Family law rule statements Flashcards
Enforceability of premarital agreements
In many states, a premarital agreement is enforceable if there has been full disclosure, the agreement is fair and reasonable, and it is voluntary. The agreement must be in writing and signed by the party to be charged
Preventing enforceability of a prenup under UPAA
Under the UPAA, the party against whom enforcement is sought must prove involuntariness or both unconscionability at the time of execution and lack of disclosure and knowledge of the other’s assets and obligations
Full disclosure for prenups
Full disclosure requires disclosure of all income, assets, and liabilities of both parties
Things courts consider for whether parties entered into a prenup voluntarily
Courts consider factors such as time-pressure, the parties’ previous business experience, and the opportunity to be represented by independent counsel. A party’s insistence on the agreement as a condition to marriage is not considered duress
purpose of equitable distribution
The objective of an equitable distribution system is to order a fair distribution of all marital property, taking into consideration all of the circumstances between the parties
Equitable distribution of marital property
In most states, all property acquired during the marriage is marital property and subject to equitable distribution. Whether the appreciation in nonmarital property will be subject to equitable distribution will depend on whether the appreciation is attributable to spousal labor
What do courts consider in the distribution of marital property
Courts consider a number of factors in determining the equitable distribution of marital property. Some of the relevant factors include the length of the marriage, earning potential, age, and needs of both spouses, the value of separate property, the spouses standard of living, and economic circumstances of each spouse at the time of divorce
Home state rule
UCCJEA
Under UCCJEA, which has been widely adopted, a court has SMJ to preseide over custody hearings and enter or modify custody or visitation orders if the state is: (i) the child’s home state (where the child has lived for at least 6 consecutive months immediately prior to the custody proeceding or since birth, if the child is less than 6 months old) or (ii) was the child’s home state in the past 6 months and the child is absent from the state, but one of the parents (or guardians) continues to live in the state
Significant connection JDX
UCCJEA
Where there is no home state jurisdiction, UCCJEA permits a court to enter or modify an order if (i) the child and at least one parent have a significant connection with the state and (ii) there is substantial evidence in the state concerning the child’s care, protection, training, and personal relationships
Standard for determining child custody
The standard for determining child custody is the best interests of the child
Considering wishes of child during custody proceedings
Most courts will consider the wishes of the child if the court can determine that the child has a sufficient maturity to express a preference. Although age is not a sole factor in determining whether a child should be consulted, it is considered by the court. If children are consulted, the court evaluates the reasons behind the preference.
Constitutonal right to parent
SCOTUS has held that a fit parent has a fundamental right to the care, custody, and control of their children and state courts must give special weight to a fit parent’s decision on care, custody, and control.
Common law marriage
Most states have abolished CL marriage. In jurisdictions that recognize common law marriage, the proponent of the marriage must prove that the parties
1. Cohabitated for the statutory period
2. Held themselves out as married; and
3. Intended to be married
Recognizing CL marriage in other JDX
Most states will recognize a common law marriage it if was validly obtained in a jurisdiction that permits common law marriage unless doing so contradicts a powerful public policy of the jurisdiction with the greatest interest in the marrige of the parties
Grounds for SMJ under UCCJEA
Under the UCCJEA, a court has subject matter jurisdicion to preside over custody hearings and either enter or modify custody or visitation orders if the state is
1. the child’s home state (where the child has lived with a parent or guardian for at least 6 consecutive months prior to the custody proceeding, or since birth, if less than 6 months old); or
2. was the child’s home state in the past six months and the child is absent from the state, but one of the parents still live in the state.
Right of unwed father to object to adoption
SCOTUS has held that the right of an unwed father to object to an adoption cannot be denied if the father has demonstrated that he is committed to fulfilling the responsibilities of parenthood.
Purpose of putative father registers
Some states have created adoption registries for the purpose of determining the identity and location of putative fathers and providing notice in the event of an adoption.
A putative father’s failure to register
A putative father’s failure to register wihtin a statutorily prescribed period of time constitutes a waiver of his right to notice of the adoption and implies his consent to adoption.
