MEE Essentials: Family Law Flashcards
Common law marriage requirements
CACH
Capacity to enter marital agreement
Agree to be married
Cohabitate
Hold out to be married
When is a marriage recognized?
Valid under law of place where it was contracted UNLESS violates strong public policy of state with most significant relationship to spouses and marriage
Bigamy and saving doctrines
A bigamous marriage is void from the beginning UNLESS the two following measures are met
1) presumption most recent marriage is valid
2) removal of impediment (divorce of first marriage) renders subsequent marriage valid
Which states recognize fault-based v. no-fault divorces?
No-fault: almost all. states
Fault-based: some
Annulment/other reasons can also end marriage
Does biological parent generally have parenting rights?
YES, if involved in child’s life + best interest and welfare of child standard
Best interest of the child factors
-wishes of child’s parents
-child’s primary caretaker
-mental/physical health of all parties
-interrelationship of child/parents
-stability
-presence of DV
When can custody be modified?
Only when there is SUBSTANTIAL CHANGE IN CIRCUMSTANCES (usually must be unforeseen)
Child support guidelines + rebuttable presumption
All states employ numerical guidelines and establish a rebuttable presumption that award resulting from guidelines is correct. The guidelines must be applied REGARDLESS of parents’ marital status.
Child support guideline factors
-income and earnings of parents
-number of children and ages
-special needs of children
When can modification of child support occur
-petitioner must show SUBSTANTIAL CHANGE IN CIRCUMSTANCES + good faith
-voluntary reduction of income likely insufficient
-high standard to overcome
Can child support be modified retroactively?
NO, absent fraud or other compelling circumstances
Relocation of child and parent
-Good faith + child’s best interest test
-must weigh impact on visitation for non-custodial parent
Fit parent decisions
Decisions by a fit parent must be given SOME DEFERENCE (unless will jeopardize child’s health/safety)
Does father have rights?
Biological fathers have rights BUT may need to exercise within time specified by state (e.g. 2 years)
May a parent oppose an adoption by another?
When an INVOLVED parent demonstrates “full commitment to the responsibilities in parenthood,” can likely oppose adoption by another
Also entitled to NOTICE of proceedings
Presumed best interest of child for custody
Biological parent presumed to have best interests in child
Third party who wants to show parent is not fit
Must prove parent is UNFIT or that granting custody to parent would be HIGHLY DETRIMENTAL to child
Special weight to parent’s determination of child’s best interest
Property division at divorce: marital property v. separate
Majority: marital property divided at divorce, but separate property remains property of owning spouse
Marital property vs. separate property (majority approach)
Marital property: acquired during marriage
Separate property: before marriage, inheritance, or gift
Do professional degrees count as marital property?
Majority: NO
When is premarital agreement enforceable?
When VOLUNTARY, FAIR, and with FULL DISCLOSURE of assets
Child custody/support NOT enforceable if not in best interest of child
Alimony types + factors
Temporary, permanent or lump sum
Factors: financial needs and resources, marital contribution, marital duration (sometimes: spousal misconduct)
Trial court has substantial discretion
Modification of alimony + when it terminates
Only when substantial unanticipated change of circumstances
Usually terminates when spouse dies or gets remarried
Some states: cohabitation can reduce or terminate alimony
Does court need jdx over both spouses to dissolve marriage?
NO, just need one spouse domiciled in forum state or long-term connection between one of the parties to the marriage
Which court can issue property division order
ONLY when court has jdx over DEFENDANT SPOUSE
What governs child support?
Uniform Interstate Family Support Act (UIFSA) governs child support, and has been adopted by all states
Which state can modify child support order?
State that originally issued has EXCLUSIVE continuing jdx to modify if the child or parents remain in the state
Child custody: what governs?
Uniform Child Custody Jurisdiction and Enforcement Act
What courts have jdx over child custody? 3 tests
1) home state: where child has lived w caretaker for at least 6 months or since birth or if child has left state for less than 6mo so long as parent remains in state –> continuing exclusive jdx
2) significant connections test: if child has no home state, can be based on a) significant connections with child + a parent AND 2) “substantial evidence” relating to child custody in forum jurisdiction
3) emergency or default jurisdiction: applies if no other state has jdx
When a marriage is intact and couple is still together, may a court intervene on behalf of a child due to 1) financial choices 2) failure to permit a child to participate in hobby 3) medical choices?
Financial choices: court CANNOT intervene in intact marriage UNLESS would danger welfare of child (being poor and unable to pay bills does not endanger welfare)
Recreational choices: Court CANNOT intervene
Medical choices: court CAN intervene and declare a child NEGLECTED if the parent’s choice causes SERIOUS HARM to child’s health
Can extremist religion be a basis to prevent awarding a parent custody?
NO, unless beliefs would be DETRIMENTAL to child
