Family Outline Flashcards
1
Q
What are the requirements of a statutory marriage
A
Get a license
perform ceremony (solemnization)
2
Q
How states recognize a Common Law marriage
A
Only a few states recognize CL marriage. But under conflict of law principle, a state that doesn’t recognize it must give full faith and credit to CL marriages from a state that does accept them.
Unless it violates public policy of the receiving state.
3
Q
What kind of intent is required to recognize a CL marriage
A
Must evidence with words in the present tense. “ we are married” as opposed to “ we will get married someday”
4
Q
What is a heartbalm action
A
Actions available to ppl who thought they were in a CL marriage. Civil suit for money damages based on the damaged to a jilted party’s reputation. These actions are abolished in most states.
5
Q
Difference between voided and voidable marriage
A
Void- as if the marriage never happened. Anyone can request the court to void it (spouses or parents of the minor who got married, or the minor)
Voidable- valid until a judicial decree disolves it. Only the spouses can bring the cause of action.
6
Q
Reasons to void a marriage
A
Bigamy (someone is still married to another person)
incest
mental incapacity
7
Q
What are the grounds to a VOIDABLE marriage
A
Minority
Impotence
intoxication ( was drunk when the ceremony took place to the point they could not understand what was happening)
fraud
duress
lack of intent ( a sham, joke)
8
Q
What is equitable distribution of property in annulment
A
Even though annulment places spouses as if the marriage never happened. the equitable distribution can request the court to:
Equitable distribution of property
spousal support
child support
custody
attorney’s fees
other costs related to the dissolution of the marriage
9
Q
what is a defense to a claim that marriage is void
A
to deny the existence of the impediment. (ex. if the grounds is bigamy-divorce the first wife
10
Q
What defense can be raised against a claim of a voidable marriage
A
equitable defenses
unclean hands
laches
estoppel
11
Q
What are the two types of divorce?
A
No-Fault
Fault
12
Q
Define no fault divorce
A
Marriage is irretrievably broken and no prospect of reconciliation
irreconcilable differences must exist for a specific period before filing for divorce
13
Q
What are the grounds for fault divorces?
A
Adultery
cruelty
desertion
habitual drunkenes
bigamy
imprisionment
institutionalization due to insanity
14
Q
How to prove adultery
A
must show that spouse had opportunity and inclination to commit adultery
15
Q
How to prove cruelty
A
Must demonstrate a course of conduct that is harmful to the plaintiff’s physical and mental health, making continued cohabitation unsafe or improper
16
Q
How to prove desertion
A
spouse voluntarily leaves with the intent of not returning. Different from separation under mutual accord
17
Q
What are the defenses to fault divorce allegations?
A
recrimination
unclean hands
connivance
condonation
collusion
provocation
insanity
consent
justification
religion (not broadly accepted)
18
Q
What are the 2 forms to divide marital property in a divorce?
A
Community property ( used in some states) 50-50 division
Equitable distribution= used in most states) applies fair distribution of marital property ( it won’t necessarily be equal.
19
Q
what is marital property
A
all property acquired during marriage
20
Q
What are the exceptions to marital property
A
Non marital property is:
aquired before marriage
property excluded by agreement among parties
property gifted or inherited
payment for a cause of action accrued before the marriage, even if the payment happens once they are married
21
Q
can the distribution of marital property be modified after granted?
A
No, the division is based on the parties’ assets at the time of the divorce.