Termination of relationship between putative father and child
Termination in this fashion (through a putative father registry) typically only applies to cases in which the father and child never developed a relationship
Removal of impediment for bigamous marriage
Under the UMDA, an invalid marriage may be validated upon the removal of the impediment – such as the earlier marriage. The marraige then becomes valid as of the date the impediment is removed
Presumption of validity of marriage
Under the presumption of validity, the last of several marriages will be presumed to be valid. This presumption may only be rebutted with strong evidence that the prior marriage persists.
Grounds for making a child custody determination with regard to a prenup
Most courts decide custody according to the best interests of the child at the time of the custody hearing, regardless of any premarital agreements.
Child support in premarital K
Parents have an absolute obligation to support their children. A premarital contract cannot adversely affect a child’s right to support under any circumstances. Such agreements are not binding and are unenforceable
Enforceability of a premarital agreement
A premarital agreement is enforceable if there has been full disclosure, the agreement is fair and reasonable, and it is voluntary
Writing requirement/unenforceable provisions in a prenup
A premarital agreement must be in writing and signed by the party to be charged, and any clauses relating to child custody and support are unenforceable
UPAA requirements for party seeking to prove premarital agreement
Under the UPAA, the party against whom enforcement is sought must prove (i) involuntariness or (ii) unconsionability when the agreement was executed adn that they did not have, and could not have had, adequate knowledge of the other’s assets and obligations due to lack of disclosure
How do courts determine whether an agreement is voluntary
To determine whether an agreement is voluntary, courts consider factors such as time pressure, the parties’ previous business experience, and the opportunity to be represented by legal counsel.
Is a party’s insistence on agreement as condition to marriage duress?
A party’s insisence on the agreement as a condition to marriage is not considered duress
What constitutes marital property
In most states, with limited exceptions, property acquired during marriage is considered marital property.
What is property acquired by gift or inheritance classified as?
Property acquired by gift or inheritance is separate property.
Majority approach to dividing separate property
Separate property is not subject to division at divorce, but classification of the appreciation of separate property usually depends on whether it is attributable to spousal labor
Minority approach to dividing separate property
A minority of states subject property owned by either spouse to equitable distribution (i.e., the hotchpot approach).
Standard for determining child custody
The standard for determining child custody is the best interests and welfare of the child.
impact of a parent’s sexual conduct in awarding custody
A parent’s sexual conduct is a factor in determining custody only if the parent’s conduct has or will have a negative effect on the child
A fit parent in the best position to care for a minor child
Generally, a parent is in the best position to care for a minor child
What do courts consider when determining who sohuld have custody
Many courts consider who was the primary caretaker of the child up until divorce when determining who should have custody. This consideration not only encompasses the date to day care, but also the quantity and quality of the time spent with the parent at the time of the hearing rather than in the past
Enforcement of separation agreements
A court will generally enforce separation agreements unless it is unconscionable or based on fraud.
Voluntariness of separation agreements
As in any contract, the parties must enter into a separation agreement voluntarily. Courts consider factors such as time pressure, the parties previous business experience, and the opportunity to be represented by independent counsel
Fault based divorce and distribution of property
In most states, the fact that a divorce is granted on a fault ground, such as adultery, is not a factor in the distribution of property.
Marital misconduct and spousal support
Marital misconduct may be taken into account in many states in determining spousal support. The weight it is given in determining alimony is dependent on the JDX. Some JDXs consider it a factor, and others give it a preclusive effect.
Licenses/degrees as marital property
The majority of JDXs do not treat a professional license or degree as a distributable property interest.
Permanent spousal support
permanent spousal support is typically awarded only when the marriage was of long duration. Although JDXs differ on the definition of long term, it typically refers to a marriage of 15 years or more.
Rehabilitative support
Rehabilitative support is for a limited period of time, such as until the spouse receives education or employment. The purpose of this support is to enhance and improve the earning capacity of the economically dependent spouse. The court would consider other factors, including the couple’s standard of living during the marriage, the time it will take to complete education or training, the length of the marriage, and the parties’ age or health
When may the state intervene and terminate parental rights
The state may intervene and terminate parental rights when it is in the best interests of the child. Grounds for termination include failure to support.
