Family Law MEE Flashcards
Gifts in Contemplation of Marriage
if the marriage does not take place, gifts conditioned on the marriage must be returned
Antenuptial (Premarital) Agreements
valid contracts that address the rights of the parties upon divorce or death - marriage is sufficient consideration
Content of a Premarital Agreement
(a) disposition of property
(b) the making of a will, trust, or other arrangement to carry out the provisions of the agreement
(c) the choice of law governing
(d) any other matter not in violation of public policy or criminal statute
Requirements for Valid Premarital Agreement
(1) in writing and signed
(2) must be entered into voluntarily (no duress, fraud)
(3) full and fair disclosure of the parties assets or proof that that the party against whom the agreement is being enforced had independent knowledge of the assets
IF UPPA, third requirement only if the agreement is unconscionable
(4) some courts consider whether the economic provisions are fair and reasonable
Premarital Agreements and Void Marriages
if marriage is found to be void, a premarital agreement is enforceable only to the extent necessary to avoid an inequitable result
Premarital Agreement Silent as to Choice of Law
its enforceability is governed by the law of the state where it was executed or the state with the most significant relationship to the parties
Marriage Requirements
(1) License
(2) Ceremony with authorized officiant
(3) No legal impediments
(4) Capacity to Consent
(5) Age of majority
No Legal Impediments
(a) must not be too closely related
(b) not have a prior undissolved marriage to a living spouse
Common Law Marriage Requirements
(1) consent to marry (which includes having capacity and no legal imped)
(2) cohabitation
(3) couple holds themselves out publicly as spouses
Valid Common Law in One State
if a valid common law marriage is formed in one state, it will generally be regarded as valid even in those states that do not recognize common law marriage
Tenancy by the Entirety
In many states, if spouses take title to real estate jointly, a tenancy by the entirety is presumptively created
Marital Property
most property acquired during the marriage is marital property no matter how titled
Spousal Abuse Orders
protective orders can be granted ex parte and can last from one month to several years
Alienation of Affection
if a third party diverts the affection of one spouse so that the other is deprived of a marital relationship, the deprived may have a cause of action for alienation of affection against the third party
Alienation of Affection Requirements
(a) evidence of a genuine love and affection between validly married spouses
(b) evidence that the love and affection was alienated or destroyed and
(c) proof that the defendant’s actions caused the loss of love and affection
Criminal Conversation
when one spouse has sexual relations with a third person, the other spouse may have a cause of action against the third person for criminal conversation
Criminal Conversation Requirements
(a) the existence of a valid marriage
(b) act of adultery proven
Negligent Interference with Consortium
either spouse may maintain an action for loss of the other’s consortium due to injuries from a defendant’s negligence
Family Right to Privacy
families have the right to privacy in their homes and freedom from governmental interference in their domestic affairs
Parental Decisions
parents have authority to make decisions about most matters concerning the upbringing of their children, but certain state interest take precedent over autonomy
Constitutional Parental Rights
(a) right to marry
(b) right to procreate
(c) right to use and sell contraceptives
(d) right to abortion (within limits)
(e) right of related persons to live together
(f) right of parents to educate outside public schools
(g) right of parents to decide issues concerning the care, custody, and control of children
Annulment
backward-looking doctrine that declares a marriage invalid because an impediment that existed at the time of the marriage makes it legally void or voidable
Void Marriage
invalid, an utter nullity, because it failed to meet the essential requirements for a legal marriage
Who may Attack Void Marriage
any interested party may seek an annulment of a void marriage and the marriage is subject to collateral attack even after the death of one of the parties
Void Marriage - Impediment Removed
if the impediment causing the marriage to be void is removed, the Uniform Marriage and Divorce Act and some states provide that the marriage becomes valid if the parties continue to cohabitate
Key Examples of Void Marriages
(a) bigamy or polygamy
(b) consanguinity (too closely related)
(c) nonage (minority states)
Voidable Marriage
valid until declared null. Because an impediment existed at the time of the marriage, one of the spouses may bring an action to have the marriage annulled
