From MEE Flashcards
Recognition of marriage
In general, marriages are valid where they took place and are recognized in all other states. If a marriage violates a particularly strong public policy of the domicile of either party, however, it will be invalid. It is likely that if two individuals who reside in a state permitting common-law marriage meet that state’s requirements for establishing a common-law marriage, recognition of the marriage does not violate public policy.
Common law marriage
Common-law marriages are valid when the parties: (i) agree that they are married; (ii) cohabit as married; and (iii) hold themselves out in public as married
Unwed father
The U.S. Supreme Court has held that the right of an unwed father to object to an adoption cannot be denied if the father has demonstrated that he is committed to fulfilling the responsibilities of parenthood. On the other hand, some jurisdictions have created adoption registries for the purpose of determining the identity and location of putative fathers and providing notice in the event of an adoption. A putative father’s failure to register within a statutorily prescribed period of time constitutes a waiver of his right to notice of the adoption and irrevocably implies his consent to the adoption. However, termination in this fashion typically applies only to cases in which the father and child never developed a relationship.
Custody jurisdiction
Under the UCCJEA, a court has subject matter jurisdiction to preside over custody hearings and either enter or modify custody or visitation orders if the state is: (i) the child’s home state (the state in which the child has lived with a parent or guardian for at least six consecutive months prior to the custody proceeding, or since birth, if the child is less than six months old), or (ii) was the child’s home state in the past six months and the child is absent from the state, but one of the parents (or guardians) continues to live in the state
parties can expressly agree to another state’s jurisdiction
Premarital agreement (majority)
In many states, a premarital agreement is enforceable if there has been full disclosure, the agreement is fair and reasonable, and it is voluntary. The agreement must be in writing and signed by the party to be charged.
Premarital agreement (UPAA)
the party against whom enforcement is sought must prove (1) involuntariness or (2) both unconscionability at the time of execution and lack of disclosure and adequate knowledge of the other’s assets and obligations. Thus, a court may not refuse to enforce a premarital agreement based on substantive unfairness unless it also finds lack of adequate disclosure or knowledge. Full disclosure requires disclosure of all income, assets, and liabilities of both parties.
Voluntariness
Entering into a contract voluntarily generally means there was no fraud, duress, or misrepresentation. Courts consider factors such as time-pressure, the parties’ previous business experience, and the opportunity to be represented by independent counsel. A party’s insistence on the agreement as a condition to marriage is not considered duress.
Equitable distribution
The objective of the equitable-distribution system is to order a fair distribution of all marital property, taking into consideration all of the circumstances between the parties. In most states, all property acquired during the marriage is marital property and subject to equitable distribution. Whether the appreciation in nonmarital property will be subject to equitable distribution will depend on whether the appreciation can be attributable to spousal labor.
In most states, property acquired by one spouse after separation but before divorce is marital property, even lottery winnings
Ex: Here, a court is unlikely to award Andrew a portion of the winnings because they were only married for two years and have been estranged for over 10 years, Andrew has not contributed to the marital estate, and Brenda has had full custody of Chloe without any financial support from Andrew.
Equitable distribution factors
Some of the relevant factors in this case include the length of the marriage, the age, health, earning potential, and needs of both spouses, the value of separate property, the spouses’ standard of living, and economic circumstances of each spouse at the time of divorce.
Unconscionability
Separation agreements can be invalidated, in whole or in part, if the court makes a finding of fraud or unconscionability. A contract is unconscionable when it is so unfair to one party that no reasonable person in the position of the parties would have agreed to it. The contract or part of the contract at issue must have been offensive at the time it was made. Unconscionability may also be applied to prevent unfair surprise.
Modifying spousal support
Can modify support
Spousal support awards can be modified based upon a significant change in a party’s circumstances.
cannot modify division of property
Divorce related property disputes
Unlike child support, UIFSA does not apply to divorce related property disputes so those jurisdictional rules do not limit the state’s jurisdiction. The court may exercise personal jurisdiction over an individual if that person is voluntarily present in the state and served with process while there.
Modifying child support
Although a modification to child support may be made for the period while the cause of action is pending, states cannot retroactively modify child support before the date of service of process.
Generally, a state may prospectively modify a child support order when there is a substantial change in circumstances regarding the child’s needs or the parent’s financial situation. The parent requesting the modification has the burden of showing a substantial change in circumstances such as a significant decrease in income. However, when a parent voluntarily changes his employment, a reduction in income alone is not sufficient proof of substantial changes in circumstances. The courts will consider the parent’s earning capacity and other factors surrounding the change before deciding whether to modify the support order.
