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Rule Statements > Family Law Rules > Flashcards

Family Law Rules Flashcards

1
Q

Requirements for Marriage

A
  1. License
  2. Ceremony
  3. No legal implications
    - not too closely related
    - no prior undissolved marriage to living spouse
    - of legal age
  4. Capacity to consent
    - mental ability to consent
    - understand actions/voluntarily agree
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2
Q

Common Law Marriage

A
  1. Consent between people with capacity to consent
  2. Cohabitation - no specified period of time
  3. Holding themselves out publicly as spouses
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3
Q

Requirements of Enforceable Premarital Contract

A
  1. Agreement entered into voluntarily
  2. Contract must be in writing and signed by the party to be charged
  3. Both parties must make a full and fair disclosure of their financial worth
  4. Economic provisions must be fair and reasonable
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4
Q

Annulment

A

Declares marriage invalid because of the impediment that existed at the time of the marriage makes it legally void or voidable

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5
Q

Void

A

Invalid because failed to meet the essential requirements of a legal marriage; parties can walk away with no legal action

  1. Bigamy
  2. Polygamy
  3. Consanguinity
  4. Nonage
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6
Q

Voidable

A

Valid marriage until declared null; can only be attacked by the parties to the marriage

  1. Incurable physical impotence
  2. Nonage (states differ with this)
  3. Lack of capacity
  4. Duress
  5. Fraud
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7
Q

Grounds for no-fault divorce

A
  1. Marriage is irretrievably broken (irreconcilable differences/incompatability)
  2. Parties have been living apart for a specified time

Defense: one spouse can deny existence of above grounds; likey difficult

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8
Q

Jurisdiction for Divorce

A

One of the parties needs to be domiciled in the jurisdiction for a divorce to be filed (bona fide resident)

Venue is in county which spouses reside

If only one spouse domiciled, then state can grant ex parte divorce but can not award spousal support or property division.

Possible for two states to have jurisdiction

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9
Q

Fault Grounds for Divorce

A
  1. Adultery
  2. Willful desertion for a specified time (no intent to return; spouse won’t return home after other has asked)
  3. Extreme physical or mental cruelty
  4. Drug addiction or habitual drunkenness
  5. Mental illness
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10
Q

Traditional Defenses to Fault Grounds

A
  1. Collusion
  2. Connivance
  3. Condonation
  4. Recrimination
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11
Q

Collusion

A

Agreement between spouses to simulate grounds for divorce or to forgo raising a valid defense

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12
Q

Connivance

A

Willing consent by one spouse to the other spouse’s misconduct

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13
Q

Condonation

A

Forgiveness of marital offenses with full knowledge of their commission

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14
Q

Recrimination

A

Party seeking divorce is also guilty of misconduct for which a divorce may be granted

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15
Q

Community Property Approach for Dividing Property

A

All property acquired during the marriage is deemed owned 1/2 by each spouse, and all property acquired before the marriage or by gift/bequest is separate property

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16
Q

Equitable Division of All Property

A

Court equitably divides all property owned by either spouse, whether acquired before or after the marriage

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17
Q

Equitable Division of Marital Property

A

Each spouse takes their separate property and court equitably divides the marital property (anything acquired during marriage)

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18
Q

Separate Property

A
  1. Property owned before marraige
  2. Property acquired by gift/inheritance
  3. Income/appreciation of separate property
  4. Pain/suffering awards
  5. Personal damages
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19
Q

Marital Property

A
  1. Earnings
  2. Employment benefits
  3. Lost wages
  4. Reimbursement for medical bills
  5. Recovery for damages to marital property
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20
Q

Separate property can become marital property through following

A
  1. Commingling
  2. Transmutation = treated in a way that evidences intention for property to be marital
  3. Improvement of Separate Property
  4. Property Acquired Before but Paid For After
  5. Professional License/Degree
    - not distributable, but can use alimony to compensate spouses for their contribution during the other spouses education/training
21
Q

Factors Court Considers in Equitably Dividing Property

A
  1. Age, education, background, earning capabilities of each party
  2. Duration of marriage and if any prior marriages
  3. Standard of living during marriage
  4. Present incomes of both parties
  5. Source of money used to purchase property
  6. Assets/debts/liabilities
  7. Needs
  8. Custody provisions and whether spousal support is being granted
  9. Opportunity to acquire future income/assets
  10. Contribution as homemaker/wage earner
22
Q

Alimony

A

Spousal support/maintenance paid to the economically dependent spouse; trial court has ultimate discretion in awarding alimony

23
Q

Factors Court Considers for Spousal Support

A
  1. Duration of marriage/standard of living
  2. Age/physical/emotional condition of parties
  3. Financial resources of parties
  4. Contribution of each party to marriage
  5. Time needed for party seeking support to obtain training necessary for employment
  6. Ability of payor spouse to meet needs while paying spousal support
  7. Some states consider marital fault
24
Q