typically occurs when some type of event or condition affects the adequacy of consent
Voidable Marriage Examples
(a) nonage (most states)
(b) Incurable physical impotence
(c) lack of capacity
(d) duress
(e) fraud
Defenses to a Void Marriage
only way to defend an action to annul a void marriage is to deny the existence of the defect
Most Common Defense to a Voidable Marriage
ratification
Children of an Annulled Marriage
considered marital children
Annulment and Spousal Support
spousal support is not awarded in annulment - if previous canceled due to marriage, it is reinstated
Annulment and Division of Property
courts attempt to place the parties in their pre-marriage position, and usually give each party that property to which they have legal or equitable title
Divorce Jurisdiction
to have jurisdiction, only one of the parties needs to be domiciled in the jurisdiction
most states set a minimum residency period (90 days) before it may be instituted
Divorce Financial Issues
the court must have personal jurisdiction over the defendant
Full Faith and Credit
as long as one of the parties was domiciled in the state that granted the divorce, the decree is recognized as valid in all other states
if PJ - property, child support, spousal support, other financial issues given full faith and credit
Comity
courts are likely to recognize foreign divorce decrees if one party was domiciled in the country rendering the judgment
Mediator Duties
(a) explain the mediation process
(b) explain the right to independent counsel
(c) ensure that the parties have enough info for informed decision making
(d) remain impartial and disclose any potential bias
(e) control for any power imbalance between the parties
“No Fault” Divorce
most state divorce statutes provide for divorce without regard to fault
No Fault Divorce Requirements
(a) both spouses agree that the marriage is irretrievably broken
(b) parties have been living apart for a specified and continuous period of time
(c) both parties agree they are now incompatible and can no longer be married
Fault Based Grounds
(a) adultery
(b) willful desertion
(c) extreme mental/physical cruelty
(d) voluntary drug addiction or habitual drunkenness
(e) insanity
Defenses to No-Fault Divorces
denial of (a) irrevocably broken or (b) the parties have been separate and apart
Defenses for Fault Based Divorces
(a) collusion
(b) connivance
(c) condonation
(d) recrimination (nearly gone)
Defenses for Fault Based Divorces - Collusion
an agreement between spouses to simulate grounds for divorce or to forgo raising a valid defense
Defenses for Fault Based Divorces - Connivance
willing consent to the other spouses misconduct (limited to adultery cases)
Defenses for Fault Based Divorces - Condonation
forgiveness of marital offenses with full knowledge of the wrongs - resumption of marital relations after forgiveness is key
Defenses for Fault Based Divorces - Recrimination
arises when the party seeking the divorce is also guilty of misconduct for which a divorce may be granted (RARE)
Legal Separation
an order of legal separation does not terminate the marriage but, the parties can have all of their rights regarding property, spousal support, custody, and child support adjudicated
Three Approaches to Division of Property Upon Divorce
(1) Community
(2) Equitable Division of all
(3) Equitable Division of Marital Property
Community Property
all property acquired during the marriage is deemed owned one half by each spouse, and all property is brought into the or acquired by gift or bequest is separate property
Equitable Division of All Property
the court divides all property owned by either spouse, whether acquired before or after the marriage
Equitable Division of Marital Property
each spouse takes their separate property, and the court only divides the property acquired during the marriage
Two Step Process to Equitable Division of Marital Property
(a) classification and
(b) division
Step One: Classification
determine what is marital property and what is separate property
Step Two: Division
make an equitable division of the marital estate no matter how the property is titled
Separate Property
(a) Property owned before marriage
(b) property acquired by gift or inheritance
(c) property acquired in exchange for separate property
(d) income and appreciation of separate property
(e) pain and suffering awards
(f) personal damages
(g) property acquired after an order of legal separation that includes all final disposition of property
Marital Property
is all other property acquired during the marriage
End of Marital Estate
some jurisdictions use:
(a) the date of separation
(b) the date of filing
Marital Property Includes
(a) property acquired during the marriage
(b) earnings
(c) employment benefits, pensions, and stock options
(d) lost wages
(e) reimbursement for medical bills incurred and paid with marital property
(f) recovery for damages to marital property
Separate Property into Marital Property
