FamLaw Flashcards
Validity of Premarital Agreements
Only valid if in writing and signed
Challenging Prenups
Invalid if the court finds Procedural Unfairness or Substantive Unfairness
Procedural Unfairness; Factors
Disclosure of net worth
availability of counsel
timing prior to wedding
bargaining power
Procedural Unfairness; Adequate Disclosure
Must be fair and reasonable disclosure unless; voluntary waiver, spouse has knowledge to financial circumstances
Procedural Unfairness; Voluntariness
fraud, misrep, duress
Substantive Unfairness
Unconscionability standard
Subject Matter of Premarital Agreements
Waiver of Alimony
- majority view; permits
Children;
-prenups do not allow mention of custody of children
Sexual Relations;
-can’t limit sex
Legal requirements for marriage
Formal;
Marriage License
Solemnization
Informal;
-Capacity
-intent
-cohabitation
-holding out as married
Formal Marriage
requires both marriage license and solemnization
presumptively valid
Informal (CL) Marriage
over 18
intend to married
live together
telling people you’re married
Burden of proof is on the party asserting
Legal impediments to Marriage;Nonage
Nonage;
-under the age of 14? Prohibited
-Between 14-18? parental consent
Legal Impediments to Marriage; Consanguinity and Affinity
Consanguinity (majority rule); a license will not be issued between blood
Affinity (minority); marriage is extended to these same relationships are relatives by marriage
Legal Impediments to Marriage; Lack of Consent due to Mental Incapacity or Fraud
Mental Incapacity; no consent
Fraud; invalid
Physically incapable; to consummate (required by CL)
Legal Impediments to Marriage; Prior Marriage still in force
if married, subsequent marriage invalid
Legal Impediments to Marriage; Annulment
Grounds;
-void marriage; no legal effect and cannot be recognized
-Voidable marriage; may be void or ratified (by aggrieved party)
Effects;
-Putative Spouse Doctrine (must e a ceremony and at least one spouse must be in good faith)(putative spouse doctrine provides divorce-like remedies)
Validity of Out-of-State Marriage
Principles of Comity
Principles of Comity
A marriage that satisfies the state requirements will be recognized everywhere (UNLESS AGAINST PUBLIC POLICY; CL marriage, First cousin Marriage)
Principles of Comity; Evasion of State Law
If you leave your own state to get married elsewhere most other states don’t recognize that
Rights of Unmarried partners
No legal status unless they meet CL marriage requirements
Express/implied contracts between cohabitating parties are recognized so long as theres consideration
Spousal property during marriage
Title Rules aka separate property –> you own it? you own it
Support Obligations During marriage
Duty of both spouses; not enforceable by a spouse during the marriage because court tries to not get involved
Liability of Debts and Necessaries Contract for by needy spous
Necessity means food/water/health
most states recognize a doctrine of necessaries where a spouse is liable for other spouse during; (1) agency theory (2) forcing the issue (3) medical expenses
Some states impose debt liability too
Establishing Parenthood; Presumption of Marital Legitimacy/Paternity
Mom —> presumed the mom
the evidence of the other spouse must be clear and convincing that hte mother is not the parent
-Doctrine of Estoppel; Applied against mother’s husband; when he is not the father, but continues supporting the child, it will be presumed they’re the dad now
Against the mother; same as father.
Establishing Parenthood; Actions brought by Putative Parent
States might provide one parent more protection so long as they have established parentage where the child presumes the person is a parent over the course of 2 years (generally)
UPA provides presumptions of parentage when (1) couple marries before child is born, or (2) after child is born and parent voluntarily asserts parentage (birth certificate) or (3) first 2 years of Childs life, parent lived with kid.
Establishing Parenthood; Child support actions BROUGHT BY CHILD
Paternity actions brought prior to 18
require paternity action be instituted prior to death of putative father
Establishing Parenthood; Burden of Proof
SHIFTS depending on who is asserting.
