MEE Flashcards
Elements of CL Marriage
1.Holding out a marital relationship
2. Cohabitation
3. Present Agreement
4. Capacity
CL Marriage conflict of laws
CL marriage valid in one state will be valid in another state
unless it violates a strong public policy of the other state.
Putative Marriage
If an innocent party participated in a marriage ceremony and believes in good faith the marriage is valid, but later discover that there was an impediment to the marriage
(aka other spouse was still legally married to someone else)
Legal remedies for putative marriage
spousal support and property distribution
No fault divorce
Irreconcilable differences. No required attempt at reconciliation
Fault based divorce
Grounds: adultery, cruelty, desertion, etc.
Cruelty arises if physical abuse
Separation
Before divorce, some states require parties to separate for a period of time (e.g., one year).
Mediation
Parties may have to engage in mediation as part of the separation and divorce process.
Mediator must be:
- impartial and disclose conflicts of interest
- explain process
- not coerce or improperly influence
Community property
equal division of the marital property
Division of property at divorce: Equitable distribution (majority rule)
- requires equitable, or fair distribution of all marital property
- Not necessarily an equal 50/50 division
- Takes into consideration all circumstances bw parties
Marital property
Equitably divided between spouses. MP is all property or assets acquired during marriage by any means other than gift, descent,
devise.
Continues to accrue while the parties are separated and
final divorce decree is entered.
Separate property
Remains property of owning spouse at divorce. Includes assets acquired during marriage by gift, descent, or devise; and anything acquired before marriage.
Can be transformed into MP if marital funds or efforts are used to increase its value or build equity.
Title
Taking title in one spouse’s name is not conclusive.
While married each spouse has ______________ over their earnings
full management rights
A court may not over rule
spending decisions of a spouse if the other spouse objects.
Future retirement/pension benefits
If a spouse works during marriage and creates
or earns profits or benefits to be paid out after divorce, profits will be considered MP
Professional licenses/ Degrees
Usually not MP. Non-degree earning spouse wouldn’t be compensated for the value of the degree. But that spouse can seek reimbursement for contribution to educational and living expenses.
If the cause of action for a personal injury claim accrues during marriage… (2 approaches)
Approach 1: All proceeds are treated as MP
Approach 2: Damages are divided between by type:
o Compensatory (e.g., pain, suffering, disability) are SP of the injured spouse, Consortium damages are SP of the non-injured spouse
o Lost wages, lost earning capacity, and medical expenses are MP (divided
equitably)
Modification of property division award
A property division is NOT NEVER EVER modifiable after the fact because it is based on the parties’ assets at the time of divorce.
Changes in the parties’ circumstances after divorce do not affect the award.
Putative marriage: division of property
Putative spouses may be entitled to an equitable distribution of property that would’ve been classified as MP if the parties been legally married.
Spousal support
Obligation of one party to provide other with financial support.
Factors:
o Financial resources of both parties
o Standard of living during marriage
o Time it will take for receiving spouse to find employment or finish education
o Length of marriage
o Contributions to marriage
o Age and health of both parties
o Marital misconduct such as adultery (only in some states)
Permanent alimony
- Award for remainder of dependent spouse’s life
- Typically, only appropriate after long marriages
- Primarily used when one spouse took care of the
home or children
Limited duration alimony
Typically awarded when the marriage was of short duration
Rehabilitative spousal support
A limited period of time, such as until the spouse receives education or employment
Reimbursement alimony
Compensates a spouse for financial sacrifices made during the marriage that resulted in a
reduced standard of living in order to secure an enhanced standard of living in the future.
Modification of spousal support
Party seeking modification has burden of establishing a significant and continuing change in circumstances to warrants the modification.
- If spouse that’s paying support voluntarily reduces their income, generally a court won’t reduce their obligation
- But if paying spouse incurs new obligations, then a court may consider modification.
- If receiving spouse remarries, then most jurisdictions will terminate spousal support.
Support during marriage
Spouses have a duty to support each other equally under family expense statutes If a creditor provides a “necessary” item to one spouse, it can sue the other spouse for payment if purchasing spouse doesn’t pay.
Divisible Ex parte divorce
Court needs SMJ and PJ. A state court may grant a divorce to one spouse if she is domiciled in state, even if it doesn’t have PJ over the other spouse.
