Family Law MEE topics Flashcards
Common law marriage: to establish a common law marriage, the proponent must show (mnemonic=CACH):
Capacity to enter into a marital contract,
a present Agreement to be married,
Cohabitation, and
Holding out a marital relationship.
Recognition of Marriage
Recognition of marriage: a marriage valid under the law of the place in which it was contracted will be valid elsewhere unless it violates a strong public policy of the state that has the most significant relationship to the spouses and the marriage
Bigamy General rule
two marriage saving doctrines for the new spouse
Bigamy: A bigamous marriage is void from the beginning.
But there are two marriage-saving doctrines for the new spouse:
(1) there is a presumption that the most recent marriage is valid, and
(2) removal of the impediment (e.g., by divorce) will render a subsequent marriage valid
End of Marriage
Virtually all states are no-fault divorce states. Some states recognize fault-based grounds too. Annulment is also recognized for fraud and other reasons
Custody determinations, generally:
custody is determined by looking at the best interest of the child.
This typically requires looking at factors such as :
- the wishes of the child’s parents,
- the child’s primary caretaker,
- the mental and physical health of all individuals,
- the interrelationship of the child and parents, stability, and
- whether there is any domestic violence.
Custody Modifications
Custody can be modified only if there is a substantial change in circumstances. Generally, this change must be unforeseen at the time of the initial judgment
Modification of child support:
Modification of child support: In order to obtain a modification of a future support obligation, the petitioner must show a substantial change in circumstances making the prior order unreasonable. (If the change is a reduction in income, and it was voluntary, some courts will not modify it; some will under a multi-factor test—e.g., examine if the party acted in good faith, among other factors.) This is a heavy burden. Child support cannot be modified retroactively unless there was fraud or other compelling circumstances.
Modification of child support:
Modification of child support: In order to obtain a modification of a future support obligation, the petitioner must show a substantial change in circumstances making the prior order unreasonable. (If the change is a reduction in income, and it was voluntary, some courts will not modify it; some will under a multi-factor test—e.g., examine if the party acted in good faith, among other factors.) This is a heavy burden. Child support cannot be modified retroactively unless there was fraud or other compelling circumstances.
Relocation of parent and child: Generally:
Court’s balancing test
Different court views
Relocation of parent and child: Generally, a move sought in good faith that will serve the child’s best interest will ordinarily be approved.
The court will balance the impact on visitation by the noncustodial parent against the benefits of the move to both the children) and the custodial parent.
There are a few different views (which you should mention if applicable): some states place the burden on the relocating parent and some put it on the objecting parent.
Decisions by a fit parent
Decisions by a fit parent must be given some deference. This includes decisions regarding medical care (but parental rights can be limited if a parent’s decision will jeopardize the health or safety of the child).
When does the father have rights?
Generally, biological fathers have rights. However, the state may make the parent exercise his rights within a specific time (e.g., two years)
Rights of a parent when another person wants to adopt a child:
an involved parent who demonstrates a “full commitment to the responsibilities of parenthood” will likely be able to successfully oppose an adoption petition by another and is entitled to notice of such proceedings
Third-party rights: Custody
Third-party rights: Custody in the parent is presumed to be in the best interest of the child. To rebut this, a third party who wants custody must prove that the parent is unfit or that granting custody to the parent would be highly detrimental to the child. Thus, any third-party visitation or custody statute must give special weight to the parent’s determination of the child’s best
interest.
Division of property by court
Division by court: in a majority of states, marital property is divided at divorce but separate property remains the property of the owning spouse.
Marital vs. Separate property (majority approach)
Separate property includes BIG
Martial vs. separate property (majority approach): Marital property is property acquired during the marriage.
Separate property includes (mnemonic=BIG) property acquired before the marriage, an inheritance, or a gift to one party. Most states don’t count professional degrees earned during the marriage as marital property.
