MEE Family Law Rules Flashcards
Marriage & Limitations on Who Can Marry w/ Exceptions and Defenses
Age
Bigamy/Polygamy not allowed
Cosanguity not allowed (too close of a relationship)
Capacity: Courts will look @ mental capacity
Exceptions/Defenses:
- Removal of the impediment: Under the UMDA the parties can show a removal of the impediment
- Presumption of invalidity: last marriage is presumed valid.
Requirements to Marry
License: from the government is required
Solemnization: from a clergy member is OK
Consent/State of mind requirements: courts will look to mental & physical state of mind. Was the person under the influence of drugs/alcohol? Do the parties have the mental state of mind to enter into a marriage?
Common Law Marriage
Has been abolished in most states. Doesn’t require the legal requirements or formalities. Only need to show:
Consent: both parties have to consent to the marriage and be aware of the arrangement
Cohabitation: both parties have to be living together
Hold themselves as a couple living together in public: must show to the public that they are a couple / married.
Though most states have banned common law marriage, if a marriage takes place in a state that allows common law marriage, the marriage will be valid in other states.
Premarital Agreements
Full Faith and Credit
A marriage that is valid according to the laws of the state in which it is contracted will be recognized in every other jurisdiction, unless the marriage is deemed to violate public policy of the forum state.
Rights of Unmarried Co-Habitants
In most states, a child born in wedlock does not need to establish paternity to recover from the father. However, a child born out of wedlock generally must establish paternity before he or she can recover from the father.
Further, the rights of each parent to participate in the child’s upbringing and the obligation to pay for it must often be established by either agreement or an action to establish paternity.
Children
Parents have the responsibility to make decisions and to perform other parental functions necessary for the care and growth of their minor child.
STANDARD: best interests of the child
The relationship between child & parent should continue to be fostered unless it is not in the best interests of the child
Best Interests of the Child
The best interests of the child are served by a residential schedule that maintains a child’s emotional growth, health and stability, physical care, with emphasis given to the strength of the relationship between child and each parent.
The court seeks stability for the child. The court seeks protection of the child from physical, mental, or emotional harm.
Permanent Parenting Plan / Child Custody
A permanent parenting plan allocates parenting responsibilities, including the residential schedule and decision-making authority
Primary Residential Placement
The court must name one parent the primary residential parent for purposes of federal laws that seek a custodial parent. This nomination does not affect the rights and responsibilities of the parents in the Parenting Plan.
Residential Schedule
A residential schedule sets forth where the child shall reside during the school year, holidays, vacation, and special occasions.
What factors does the court consider for children’s placement?
- each parent’s historical involvement in meeting the children’s day to day needs,
- strength of the relationship with each parent
- the physical and emotional stability each parent can provide
- harmful behaviors of the parents
Dispute Resolution
In order to reduce judicial intervention, the plan must include a specific process for resolving disputes before returning to court. This can be waived if there’s a history of domestic violence.
Child’s Input
A child’s input regarding residential placement is a factor that may be considered, but it is not controlling. Some states have an age of discretion at which a child can choose to live with one parent or another
Restrictions on Contact With Children
Restrictions on contact with the children can be limited if it is in the best interests of the child
Restrictions on Decision Making
A parent’s involvement may be limited if he has willfully abandoned the children for a period of time; has refused to perform parental functions; has abused a child or has a history of domestic violence
Non-Parent Visitation
Nonparent may not petition for visitation with a child unless an existing case relating to a parenting plan is open. Some states have grandparent rights. non-parent can petition for third party custody. (in loco parentis situations)
Modification of Parenting Plan
can modify, but need to demonstrate adequate change or substantial change in child/parent situation.
Relocation
Some states have a relocation statute that sets forth notice requirements for a primary residential parent who seeks to relocate with the child. Court looks @ factors to determine whether the move should be allowed:
- relative strength of relationship between child and other family
- disruption of relationships
- reasons for relocation / good faith
- age, stage, needs of child
- quality of life and benefits of child in new location
Failure to Comply with Parenting Plan
- failure to comply doesn’t discharge parent from duty or court order.
- Parent cant withhold child support in retaliation of other parent’s failure to follow the plan.
- remedy is to seek enforcement of the court order / modification
Child Support Calculations
- only look @ direct parents’ income
- standard calculation + deviations + healthcare + other expenses + travel + post-secondary educational support
- Court can grant downward or upward deviation
Post-secondary education
Not required. Courts will look at ability of parents to contribute, ability of child, intent, education of parents
Child Support Adjustment/Modification
- can be reviewed every 2 years by statute, or upon agreement (annually).
- no retroactive changes
Paternity requirements / rules
- assumed to be man’s child if they are married
- child must be born in marriage or within 300 days after marriage is terminated.
- presumed to be natural father if he and mother marry and he acknowledges paternity in a writing filed with registrar or agrees to be on birth certificate
Adoption/Guardian ad litem
- natural parent must consent in writing to the adoption
- any parent must be served notice of an adoption proceeding.
- adoptee shall be the child, legal heir, and lawful issue of the adoptive parent, entitled to all rights & privileges, including the right of inheritance
- guardian ad litem can be appointed whenever the court feels it is necessary.