22
Q
What is spousal maintenance
A
the obligation of one spouse to provide for the other with income. It is awarded to the spouse that cannot provide their own needs
23
Q
What factors are considered to grant spousal maintenance
A
financial resources (includes property awarded in the divorce)
child support
spouses earning potential
other spouse’s ability to pay support
standard of living
time to find a job or complete education necessary for a job
length of marriage
contributions to marriage
age and health
marital misconduct
24
Q
what are the types of support for spousal maintenance?q
A
Lump sum
permanent- for marriages over 15 yrs long
limited duration- short marriages
rehabilitative- to improve earning capacity of dependent spouse. (ex. until she finishes school)
reimbursement-compensate spouse’s for financial sacrifices made during marriage causing lower std of living
Palimony- for unmarried cohabitants (only in few states)
25
can spousal support be modified>?
yes. the party seeking mod. has the burden of establishing a significant and continued change in circumstances in the needs of the dependent spouse or the financial abilities of the provider
26
when does the spousal support ends
Death
marriage of receiving spouse
27
when does the spousal support may stay the same
If provider wilfully reduces income
if receiving spouse cohabitates with someone who is not family and the need of support decreases.
28
Can parents negotiate child support terms?
Yes. But they cannot agree to release or compromise that will affect the child's welfare.
29
Why is important to establish paternity of non marital children
As long as paternity is proven, non marital children
can:
obtain child support, gov. benefits or wrongful death claims
inheritance
30
How to establish paternity
Judicial decree or if father consents to being named as father at birth or acknowledges being the father
31
What are the best ways to prove paternity
Blood test
prior statements regarding paternity by deceased family members
medical testimony
defendant's acknowledgment of paternity
32
Can a mother force a non biological father to support her child?
A husband who is not the biological father can be ESTOPPED from denying child support if:
He made a representation that he would provide for the child
The wife relied on that representation
The wife suffered an economic detriment as result of the reliance
33
how can a court obtain jurisdiction over out of state parent?
Pursuant the long arm provision un the Uniform Interstate Family Suppor Act UIFSA
34
How to calculate child support
State has guidelines that will consider all incomes from any source
35
What are the methods for calculating child support?
Income shares model: child receives same proportion of parent's income as if they still lived together
Percentage of income model- determines the minimum amount of child support by using a % of the supporting (non custodial) parent's net income, determined by the number of children supported.
36
Can the courts deviate from the child support guidelines?
Although there is a presumption of correctness, courts can deviate. The court must state the findings that led them to deviate (explain and support deviation)
37
Can child support be modified?
Yes. The standard is " substantial change in circumstances regarding the child's needs or the parent's financial situation.
It needs to be continuing conditions- not temporary
38
When does de duty to provide child support ends?
age (18 yrs)
child gets married
parental rights are terminated
child or parent dies
emancipation
Extension can be granted if kid is still in college, disabled adult child unable to provide himself
39
-Which court has jurisdiction to modify child support?
Court may not modify a child support order by a court with continuing jurisdiction in another state unless:
the parties no longer live in that state or
the parties expressly agree to that jurisdiction.
If the original court can't modify one aspect of that child support order, it can't be modified by the second court.
40
How can I get the other parent to pay the child support
Civil contempt- order to pay and sent to jail if he doesnt
criminal contempt
Intercept tax refunds
report to credit bureau
suspend licenses
seize assets
garnish wages
order payment of attny fees
41
Can I ask an out of state court to enforce a child support order against an out of state parent?
Yes. This is governed by the Uniform Interstate Familiy Support Act (UIFSA)
- applies when obligor or the child lives in a different jurisdiction from the one issuing the order.
-You must register the order in the state and it will be enforced in the same way as in the original state
-only the issuing state can modify the order.
42
Define legal custody
right of parent to make major decisions about child's life. (health, education, religion)
43
Define physical custody
the right of a parent to have the child reside with him and obligation to provide for routine daily care and control of the child
44
Define joint custody
Both parent must be willing to cooperate
joint legal custody- neither parent has superior rights on major decisions
joint physical custody-doesn't require 50-50 living arrangements
45
What is the Uniform Child Custody Jurisdiction and Enforcement Act?
UCCJEA-
Purpose- prevent jurisdictional disputes with courts in other states regarding child custody and visitationn
46
What is the home state jurisdiction
Under UCCJEA- court has subject-matter jurisdiction to preside over custody hearings and either enter or modify custody or visitation orders if the state:
is the child's homestate (6 consecutive months) or
was the child's home state in the past six months, the child doesn't live there anymore but a parent or guardian continues to live in that state.