Necessaries doctrine
In JDXs retaining the necessaries doctrine, a creditor may sue either spouse for payment of necessaries, but it may be required to seek payment first from the incurring spouse.
Disputes of intact families
When it comes to disputes of intact families, courts typically treat such matters as private ones that should be resolved within the home. Unless and until the parties separate, courts will refuse to decide such disputes.
Right to raise child as you see fit
A parent has the right to raise their child as they see fit. This right extends to decisions relating to the religious upbringing of a child.
Parens patriae
Under the theory of parens patriae, a court can intervene to protect a child when medical treatment contradicts religious beliefs and such treatment is required to prevent serious harm to the child’s health. In those situations, a child can be declared neglected and the medical treatment ordered
Considering who was the primary caretaker for custody awards
While there is no longer a presumption in favor of the mother, courts will consider who is the primary caretaker of the child prior to divorce.
Considering religion as a factor in child custody
In most JDXs, courts have typically refused to consider religion as a factor in determining child custody unless such religious practices would be detrimental to the child.
Prevelance of UIFSA
Every jurisdiction is required to have the uniform interstate family support act in effect as a condition in participating in federally funded child support programs
how does UIFSA work
UIFSA operates to simplify collection of support payments when the obligor or child resides in a JDX different from the one in which the original order is issued
Enforceability of child support order in other states
Under UIFSA, once an order is registered in another state, it is enfroceable in the same manner to the same extent as a child support order issued by the original state.
FF&C and child support
Under the full faith and credit for child support orders act, states are required to give full faith and credit to child support awards issued in other states
When may a diff court besides the OG one modify a child supprot order
A state court may not modify an order of child support rendered by a court of continuing JDX in another state unless the parties, including the child, no longer reside in that state or the parties expressly agree to permit another state to exercise jurisdiction
When are child support orders modifiable
Most JDXs permit an award of child support to be modified. Modifications are generally permissible when there is a substantial change in ciircumstances regarding the child’s needs or the parents financial situations, and that change is expected to be continuing, rather than temporary
Examples of changes that would permit child support order modification
Examples include a parent’s change in occupation, remarraige of a parent who now has additional family obligatoins, increase in income, or a decrease in wealth
burden to prove need for child support order modification
The burden to substantiate the change in circumstances is on the parent requesting the modification
Good faith reasons for requesting modification of child support
courts will consider whether the change in circumstances was expected when the original support order was made, as well as the good faith of the party seeking modification
Putative spouse doctrine
Under this doctrine, a party who participated in a ceremonial marriage and believes in good faith that the marriage is valid may use a state’s divorce provisions if the marriage is later found void due to an impediment.
Effect of putative spouse doctrine
This doctrine does not result in a divorce, but it does provide equitable relief through maintenance and property distribution.
Validity of common law marriage
A common law marriage is valid if the parties (i) agree they are presently married, (ii) cohabitate, and (iii) hold themselves out in public as married.
Recognition of common law marriages in other states
Although most states do not permit common law marriages, almost all states recognize common law marriages entered into a jurisdiction that does recognize such relationships, so long as it does not violate a strong public policy of the state.
Marital property
In most states, property acquired during marriage is marital property and subject to equitable distribution.
Property obtained after separation but before divorce
Some states treat property acquired after separation but before a divorce as separate property. However, most treat it as marital property.
Factors courts consider in equitable distribution
Courts consider a number of faactors including the length of the marriage, contributions to the marital estate, and custodianship of children in determining property distribution
Presumption in favor of most recent marriage and rebutting that presumption
There is a presumption that the most recent marriage is valid. However, this presumption is rebuttable by evidence of the existence of a prior valid marraige at the time the latest marraige was entered into
Fit parent’s fundamental rights to care
A fit parent has a fundamental right to the care, custody, and control of their children
When will courts grant visitation to a third party
Sometimes courts will grant visitation to a third party, but this is typically limited to cases in which the third party lived with the child for an extended period of time and acted as a de facto parent prior to the divorce.
Weight given to parent’s decision to deny nonparent visitation
State courts must give special weight to a fit parent’s decision to deny nonparent visitation, unless denying visitation would be detrimental to the child