Premarital Agreements
are contracts
consideration is marriage
requires: writing, voluntariness, full & fair disclosure of all assets.
courts will look at: were the terms unconscionable? was the other party represented by counsel.
courts like to enforce premarital agreements. can be modified/revoked w.o. considerations.
child custody provisions are not binding
Property & Support Rights & Responsibilities
Each spouse controls his/her own separate property acquired prior to marriage.
Any property acquired jointly is tenancy by the entirety. Post divorce can become tenants in common.
Support – both spouses are to support eachother
Doctrine of necessities; one spouse may be liable to creditors for necessities that other spouse owns.
Annulment
Occurs when marriage is void/voidable Grounds for annulment: 1) bigamy 2) consanguinity 3) non-age 4) incurable physical impotence 5) capacity
spousal support: can be given during the process of annulment but typically courts like to stay away from granting spousal support post-annulment.
property division: courts like to put parties back in the same position that they were prior to the marriage.
Divorce
Traditionally, states used to require proof of “fault” to acquire a divorce. Some states retain “fault” based divorces, but all states offer no-fault divorces.
Grounds for divorce:
- Irretrievably Broken
- Living Separately - for 6 months or more
- Incompatibility
Defenses: There are defenses to divorce in some states, but courts will not force a marriage if one party wants a dissolution.
Separation: legal separation does not terminate the divorce. Separation proceedings can involve property, support, and child custody. Can request a full divorce after legal separation and a passage of time
Jurisdiction over Annulment and Divorce
Jx is granted to the states
Jx can exist where one or both parties are domiciled
Jx can also be given to the state where the parties entered into the marriage.
Divorce
Residency Requirement: one or both parties must live in the states. Some states have a minimum duration requirement to prevent forum shopping
Marriage vs. Marital Porperty
A court does not have jurisdiction over marital property disputes unless it has jx over both parties.
Division of Property & Approach
Equitable Distribution: each spouse takes their separate property; courts divide property acquired during the marriage equitable. Equitable distribution doesn’t necessarily mean 50/50
Community Property: each spouse keeps their separate property - property acquired prior to marriage or by gifts/ inheritance; everything acquired during the marriage gets split 50/50.
How do courts do this?
They categorize marital property & separate property
Find a potential equitable division of the property
Categorizing Property (Separate vs. Marital Property)
Courts must look at separate property and marital property.
Separate property typically includes: any property acquired before marriage, gifts/inheritance, any appreciation due to the passage of time (market increase)
Marital Property: theory is that the efforts of the marriage contributed to this. Any property acquired during the marriage, pensions, wages, any appreciation due to marital efforts.
Distribution of Property
Courts will consider several factors when determining how to divide property equitably including:
- wealth, vocational/educational skills, employability
- length of marriage
- standard of living during the marriage
- child custody provisions
- health of the parties
- needs
- obligations prior to marriage
- contributions to the marital property
fault is not a consideration.
look at the facts and employ the facts in any question that asks for a distribution of property.
Spousal Support
Can be awarded if a party’s separate property is insufficient for maintenance.
Purpose: to help support those spouses who were financially dependent or interdependent due to the marriage.
Discretion: Courts hold discretion on spousal support; typically a test of totality o the circumstances.
Factors that courts look to:
- financial resources of both parties
- contributions of finances to child care / custody, expenses, contributions during the marriage, standard of living during the marriage, need of the party, the spouse’s ability to obtain employment, the ability of the payor to meet their own financial needs.
Payment: can be a lump sump, short-term, or long term.
Child Support
Both parents have a duty to provide for child. Typically a formula that takes many factors into account including number of children, parents’ income, ages, health needs, special needs (if any).
Duration: Emancipation // age of majority (usually 18 or 19) // Some states may require college support payments
Independent Visitation Rights: Separate from obligation to pay child support / can’t deny visitation
Jurisdiction: jx based on if child or atleast one party is residing in the state // exclusive modification by that jx unless all parties move out of state (full faith and credit)
Child Custody & Visitation Rights
Types of Custody:
1) Legal
2) Physical
3) Joint: a) not necessarily 50/50, b) child can split time
Factors when determining custody
parents wishes
childs wishes
willingness and ability of the parent
child’s adjustment
Visitation Rights
one party has sole custody
the other parent DOES have visitation rights, exception: unless the court determines that one of the parents is a danger.
Non parent visitation rights
1) substantial relationship with child
2) best interest of the child
3) fit parent does not object.
Modification of Support & Custody
Typically requires a substantial change in circumstances
Spousal support can be modifiable if there is a substantial change in circumstances that was not foreseeable.
Self-induced changes: typically & generally will not be accepted for modification purposes.
Child support: similar rules as spousal support, can be modifiable, but the courts look at the following factors: a) child’s needs, b) the ability of the parent to pay
Child Custody Modification: Difficult, but must show substantial change in the circumstances // look at the best interests of the child.
Contracts between unmarried cohabitants
can be upheld; exceptions: sex cannot be a consideration. Courts can look at conduct of implied contracts.