47
What is the significant connection jurisdiction
A court can enter or modify an order if
No other state has home state jurisdiction
The child AND at least 1 parent have significant connection with the state AND
There is substantial evidence in the state about the child's care, protection, training and personal relationships.
48
What happens if there is no home-state or significant connection jurisdiction
Then we apply the "default jurisdiction" - This is a state that has "appropriate connections" with the child.
49
What is the exclusive continuing jurisdiction?q
Is the jurisdiction from the court that made the original ruling. The court will keep that jurisdiction over matter until parties no longer reside in the state or child no longer has significant connections .
50
What are the effects of Temp Emergency Jurisdiction>
If child is in danger and requires immediate protection court can grant order.
Effect: If there isn't a prior custody order in the court with exclusive jurisdiction, the emergency order will remain until the decision at the child's home state.
51
What are the requirements to enforce another state's order?
Register the order
Hold a hearing on the first judicial day after service of the order
Remove child if is like;y to suffer serious physical harm
52
What is the standard required to determine child custody
Best interests and welfare of the child
53
What are the factors used in determining what is the best interest and welfare of the child?
When granting custody the court will evaluate:
Who was the primary caretaker when they were a family
Race or religion cannot be used as factor
Sexual conduct won't be a factor unless it has negative impact on child
Child's preference (if mature enough)
Siblings ( preferably won't separate)
Domestic violence is almost always a factor
In cases against third parties, the parents will always be preferred for custody
54
What are the rights of non custodial parent regarding visitation?
Non custodial has the right to visitation
Denial of visitation only if physical, mental, emotional harm is feared, (in exchange, supervised visits can be allowed)
Parent can't be denied visitation rights for child support debt
Cohabitation with another person unless adverse impact on child
55
Fit parent rule
A fit parent has a fundamental right to care, custody and control of their children
Parent{s decisions regarding visitation with 3rd parties will be given special weight
56
Can a third party have visitation rights_
Usually when they've in loco parentis ( as parents) prior to the divorce.
57
Can grandparents have visitation rights?
Subject to special weight given to fit parent's decision
58
Can an unwed parent request visitation rights?
Yes , he has a right to visitation if he demonstrate commitment to the responsibilities of parenthood
59
What are some ways to enforce visitation rights?
Compensatory visitation ( to make up for the time he couldn't visit
Attorney's fees
Court costs
fines
jail time
60
What is the standard applied to modify visitations
change in circumstances standard
61
Can a custodial parent relocate in detriment of other parent's visitation?
Relocation permitted if there is a legitimate and reasonable purpose to move
62
When does a child custody order ends?
When child reaches majority
death of custodial parent
63
When does parent consent is needed?
Medical Care- parental consent is needed regardless of marital status, except in an emergency.
64
In what instances can the state limit parental decisions?
When needed to protect health/safety of the child or if parental decisions over the child will create a significant social burden.
65
Is there a need for consideration in a premarital agreement?
A valid marriage is sufficient consideration
66
What is a separation agreement
Spouses are preparing for divorce. It defines property division, spousal support, child support, custody and visitation.
The post nup is usually merged to the final judgment for divorce. If not merged then it is governed by contract law.
67
What are the requirements for a marital agreement to be enforceable?
Full disclosure of financial status (both)
Agreement is fair and reasonable
Agreement is voluntary
Must be in writing and signed by the party to be charged
68
What must a party against whom enforcement is sought to prove under UPPA for marital agreements?
Must prove they entered the marital agreement:
involuntarily or
must prove that the agreement was unconscionable when executed and she:
did not receive or waive fair and reasonable disclosure
did not have adequate knowledge of the other's assets and obligations
these are basically defenses one can oppose against the marital agreement.
69
What is permitted and not in a marital agreement
Permited: provisions to prevent modifications of property rights, including spousal support.