(a) commingling
(b) transmutation
Commingling
separate property is inextricably intertwined with marital property or with the separate property of the other spouse to the extent that it can no longer be traced
Transmutation
the sperate property is treated in a way that evidences an intention for the property to be marital
Improvement of Separate Property
still separate property; most jurisdictions grant the marital estate or the nonowning spouse reimbursement for the value added to the separate property
Property Acquired Before Marriage But Paid for After:
majority: property should be apportioned between separate and marital etates in proportion to the contribution of separate and marital funds to pay for the property
minority: the inception of title and allow a reimbursement remedy
Factors Considered During Equitable Division
(1) age, education, background, earning capabilities
(2) duration of the marriage
(3) standard of living
(4) present incomes
(5) source of money
(6) health
(7) assets, debts, and liabilities
(8) needs
(9) child custody provisions
(10) alimony (or not)
(11) opportunity to acquire future income
(12) contribution to the acquisition
(13) contribution as a homemaker
(14) fault
Types of Alimony
(1) Permanent Periodic Spousal Support
(2) Lump Sum
(3) Rehabilitative Spousal Support
(4) Reimbursement Spousal Support
Permanent Periodic Spousal Support
paid regularly (for example month to month) to support a spouse who has neither the resources nor the ability to be self-sustaining
Lump Sum Spousal Support
fixed amount payable either all at once or via a series of payments
Rehabilitative Spousal Support
periodic payments for a limited time to enable a spouse to gain skills to become self-supporting
MFactors to Consider When Awarding Alimony
(1) standard of living
(2) duration of the marriage
(3) age and physical and emotional condition
(4) financial resources
(5) contribution
(6) time needed for the party seeking support to obtain the training
(7) ability of the payor spouse to meet their needs
(8) marital fault
Marital Agreements
agreement between spouses who intend to remain married - usually alters or confirms marital rights or obligations during the marriage or at separation, dissolution, or death
Separation Agreements
agreement entered into after marriage under which the parties agree to live apart and resolve economic issues and custody rights
Requirements for Separation Agreements
(1) voluntary
(2) full and fair disclosure by both parties
(3) consideration (found in mutual promises of the parties)
Merger of Separation Agreement
if the divorce decree states that the separation agreement is merged into the decree, or if the specific provisions of the agreement are repeated in the decree, the whole agreement assumes the status of a court judgment, is enforceable as such and can be modified by the court
Contracts Between Cohabitants
express contracts between cohabitants regarding earnings and property rights are generally valid - must be more than sex as consideration
Child Support Determination
amount awarded to the custodial parent is usually arrived at by reference to child support guidelines, which contain charts that consider the number of children and the parent’s incomes
Duration of Child Support
ceases upon:
(1) child reaching the age of 18
(2) death
(3) emancipation
(4) termination of parental rights
Uniform Interstate Family Support Act
provides methods of enforcement and guidelines for modification of support orders issued in another state
UIFSA Original Jurisdiction
proper where the first petition under act is filed
UIFSA Jurisdiction
Another state may exercise jurisdiction only if:
(a) second petition is filed before the time to answer the first has expired
(b) petitioner objected to jurisdiction in the first action
(c) second state is the childs home state
UIFSA Jurisdiction Enforceability
court that initially issued the order has jurisdiction to enforce
UIFSA Jurisdiction Enforceability Other States
another state can enforce a child support order in two ways:
(a) direct enforcement
(b) registration
UIFSA Direct Enforcement
allows the obligee to mail the order to the obligors out of state employer, automatically triggering witholding unless there is a timely objection
UIFSA Registration
issuing state sends the order to the state where the obligor resides - it is registered and filed as a foregoing judgment, and then the order is subject to the same enforcement procedures as if the order had been issued by that state
UIFSA Jurisdiction to Modify
the court that issues the controlling child support order has continuing and exclusive jurisdiction to modify it
Modification of Child Support
based on a substantial and continuing change of circumstances affecting the needs of the child or the ability of the parent to pay, the growth of the child, inflation, income, retirement, or disabling illness
Enforcement of Alimony and Child Support Orders
