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Family Law > General > Flashcards

General Flashcards

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1
Q

What are the requirements of a ceremonial Marriage

A

License and Ceremony (solemnization)

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2
Q

What are the requirements for a license to be issued

A

Capacity to marry
Waiting period to end
Medical Testing (some)

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3
Q

When will a license not be issued

A 
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
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4
Q

What are the requirements for a common law marriage

A

Parties agree they’re married
Cohabitate
Hold themselves out to be married

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5
Q

What is the intent required for common law marriage

A

Must be evidenced by words in present tense

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6
Q

Ways to end a marriage

A

Annulment
Divorce
Death

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7
Q

What is a void marriage

A

One where the marriage is declared as never happening

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8
Q

Grounds for voiding a marriage

A

Prior existing marriage
Incest
Mental Incapacity

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9
Q

What is a voidable marriage

A

Marriage that is valid until a judicial decree dissolves the marriage

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10
Q

Grounds for voidable marriage

A 
Age
Impotence
Intoxication 
Fraud 
Duress 
Lack of Intent
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11
Q

Defenses to void marriage

A

Deny the existence of the impediment that makes the marriage void; removing the impediment makes marriage voidable

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12
Q

Defenses to voidable marriage

A

Equitable defenses of unclean hands, laches, estoppel

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13
Q

What is the putative marriage/spouse doctrine

A

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

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14
Q

Grounds for no fault divorce

A

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

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15
Q

Grounds for Fault Divorce

A 
Adultery 
Cruelty 
Desertion
Habitual Drunkenness
Bigamy 
Imprisonment 
Institutionalization for Insanity
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16
Q

Defenses to Fault Based Divorce

A 
Must be affirmatively pleaded 
Recrimination
Unclean Hands
Connivance
Condonation
Collusion
Provocation 
Insanity 
Consent
Justification
Religion
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17
Q

Two ways to Divide Property

A

Community Property or

Equitable Distribution

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18
Q

Equitable Distribution of Property

A

Objective is a fair distribution of marital property, not necessarily equal

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19
Q

What is marital property

A

All property acquired during marriage

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20
Q

What is non marital property

A

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

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21
Q

Factors for distribution of marital property

A

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

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22
Q

What are the factors for alimony

A

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

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23
Q

Types of support/alimony

A 
Lump sum
Permanent 
Limited duration
Rehabilitative 
Reimbursement
Palimony
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24
Q

Permanent alimony

A

Award for remainder of dependent’s spouses life; usually when marriage was long duration, 15+ years

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25
Q

What is limited duration alimony

A

Awarded when marriage was of short duration, but there’s still economic need for support

26
Q

What is rehabilitative alimony

A

To enhance and improve the earning capacity of the economically dependent spouse; limited period of time, like when spouse receive degree or employment

27
Q

What is reimbursement alimony

A

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.

28
Q

What is palimony

A

support provided by one unmarried cohabitant to another after the dissolution of a stable, long term relationship

29
Q

What is standard for modifying spousal support

A

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

30
Q

Factors affecting spousal modification

A

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

31
Q

How to establish paternity

A

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

32
Q

Time limit on filing paternity petition

A

Unconstitutional unless reasonable opportunity to pursue such an action and the limit is substantially related to the gov interest in restricting such an action

33
Q

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

A
  1. There is a representation by husband that he would provide for the child
  2. The wife relied on representation
  3. Wife suffered an economic detriment as result of reliance
34
Q

What is UIFSA

A

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

35
Q

Methods of calculating child support

A

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

36
Q

How to modify child support

A

Person must show a substantial change in circumstances regarding the childs needs or the parents financial situation that is expected to be continuing

37
Q

When is child support terminated

A

Child reaches 18
Child marries
Parental rights are terminated
Emancipation

38
Q

Jurisdiction for modification of support

A

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

39
Q

How are child support obligations enforced

A

Civil contempt
Criminal Contempt
Other Sanctions: report to credit bureau, suspension of licenses, assets seized, garnishment, attorney’s fees

40
Q

Modification of Child Support

A

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

41
Q

Enforcement of child support orders

A

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.

42
Q

What is the Uniform Child Custody Jurisdiction and Enforcement Act

A

Purpose is to prevent jurisdictional disputes with courts in other states on matters of child custody and visitation

43
Q

Home State Jurisdiction under UCCJEA

A

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

44
Q

Significant Connection Jurisdiction under UCCJEA

A

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

45
Q

Appropriate Connections under UCCJEA

A

If no state has jurisdiction through home state or substantial connection jurisdiction, court with appropriate connections to child has jurisdiction

46
Q

Jurisdiction under UCCJEA

A

Home State
Significant Connection
Appropriate Connections

47
Q

Exclusive Continuing Jurisdiction UCCJEA

A

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.

48
Q

Standard for determining child custody cases

A

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

49
Q

Visitation

A

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.

50
Q

Third Party visitation

A

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

51
Q

Visitation Unwed Biological Fathers

A

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

52
Q

Modification of Custody Order

A

Burden on parent seeking modification to show that its needed. Must show a substantial change in circumstances

53
Q

Relocation and Child Custody

A

Custodial parent seeking relocation bears burden of demonstrating that the relocation is for legitimate and reasonable purpose.

54
Q

Factors the court will look at when parent attempting to relocate

A

Best interests of child, relationship with non relocating parent, age and needs of child, childs preference, quality of life of relocating parent and child

55
Q

Types of Marital Agreements

A

Premarital
Separation agreement
Property settlement agreement

56
Q

Premarital Agreement

A

Contract made before marriage related to division of property and spousal support .
Clauses relating to child custody and support are unenforceable

57
Q

Requirements of Premarital Agreement

A

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

58
Q

Defense against Premarital Agreements

A

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

59
Q

What is a Separation Agreement

A

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

60
Q

What is a Property Settlement Agreement

A

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

61
Q

Modification of Marital Agreements

A

Provision that prevents modification of property rights, including spousal support allowed.
Provisions that prevent modification of child support not allowed.

62
Q

Conflict of Laws Premarital Agreements

A

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

Family Law (1 decks)

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