Not enforceable provisions that prevent modification of child support.
70
Can unmarried cohabitants have marital agreements?
Yes, as long sexual relations is not the only consideration
71
How do unmarried cohabitants divide property>
equitable property distribution to avoid unjust enrichment
72
What are the two ways to adopt a child?
Voluntary termination of natural parental right- parents consent to termination and consent to adoption by adoptive parents.
If unwed father doesn't register he waives the right to notice of the adoption and implies consent
The right to object to adoption can be denied if father does not demonstrate commitment to parenthood.
Involuntary termination by court
73
When can the court involuntarily terminate parental rights?
If there is:
abuse
neglect
dependency case
when consent to adoption is unreasonable withheld
74
What is the Adoption and Safe Families Act
Gives the state the right to terminate of parental rights when child has been placed outside of home and not with relative for 15 of the past 22 months.
Prior to termination state must try reunification
75
What is the objective test
Applied by the court to end parental rights:
"Parent has failed to act in a way that indicates a commitment to maintaining the parent-child relationship"
76
What is the subjective test?
Parent subjectively intended to abandon the parent-child relationship
77
What are the legal effects of adoption?
Adoptive parents have all the rights and responsibilities and child have all the rights and responsibilities as if it were biologically related.
78
What are the provisions of the Uniform Parentage Act (UPA)
Adopted in 9 states
Maternity is determined by woman who gives birth
Husband of woman who is determined to be the mother of the child is the child's father
79
What are the requirement of a gestational agreement?
All parties must enter voluntarily
Intended parents agree to be parents of the child
Agreement must include provisions for medical care
Agreement must not limit gestational mother to take healthcare decisions
Consideration for the gestational mother must be reasonable.
80
Who can terminate a gestational agreement?
Any of the parties
The court
Must be previous to gestational mother getting pregnantn
81
What is the scope of domestic violence?
Perpetrator must be in a relationship with the victim or a household family member
Requires continued behavior but a single episode may qualify
82
What are my remedies or relief in a domestic violence situation?
Injunctive protective order
prohibit contact with the victim
can include exclusive possession of residence, child support and custody
83
What is the process to enforce domestic violence order?
Ex parte hearing with limited relief. Followed by a hearing ( notified to the defendant). The hearing will grant permanent relief
84
What are the consequences of violating an injunctive order?
Criminal penalties
85
What are the rights and obligations of children>
May consent to medical care if mature
May obtain abortion, birth control, treatment for stds w/o parental consent
Children can be liable for torts and criminal acts under a moderate standard
86
What are the effects of emancipation?
Child has all duties and obligations of an adult. parents don't have to support them.
87
What are the requirements to get married?
Consent
Consideration (exchange of promises)
Ceremonial = Requires license and Solemnization
88
What are the requirements to get a marriage license
Age ( 18) ( or parental consent if minor)
blood test
waiting period between license and getting married
get married before it expires (10 30 days)
89
What are the grounds for not issuing a marriage license?
Bigamy
incest
sham
incapacity to understand the act of marriage
Lack of consent (fraud or duress)
90
What are the solemnization requirements?
2 witnesses
officiant
file license with gov agency
Marriage by proxy is allowed in some states.
91
Requirements for common law marriage
Capacity to marry
Consent ( parties agree they are married)
Cohabitation
Conduct themselves as married out in public.
92
How to end a marriage?
Ending a marriage will require a judicial decree of:
Annulment
Divorce
or when a spouse dies
93
Void marriage
Does not require judicial decree and will not be legally recognized for any purpose
any party may seek the annulment of a void marriage
94
What kind of marriages is void?
Bigamous - the second marriage is void except in some states applying Enoch Arden rules- if the impediment disappears then the second marriage remains
incest- parties too closely related by blood
mental incapacity- marriage will be valid if at the moment he was lucid
95
Voidable marriage
Valid until one of the spouses seeks annulment
Requires judicial decree
96
Grounds for voidable marraige
Age
Impotence (naturally and incurable)
Intoxication at time of contracting marriage- it will be ratified if parties cohabitate afterward
Fraud, misrepresentation, coersion, duress, force
Lack of intent
97
Effect of annulment
either party can still seek spousal support, equitable distribution of property, child support.
