* Family Law - USE ME Flashcards
Will a state recognize a common law marriage from another state?
Yes
To establish a common law marriage, the proponent must show what 4 things:
(CACH):
1. Capacity to enter into a marital contract
2. A present Agreement to be married,
3. Cohabitation, and
4. Holding out a marital relationship.
Recognition of marriage
A marriage contract is valid elsewhere if what happened?
What is the exception?
A marriage is valid under the law of the place in which it was contracted will be valid elsewhere.
Unless it violates a strong public policy of the state that has the most significant relationship to the spouses and the marriage.
Bigamy
When is a bigamous marriage void?
What are the 2 marriage saving doctrines for the new spouse?
A bigamous marriage is void from the beginning.
The two marriage-saving doctrines for the new spouse:
(1) presumption that the most recent marriage is valid, and
(2) removal of the impediment (e.g., by divorce) will render a subsequent marriage valid.
End of marriage
Virtually all states implement what kind of divorce?
What kind of divorce do some states recognize?
Annulment is recognized for what?
Virtually all state are no-fault divorce states.
Some states recognize fault-based grounds too.
Annulment is also recognized for fraud and other reasons.
When determining child custody and support, what is the main consideration?
The best interest of the child.
A biological parent generally has parenting rights if:
He is involved in the child’s life
What 6 factors do you look at in custody determinations?
- Wishes of the child’s parents
- The child’s primary caretaker
- The mental and physical health of all individuals
- The interrelationship of the child and parents
- Stability, and
- Whether there is any domestic violence
Custody can be modified only when?
There is a substantial change in circumstances.
Child support guidelines
What do all states implement? What presumption is created?
When are the guidelines implemented? Regardless of what?
What 4 factors do courts look at for child support?
All states employ numerical guidelines and establish a rebuttable presumption that the award that results from applying the guidelines is correct.
The guidelines must be applied in all cases, regardless of the parents’ marital status.
The court will look at factors like:
1. income and earnings of the parents,
2. the number of children,
3. the ages of children, and
4. any special needs of the children.
Modification of child support
What must be shown to get a modification of child support?
Is a reduction of income a valid reason for modification?
Some states impelment what kind of test?
Can child support be modified retroactively?
In order to obtain a modification of a future support obligation, the petitioner must show a substantial change in circumstances making the prior order unreasonable.
If the change is a reduction in income, and it was voluntary, some courts will not modify it.
Some will under a multi-factor test, which examines if the party acted in good faith, etc.
Child support can be modified retroactively if there was fraud or other compelling circumstances.
Relocation of parent and child
When is relocation generally approved?
The court balances what 2 things?
Some states place the burden on who (2 kinds)?
Generally, a move sought in good faith that will serve the BIOC will ordinarily be approved.
The court will balance:
The impact on visitation by the noncustodial parent against the benefits of the move to both the children and the custodial parent.
Some states place the burden on the relocating parent and some put it on the objecting parent.
Do biological father have rights?
States might require what in order for the biological father to have rights?
Generally, biological fathers have rights.
However, the state may make the parent exercise his rights within a specific time.
Rights of a parent when another person wants to adopt a child
What must a parent demonstrate to oppose an adoption petition by another?
If demonstrated, the parent is entitled to what?
An involved parent who demonstrates a “full commitment to the responsibilities of parenthood” will likely be able to successfully oppose an adoption petition by another.
An involved parent is entitled to notice of such proceedings.
Third-party rights re child custody
- For custody, what kind of custody is presumed to be the best interest of the child?
- How should a third party who wants custody rebut this presumption?
- What must be given special what for the child’s best interest?
- Custody in the parent is presumed to be in the BIOC.
- To rebut this, a third party who wants custody must prove that the parent is unfit or that granting custody to the parent would be highly detrimental to the child.
- Any third-party visitation or custody statute must give special weight to the parent’s determination of the child’s best interest.
Division of property by court in a marital proceeding
How are marital property and separate property handles at divorce?