Divisible divorce
Under the doctrine of divisible divorce, a court may have sufficient jurisdiction to grant a divorce, but lack such jurisdiction with respect to other divorce-related matters, such as property division, without personal jurisdiction over the other spouse. A court may not exercise personal jurisdiction over a defendant unless the defendant has minimum contacts with the state in which the court sits and the exercise of jurisdiction would be fair and reasonable.
Fault based divorce
Fault grounds for divorce include adultery, cruelty, desertion, habitual drunkenness, bigamy, imprisonment, indignity, and mental disorder.
Most jurisdictions recognize both fault and no-fault grounds for divorce. In most states, the fact that a divorce is granted on a fault ground, such as adultery, is not a factor in the distribution of property.
Marital misconduct may be taken into account in many states in determining spousal support. The weight marital misconduct is given in determining alimony is dependent on the jurisdiction. Some jurisdictions consider it a factor and others give it a preclusive effect.
Physical custody
Physical custody is the right to have the child reside with the parent and provide for routine daily care and control of the child. The standard for determining child custody is the best interests and welfare of the child. In addition, courts can consider who the primary caretaker of the child was during the marriage and the separation, and prior to the divorce, as factors in determining who should have custody. Nearly every jurisdiction requires the court to consider the presence of domestic violence between the parties when awarding custody and some jurisdictions have created rebuttable presumptions in favor of the nonabusive spouse.
No home state jurisdiction
UCCJEA permits a court to enter or modify an order if (i) the child and at least one parent have a significant connection with the state, and (ii) there is substantial evidence in the state concerning the child’s care, protection, training and personal relationships.
Constitutional right
The Supreme Court has held that a fit parent has a fundamental right to the care, custody, and control of his children and state courts must give “special weight” to a fit parent’s decisions on care, custody, and control.
Exceptions to constitutional right
Laws are in place to protect children from harm, whether or not that harm is intentional. If a parent’s decisions will jeopardize the health or safety of the child or have the potential for significant social burdens then a parent’s power is limited. States are permitted, under their police powers, to require vaccinations and to refuse admission to public school for students who fail to receive required vaccinations. Such statutes are not subject to constitutional challenge based on a violation of parental rights.
However, under the theory of parens patriae, a court can intervene to protect a child when medical treatment contradicts religious beliefs and such treatment is required to prevent serious harm to the child’s health. In those situations, a child can be declared neglected and the medical treatment ordered.
Parent by estoppel
Legal parents are presumptively entitled to custody of their children in cases against third parties unless it can be established that the legal parent is unfit or that awarding custody to the legal parent would be detrimental to the child. If a natural parent has had little or no contact with a child, or if the child has lived with the third party for an extended period of time, then courts have employed the terms “parent by estoppel” and “de facto parent” to get around the presumption
Professional license or degree
The majority of jurisdictions do not treat a professional license or degree as a distributable property interest
Reimbursement
A court may use its equity power to award a spouse reimbursement for his actual contribution toward the other spouse’s educational and related living expenses.
A court may, however, view an advanced degree or license as increased earning capacity, which may have an effect on the determination of alimony
Permanent spousal support
Permanent spousal support is typically awarded only when the marriage was one of long duration. Although jurisdictions differ on the definition of “long-term,” it typically refers to a marriage of 15 years or more.
Rehabilitative support
Rehabilitative support is for a limited period of time, such as until the spouse receives education or employment. The purpose of this type of support is to enhance and improve the earning capacity of the economically dependent spouse. The court would consider other factors including the couple’s standard of living during the marriage, the time it will take for a spouse to complete any education or training, the length of the marriage, and the parties’ age and health.
Intact families
When it comes to disputes of intact families, courts typically treat such matters as private ones that should be resolved within the home. Unless and until the parties separate, courts will refuse to decide such disputes.
Marriage after valid marriage
If either party is still part of a valid marriage, a subsequent marriage is void. There is a presumption that the most recent marriage is valid. However, this presumption is rebuttable by cogent evidence of the existence of a prior valid marriage at the time that the latest marriage was entered into. A valid marriage, including common-law marriage, can be terminated only by annulment, divorce, or death.
Putative spouse
Most states have adopted a version of the putative spouse doctrine. Under the doctrine, a party who participated in a ceremonial marriage and believes in good faith that the marriage is valid may use a state’s divorce provisions if the marriage is later found void due to an impediment. Although this claim does not result in a divorce, it does provide equitable relief through maintenance and property distribution.
Ex: Unlike Andrew, Daniel can support an equitable distribution claim because he and Brenda have been married for nine years, he has contributed to the marital estate, and he has supported Chloe. Thus, Daniel is likely to recover some portion of the lottery winnings.
