MEE_BN_FamilyLaw Flashcards
What is the primary purpose of premarital agreements?
To resolve disputes between spouses in the event of divorce and for estate planning in the event of death.
What are the general requirements for premarital agreements to be valid?
Must be in writing and signed by the parties.
What can invalidate a premarital agreement?
A court finding of procedural unfairness or substantive unfairness.
What factors are considered under procedural unfairness?
- Fullness of disclosure of net worth
- Availability of independent counsel
- Timing of presentation of the agreement
- Relative bargaining power of the parties
- Relative levels of financial or legal knowledge
When is adequate disclosure not required in a premarital agreement?
- Voluntary waiver of disclosure requirement
- One spouse has knowledge of the other spouse’s financial circumstances
What renders a premarital agreement subject to contract defenses?
Lacking voluntariness.
What are the UPAA’s conditions for a premarital agreement to be unenforceable?
- Lack of voluntariness
- Lack of adequate disclosure AND unconscionability
What is the majority view regarding waiver of alimony in premarital agreements?
Permits waiver of alimony by agreement.
What is the general policy regarding children’s support obligations in premarital agreements?
It is invalid to limit a parent’s obligation to support minor children.
What are the requirements for a formal marriage?
- Marriage license
- Solemnization by a state-authorized official
What is the definition of common law marriage?
A marriage recognized based on the couple meeting specific requirements without a formal ceremony.
What are the four requirements for common law marriages?
- Capacity to marry
- Present intent to be married
- Cohabitation
- Holding out as a married couple
What significant ruling did the U.S. Supreme Court make regarding same-sex marriage in June 2015?
Bans on same-sex marriage are unconstitutional under the U.S. Constitution.
What is the majority rule regarding nonage in marriage?
- Prohibited for minors under 14
- Requires parental consent for minors between 14 and 18
What is consanguinity in the context of marriage laws?
Prohibits marriage licenses between blood relatives like ancestors, siblings, and aunts/uncles with nieces/nephews.
What constitutes fraud in the context of marriage consent?
Misrepresentation or failure to disclose intended to induce the other party into marriage, must be material.
What is a void marriage?
A marriage that is of no legal effect and cannot be recognized.
What is a voidable marriage?
A marriage that is valid until annulled by an aggrieved party.
What is the principle of comity regarding out-of-state marriages?
A marriage valid in the state where contracted will be recognized elsewhere unless it violates strong public policy.
What rights do unmarried cohabitants typically lack?
Legally recognized status unless they meet requirements for common law marriage or putative spouses.
What is the doctrine of necessaries?
Recognizes a spouse’s liability for obligations incurred by the other spouse in specific situations.
True or False: Most states allow provisions dealing with the frequency of sexual relations in premarital agreements.
False.
Fill in the blank: A premarital agreement is unenforceable if there is a lack of _______.
[voluntariness].
What must a putative spouse have to qualify for rights similar to a legal spouse?
A ceremonial marriage and at least one spouse must have a good faith belief in the validity of the marriage.
What is the effect of an annulled marriage?
Typically declared invalid from the date of inception and can legally eradicate the marriage.
What is the doctrine of necessaries?
A legal principle holding that one spouse can be held liable for the necessities incurred by the other spouse under certain conditions.
This includes situations such as agency theory, forcing the issue, and medical expenses.
In what situations can a spouse be held liable for the other’s debts?
Liability arises in three primary situations:
* Agency theory
* Forcing the issue
* Medical expenses
Example: If one spouse incurs medical bills, the other may be liable if they can afford to pay.
What presumption applies to children born to a married woman?
Presumption of marital legitimacy/paternity applies, meaning they are considered the children of the woman and her spouse unless proven otherwise.
This presumption can be rebutted with clear and convincing evidence.
What is the doctrine of estoppel in relation to parentage?
It prevents a spouse from denying paternity if they have acted as the child’s parent after learning they are not the biological father.
It also applies to mothers seeking child support from other men under similar circumstances.
How long do states typically allow to establish parentage for unmarried parents?
Most states provide a two-year period for establishing parentage when an alleged child has a presumed parent.
This is intended to resolve issues quickly to avoid unsettled circumstances for the child.
What is the burden of proof for establishing parentage through DNA tests?
The burden of proof is the preponderance of the evidence.
This standard is lower than that for marital presumption, which requires clear and convincing evidence.
