MEE Family Law Flashcards
What does the UPAA (uniform premarital agreement act) cover?
the agreements may cover:
- the disposition of property in the even to of death or divorce;
- the making of a will, trust, or other arrangement to carry out the provisions of the agreement;
- the choice of law governing construction of the agreement;
- and any other matter not in violation of public policy or criminal statute
*generally excludes agreement re: alimony in the event of divorce
*ABSOLUTELY excludes agreement re: child custody in the event of divorce
What makes a valid prenuptial agreement? (requirements)
- K is in writing and signed;
- entered into voluntarily (no fraud, duress, or overreach)
- there’s a full and fair disclosure of each parties’ assets OR proof the party against whom the agreement is being enforced had independent knowledge of the assets [element is only examined after the fact if a court finds it unconscionable *per UPAA]
- some courts consider whether the economic provisions are fair and reasonable
Requirements for a valid marriage:
- license [usually encompassing a 48-72 hour waiting period after obtaining and before marriage is considered valid]
- ceremony with authorized officiant
- no legal impediments: (i) not too closely related and (ii) not currently married to another spouse (bigamy)
- capacity to consent (not under influence of drugs/alcohol + age of consent under state law – usually 18; parental consent required if 16-17)
Elements of a CL marriage
- consent to marry - includes capacity AND lack of legal impediments
- cohabitation
- couple holds themselves out publicly as spouses
WO: *not every state recognizes, but if your state does and you qualify for CL marriage in your state, the marriage is nevertheless valid in any subsequent state you move to
Doctrine of Necessaries:
may be used to make one spouse liable to 3rd parties for the other spouse’s purchases for necessary expenses, such as food, clothing, and health care
Under the UMDA (uniform marriage and divorce act), what would result in a previously void marriage being found valid? What is the alternative?
if the impediment causing the marriage to be invalid was removed, SOME state statutes via the UMDA provide that marriage becomes valid if the parties continue to cohabit
BUT, other states ≠ allow, holding the marriage remains void and the parties must again marry after the impediment is removed for the marriage to be valid
Difference in grounds for a “void” marriage versus grounds for a “voidable” marriage
Void:
- bigamy
- b/w two, too closely related partners (siblings, parent-child, etc.)
- nonage of consent (some states)
Voidable:
- nonage of consent (most states)
- incurable physical impotence
- lack of capacity (mental incompetence, duress, fraud involving essentials of marriage)
Jurisdiction requirements for a divorce:
only 1 of the parties need be domiciled in the jurisdiction; AND
most states set a minimum residency period (usually 90 days to 6 months) before an action may be filed
thus, satisfaction of above will allow a court jurisdiction over a divorce action
BUT, however, court MUST have PJ over defendant in order to determine financial issues like property rights and spousal support
What are the grounds for a “no-fault” and “fault” divorce?
No-Fault:
- irreconcilable differences
- living apart for a specified amount of time (90 days – 18 months depending on jurisdiction)
- both parties agree they are now incompatible and can’t be married anymore
Fault:
- adultery (BUT all that’s required is for filing spouse to present evidence of (i) opportunity and (ii) inclination - rather than direct evidence
- willful desertion or abandonment (departure with no intent to return)
- extreme physical or mental cruelty
- voluntary drug addiction or habitual drunkenness commencing AFTER marriage
- insanity
Defenses to divorce:
No-Fault: only defense is to deny the existence of one of the grounds for divorce; 1 spouse may claim that a reconciliation restarted the clock for living separate and apart
Fault-based: rarely used, but include:
- collusion: agreement b/w spouses to simulate grounds for divorce
- connivance: where spouses willingly consent to other spouse’s misconduct, usually limited to adultery cases (“swingers couples”)
- condonation: the forgiveness of marital offenses with full knowledge of the wrongs (resuming the marriage after forgiveness is key)
- recrimination: arises when the party seeking divorce is also guilty of misconduct for which a divorce may be granted (rarely used)
2-Step Process: property division re: divorce
Step 1: classification: determine what = marital property and what = separate property
Step 2: division: divide marital property equitably regardless of how property is titled
what = “separate property” (re: divorce)
- property owned before marriage
- property acquired by gift or inheritance
- property acquired in exchange for separate property
- income & appreciation of separate property
- pain and suffering awards
- personal damages (i.e., future medical expenses or future lost wages)
- property acquired after an order of legal separation that includes a final disposition of property
what = “marital” property (re: divorce)
- property acquired during marriage
- earnings
- employment benefits, pensions, and stock options (acquired during marriage)
- lost wages (if accrued during marriage d/t settlement or judgment during marriage, can be distributed upon divorce)
- reimbursement for medical bills incurred and paid w/ marital property
- recovery for damages to marital property
4 Types of Alimony:
- permanent periodic spousal support (b/c spouse ≠ have resources or ability to self-sustain) → terminates with paying spouse’s death BUT can be modified over time
- lump sum: fixed payment payable either at once or via payments → does NOT terminate with paying spouse’s death; CANNOT be modified over time
- rehabilitative spousal support: periodic payments for a limited time to enable spouse to gain skills to become self-supporting (for fixed amount of time) → can be modified over time w/ proof of substantial change of circumstances
- reimbursement spousal support: occasionally awarded to spouses who supported the other spouse while the latter obtained a professional license or degree; can be ordered in conjunction w/ periodic or lump sum alimony → CANNOT be modified; treated as a K right
3 ways to terminate spousal support:
- recipient remarries
- death of either spouse
- (most jurisdictions) if recipient spouse begins cohabitating with someone in a marriage-like relationship
Def.: Separation Agreement
an agreement entered into after marriage under which the parties agree to live apart and resolve economic issues (spousal support, property division, and child support) and custody rights → acts like a pre-divorce separation
enforceability requires:
- agreement must be voluntary;
- there was full and fair disclosure by both parties; AND
- there MUST be consideration (found in mutual promises of partners)
Jurisdiction Over Child Support Orders (original and subsequent)
- Governed by the Uniform Interstate Family Support Act (UIFSA) - all 50 states adopted
- Original jurisdiction is proper where the 1st petition under UIFSA is filed
- Another state may exercise jurisdiction ONLY IF:
- 2nd petition filed before the time to answer the 1st has expired;
- The petitioner objected to jurisdiction in the 1st action; AND
- The 2nd state is the child’s home state
- Whichever court issues child support order has jurisdiction to enforce, and UIFSA helps enforce orders in other states
2 ways to enforce child support orders in non-issuing state re: UIFSA
- Direct enforcement: allows custodial parent to mail order to payor’s out-of-state employer, automatically triggering wage w/holding unless timely objected
- Registration: issuing state sends order to state where payor resides; the order is registered and filed as a foreign judgment, and is thus subject to the same enforcement procedures as if the order had been issues in that state
How can jurisdiction be modified for child support orders?