States must give full faith and credit to divorce decrees issued in other states.
Court can grant divorce, but it doesn’t have jurisdiction to address property division, spousal support, or child support, unless there is PJ over OOS spouse.
Child’s right to financial support from parents
- Both parents must legally support minor children.
- Parents cannot bargain away child-support payments in premarital or settlement agreement.
- Visitation rights cannot be denied for nonpayment of support.
Paternity
Questions may arise as to the identity of a child’s dad. Once identity and paternity are established, the child’s dad has rights to custody and
visitation, but he is also under a duty to support the child.
Uniform Interstate Family Support Act (UIFSA)
UIFSA governs if a state has PJ over an OOS parent in an
action to establish or enforce child support or establish paternity.
A court has PJ over an out-of-state parent if they’re:
- personally served within the state or consents to jurisdiction; or
- Resided with the child in the state in the past; or
- Had sex in state, and the child may have been conceived from that.
Amt of child support
Follow guidelines but courts can consider
Best interests of child
Age of the child
Special needs
Assets of both parties
Standard of living during marriage
Child support modification
Allowed if there is a substantial change in circumstances regarding the child’s needs or the parents’ financial situation.
Party seeking modification of child support has burden of showing a substantial change in circumstances.
How does a voluntary reduction in income affect child support modification
If in good faith, the court may reduce the amount
owed; if done to deprive child or punish parent in bad faith, the court might not reduce the obligation.
How does a man discovering that he is not the father of the child, affect child support
some states will terminate the child support order, while others may continue the support obligation.
Timing of modification
A court will only modify child support amounts prospectively, from the date of the motion moving forward (future payments).
A court will NOT reduce the amount of child support retroactively (will not reduce amounts owed prior to the date of the motion).
Child support termination
A parent’s obligation to pay support usually ends when child turns 18
Some jurisdictions can order support while child is in college (subject to reasonable parental demands)
Child support modification jurisdictional requirements
Under UIFSA, state that issued the initial child support order has continuing exclusive jurisdiction to modify the child support order.
Except if :
* Parties (both parents) and the child no longer reside in the state; or
* Parties expressly agree to permit another state to exercise jurisdiction
Child support enforcement jurisdictional requirements (when a parent moves)
If a parent who receives child support moves to a new state, they may register an order in the
new state, which will give full faith and credit to the support order.
New state can then enforce support order (but only the initial issuing state may
modify).
Legal custody
right of a parent to make major decisions regarding the child (e.g., health, education, religion).
Physical custody
right to have the child reside with a parent or guardian and the obligation to provide routine daily care and control of the child.
Joint custody
both parents are willing and able to cooperate with respect to the wellbeing of the child; typically, neither parent has a superior right to make major decisions.
Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA)
Dictates which court has jurisdiction to decide child custody and
visitation.
Initial custody determination (home-state jurisdiction)
A court has SMJ if it is:
6birth, if the child is less than six months old); or
- Was the child’s home state in the past 6 months, and the child is absent from the
state, but one of the parents still lives there
Significant-connection jurisdiction (if home-state jurisdiction is not met)
A court can enter or modify an order if:
- No other state has or accepts home-state jurisdiction;
- The child and at least one parent have a significant connection with the state; and
- Substantial evidence in the state concerning the child’s care, protection, training and personal relationships.
Exclusive-continuing jurisdiction
Courts that make the initial ruling in a custody case have exclusive continuing jurisdiction
over matter until:
- Both parties no longer reside in the state; or
- Child no longer has a significant connection to the state, and any substantial evidence connected to child’s condition is no longer available in the state
Best Interests of the Child Standard
Considers:
- Primary-Caretaker: Many courts consider who the primary caretaker of child was during the marriage, separation, and prior to the divorce.
- Child’s Preference: Courts will consider the wishes of an older child if sufficiently mature and
will consider the child’s reasoning. - Race or religion: Courts generally WON’T use race or religion in determining custody.
- 3P rights: Grandparents, stepparents ,etc. may wish to have custody
- Legal parents are presumptively entitled to custody of their children, unless established that the legal parent is unfit or it would be detrimental to child.