(1) contempt
(2) tax refund
(3) forfeiture of licenses
(4) seizure of real estate
(5) attachment of wages
(6) order to pay attorneys fees
UCCJEA “Uniform Child Custody Jurisdiction and Enforcement Act”
are to avoid jurisdictional disputes regarding child custody and visitation, promote interstate cooperation, and facilitate the interstate enforcement of custody and visitation orders
UCCJEA Initial Jurisdiction
a court has jurisdiction to initially enter or modify a child custody or visitation order if:
(a) is the childs home state OR
(b) was the childs home state within the past six months and the child is absent from the state, but a parent or person acting as a parent continues to live in the state
UCCJEA Child’s Home State
state in which the child lived with a parent for at least 6 consecutive months immediately before the commencement of the proceeding, disregarding temporary absences
UCCJEA “Home State Rule” Does Not Apply
no other state has or accepts home state jurisdiction and:
(a) the child and at least one parent have a significant connection with the state AND
(b) substantial evidence concerning the child is available in the state
Modification of Existing UCCJEA Decree
Another state can exercise jurisdiction IF:
(a) no child or parent continues to reside in the issuing state; OR
(b) child no longer has a significant connection with the issuing state and substantial evidence relating to the matter is no longer available in that state (only issuing state can decide this)
Declining Jurisdiction UCCJEA
(1) inconvenient forum under the circumstances and that a court in another state is more appropriate forum OR
(2) if the party seeking to invoke the court’s jurisdiction has engaged in unjustifiable conduct
UCCJEA Emergency Jurisdiction
if the child has been abandoned or it is necessary in an emergency to protect the child because the child, sibling, or parent is subjected to or threatened with abuse
Child Custody/Visitation Standard
best interest of the child
Best Interest of the Child Factors
(1) whishes of the parents
(2) child’s preferences (over 12, great weight, under 8 not considered)
(3) child’s relationship with the parents, siblings, and others involved with parents
(4) child’s adjustment to home, school, community
(5) parties mental and physical health
(6) who has been the primary caregiver
Counsel for Child in Child Custody Proceeding
courts can appoint Guardian Ad Litem for the child in a custody dispute, but this is typically only done if the counsel or GAL can provide substantial assistance in determining what is in the childs best interest
Interference with Patent-Child Relationship
A parent whose lawful custody is interfered with may recover tort damages in actions for abduction or enticement - in addition, parties who conspire to conceal information about a newborn child’s birth or location may be held liable for participation in a civil conspiracy
Factors to Consider when Determining if Joint Custody is Appropriate
(a) fitness of both parties
(b) parents agree on joint custody
(c) parent’s ability to communicate and cooperate concerning the child’s well being
(d) child’s preference
(e) level of involvement of both parents
(f) geographical proximity
(g) similarity or dissimilarity of the homes
(h) effect of the award on the child’s psychological development
(i) parent’s ability to physically carry out the joint custody order
Sole Custody
strong evidence that demonstrates it is in the best interest of the child
Custody to a Nonparent
based on special circumstances (abandonment, neglect, or abuse) a court may find the biological parent has lost the right to rear the child and a nonparent should get custody
Parental Visitation
a court may limit a parents right to visitation if that parent engages in conduct that might injure the child, but absolute denial of visitation is rare
Non-Parental Visitation
a nonparent may seek visitation if it is in the best interest of the child and the determinative factor is often the prior relationship between the child and the third party
Non-Parental Visitation against Parental Wishes
the U.S. Supreme Court has state that if a parent is fit, their wishes on nonparent visitation are constitutionally protected and must be given special weight - a judge may not override a fit parents decision regarding third party visitation merely because it would be in the best interest of the child
Modification of Child Custody Decrees
modifiable - burden of proof is on the party seeking the change
When are Child Custody Decrees Modified?
custody awards will be modified only if there has been a substantial and material change in circumstances affecting the child’s well being - childs best interest is the overriding concern
Child Custody Relocation
statutes generally require notice to the other parent and a court hearing to determine whether relocation is permitted
When Child Custody Relocation Permitted?
