Review Flashcards
What are the requirements for a valid common law marriage?
Capacity to enter into a marital contract;
agreement to be married;
cohabitation; and
holding out a relationship (CACH)
When can a custody order be modified?
When there is a substantial change in circumstances that was unforeseen at the time of the initial judgment
When are premarital agreements enforceable?
Generally valid and enforceable unless procured by fraud, duress, or coercion. Under UPAA, in writing & signed
Under the UPAA, when are premarital agreements unenforceable?
If a) involuntary (fraud, duress, coercion; or b) unconscionable when executed and spouse was (i) not provided fair disclosure; (ii) did not waive disclosure in writing; or (iii) did not have knowledge
What are the voluntariness factors for purposes of a valid marital agreement?
(1) presence of independent counsel; (2) length of time between agreement and wedding; (3) ability to understand agreement; & (4) other reasons (like pregnancy)
Are premarital child custody and support agreements enforceable?
Maybe, but they are not binding. A court will apply a best interest of the child standard
Are premarital spousal support agreements valid?
Depends on the state.
UPAA, permitted but not enforceable if it will make spouse eligible for public support without spousal support
What is separate property?
1) property individually acquired before marriage;
2) gifts and bequests to individual during marriage;
3) property spouses agree to remain separate; &
4) passive appreciation of above-named property
What is marital property?
All property acquired during the marriage, including
1) active appreciation caused by effort of spouse(s)
2) future expectancies even if payment will not be received until after marriage ends
How do courts divide marital property?
Equitably. Fault is irrelevant, but economic misconduct is considered
Can a property division award be modified?
No, unless there is an exceptional circumstance like fraud or duress
What is the purpose of spousal support?
Maintain spouse’s standard of living and limit unfair economic effects of divorce
What factors will a court consider when awarding spousal support?
1) financial resources;
2) time necessary for obtaining a job;
3) standard of living during marriage
4) duration of marriage
5) age, physical condition;
6) ability of spouse paying support
Under the UIFSA, when may a court modify a child support order from another state?
1) court has jurisdiction; and
2) either (a) all parties no longer reside in issuing state, or (b) each party has consented in writing
Child support order: which court has jurisdiction to modify?
The issuing court retains continuing, exclusive jurisdiction over an order if (a) state is still residence of one party; or (b) all parties consent
When is relocation of a custodial parent allowed?
Permitted if (1) in good faith; and (2) in the best interest of the child
Third-party custody rights
Must show the parent is unfit or that granting custody to the parent would be highly detrimental to the child. Must give special weight to parent’s determination of child’s best interest
Which court may dissolve a marriage?
A court that has jurisdiction over at least one of the parties to the marriage
Which court may issue a property division order?
Only the court with jurisdiction over the defendant spouse
What is necessary to establish over a nonresident parent in order for a court to issue binding child custody and support orders?
The state must have personal jurisdiction over a nonresident parent (minimum contacts)
What are the different tests for jurisdiction over child custody orders?
1) home state test
2) significant connections test
3) emergency or default jurisdiction
What is the “home state” test?
A child’s “home state” has exclusive jurisdiction to modify a custody decree. A home state is where the child has lived for at least six consecutive months before the commencement of a proceeding.
What is the “significant connections” test?
If a child has no home state, a state may exercise jurisdiction based on (1) significant connections with the child and at least one parent; and (2) substantial evidence relating to child custody is in the forum jurisdiction
What is emergency jurisdiction?
It exists if no other state has jurisdiction over a child custody order
Which Act governs child support?
UIFSA (Uniform Interstate Family Support Act)
Which Act governs child custody?
UCCJEA (Uniform Child Custody Jurisdiction and Enforcement Act)
Describe a parent’s constitutional parenting rights
A parent has a fundamental right to the care, custody, and control of their children.