What rights do non-marital children have compared to marital children?
Non-marital children are constitutionally guaranteed equal rights to support as marital children.
This ensures that all children receive support regardless of their parents’ marital status.
What is the general rule regarding parental obligation to support a child?
A parent’s obligation to support a child typically ends when the child reaches the age of majority (18 in most states).
Some states require support to continue for disabled children or those attending high school.
What is emancipation in relation to parental rights?
Emancipation is when a minor child becomes financially independent and no longer requires parental support.
Key components include maturity, marriage, or having children of their own.
What constitutes involuntary termination of parental rights?
Parental rights can be involuntarily terminated based on findings of parental unfitness proved by clear and convincing evidence.
Conditions include abandonment, neglect, or abuse.
What is required for a valid adoption?
Consent of the birth parents is generally required, unless they have waived their rights or been deemed unfit.
In cases of unmarried parents, both parents’ consent may be necessary.
What is the standard for granting a petition for adoption?
The court grants adoption based on a determination of the child’s best interests.
Racial matching may be considered, but should not be the sole factor.
What are the two different approaches to equitable adoption?
Equitable adoption can be approached through:
* Contract theory
* Behavior/equitable theory
Each approach considers different aspects of the parent-child relationship.
What is subject matter jurisdiction in family law?
Subject matter jurisdiction relates to the court’s authority over marital status based on domicile.
Domicile requires physical presence and intent to remain permanently in the state.
What is the legal standard for proving adultery in divorce cases?
The legal standard is based on opportunity and inclination, often proven through circumstantial evidence.
Direct evidence is typically rare due to the secretive nature of adultery.
What constitutes a no-fault divorce?
A no-fault divorce requires proof that the marriage is irretrievably broken and there is no reasonable prospect of reconciliation.
Separation for a definitive period may also be necessary.
What is collusion in the context of divorce?
Collusion refers to an agreement between spouses to falsely assert marital wrongdoing to obtain a divorce.
This can invalidate the divorce proceedings.
What is the majority rule regarding when a marriage ends after divorce?
The majority rule states that the marriage ends on the date when a final divorce decree is entered.
This contrasts with the minority rule, which considers the date of permanent separation.
What is equitable distribution in divorce property division?
Equitable distribution allows courts to consider various factors related to each spouse’s financial situation when dividing property.
It is not a strict 50/50 split but aims for fairness.
What is the effect of a decree of adoption?
The biological family is no longer the legal family, and the adoptive family becomes the legal family for all purposes.
This includes rights and responsibilities under the law.
What has been eliminated from consideration in property distribution in many states?
Separate property in matters not related to parties’ finances
This includes aspects like dissipation of assets.
What do separate property states adopt at divorce?
Community property regime
This does not apply during marriage or at death.
How do community property states treat property at divorce?
Shift to equitable distribution
There is no mandate for 50/50 division.
What is the understanding of marriage that influences property classification?
Marriage is a partnership where both partners contribute labor and effort
Therefore, both partners should share in the product of that labor.
What is the primary basis for property classification?
Timing of acquisition
What is considered separate property?
Property owned before marriage, acquired after dissolution, or acquired by gift or inheritance
This is during the marriage.
What is presumed to be community property?
Property acquired during the marriage
In most states, what happens to separate property once identified?
It is generally not divisible and remains with the owner spouse
What is the first step in the judicial division of property?
Identify the divisible property
What is the dual classification of property?
Marital property is jointly owned and acquired; separate property is owned only by the title holder
What is the presumption regarding property coming into the marriage?
It is considered marital property
What are the earnings of each spouse presumed to be?
Marital property
What is passive appreciation classified as?
Separate property
What happens if the increased value of separate property results from spouse’s efforts?
It becomes marital property
What does marital property generally NOT include?
- Acquired by gift or inheritance
- Excluded by valid agreement
- Acquired prior to marriage or post-separation
What is the typical end date for the joint acquisition period?
- Date of separation
- Date divorce is filed
- Date of hearing
- Date of decree of divorce
What happens if separate property is commingled?
It may transform into marital property
What is the second step in the judicial division of property?
Value it
How is property division determined?
Based on fairness, not necessarily 50/50
What are the key factors in determining equitable division?
- Financial status or need of the parties
- Contribution
What is classified as separate property in the hypothetical scenario of Kelly and Jackie?
