Flash Cards for Bar Courses - Family Law
Uniform Premarital Agreement Act
Agreements can cover the disposition of property in the event of deathy or divorce
- CHILD CUSTODY IS NEVER BINDED BY THE COURT
Requirements:
- in writing and signed
- entered into voluntarily
- full and fair disclosure of the parties’ assets
- unconscionable
- fair and reasonable
Marriage Requirements
- License
- Ceremony w/ an authorized officiant
- No Legal impediments (Too closely related, bigamy)
- Capacity to consent (Age of majority is 18)
Common Law marriage requirmetns
1) Consent to amrry
2) Cohabitation
3) couple holding themselves out publicly as spouses
Doctrine of necessaries
can be used ot make one spouse liable to third parties for the other spouse’s purchases for necessary expenses, such as food, clothing, and health care
Criminale COnversation
When one spouse has sexual realtions w/ a 3rd person, then spouse may have a cause of actioon. To prove: must have a valid marriage and the act of adultry to be proven
Annulment
is a backward looking doctrine that declares a marriage invalid b/c an impediment that existed at the time of the marriage makes it legally void or voidable. Once decree has been entered, the parties are treated as thought the y were never married
Void Marriage
A void marriage is invalid, an utter nulity, b/c it failed to meet the essential req. for a legal marriage. Any interest party may seek annulment of a void marriage. Cannot be ratifierd
Examples of void marriages
- Bigamy
- Polygamy
- Consanguinity (marriages between parties who are too closely related)
Vodable marriage
is a marriage that is valid until declared null. Can be ratified
Ex.
- Nonage (spouse was under the statuteory age
- Incurable physical impotence
- Lack of Capicity
- Duress
- Fraud
Divorce: Jurisdiction (residency req)
Only one spouse of the parties needs to be domiciled in the jurisdiction. (usualy a time of 90 days). Sometimes more than 1 state can have jurisdiction, and the first ct to render judgment causes the other courts to lose SMJ
No Fault divorce
Req. showing
- both spouses agree that the marriage is irretrievably broken
– one spouse thinking the marriage can be saved is insufficient if the other believes it cannot be saved.
- spoiuuse have been living apart for a continuous amt of time (90 days tp 18 months)
- spouses agree that they are now incompatible.
Fault divorce
- Adlutry
- willful deserrtion
-cruelty - drug or alochol addiction
- insanity
Defenses
- collusion
- Connivance
- Condonation
- Recrimination
Approaches to proeprty Division
Community Property: all prop. acq. during the marriage is deemed owned 1/2 by each spouse
Equitable division of all property: court divides all property owned by either spouse, whether acquired before or after the marriage
Equitable division of marital property: each spouse takes their seperate proeprty and the ct only divides that proeprty acquired during the marriage (MOST POPULAR)
Seperate Property
Owned b4 marriage
Acquired by gift or inheritance
acquirted in exchange for separate property
income and appreciation of seperate property
pain and suffering awards
Personal damages
Property acquired affter an order of legal separation that includes a final disposition of property
Marital Property
Is all propert acqiroed during the marriage
- earnings
- Employment benefits, pensions, and stock optioons
- Lost Wages
- Reimbursement for medical bills incurred and paid w/ marital property
- recovery for damages to marital property
Types of Alimony
1) Perminant periodic Spousal Support: Indefinte and terminates upon proof of substantial changez (re marriage or death)
2)Lump Suma: fixed amount paid at once or over a period (does not terminate)
3) Rehabilitive Spousal Support: paymetns for time for spouse to gain skills to become self supporting
4) Reimbursement Spousal Support: to a spouse who supported the other while the latter obntained a professional license or degree
Factors Courts consider when awarding alimony
The needs of the dependent spouse and the ability of the other spoiuse to pay
Tax consequences of spousal support
If dupport agreement was:
b4 2019: payments are deductibel
post 2019, payments are not deductiblke
Jurisdiction to enter a child support under the Uniform Interstate Family Support Act (UIFSA)
OG jurisdiciton to enter is where the 1st petition udner UIFSA was filed
Another state can have jurisdiction only if:
- 2nd petition is filed b4 the time to answer the first has expired
- peitioner objected to jurisdiction in the first action
- the 2nd state is the child’s home state
Jurisdiction to modify a child support order
The cvourt that issues the order has continuing and exclusicve jurisdiction
Uniform Child Custody Jurisdiction and Encoforcement Act (UCCJEA)
purpose us ti avoid jurisdictional disputes regarding child custody and visitation, promote interstaet cooperation, and facilitate the interstate enforcement of custody and visitation orders.
Child Custody: Primary Test - home state jurisdiction
ct has jurisdiction to initally enter or modify a child custody or visitation order if the state:
- is the child’s home state OR
- was the child’s home state within the past 6 months and the child is absent from the state, but a parent or person acting as parent continues to live in the state
Is child’s HOME STATE OR where child lived with parent continuously for the last 6 months
Child Custody Genrally
Legal Custody = right to make major decisions affecting the child’s life)
Physiucal custody = actual possession and control of the child
Joint Custody = can mean either joint legal custody, joint physical custody, or both
Best Interest of Child Standard
When awarding custody and vistation, the best interst of the child is considered
- wishes of the paretns
- child preferencee (given great weight if 12 or older and if under 8 not really considered)
- child relationshop
- Child’s adjustment
- Mental and physical health
- primary caregiver