Permanent Periodic Spousal Support

A

Paid regularly (monthly) to support a spouse who doesn’t have resources or ability to self-sustain

-Indefinite duration

25
Q

Rehabilitative Spousal Support

A

Periodic payments for a limited time to enable a spouse to gain skills to become self-supporting

26
Q

Lump Sum Payment

A

Nonmodifiable; fixed amount payable either all at once or broken down into series of payments

27
Q

Reimbursement Spousal Support

A

Awarded to spouse who supported the other spouse while the latter obtained a professional license/degree

28
Q

Jurisdiction for Child Custody

A

Uniform Child Custody Jurisdiction and Enforcement Act:

Most important jurisdiction is child’s “home state” –> state in which they’ve lived with a parent for at least 6 consecutive months immediately before commencement of proceedings
- if child less than 6 months old, the home state where child has lived since birth
- temporary absences are disregarded

29
Q

Court has jurisdiction initially to enter/modify a child custody or visitation order if:

A
  1. Is the child’s home state;
  2. Was the child’s home state within the past 6 months and the child is absent from the state, but a parent/person acting as a parent continues to live in the state
30
Q

Are custody orders modifiable?

A

If there is a substantial or material change in circumstance

31
Q

Determining Custody

A

Best interest of the child standard!

Factors considered: wishes of parents; preferences of child (especially if over 12);
Childs adjustment to home, school, community;
mental and physical health of all parties

32
Q

Temporary Emergency Jurisdiction

A

Court can exercise temporary emergency jurisdiction if the child has been abandoned/necessary to protect the child due to abuse

33
Q

Visitation Determination

A

Strong public policy to promote relationship between child and both parents by ensuring both parents have reasonable visitation rights; absolute denial of visitation is rare

*can’t withhold because of failure to pay child support

*removal of child from jurisdiction may be considered a violation of the visitation provisions of the custody order

34
Q

Legal Custody

A

Right to make major decisions regarding child’s life

35
Q

Physical Custody

A

Actual possession/control of the child

36
Q

Joint Custody

A

Joint legal/joint physical/both

37
Q

Relocating Child

A

Require notice to non-custodial parent and a court hearing

Allow if the relocation is in the child’s best interest and the move is not associated with thwarting relationship with other parent

38
Q

Establishing Parentage

A

Can be brought to establish a biological relationship and settle issues of paternity/maternity

  • Can be brought by child’s mother, the child, or state agencies if the child is receiving support from the state
39
Q

Presumption of Parentage

A

Most statutes provide that any child is the lawful child of his mother

Mothers husband presumed to be fathers child if child born during marriage or within 300 days of marriage termination

40
Q

Presumption of Father’s Parentage when Unwed

A
  1. Parents got married after Childs birth;
  2. Father holds out child as his own;
  3. Father consents to be named on birth certificate;
  4. Father formally acknowledged paternity;
  5. Court order establishing paternity
41
Q

Grounds for Termination of Parental Rights

A
  1. Voluntarily Relinquishment
  2. parental unfitness
  3. Infliction of harm/sexual abuse
  4. Abandonment
  5. Neglect/termination
  6. mental illness so severe to make parent incapable of caring for child
42
Q

Adoption Requirements

A
  1. Termination of parental rights
    - consent of natural parents, unless rights have been terminated (includes consent of unwed father if he has taken a role)
  2. Consent of adoptee if over age of 12-14
  3. Investigation of suitability of proposed adoption and approval of adoption by the court (can be waived)
43
Q

Effect of Adoption

A
  1. Creates new legal parent-child relationship
  2. New birth certificate issues listing adoptive parent as child’s parent
  3. Terminates biological parents rights/obligations
    - some state still allow child to inherit through biological parent
44
Q

Assisted Reproduction Parent-Child Relationship Established by

A
  1. Having given birth to child, unless there is a surrogacy agreement
  2. Adjudication of woman’s maternity;
  3. Adoption by mother
  4. Adjudication confirming mother of child was born to gestational surrogate
  5. Husband who is marriage to a woman who has a child through assisted conception is the child’s father unless proves lack of consent within 2 years after birth
45
Q

Valid Gestational Agreement

A
  1. In writing and approved by court;
  2. Accompanied by child welfare agency unless waived;
  3. Be voluntary
  4. Make provision for healthcare cost until birth
  5. Not limit rights of surrogate to make healthcare decisions
  6. Provide reasonable consideration if surrogate is promised consideration
    - Can be terminated anytime before embryo transfer
    - If agreement is unenforceable, then gestational mother considered mother regardless of biology
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Rule Statements (13 decks)

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