Kelly’s home
In the context of marital residence, what must the court do?
Disaggregate the pieces of property
What are the two types of pension plans?
- Defined Contribution Plan
- Defined Benefit Plan
What is the status of stock options granted during marriage?
Presumed to be marital property
How are professional degrees typically regarded in divorce proceedings?
Not considered a property interest subject to equitable distribution
What principles govern the characterization of debts?
Same principles as assets; debts incurred during marriage are marital debts
What is periodic alimony?
Requires a certain amount of money paid at set intervals
What is lump-sum alimony?
A fixed amount, not subject to modification
What is rehabilitative alimony?
Awarded for a limited time until the recipient can support themselves
What is generally required for an alimony order under UMDA?
The spouse must lack sufficient property to meet reasonable needs
What factors are considered in making an alimony award?
- Financial resources and needs
- Contributions to marital relationship
- Duration of marriage
What generally leads to termination of spousal maintenance?
- Specified term
- Death of either spouse
- Remarriage or cohabitation
Who owes child support?
Both parents
What is the presumption about child support payments?
The non-custodial parent pays support
What standard is used to determine child custody?
The best interest of the child
What are the two aspects of joint custody?
- Physical custody
- Legal custody
What are the two types of custody rights concerning a child?
Physical custody and legal custody
Physical custody refers to the right to have the child live with a parent, while legal custody involves making important decisions regarding the child’s welfare, such as health, religion, and education.
What does joint custody generally refer to?
Shared physical custody and/or shared decision-making power
Joint custody can involve both parents having parenting time and/or sharing the power to make decisions regarding the child.
What is a typical structure for joint custody?
One parent has primary physical custody, the other has significant periods of physical custody, and both share decision-making power
This structure allows both parents to be involved in the child’s life while designating one as the primary caregiver.
In determining custody, what legal standard do courts generally use?
The best interest of the child
This standard guides courts in making decisions that prioritize the child’s welfare and needs.
True or False: A parent’s misconduct in connection with divorce is always relevant to custody decisions.
False
The misconduct is relevant only if it affects the parent’s moral fitness and, consequently, the child’s welfare.
What factor may some courts consider regarding a parent’s willingness to cooperate?
The Friendly Parent doctrine
Courts may evaluate whether a parent is willing to facilitate the child’s relationship with the other parent.
What is required for the modification of child support orders?
A substantial and continuing change in circumstances
This change must make the prior order unreasonable.
What is the burden of proof regarding custody modification?
The party seeking modification must prove both a change in circumstances and that it is in the child’s best interest
Most states require that the change in circumstances be unforeseen.
Fill in the blank: Modifications to child support orders cannot be made _______.
retroactively
Federal law prohibits retroactive modifications of child support obligations.
What is the general trend regarding custodial parent relocation?
Leniency for the wishes and needs of the custodial parent
Courts tend to favor the custodial parent’s decision to relocate unless it is detrimental to the child.
What does the Uniform Interstate Family Support Act (UIFSA) address?
Interstate enforcement of spousal maintenance and child support orders
UIFSA has been adopted in all 50 states and governs jurisdictional issues in family support actions.
What are the conditions for a state to exercise personal jurisdiction over a nonresident in support order cases?
Multiple conditions including personal service, consent, residence with the child, or engaging in sexual intercourse in the state
These conditions help establish jurisdiction in support order proceedings.
What is the significance of ‘home state’ under the UCCJEA?
It determines jurisdiction for child custody matters
A home state is where a child has lived with a parent for at least six consecutive months before custody proceedings.
What is the primary jurisdictional basis for custody under the UCCJEA?
The child’s home state
If no home state exists, significant connections or appropriateness of the forum are considered.
What does the Parental Kidnapping Prevention Act (PKPA) mandate regarding custody orders?
States must enforce custody or visitation orders from other states with proper jurisdiction
This ensures uniformity and respect for custody decisions across state lines.
What happens if a state has made a valid child-custody determination under the UCCJEA?
That state has exclusive jurisdiction over the determination
This jurisdiction continues until a significant connection is lost or the child moves out of the state.
What are two reasons a state can decline to exercise jurisdiction under the UCCJEA?
Inconvenient forum and unjustifiable conduct to secure jurisdiction
Courts consider the child’s best interests and the appropriateness of the forum when deciding jurisdiction.
