Family Law Rules Flashcards
Requirements for Marriage
- License
- Ceremony
- No legal implications
- not too closely related
- no prior undissolved marriage to living spouse
- of legal age - Capacity to consent
- mental ability to consent
- understand actions/voluntarily agree
Common Law Marriage
- Consent between people with capacity to consent
- Cohabitation - no specified period of time
- Holding themselves out publicly as spouses
Requirements of Enforceable Premarital Contract
- Agreement entered into voluntarily
- Contract must be in writing and signed by the party to be charged
- Both parties must make a full and fair disclosure of their financial worth
- Economic provisions must be fair and reasonable
Annulment
Declares marriage invalid because of the impediment that existed at the time of the marriage makes it legally void or voidable
Void
Invalid because failed to meet the essential requirements of a legal marriage; parties can walk away with no legal action
- Bigamy
- Polygamy
- Consanguinity
- Nonage
Voidable
Valid marriage until declared null; can only be attacked by the parties to the marriage
- Incurable physical impotence
- Nonage (states differ with this)
- Lack of capacity
- Duress
- Fraud
Grounds for no-fault divorce
- Marriage is irretrievably broken (irreconcilable differences/incompatability)
- Parties have been living apart for a specified time
Defense: one spouse can deny existence of above grounds; likey difficult
Jurisdiction for Divorce
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
Fault Grounds for Divorce
- Adultery
- Willful desertion for a specified time (no intent to return; spouse won’t return home after other has asked)
- Extreme physical or mental cruelty
- Drug addiction or habitual drunkenness
- Mental illness
Traditional Defenses to Fault Grounds
- Collusion
- Connivance
- Condonation
- Recrimination
Collusion
Agreement between spouses to simulate grounds for divorce or to forgo raising a valid defense
Connivance
Willing consent by one spouse to the other spouse’s misconduct
Condonation
Forgiveness of marital offenses with full knowledge of their commission
Recrimination
Party seeking divorce is also guilty of misconduct for which a divorce may be granted
Community Property Approach for Dividing Property
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
Equitable Division of All Property
Court equitably 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 court equitably divides the marital property (anything acquired during marriage)
Separate Property
- Property owned before marraige
- Property acquired by gift/inheritance
- Income/appreciation of separate property
- Pain/suffering awards
- Personal damages
Marital Property
- Earnings
- Employment benefits
- Lost wages
- Reimbursement for medical bills
- Recovery for damages to marital property
Separate property can become marital property through following
- Commingling
- Transmutation = treated in a way that evidences intention for property to be marital
- Improvement of Separate Property
- Property Acquired Before but Paid For After
- Professional License/Degree
- not distributable, but can use alimony to compensate spouses for their contribution during the other spouses education/training
Factors Court Considers in Equitably Dividing Property
- Age, education, background, earning capabilities of each party
- Duration of marriage and if any prior marriages
- Standard of living during marriage
- Present incomes of both parties
- Source of money used to purchase property
- Assets/debts/liabilities
- Needs
- Custody provisions and whether spousal support is being granted
- Opportunity to acquire future income/assets
- Contribution as homemaker/wage earner
Alimony
Spousal support/maintenance paid to the economically dependent spouse; trial court has ultimate discretion in awarding alimony
Factors Court Considers for Spousal Support
- Duration of marriage/standard of living
- Age/physical/emotional condition of parties
- Financial resources of parties
- Contribution of each party to marriage
- Time needed for party seeking support to obtain training necessary for employment
- Ability of payor spouse to meet needs while paying spousal support
- Some states consider marital fault
Permanent Periodic Spousal Support
Paid regularly (monthly) to support a spouse who doesn’t have resources or ability to self-sustain
-Indefinite duration
Rehabilitative Spousal Support
Periodic payments for a limited time to enable a spouse to gain skills to become self-supporting
Lump Sum Payment
Nonmodifiable; fixed amount payable either all at once or broken down into series of payments
Reimbursement Spousal Support
Awarded to spouse who supported the other spouse while the latter obtained a professional license/degree
Jurisdiction for Child Custody
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
Court has jurisdiction initially to enter/modify a child custody or visitation order if:
- Is the child’s home state;
- 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
Are custody orders modifiable?
If there is a substantial or material change in circumstance
Determining Custody
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
Temporary Emergency Jurisdiction
Court can exercise temporary emergency jurisdiction if the child has been abandoned/necessary to protect the child due to abuse
Visitation Determination
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
Legal Custody
Right to make major decisions regarding child’s life
Physical Custody
Actual possession/control of the child
Joint Custody
Joint legal/joint physical/both
Relocating Child
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
Establishing Parentage
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
Presumption of Parentage
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
Presumption of Father’s Parentage when Unwed
- Parents got married after Childs birth;
- Father holds out child as his own;
- Father consents to be named on birth certificate;
- Father formally acknowledged paternity;
- Court order establishing paternity
Grounds for Termination of Parental Rights
- Voluntarily Relinquishment
- parental unfitness
- Infliction of harm/sexual abuse
- Abandonment
- Neglect/termination
- mental illness so severe to make parent incapable of caring for child
Adoption Requirements
- Termination of parental rights
- consent of natural parents, unless rights have been terminated (includes consent of unwed father if he has taken a role) - Consent of adoptee if over age of 12-14
- Investigation of suitability of proposed adoption and approval of adoption by the court (can be waived)
Effect of Adoption
- Creates new legal parent-child relationship
- New birth certificate issues listing adoptive parent as child’s parent
- Terminates biological parents rights/obligations
- some state still allow child to inherit through biological parent
Assisted Reproduction Parent-Child Relationship Established by
- Having given birth to child, unless there is a surrogacy agreement
- Adjudication of woman’s maternity;
- Adoption by mother
- Adjudication confirming mother of child was born to gestational surrogate
- 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
Valid Gestational Agreement
- In writing and approved by court;
- Accompanied by child welfare agency unless waived;
- Be voluntary
- Make provision for healthcare cost until birth
- Not limit rights of surrogate to make healthcare decisions
- 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