98
Defenses to annulment
Deny the impediment, but the other party can still seek divorce
99
Divorce requirements
Most states have a residency requirement so at least 1 party must reside in the state where they are seeking divorce
It may depend on
The marriage happened in that state or
grounds of divorce happened in that state
100
separate maintenance
when a party asks for support even though the parties are not living apart
101
Whats the purpose of mediation?
Mediators can assist with child support custody, visitation , parenting time
The mediation agreement is submitted to the court
Mediator must be unbiased and not related to the parties
102
What are the ways to divide marital property?
Community property (only 9 states)- divides equally
Equitable distribution- available in majority of states- divides property in a fair and just way. (not necessarily 50/50
103
Is the increase in value marital property?
Yes
Increase in value of separate property resulting from the time,labor or skill of either spouse
or
increase in value due to marital property funds
will be marital property
104
Who has the burden of proof in marital property issues?
The one who claims the property is not marital has the burden of proving
105
What are the exceptions to marital property?
acquired before
excluded by the parties by agreement (such as prenup postnup
gifts or inheritance
106
Special types of property
Professional license -not marital
Retirment or pension benefits- marital but only the present value. Not marital if it started before marriage
Personal injury claim if cause of action previous to marriage- not marital. If cause of action happened during marriage and settlement came after divorce it is marital
Pain and suffering non marital
lost wages and income etc marital
Goodwill of a business- marital
accumulated sick and vacay-depends on how were they accrued
stock options if acquired during marriage=maritali
107
What is spousal support
The duty to support another spouse in the form of income. Arise when one spouse can't support themselves with their employment or assets
108
What are th factors in determining amount of support?
Financial resources of both parties and the ability of the payor to pay.
std of living during marriage
Duration of marriage
contributions to the marriage
age and health
marital misconduct
children
109
Can spousal support orders be modified?
Yes. Even if it was originally permanent
Party seeking mod. has burden of proof showing that there was a "significant change" in circumstances. in either recipient or payor
voluntary income reduction will not be taken into consideration
110
Factors to modify
Death
remarriage (modify or terminate)
cohabitation
retirement
111
How can a court decide in a family case>
Need to have personal jurisdiction (PJ) and subject matter jurisdiction (SMJ)
112
Collateral attack on jurisdiction
This is a defense
The defendant/respondent may attack an ex parte order for lack of jurisdiction
-show that the plaintiff wasn't domiciled in the divorcing state
113
Child custody
contraty to spousal support, child support is based on the child's needs not in the ability to pay.
Parent's have equal responsibility
114
when does child support end
18 yrs old or
If the child is 19 and still in high school full time, and
can be extended through college
115
Paternity
needs to be established before father dies
116
when non marital kids can become marital
parents marry after birth
father consents to put his name in birth certificate
father holds himself out to be the father
or judicial decree
117
How to apply the estoppel doctrine
A husband who is NOT the biological father may be ESTOPPED from denying his duty to pay child support if:
he promised to provide for the child
the wife relied on that promise; and
the wife would suffer economic detriment from relying in that promise.
118
Unifor Interstate Family Support Act
It has a long arm provision and is adopted in every state
Under UIFSA courts can have PJ over our of sate parent when:
Parent is personally served
past residency with the child in that state
past residency while paying child support
defendant directed the child to live in that state
defendant had sex in that state and resulted in the child
defendant asserted paternity through the putative parent registry
119
what are the 3 public policy principles that guide child support?