-DNA Tests; Preponderance of evidence
-Martial Presumption: Clear and Convincing
Nature of Parental Rights; Custody (Parents)
If both parents are living, competent, and fit; entitled to custody to direct EDUCATION AND MEDICAL CARE note; this is not applicable when it comes to religion and public school (i.e. vaccinations)
Nature of Parental Rights; Custody (Non-Parents)
Significant deference to legal parents objection, the court must determine;
-is the non parent more fit than parent?
Nature of Parental Rights; Support Rights and Obligations (Parental Obligations)
Obligated to support until 18
College? Some states will enforce K between parent and child
Nature of Parental Rights; Support Rights and Obligations (Termination by Emancipation)
Emancipation; occurs when child shows;
-Financial Independence
-Maturity
-Marriage
-Children of their own
-ability to self-support
Nature of Parental Rights; Support Rights and Obligations (Voluntary Termination)
Affidavit not 48 h prior to birth, in front of witness
Nature of Parental Rights; Support Rights and Obligations (Involuntary)
Standard of Proof; puts parental right to custody and care of the child before issue of the best interest of child. Termination must be BASED on finding parent is unfit; by clear and convincing
Considerations;
-abandonment; the parent has failed to maintain a reasonable degree of interest
-neglect
-abuse
Nature of Parental Rights; Support Rights and Obligations (to support parent)
some states require parents to support themselves
Adoption
-Minor
-Parental Consent
-Standard; best interest
-effect; the child becomes part of the family
-Equitable adoption or parental estoppel; Contract theory (proof between natural parents and new parents) or Behavior Theory (is the child apart of the family)
Divorce (Jdx)
Smj; domicile of one party
PJ; where someone is
Venue; where party resides
Divorce (Fault)
Desertion
Construction Desertion
Adultery
Impotence
Cruelty
Felony Conviction
Drugs
Divorce (No-Fault)
Requires; State of Mind, Separation for definite period of time
Divorce (Defenses)
Fault Based; Collusion (agreement between spouses where one takes fault), Connivance (adultery), Condonation (one spouse forgives the other for a wrong, Recrimination (both are at fault)
Divorce (Decree)
marriage ends on the date the divorce is decreed
Divorce (Property Division)
Marital Property? Divisible
Separate property is separate
Increased Value of Separate property
Passive appreciation; separate property
Labor during marriage; marital property
Commingled; if separate property can be traced; treat as part separate and part marital property
Classification and Division of Particular Type of Assets
Marital Residence; joint income paid? marital property
Pensions; if vested the employee has legal right. If unvested; years worked there counts?
Defined benefit plan
A retirement account for which the promised retirement benefit is calculated by a formula defined in the pension plan
Stock options
if granted to spouse during marriage, then its presumed marital property
Degrees
Separate property
Personal Injury claims
replacement theory;
Lost wages- marital property
Future wages- separate property
Lottery winnings
depends on the date of acquisition
Division of debts
Separate property unless entered into as a couple
Alimony/Spousal maintenance
Periodic Alimony (monthly)
Lump sum (one time)
Rehabilitative (until they’re on their feet)
Alimony (Grounds)
economic need
Alimony (Factors)
Court considers;
financial needs
contributions to the marriage
duration
Modification or Termination of Alimony
Modification; need to show a substantial change
Termination; (1) after a specified term (2) death of spouse (3) remarriage
Child Support
Child Support; both parents owe
Child Custody
Standard; Best interest of the child. Measured (1) the wishes of the parent (2) wishes of the child (3) adjustment to new environment (4) mental and physical health of all individuals (5) relationship with parents and kid
Child Custody (Joint Custody)
The right to physical custody
The right to make important decisions (legal custody)
Visitation
Non-Custodial Parent; reasonable visitation rights
Third-Persons; deference given to legal parents
Modification of ORders
Child Support; Substantial change in circumstances
Child Custody; substantial change in circumstances and best interest of the child
Relocation; deference to legal parent
