of maintenance
Upon death/remarriage unless stated otherwise
Types of custody
Legal: to make decisions about child (religious, educational, medical care)
Physical: Possession and control of child
When is Joint Custody Appropriate?
- Both parents are FIT
- Both parents AGREE on joint custody
- Parents COMMUNICATE and COOPERATE
- Child PREFERS joint (over 14)
- Homes are in CLOSE PROXIMITY
- Homes are SIMILAR
- JC does NOT HURT child’s development
- Parents PHYSICALLY ABLE to carry out order
Won’t be granted if parents are HOSTILE
Standard to Award Custody and WISH factors
Best interests of the child
Wishes of the child
Interaction and Integration of child into community
Sharing upbringing and decisions related to child
Health, physical and mental, of the parties
Guardian Ad Litem
Separate attorney from that of the parents to represent the best interests of the child
How to modify a custody order?
By motion
Standard: Changed Circumstances
UCCJEA
Uniform Child Custody Jurisdiction and Enforcement Act
Court can enter or modify custody order if that court is in the child’s HOME STATE
Jurisdiction: Child’s home state- 6mos prior to action
Exceptions to the “home state rule”
Court can enter custody orders even if not child’s home state IF:
- No other state has home state jurisdiction, AND
- Child and one parent, has a significant connection with state, AND
- Substantial evidence is available in the state
- All other states decline jurisdiction
- No other state has jurisdiction under home state or significant connections tests
Continuing Exclusive Jurisdiction
A state administering custody proceedings has exclusive continuing jurisdiction if:
- Child or child + one parents continues to have significant connections and there is substantial evidence in state, OR
- Child and child’s parent still resides there
Temporary Emergency Jurisdiction
Courts have TEJ over child custody proceedings in the case of ABUSE or ABANDONMENT
Enforcement of another state’s custody order
- Register order in the state
- Can get expedited enforcement
- Custody warrant if child is IMMINENTLY LIKELY to suffer serious PHYSICAL HARM or be REMOVED from state
NM recognition of Grandparent’s rights
Rule: NM protects grandparents’ rights in dissolution proceedings, legal sep proceedings, or paternity proceedings
Rights of Grandparents
Court SHALL grant reasonable visitation privileges to a GP of a minor child, not in conflict with child’s education or prior established visitation/time-sharing privileges
Factors to consider when granting visitation rights to grandparents
- Best interests of child
- Prior interaction b/w child and GP
- Prior interaction b/w GP and parents of child
- Present relationship b/w GP and child
- Timesharing and visitation arrangements already in place
- Effect that visitation will have on child
- GP’s convictions for physical, emotional, or sexual ABUSE
- if GP was ever child’s full time caregiver
When may a GP petition for visitation rights
- One or both parents is deceased
- If child resided with GP for at least 3mos, starting when child was under 6 yrs old and was later removed
- If child resided with GP for at least 6mos, starting when child was over 6 yrs old and was later removed
Child Support (In general)
- Each parent has duty to support
- Child support ends on child’s death or emancipation, or through HS
- Nonpayment cannot be used to deny visitation
- Cannot be deducted for tax
Child Support Guidelines
- Gross income
- timesharing arrangement
- Number of children
- Extraordinary expenses
How can a parent modify child support
ONLY prospectively, based on CHANGED CIRCUMSTANCES (need of child or ability to pay)
Means of Enforcing Child Support
- Civil or Criminal contempt
- Judgment against nonpayer
- Seizure of real estate
- Attachment of wages/tax returns
- Attorneys’ fees
Uniform Interstate Family Support Act
- Adopted EVERYWHERE
- Simplifies collection of child support when parties live in different states
Contracts b/w unmarried cohabitants
- ENFORCEABLE (unless sex = only consideration)
- Implied Ks not likely to be enforced
- Must be EXPRESS for property division
How do unmarried cohabitants recover in absence of EXPRESS contract?
Court may grant equitable distribution of property based on constructive trust, or recover in quasi-contract.
Importance of Establishing Paternity
- Must be established before support imposed or visitation rights granted
- Determined by DNA testing
In order for unwed father to establish rights
- Must be willing to ASSUME custody
- Publicly acknowledge paternity
- Take steps to establish legal responsibility of child
- Demonstrate commitment to child
Nuances for nonmarital children
- Immigration preference for marital kids ok
- Have all other rights of married kids
How dad becomes a lawful father
- Judicial decree establishing paternity
- marries mom
- holds out child as biological
- consent to be married on birth cert
For what can children be held liable?
- Contracts for NECESSITIES (can’t disaffirm)
- Torts
- Deliquency
How can parental rights be terminated?
- Consent OR
- Involuntary Termination WITH NOTICE
New birth certificate upon adoption
Preference for kinship guardians
When parents can’t/won’t give care, preference for care from family
Definition of Kinship
Relationship b/w child and:
- Relative
- god parent
- member of tribe or clan
- adult with whom child has had significant bond
Burden of Proof for Kinship Guardianship
Clear and convincing evidence
NAs: Beyond a reasonable doubt