most courts allow the custodial parent to move out of state with the child if the relocation is in the child’s best interest, the move is motivated by a benefit to the family, and is not intended to thwart the relationship with the other parent
Enforcment of Child Custody Award UCCJEA
out of state decrees will be enforced if a certified copy has been filed with the clerk of the court; this wont remove the original states continuing exclusive jurisdiction, but it will allow enforcement of the order in that state
Constitutional Limits on Nonmarital Child Discrimination
subject to intermediate scrutiny (must be substantially related to an important governmental interest)
The Supreme Court Has Ruled, on Constitutional Limits of Nonmarital Children Discrimination:
(a) nonmarital children cannot be precluded from inheriting from their fathers
(b) statutes of limitations on paternity suits are discriminatory
(c) nonmarital children have the same right to child support as marital children
(d) government benefits may not be denied to nonmarital children merely because they are born out of wedlock
(e) nonmarital children may not be precluded from suing for a parents wrongful death
Parentage Actions
can be brought to establish a biological relationship and settle issues of paternity or maternity - once there is a finding of parentage, that person has rights to custody and visitation in addition to a duty to pay support
Presumption of Parentage
a mother’s husband is presumed to be the father of a child if the child is born during the marriage or within 300 days of the marriages termination
Paternity Disestablishment
rebutting the presumption of parentage generally requires clear and convincing evidence - in that case, paternity will be disestablished and any child support obligation eliminated
Unwed Fathers
only if:
(a) parents married after the childs birth
(b) father holds the child out as biological
(c) father consents to be named on the birth certificate
(d) father formally acknowledges paternity or
(e) a court order establishing paternity
Due Process Rights for Unwed Fathers
to have due process rights regarding a newborn, the unwed father must be willing to assume custody of the child and not merely block adoption - other considerations include publicly acknowledges paternity, paying pregnancy and birth related expenses, taking steps to establish legal responsibility, and showing a commitment to the child
Statute of Limitations for Paternity Suits
at least 18 years
Evidence in Paternity Suit
some states require clear and convincing evidence but a preponderance of evidence standard has also been upheld
Unmarried American Woman Gives Birth
gives birth abroad, her child may be granted US citizenship without formally establishing paternity
Unmarried American Child
when the child of an unmarried man is born abroad, the father must take specific steps to establish his paternity in order to make his child a U.S. citizen
Involuntary Termination of Parental Rights - Burden
must be proven by clear and convincing evidence
Grounds for Involuntary Termination
(a) infliction of serious physical harm to the child
(b) abandonment
(c) negligence or deprivation
(d) failure to provide support without justifiable cause
(e) mental illness or retardation so severe as to make the parent incapable of caring for the child
(f) parental unfitness
Requirements for Adoption
(a) termination of parental rights
(b) consent of adoptee (if applicable)
(c) home studies, invest, court approved
Unwed Father Vetoing Adoption
considers the level of prospective adoption, the court considers the level of the fathers involvement with the child, such as whether he lived with and cared for the child, vistied the child, admitted paternity, or paid support
Results of Adoption
termination of biological patents rights and obligations
creates new rights and obligations in the adoptive parents
UPA Parent Child Relationship
established between an individual and a child by:
(a) having given birth
(b) adjudication of a woman’s maternity
(c) adoption by mother
(d) adjudication confirming the mother of child born to a gestational surrogate
(e) a husband who is married to a woman who has a child through assisted conception is the childs father unless he proves his lack of consent within 2 years of birth
Poshumous Conception
if a gamete provider consented in writing that their gamete could be used after death to conceive a child, that child can be considered the child of a deceased parent - child has full inheritance rights and social security benefits
Gestational Surrogacy
where a woman who is not an intended parent agrees to become pregnant through assisted reproduction using gametes that are not her own
Validity of Gestational Surrogacy Agreement
(a) in writting and approved by court
(b) be accompained by a child welfare agency home study unless waived
(c) voluntary
(d) provisions for healthcare costs
(e) not limit the rights of the surrogate to make healthcare decisions
(f) provide reasonable consideration if the surrogate promised consideration
