Family Law Rule Language Flashcards
Common Law Marriage Requirements
To establish a common law marriage, the proponent must show “CACH”:
1. Capacity to enter into a marital contract,
2. A present agreement to be married,
3. Cohabitation, and
4. Holding out a marital relationship
No Fault Divorce Grounds
“Most states now offer ‘no fault’ divorces that provide for the dissolution of a marriage without regard to marital fault, generally upon a showing that the marriage is irretrievably broken and that the parties have been living separate and apart for a specified period of time.”
Alimony/Spousal Support Purpose
“The purpose of spousal support is to ensure an adequate income stream for the spouse whose economic dependency has resulted, at least in part, from the marital relationship.”
Spousal Support Considerations (by the court)
When determining what type and how much support to award, the court considers:
-The standard of living during the marriage;
-The duration of the marriage;
-The age and physical and emotional conditions of both parties;
-The financial resources of each party (including how marital property was apportioned);
-The contribution of each party to the marriage (including homemaking, child care, education, and career building of the other party);
-The time needed to obtain education or training to enable either party to find appropriate employment, where applicable; and
-The ability of the payor spouse to meet his needs while paying spousal support.
When is Permanent Alimony awarded?
“Permanent spousal support is awarded to a spouse who has neither the resources nor the ability to be self sustaining.”
Marital Property Standard
“In general, all property acquired during marriage is marital property unless it is acquired through gift, bequest, devise, or descent.”
Custody Determinations/Factors to Consider
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.
Child Support Guidelines/Considerations
All states employ numerical guidelines and establish a rebuttable presumption that the award that results from applying the guidelnines is correct. The guidelines must be allied in all cases, regardless of the parents’ marital status.
The court will look at factors like income and earnings of the parents, the number of children and their ages, and any special needs of the children.
Child Support Determinations (Amount and Duration)
“Most states have adopted specific guidelines to make such a calculation more uniform.”
State guidelines usually dictate a formula based on the number of children, their ages, any special needs of the children, and the parents’ incomes.
In most states, the court may deviate from the guidelines but must make findings of fact justifying the deviation.
Child Support Modifications
In order to obtain a modification of a future support obligation, the petitioner must show a substantial change in circumstances making gate prior order unreasonable.
Child support cannot be modified retroactively unless there was fraud or other compelling circumstances.
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 child(ren) and the custodial parent.
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.
Three types of alimony
Permanent, temporary, or granted in lump sum.
Considerations when assigning Alimony
Almost all states require the trial court to consider the parties’ financial resources and needs, marital contributions, and marital duration.
The trial court has substantial discretion in choosing to award alimony.
Jurisdiction for Dissolution of Marriage
The court does not need jurisdiction over both spouses to terminate a marriage.
To have jurisdiction over a divorce, only one of the parties needs to be domiciled (that is, resident with intent to remain) in the jurisdiction. Most states set a minimum residency period (for example, 90 days) before an action may be filed.
Jurisdiction for Property Division
Generally, a court cannot determine out of state property rights or rights to support unless it has jurisdiction over both parties.
Thus, an ex parte divorce (i.e., one where only the plaintiff is before the court), the court can grant the divorce, but cannot award spousal support or divide out-of-state property.
Jurisdiction for Child Support
The Uniform Interstate Family Support Act (UIFSA) governs child support. This act has been adopted by all states.
“The state that originally issued a child support order has continuing exclusive jurisdiction to modify that order if the state remains the residence of the obligee, the child, or the obligor, and at least one of the parties does not consent to the jurisdiction of another forum.
Jurisdiction for Custody Orders/Tests
The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) applies. There are three tests to determine which jurisdiction to apply.
- Home State Test
- Significant Connections Test
- Emergency Jurisdiction Test
Home State Test (Custody Order Jx)
The “home state” has exclusive jurisdiction to modify a custody decree. A “home state” is a state where the child has lived with a parent or a person acting as a parent for at least 6 consecutive months immediately before the commencement of the child custody proceeding.
A home state continues to have exclusive jurisdiction to issue a custody order for 6 months after a child leaves the state, so long as a parent, or person acting as a parent, still lives in the home state.
Significant Connections Test (Custody Order Jx)
If a child has no home state, a state may exercise jurisdiction based on:
1. “significant connections” with the child and at least one parent AND
2. the existence of “substantial evidence” relating to child custody in the forum jurisdiction.
Emergency Jurisdiction/Default Jurisdiction (Custody Order Jx)
If no other state has or exercises jurisdiction, this test applies.
Pre Marital Agreements (in general)
“A valid premarital agreement must be in writing, voluntary, signed by the party to be charged, and based on full and fair disclosure of each party’s financial worth.”
Entry into the marriage is sufficient consideration for a premarital agreement.”
Pre marital Agreements (relating to property)
“For a court to enforce a premarital property agreement, the agreement must contain fair and reasonable economic provisions for the claiming spouse.”
Premarital Agreements (relating to child custody)
A court is not bound by child custody provisions in premarital agreements.
Instead, the court will determine issues of child custody and child support based on the best interest of the child.
Premarital Agreements (relating to alimony)
“It is against public policy to enforce a waiver of spousal support if to do so would leave a spouse dependent on the state.”
Premarital Agreements (relating to child support)
“Parents have an equal duty to support their children that they cannot contract away.”
“The award of support to one party for the benefit of the children is generally based on monetary need and ability to pay.”