Generally - issuing court has continuing and exclusive jurisdiction
BUT, may modify if (1) the parties consent to jurisdiction elsewhere; OR (2) no party resides in the issuing state anymore
A court has jurisdiction to initially enter or modify a child custody or visitation order if the state: (Home State Test)
- is the child’s home state (either (i) where child has lived with parent/guardian for at least 6, consecutive months immediately before proceedings commenced or (ii) where child has lived since birth if < 6 months old); OR
- was the child’s home state w/in the past 6 months and the child is absent from the state, but a parent or guardian continues to live in that state
Provided for by UCCJEA: Uniform Child Custody Jurisdiction and Enforcement Act
A court has jurisdiction to initially enter or modify a child custody or visitation order if the state: (non-Home State Test - 3 req’s)
- if no other state has or accepts home state jurisdiction;
- the child and at least one parent or guardian have a significant connection with the state; AND
- there is substantial evidence concerning the child is available in the state
Re: modification of an existing child custody order - what court may modify?
Only the issuing court may modify UNLESS:
- no child or parent/guardian continues to reside in the issuing state; OR
- the child no longer has a significant connection with the issuing state and substantial evidence relating to the matter is no longer available in the state
BUT WO: only the issuing state can decide if the second test is met
Under what circumstances may a court decline to exercise jurisdiction over a child custody matter?
The court may decide based on:
- that this court is an inconvenient forum under the circumstances and another state is thus a more appropriate forum; OR
- if the party seeking to invoke the court’s jurisdiction has engaged in unjustifiable conduct (e.g., a parent wrongfully took child from another state)
What factors are considered in a “best interests of the child” analysis?
- parents’ wishes
- child’s preference (under age 8 given little weight, age 8-12 given some weight, over 12 given much weight)
- child’s relationship w/ parents, siblings, and others involved with parents
- child’s adjustment to home, school, and community
- parties’ mental and physical health
- who has been the child’s primary caregiver
BUT OVERALL - a trial court is vested with great discretion to make this determination
What factors are considered in a joint custody analysis?
- parents’ fitness
- whether parents agree on joint custody
- parents’ ability to communicate and cooperate concerning child’s well-being
- child’s preference
- level of involvement of both parents in child’s life
- geographical proximity of the two homes
- similarity or dissimilarity of the homes
- effect of the award on child’s psychological development
- parents’ ability to physically carry out joint custody order
BUT OVERALL - joint custody is heavily favored; will only not be granted if parents are openly hostile or unable to communicate
What circumstances does a judge consider when deciding whether to allow the custodial parent to move out of state with the child?
- if relocation is in child’s best interest;
- if move is motivated by a benefit to the family; and
- whether move is intended to thwart relationship with the other parent
Requirements for a surrogacy agreement (called a “gestational carrier agreement”) to be valid:
- be in writing and approved by the court
- be accompanied by a child welfare agency home study unless waived
- be voluntary
- make provision for healthcare costs until birth
- (for constitutional reasons) not limit rights of surrogate to make healthcare decisions
- provide reasonable consideration if surrogate is promised consideration
If agreement is unenforceable, the gestational mother is considered the mother of the child, regardless of biology
What is the purpose of spousal support?
To ensure an adequate income stream for the spouse whose economic dependency has resulted, at least in part, from the marital relationship
General rule: will a state extend full faith and credit to an ex parte divorce decree granted by a sister state court? Any exceptions to this?
Yes, a court will generally give full faith and credit to divorce decrees of a sister state’s courts if the sister state had proper jurisdiction AND the decree is valid in the sister state
*where proper jurisdiction is satisfied when one of the spouses is domiciled in the divorce-granting state
BUT → under the doctrine of divisible divorce, an ex parte divorce decree has NO EFFECT on marital property disputes, unless the property is located in the rendering state → if outside the rendering state, such disputes can ONLY be resolved by a court with PJ over both parties
Under the Uniform Parentage Act (UPA), the spouse of a woman who bears a child through assisted reproduction is the child’s legal parent, unless…
w/in 2 years after learning of the child’s birth, the woman’s partner commences an action where it is determined they did not consent to the assisted reproduction