1) Parents have funda,ental obligation to financially support their children
2) The combined income as if the family was intact is what is important
3) Minimize litigation
120
Explain the models of calculating child support
Income shares model (used in the majority of states)
Percentage of income model
121
Income shares model
1) Add both incomes
2) determine the amount of child support based on the total income
3) allocate responsibility respective to each parent's net income
122
Percentage if income model
uses the percentage of non custodial paren'ts income
determined by the number of children who are being supported
123
Guidelines
If court is going to deviate has to substantiate and specify why>
124
Can child support be modified?
Yes. It requires a substantial change in circumstances to warrant an upward or downward modification
125
Burden of proof for child suppor mod?
On the party seeking mod
126
Effects of mod?
Change is retroactive to the date of the service of the motion. NOT THE DEBT
127
When does child support ends?
Automatically at 18 (majority)
Child marries
emancipation
termination of parental rights
death
128
When can a court order continuing child support?
if kid is still in college
cannot support himself due to disability
Still in high school
129
tax consequences of child support
Paying parent cannot deduct child
Receiving parent cannot use child support as income
Parent paying for medical expenses can deduct them
130
Uniform Child Custody Jurisdiction and Enforcement Act
Purpose- to determine which state can have jurisdiction in custody cases, change it or decline it
Court must have subject matter jurisdiction
f
131
Who has initial Custody determination under UCCJEA?q
The childs home state= where the child lived with parent for 6 months or
if the child moved the home state still have jurisdiction if:
it was the home state within the past 6 months and a parent or guardian still lives there.
Home state can issue and modify orders
132
Who has jurisdiction if there is no home state?
Court has jurisdiction under the significant- connection
no home state
child and at least 1 parent has significant connections with the new state AND
there is substantial evidence in that state concerning the child
133
What is the default jurisdiction?
Under UCCJEA it happens when:
there is no home state court
no significant connection court
a court in a state has appropriate connections to the child
134
Emergency jurisdiction
Court can assume emergency jurisdiction if:
Child is in danger and requires immediate protection
If there is a prior custody order, emergency court must allow parties to return to original court to argue
if there is no prior custody in place, emergency court order stays in place until the home state changes it
135
What is the exclusive continuing jurisdiction?
the court that made the initial custody ruling continues to have jurisdiction until:
Parties no longer live in the state or
the child no longer has a significant connection and no substantial evidence of the child's condition continues to be available in the state
136
How to enforce another states custody order?
Get a certified copy of the home state order
register it with the new court
the new court can then grant relief
137
Expedited enforcement of a child custody determination
Respondent must appear the next judicial day after being served (or else the petitioner will be awarded physical possession unless:
the custody order wasn't registered and (1 of the following happens)
cour has no jurisdiction
order had been stayed or vacated or
improper noticed or
the order was registered but stated, vacated or modified
138
Uniform deployed parents custody and visitation act
Applies UCCJEA to military parents
if there is no imminent deployment court can't use potential deployment negatively
sets procedures for temp custody
prohibits permanent orders before or during deplyments
139
Parental Kidnapping Prevention Act
Applies to kidnapping cases and interstate parental responsibility disputes
PKPA supersedes state laws
A non compliant state's order will not get full faith and credit
International PKPA prohibits children from being taken our of country
Hague convention requires return of the child unless returning puts them in danger
140
What is the standard for relocating with a child
Relocating parent must demonstrate a legitimate and reasonable purpose.
other states place the burden on the objecting parent to show that relocation is not in the best interest of the child or will harm them
141
What is the court of choice when enforcing pre marital agreement?
Most courts use the state with the most significant relationship to the agreement and the marriage
142
What are the requirements for a valid marital agreement?
Full disclosure of assets and debts
fair and reasonable terms
voluntary
written
signed
143
How to invalidate a marital agreement
Burden on the party trying to invalidate
must prove by clear and convincing evidence
To invalidate UPAA requires
the agreement was involuntary or unconscionable when executed:
Spouse did not waive fair and reasonable disclosure;
Spouse did not have or could not have had adequate knowledge of the other;s assets and debts
144
MOdern trend
Courts will enforce an agreement if there was full disclosure even if it isn't fair
