Final Review - Shit I Don't Know for MEEs Flashcards
Which state determines validity of marriage?
Validity of marriage determined by state w/ most significant relationship to spouses
Recognition of Marriage
Marriage valid where formed is valid everywhere unless it violates the strong public policy of another state that has the most significant relationship to the spouses and the marriage.
Recognition of CL Marriage
Marriage valid where formed is valid everywhere unless it violates the strong public policy of another state that has the most significant relationship to the spouses and the marriage. Thus, most states, even if they do not recognize CL marriage, will honor a CL marriage established in another state.
Choice of Law for Premarital Agreement
law of either:
(a) where agreement executed
or
(b) state w/ most significant relationship to transaction and parties (where married, lived while married, currently living, assets located, and children born)
Jurisdiction for Ex Parte Divorce
Divorce may be maintained w/o PJ over the absentee spouse ONLY IF plaintiff-spouse = domiciled in rendering state.
BUT if property/support/custody issues, must have PJ over D-spouse
Divisible Divorce
One spouse can terminate the marriage (ex parte divorce) in one proceeding, and reserve other issues for a later proceeding.
Recognition of Divorce in Other States
A state must recognize final judgments of other states so long as (1) other state had jdxn; and (2) judgment on the merits.
Thus, divorce decree must be given full faith & credit if crt rendering divorce decree had the jdxn to enter it
Jurisdiction for Division of Property
Must have PJ over both spouses for prop division to be binding (min contacts? Serving D in state?)
If D-spouse agrees to participate in divorce proceeding, he/she bound by forum state’s prop determination b/c impliedly waived jdxn; (limited exception for state where property located)
Seperate Property
(1) Before marriage;
(2) Gifts/inheritance/bequests;
(3) Agreed upon as separate;
(4) Passive appreciation of assets (val increases due to passage of time, not labor)
Marital Property
all other prop acquired during marriage including:
(1) active appreciation (due to labor not passage time, but check to see if still sep prop + reimbursement) and
(2) future expectancies (even if won’t be received until after marriage ends).
Some states say no longer marital prop once permanently sep but other state require divorce.
Prof License/Degree
Most states say not marital prop but allowed reimbursement for any support provided to spouse to obtain degree/license. Minority say it is marital and value = potential future earnings
Mixed Property
Initially SP may be transformed into MP if (a) mingled w/ MP or SP of other spouse to the point where can’t be traced or (b) SP treated w/ intention of being MP (e.g. names in both)
If used marital funds or there was effort by non-owner spouse which enhanced val of SP, the property is still SP but non-owner may be reimbursed for value added
Partial Property
Property acquired before marriage but paid for after marriage with marital funds split between marital & separate property in proportion to contribution
Recognition of Spousal Support Orders from Other States
full faith & credit to support orders from other states so long state had jdxn and final judgment on merits.
Jdxn for Spousal Support
Must have PJ over D-spouse to issue a binding order affecting personal rights. Thus, must have PJ over both spouses for support order to be binding (min contacts? Serving D in state?). If D-spouse agrees to participate in proceeding, he/she bound by forum state’s prop determination b/c impliedly waived jdxn
Jdxn for Spousal Support Modification
modifiable only by state where issued so long as at least one party remains domiciled there BUT enforceable anywhere
Jdxn for Child Support
Must have jdxn over both parents.
UIFSA - PJ over non-resident parent in parental determination, child custody, or child support case:
(1) Traidtional bases of jdxn: personal service, consent, waiver,
(2) resided w/ child in state
(3) resided in state + provided prenatal expenses/support
(4) child resides in state due to individuals acts/directives
(5) sex intercourse + child conceived by that act,
(6) putative father registry assertion
Long Arm Jdxn + Const DP “purposeful availment” (sexual intercourse counts)
Child Support Determination
State-based guidelines that establish a presumption that the guideline-calculated reward is correct; guidelines typically assess:
(1) income and earnings of parents;
(2) number of children and their ages,
(3) special needs of children
Jdxn for Child Support Modification
Crt that issued has continuing, exclusive jdxn to modify so long as
(a) at least one party remains domiciled there or
(b) ptys consent on record
BUT enforceable anywhere (FFC)
Modifying another state’s order
Can’t modify support order of another state unless:
(1) jdxn to issue order and
(2) either (a) all parties don’t reside in issuing state or (b) each pty consents in writing to jdxn in another state
Standard for Child Support Modification
No retroactive modification unless fraud BUT future modification possible upon showing a substantial change in circumstances making prior order unreasonable (depending on state will/won’t modify depending on involuntary/good faith reduction in income vs. bad faith/voluntary reduction);
UMDA → more stringent (changed circ must be “so substantial and continuing as to make terms unconscionable”)
Jdxn for Child Custody and Adoption
Court MUST have SMJ to issue or modify a child custody order. PJ or physical presence of a party or child is NOT necessary for a court order (but jdxn is needed over a D-parent to enforce order).
UCCJEA (Uniform Child Custody Jurisdiction and Enforcement Act) applies to custody + adoption → crt can only decide custody if:
(1) Home State Jxdn - (a) child’s home state OR (b) where (1) child lived w/ parent for 6+ months immediately before action was filed; (2) child is absent from state; and (3) parent still present in state
(2) Significant Connection Jdxn - state with significant connections to and substantial evidence of the child and custody
(3) More Appropriate Forum Jdxn - all other crts decline to exercise b/c this particular crt more appropriate
(4) Temp Emergency Jdxn - (1) child physically present; (2) child abandoned/emergency to protect child
Parents vs. 3P Custody
A fit legal parent is given preference, and it’s presumed that such custody is in the best interests of the child.
In some States, this presumption may be rebutted if detrimental to the child.
The court MUST give great weight to a parent’s determination of what’s best for the child (as parental rights are Constitutionally protected).
A court will only grant custody to a third-party upon a showing of special circumstances → abuse, neglect, abandonment, mentally incompetent, or parent surrendered the child.
Jurisdiction for Modification of Child Support
The court that had jurisdiction over the original order usually retains continuous and exclusive jurisdiction to make modifications.
− But see exceptions below under PKPA and UCCJEA.
PKPA → Crt may modify order from another State if: (1) jdxn to make an initial determination and (2) issuing State (a) no longer has jdxn, or (b) declined to exercise it.
UCCJEA → Crt may modify an order from another State if: (1) jurisdiction to issue an initial order; AND (2) Either: (a) Issuing State determines it no longer has jdxn; (b) Issuing State determines that the Current State is more appropriate; or (c) crt determines that all parties do not reside in the Issuing State.
Child Relocation
Generally approved if (1) sought in good faith and (2) serves child’s best interest but courts vary in whether relocating or objecting party bears burden of proof
Balancing Test: impact on visitation by noncustodial parent v. benefits of move to children and custodial parent