- If a natural parent has had little or no contact with a child, or if child has lived with 3P for an extended time, courts use terms “parent by estoppel” and “de facto parent” to get around presumption
Visitation and Parenting time
- Generally, noncustodial parent is allowed reasonable visitation with a minor.
- Parents have a constitutional right to visitation.
- A court may deny visitation if it would seriously endanger a child’s physical, mental, or
emotional health.
Unwed biological father
Has substantive due process right to have contact with the child, if he demonstrates a commitment to the responsibilities of parenthood
(e.g., participation in child rearing or providing financial support)
3P visitation and parenting time
typically limited to cases in which they have acted in loco parentis with the child prior to the divorce.
Modification of Custody order
home state (or significant connection state) has exclusive continuing jurisdiction.The parent seeking modification must show a substantial change in circumstances
Modification of Custody order: Relocation
If custodial parent is proposing to relocate with the minor child in a way that impairs the
noncustodial parent’s ability to visit child, they need a legit and reasonable purpose.
Court considerS:
best interests of child
relationship of non-relocating parent with child
Age and needs of child
child’s preference
quality of life of relocating parent and child
Premarital agreement
K made before marriage that has terms that govern division of property or spousal support upon divorce of death. Clauses relating to child custody and support are unenforceable.
Must be in writing and signed by the party to be charged.
o A premarital agreement is enforceable if:
(i) There’s been full disclosure;(ii) Agreement is fair and reasonable;
(iii) It was voluntarily entered into.
Uniform Premarital Agreement Act (UPAA)—to argue an agreement is unenforceable, must show at least one of the following:
1) Involuntariness (fraud, duress, coercion); or
2) Unconscionability (lack of reasonable knowledge or disclosure of the other’s assets and obligations at agreement execution).
Voluntary
- Must enter into the K voluntarily (i.e., free of fraud, duress, or coercion)
- Courts consider time-pressure and the opportunity to be represented by
independent counsel. - A party’s insistence on an agreement as a condition to marriage does not make it
involuntary
Procedural fairness for premarriage agreement
Court will look for duress, undue influence, misconduct by a mediator, and if the party had independent representation.
Substantive Fairness in a premarital agreement
Courts will consider fairness of the terms themselves
Fairness
Most courts evaluate fairness at the time of execution of the contract.
* A minority of jurisdictions will also evaluate it at the time of enforcement. Current trend is for courts to enforce contractual agreements that may not be fair if there has been fair disclosure.
Full disclosure
Premarital agreements must provide full disclosure of financial status, including income, assets, and debts of all parties.
Separation agreements
Made between spouses who are planning for divorce to define property division, spousal support, child support, custody, and visitation. Generally merged into the final judgment for divorce May be invalidated for unconscionability or fraud
Property settlement agreements
Settle economic issues of marital estate before a divorce decree is issued. May be invalidated for unconscionability or fraud
Conflict of laws for premarital agreement
States will apply the law of:
- State where agreement was executed; or
- State with most significant relationship to parties and transaction.
Adoption
Statutory legal action in which the previous parent-child relationship is terminated and a new parent-child relationship is established
Unwed fathers’ rights
Unwed fathers have substantive due process rights under the Constitution if they have
shown commitment to being a parent. Includes the right to object to the termination of parental right by an adoption
A putative father registry allows unwed fathers to register themselves as the father of a
child. If registered, the father will receive notice and a hearing before rights are terminated
Legal effects of adoption
Adoptive parents have all the rights and responsibilities that biological parents would have
had. An adopted child has all the rights and responsibilities that a biological child would have had.
Generally, an adoption may not be dissolved, although some states have permitted
dissolution in limited circumstances, (e.g., discovery of an undisclosed mental or physical illness). In evaluating dissolution claims, courts typically consider the length of relationship, child’s needs, and parent’s motives.
Limits on parental authority
A parent has a right to make decisions about how to raise child (e.g., religion), but courts
may intervene in the best interest of the child. If medical treatment contradicts a parent’s religious beliefs, courts can intervene to protect
a child when necessary medical care is needed to prevent serious harm to the child’s health. States can, under their police powers, to require vaccinations and refuse
admission to public schools for students who fail to receive them. These statutes do not
violate parental rights.
