General Flashcards
What are the requirements of a ceremonial Marriage
License and Ceremony (solemnization)
What are the requirements for a license to be issued
Capacity to marry
Waiting period to end
Medical Testing (some)
When will a license not be issued
One party married to another Too closely related Sham marriage Incapable of understanding nature of act Influence of drugs/alcohol Party lacks consent/duress/fraud
What are the requirements for a common law marriage
Parties agree they’re married
Cohabitate
Hold themselves out to be married
What is the intent required for common law marriage
Must be evidenced by words in present tense
Ways to end a marriage
Annulment
Divorce
Death
What is a void marriage
One where the marriage is declared as never happening
Grounds for voiding a marriage
Prior existing marriage
Incest
Mental Incapacity
What is a voidable marriage
Marriage that is valid until a judicial decree dissolves the marriage
Grounds for voidable marriage
Age Impotence Intoxication Fraud Duress Lack of Intent
Defenses to void marriage
Deny the existence of the impediment that makes the marriage void; removing the impediment makes marriage voidable
Defenses to voidable marriage
Equitable defenses of unclean hands, laches, estoppel
What is the putative marriage/spouse doctrine
A party who participated in a ceremonial marriage and believes in good faith that the marriage is valid, they can use a states divorce provision even if the marriage is later found to be void
Grounds for no fault divorce
Marriage is irretrievably broken and there is no prospective of reconciliation
Irreconcilable differences must exist for a specific period of time prior to filing divorce
Grounds for Fault Divorce
Adultery Cruelty Desertion Habitual Drunkenness Bigamy Imprisonment Institutionalization for Insanity
Defenses to Fault Based Divorce
Must be affirmatively pleaded Recrimination Unclean Hands Connivance Condonation Collusion Provocation Insanity Consent Justification Religion
Two ways to Divide Property
Community Property or
Equitable Distribution
Equitable Distribution of Property
Objective is a fair distribution of marital property, not necessarily equal
What is marital property
All property acquired during marriage
What is non marital property
Property acquired before marriage
Property excluded by parties valid agreement
Property acquired by gift or inheritance (except gifts between spouses)
Award or settlement payment received for cause of action or claim accrued before marriage
Factors for distribution of marital property
Length of marriage
prior marriages
age
health, earning potential, liabilities, needs of both spouses, contributions to education, income, medical needs, retirement of both spouses, valued of separate property, reduction in valuation in marital property by one spouse, standard of living, economic circumstances of each spouse at time of divorce, custody
What are the factors for alimony
Financial resources; child support; spouses earning potential; other spouses ability to pay support; standard of living; time to find employment; time to complete education; length of marriage; contributions to marriage; age; physical and mental health of each; marital misconduct
Types of support/alimony
Lump sum Permanent Limited duration Rehabilitative Reimbursement Palimony
Permanent alimony
Award for remainder of dependent’s spouses life; usually when marriage was long duration, 15+ years
What is limited duration alimony
Awarded when marriage was of short duration, but there’s still economic need for support
What is rehabilitative alimony
To enhance and improve the earning capacity of the economically dependent spouse; limited period of time, like when spouse receive degree or employment
What is reimbursement alimony
To compensate a spouse for financial sacrifices made during the marriage that resulted in a reduced standard of living to secure an enhanced standard of living in the future. rare.
What is palimony
support provided by one unmarried cohabitant to another after the dissolution of a stable, long term relationship
What is standard for modifying spousal support
Party seeking modification has burden of establishing a significant and continuing change in circumstances in needs of dependent spouse or financial abilities of obligor that warrant modification
Factors affecting spousal modification
Willful/voluntary reduction in income
Death of spouse
Remarriage: support may be terminated if receiving spouse remarries
Cohabitation: receiving spouse lives with someone not family
Retirement
How to establish paternity
Blood tests ordered by court
Prior statements regarding paternity by deceased family members
Medical testimony on probability or improbability of conception, defendants acknowledgement of paternity
Time limit on filing paternity petition
Unconstitutional unless reasonable opportunity to pursue such an action and the limit is substantially related to the gov interest in restricting such an action
When can a husband who is not the biological father of his wife’s kids, be estopped from denying his obligation to pay child support
- There is a representation by husband that he would provide for the child
- The wife relied on representation
- Wife suffered an economic detriment as result of reliance
What is UIFSA
Uniform Interstate Family Support Act
How the court obtains personal jurisdiction over an out of state parent pursuant to its long arm provision
Allows enforcement of child support orders issued by an out of state court
Methods of calculating child support
Income share model: child should receive same proportion of parental income as if parents stayed together
Percentage of income model: determines minimum amount of child support by using a percentage of supporting parents net income, determined by number of kids supported
How to modify child support
Person must show a substantial change in circumstances regarding the childs needs or the parents financial situation that is expected to be continuing
When is child support terminated
Child reaches 18
Child marries
Parental rights are terminated
Emancipation
Jurisdiction for modification of support
Court may not modify a child support order rendered by a court with continuing jurisdiction in another state unless parties, including kid, no longer lives in that state or parties expressly agree to permit another state or exercise jurisdiction
How are child support obligations enforced
Civil contempt
Criminal Contempt
Other Sanctions: report to credit bureau, suspension of licenses, assets seized, garnishment, attorney’s fees
Modification of Child Support
Under UIFSA, the state that issued the initial child support order has continuing exclusive jurisdiction to modify child support order
Exceptions:
Parties, both parents and kids doesnt live in the state or parties expressly agree to allow another state to exercise jurisdiction
Enforcement of child support orders
Under UIFSA, receiving parent can register child support order from one state in another non issuing state. the non issuing state can enforce that order.