In a majority of states, marital property is divided at divorce but separate property remains the property of the owning spouse
What is marital property?
What is separate property?
Do professional diegrees count as marital property for most states?
Marital property is property acquired during the marriage.
Separate property includes property acquired before the marriage, an inheritance, or a gift to one party.
Most states don’t count professional degrees earned during the marriage as marital property.
Division of property on divorce based on premarital agreement
What 3 factors are required to enforce a premarital agreement?
A court won’t enforce custody or support if what?
A court will enforce a premarital agreement so long as it is:
1. voluntarily made
2. substantively fair, and
3. if full disclosure of assets and obligations was made.
A court will not, however, enforce a premarital agreement regarding child custody or support if it is not in the BIOC.
Alimony
- What 3 kind of alimony are there?
- What 4 things are usually considered?
- Some states look at what 3 things?
- The trial court has what kind of discretion regarding alimony?
- Can be permanent, temporary, or granted in a lump sum.
- Consider:
- the parties’ financial resources
- needs,
- marital contributions, and
- marital duration. - Some states also look at :
- spousal misconduct,
- one spouse’s support for the other’s education, or
- training, etc. - The trial court has substantial discretion in choosing to award alimony.
Modification and termination of alimony
- Alimony awards may be modified when?
- Alimony gets terminated when?
- Alimony is terminated when in some states?
- Alimony awards may be modified if a court finds there has been an unanticipated substantial change in circumstances making the prior award unreasonable.
- Alimony usually terminates if a spouse dies/gets remarried.
- In some state, cohabitation will reduce/terminate alimony.
Can a court issue a binding order affecting personal rights such as property division or support if it does not have jurisdiction over the defendant spouse?
No, but it may grant a divorce.
Does the court need to have jurisdiction over both spouses to terminate a marriage?
The court does not need jurisdiction over both spouses to terminate a marriage.
If the plaintiff spouse is one domiciled in the forum state or if the state has some other equivalent long-term connection between at least one of the parties to the marriage, then that court has jurisdiction to dissolve the plaintiff’s marriage.
What is required for a court to have jurisdiction to bind property division or support order?
If the court has jurisdiction over the defendant spouse, it may issue a binding property division or support order.
Child support jurisdiction
- Which Act governs over child support? Which states have adopted this Act?
- Once an order is registered, what happens?
- Who can modify the original order?
- To have this type of jurisdition, what are the 2 things required from the original court?
- The Uniform Interstate Family Support Act governs child support. This Act has been adopted by all states.
Think UIFSA = child support
- Once an order is registered, it may be enforced by any state.
- The state that originally issued a child support order has continuing exclusive jurisdiction to modify that order
- To have continuing exclusive jurisdiction:
(1) The state must remain in the residence of the oblige, the child, or the obliged, and
(2) at least one of the parties does not consent to the jurisdiction of another forum.
Child custody order jurisdiction
- Which Act applies for child custody orders?
- What does the home state test provide?
- Which state is a child’s home state?
- What happens if the child leaves the state? What is the 1 requirement?
- If a child has no home state, what test applies? What are its 2 requirements?
- What test should you apply if no other state has or exercises jurisdiction?
- The Uniform Child Custody Jurisdiction and Enforcement Act applies.
Think UCCJEA = child custody
- The home state test provides that the home state has exclusive jurisdiction to modify a custody decree.
- A home state is a state where the child has lived with a parent or a person acting as a parent for at least 6 consecutive months immediately before the commencement of the child custody proceeding.
- The home state continues to have exclusive jurisdiction to issue a custody order for 6 months after a child leaves the state, so long as a parent, or person acting as a parent, still lives in the home state.
- The significant connections test: if a child has no home state, a state may exercise jurisdiction based on (1) significant connections with the child and at least one parent and (2) the existence of substantial evidence relating to child custody in the forum jurisdiction.
- Emergency jurisdiction or default jurisdiction: if no other state has or exercises jurisdiction, this test applies.
