Family Law Rules Flashcards
Voluntariness under Marital Agreement
Entering into a contract voluntarily generally means there was no fraud, duress, or misrepresentation. 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.
Appreciation to non-marital Prop
Whether the appreciation in nonmarital property will be subject to equitable distribution will depend on whether the appreciation can be attributable to spousal labor.
Determining Divorce Property Distribution
Courts consider a number of factors in determining the equitable distribution of marital property. Some of the relevant factors in this case include the length of the marriage, the age, health, earning potential, 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.
Ceremonial Marriage
Need a License and Solemnization
For the License, need capacity, a waiting period, and sometimes medical testing (but can’t be conditioned).
For Solem, need performed in front of two or more witnesses and a judge or someone like that solemnize the marriage.
Common law marriage
Not really used anymore. Need agreement to be married, cohabit as married, and hold themselves out to the public as married.
Also, need intent to marry.
Personal Injury Claims and Divroce
some states just look to when the action accrued but other do a more complicated formula
Those other states say pain/suffering is separate P. Consortium losses are separate P. BUT awards for los wages, loss of earning capacity, and medical are split between SP and MP based on portion award for time during marriage and portion for time after marriage.
Divorce Property
CANNOT MODIFY
Modification of Alimony
Party seeking mod has burden of showing significant change in circumstances in needs of dependent spouse or financial abilities of obligor that warrant modification.
Voluntary reduction usually isn’t enough. remarriage and cohabit are important here.
Estoppel of Non-father child support
husband who is not bio father may be estopped from denying obligation to pay child support IF rep by husband that he would provide, wife relies on this, AND wife suffered economic detriment as result of this reliance.
Modification of Child Support
Need a substantial change in circumstances regarding the child’s needs Or the parents’ financial situation.
Voluntary reduction usually isn’t enough.
Generally, the OG jx state is the only state to modify unless the parties do not live there anymore OR they expressly agree to permit another state to modify.
If part of an order is fixed in State OG, then new state can’t modify the fixed part.
Sub change is 10% or more in amount owed. Burden on party seeking the modification.
Enforcement of Child Support (UIFSA)
The Uniform Interstate Family Support Act (UIFSA) governs interstate child support. Register OG order in new state and it is enforceable the same way as OG state.
Only OG state can modify the original support order, new state just enforces it.
Unconscionability
A contract is unconscionable when it is so unfair to one party that no reasonable person in the position of the parties would have agreed to it. The contract or part of the contract at issue must have been offensive at the time it was made. Unconscionability may also be applied to prevent unfair surprise.
Traditional Father Child Relations
Traditionally, courts have been loath to modify an established parent-child relationship, citing the child’s best interest as reason to deny admission of evidence of non-paternity or to deny a motion to disestablish paternity.
Income Shares vs Percentage of income models
Income shares is what most states do, stating kid should receive same proportion of parental income as if parties continue to live together
Percentage of income model is less used. Percentage of noncustodial parent’s net income, determined by number of kids supported.
Uniform Child Custody Jx and enforcement Act (UCCJEA)
To prevent jx issues for custody and visitation.
Continuum of jx.
Home State jx is highest form. Can enter and modify orders if home state, meaning kid and parent lived their for 6 months prior to proceeding or since birth. Also if kid leaves and a parent is still there, i think.
Significant connection jx is next. Can enter or modify is no home state and kid and a parent has significant connection to state AND sub evidence in state about child’s like life.
Then if none of that, default jx. Appropriate connections with kid.
the entering court is exclusive power to modify until the connection to forum is broken.
Also can be temp emergency jx if needed or no home state yet entered.
Enforcement is just registration? I think.
Stn for child custody
Best Interests and welfare of child
Best interests and welfare of child
Best interests and welfare of child.
Unwed Bio Father
Usually has fundamental right to visitation IF he demonstrates a commitment to the responsibilities of parenthood.
Modification to Custody and Visitation
Change in circumstances stn usually. Relocation may be permitted if there is a legitimate and reasonable purpose for the move.
Validity of Marital Agreements
premarital agreement cool IF
Full disclosure of financial status of each party at execution
Agreement is fair and reasonable, AND
Agreement is voluntary.
In Writing and Signed by party to be charged.
UPAA requires party against whom enforcement is sought to prove
Involuntariness OR that agreement was unconscionable when executed AND did not receive or waive fair and reasonable disclosure AND did not have or reasonably could have had adequate knowledge of other’s assets and obligations.
High standard.
Can’t prevent modifications of child support.
Adoption
Can be voluntary or involuntary. Unwed father has to register as father or else doesn’t need consent to adoption. Also then can waive consent if father does not demonstrate a commitment to the responsibilities of parenthood.
Adoption and Safe Families Act
If child outside of home or relative’s home for 15 of past 22 months, and state has tried reunification attempts, then state can move for term of parental rights.
Uniform Parentage Act (UPA)
only adopted by 9 states but covers assisted reproduction, surrogacy, domestic violence, and rights and obligations of children.
Surrogacy provisions here are important.
Void Marriage
Does not require judicial dissolve. Never recognized. Any party can seek annulment.
Incest, mental incapacity, prior existing marriage.
Voidable marriage
Valid until spouse seeks annulment. Requires a judicial decree.