What is the Uniform Child Custody Jurisdiction and Enforcement Act
Purpose is to prevent jurisdictional disputes with courts in other states on matters of child custody and visitation
Home State Jurisdiction under UCCJEA
Court has SMJ to preside over custody hearings and either enter or modify custody/visitation orders if the state is;
The childs home state and has been home state for six months/since birth if under that OR
It was the childs home state in past 6 months and the child is absent from the state, but 1 of the parents still lives there
Significant Connection Jurisdiction under UCCJEA
A court can enter or modify an order if:
No other state has or accepts home state jurisdiction;
The child and at least 1 parent have a significant connection with the state; and
There is substantial evidence in the state concerning the childs care, protection, training, and personal relationships
Appropriate Connections under UCCJEA
If no state has jurisdiction through home state or substantial connection jurisdiction, court with appropriate connections to child has jurisdiction
Jurisdiction under UCCJEA
Home State
Significant Connection
Appropriate Connections
Exclusive Continuing Jurisdiction UCCJEA
Courts that make the initial ruling in a custody case have exclusive jurisdiction over the matter until the court determines that:
Both parties no long reside in that state; or
The child no longer has a significant connection to the state and any sub. evidence connected to childs connection isnt available in the state.
Standard for determining child custody cases
Best interests of the child.
Courts will consider wishes of older kids if sufficient maturity, race and religion not used, legal parents are presumptively entitled to custody of their children in cases against 3rd parties
Between parents: primary caretaker during marriage a factor
Visitation
Generally noncustodial parent is allowed reasonable visitation with minor child.
Denial of visitation only when it would seriously endanger childs physical, mental or emotional health.
Parents have constitutional right to have contact with children.
Third Party visitation
A fit parent has a fundamental right to care, custody, and control of his kids; parents decisions regarding third party visitation must be given special weight
Visitation Unwed Biological Fathers
An unwed father has a substantive due process right to have contact with his child, but only when he demonstrates a commitment to the responsibilities of parenthood
Modification of Custody Order
Burden on parent seeking modification to show that its needed. Must show a substantial change in circumstances
Relocation and Child Custody
Custodial parent seeking relocation bears burden of demonstrating that the relocation is for legitimate and reasonable purpose.
Factors the court will look at when parent attempting to relocate
Best interests of child, relationship with non relocating parent, age and needs of child, childs preference, quality of life of relocating parent and child
Types of Marital Agreements
Premarital
Separation agreement
Property settlement agreement
Premarital Agreement
Contract made before marriage related to division of property and spousal support .
Clauses relating to child custody and support are unenforceable
Requirements of Premarital Agreement
Full disclosure of financial status
Fair and Reasonable: looks at duress, undue influence, misconduct by mediator, independent counsel, at time of execution or enforcement (minority)
Voluntary: time pressure issues, represented by counsel
Must be in writing and signed by party to be charged
Defense against Premarital Agreements
Under Uniform Premarital Agreement Act (UPAA), to make an agreement unenforceable, party must show at least one:
Involuntariness; or
Unfair or unreasonableness together with lack of reasonable knowledge or disclosure
What is a Separation Agreement
Made between spouses who are planning for divorce.
Defines property division, spousal support, child support, custody and visitation.
May be invalidated in part of whole if party can show unconscionability or fraud
What is a Property Settlement Agreement
Purpose is to settle the economic issues of the marital estate.
Entered into before divorce decree issued.
May be invalidated in whole or part if party can show unconscionability or fraud
Modification of Marital Agreements
Provision that prevents modification of property rights, including spousal support allowed.
Provisions that prevent modification of child support not allowed.
Conflict of Laws Premarital Agreements
States will apply either the state in which the agreement was executed; or the state with the most significant relationship to the parties and transaction