family law statutes Flashcards
How does the UPAA differ from ALI in premarital contracts?
UPAA analyzes from execution (signing of the docs) while ALI analyzes from execution AND enforcement (time of divorce). Both require procedural and substantive fairness, but UPAA sets a high standard for substantive unfairness, requiring unconscionability.
What is the UPAA premarital rule?
UPAA = Prenup not enforceable if:
The execution of agreement was not voluntary; OR
The agreement was unconscionable when executed, meaning that party:
a. Was not provided fair and reasonable disclosure of finances
b. Did not voluntarily waive right to disclosure
c. Did not have adequate knowledge of the finances of the other party.
What is the ALI premarital rule?
Prenup must meet standards of:
1. Procedural fairness
a. Informed consent
i. It was executed at least 30 days prior to marriage
ii. Both parties had or were advised to obtain legal counsel and had the opportunity to do so
iii. If one of the parties did not have counsel, the information was understandable
b. Disclosure
2. Substantive fairness
Whether enforcement would work a substantial injustice based on the passage of time, the presence of children, or changed circumstances that were unanticipated and would have a significant impact on the parties or their children.
How is the Family and Medical Leave Act applied?
i. To find a serious health condition, entitling leave,
FMLA requires either inpatient care or continuing treatment:
1. To qualify for continuing treatment according to Caldwell there must be a period of incapacity for more than 3 days; AND
2. Subsequent continued, supervised treatment
relating to the same condition.
ii. Applies to employers with 50 or more employees
iii. Applies to employees with at least 12 months and 1250 hours of service
iv. Up to 12 weeks unpaid leave
v. Can also be used to care for spouse, son, daughter,
parent- if they have serious health condition.
vi. Supposed to get the same position back, or be placed within an equivalent position with equivalent benefits and pay UNLESS to do so would cause substantial economic and procedural harm to the employer (like general council)
How does management of funds impact marital property?
Active, first-hand management of funds leans more to a finding of marital assets than passive, third-party management.
How does commingling of funds impact marital property?
How much the spouse integrated his interest in the disputed property into the common financial affairs of the marital partnership, through commingling. More = more likely to be marital property.
What are the two major schemes of property division?
- Community property: parties split anything that comes into the marriage during the marriage.
- Equitable distribution (formerly title theory): at the end of the marriage, distribute property according to what is equitable.
(a) All property (kitchen sink/hotchpot/UMDA): All assets belonging to either spouse separately or to both spouses jointly, are thrown into the pot and are up for grabs at dissolution.
(b) Dual Property (includes Oregon): Requires the Trial Court to classify the property owned by the parties as marital or separate and distribute only the marital property.
What is marital property?
Marital property, generally, are assets earned by couples during the marriage and this applies whether the assets are fully realized by the couple during the marriage or after the divorce.
What is separate property?
Property acquired by gift, bequest, devise, or descent
Property acquired in exchange for separate property
Increase in the value of separate property
Property excluded by valid agreement by the parties
Property acquired by a spouse by legal separation
What factors determine what is equitable in property division?
a. Age, education, background, and earning capacities of both parties;
b. Duration of the marriage, and if there were any prior marriages;
c. Standard of living during the marriage;
d. Present income of both parties, and their vocational skills and employability;
e. Source of money used to purchase the property;
f. Health of the parties;
g. Assets, debts, and liabilities of the parties;
h. Needs of each of the parties;
i. Provisions for the custody of minor children;
j. Whether the distribution is in lieu of or in addition to alimony;
k. Each party’s opportunity to acquire future income and assets;
l. Each party’s contribution to the acquisition of, or enhancement of the value of, the existing marital assets;
m. Each party’s contribution as a homemaker to the family unit; and
n. Whether either party has dissipated marital property (i.e., diminished the value of marital assets by wrongful conduct).
What are the various approaches to alimony awards?
i. Some States authorize the judge to make a determination
ii. Others authorize for just or equitable with factors
iii. Some States take a 2-step approach
1. The judge must assess the eligibility
2. If eligible, judge must assess the amount
iv. Uniform Marriage and Divorce Act (UMDA)
1. 2-Step Approach
a. Judge can grant an order for maintenance only if it finds that the spouse:
i. Lacks sufficient property to provide for reasonable needs; or
ii. Is unable to support themselves through appropriate employment or is the custodian of the child so that the spouse should not be required to seek employment
b. Is the spouse eligible?
i. If yes, can award financial maintenance and must consider other factors
1. Financial resources seeking maintenance
2. The time necessary to acquire sufficient education or training in order to obtain employment (Suggests rehabilitation as UMDA standard)
3. The standard of living in the marriage
4. Duration of the marriage
5. Age, physical, and emotional condition of the person seeking maintenance
6. Financial resources of the spouse who it is sought against
7. The UMDA specifically says that the judge should not consider marital misconduct under this statute
What are the three approaches to dividing pensions?
(1) Present value approach: determine present value and decide how much the non-employee spouse is entitled to, and award some other property to offset the amount
(2) Present-division approach: determine the present percentage of benefits the non-employee spouse is entitled to, but doesn’t get these benefits until the pension matures
(3) Reserved jurisdiction method: reserves jurisdiction to distribute the benefits once they have matured, and determines the appropriate distribution at that time.
What are the three forms of state guidelines for child support?
- Percentage of income model: a certain specified percentage of the noncustodial parent’s income must be paid to the custodial parent. This percentage varies according to the number of children at issue.
- Income share model (majority):
Add the income of the parents together.
Compute the total obligation from combining the children and the total income
Prorate the obligation between the parents based on the prorate share of the combined income - Delaware Melson Model:
Calculate first the basic subsistence needs of each parent
Pay for the children’s needs
Any money left over, the children get a share of the money.
What are the two main enforcement acts for child support? How else has congress sought enforcement?
Child Support Recovery Act of 1992 makes it a federal crime to :
Wilfully fail to pay child support to a child who lives in another state where the obligation has remained unpaid for 1 year or is greater than $5k
To travel in interstate or foreign commerce with intent to evade a child support obligation
1998 Deadbeat Parents Punishment Act:
Amended to increase penalties for failing to pay child support
Create rebuttable presumption that a parent in arrears had ability to pay
Nonpaying parent has burden of proof to establish they cannot pay
Congress has required states to have certain procedures in effect for enforcing child support orders:
Income withholding
Interception of tax refunds
License suspensions
What jurisdiction is required for child support? How is it met?
Personal jurisdiction over both parents is required before a state may decide a child support question. (this is very different and much more demanding than the standard in granting a divorce.)
The quality and nature of the defendant’s activity within the state must be such that it would be reasonable and fair to require them to conduct their defense in that state.
A parent who is physically present in the forum state and served while they are there, that is enough to require them to litigate in that state.
