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2022 MEE > UBE Family Law > Flashcards

UBE Family Law Flashcards

1
Q

Premarital agreements

A

valid ks that address the rights of the parties upon divorce or death

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2
Q

Child custody and supports in premarital agreements

A

never bind the court

some jx deem them as void, against public policy
other jx say they are subject to judicial review

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3
Q

Requirements for valid premarital agreement

A
  1. signed writing - SoF
  2. voluntary (w/o fraud or duress)
  3. full and fair disclosure of party’s assets
  4. no unconscionable
  5. some courts consider whether the economic provisions are fair and reasonable
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4
Q

Choice of law involving premarital agreements

A

governed by law of state where it was executed OR state with most significant relationship to the parties

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5
Q

General requirements for valid marriage

A
  1. license
  2. ceremony w/ authorized officiant
  3. no legal impediments (not too closely related, bigamy, etc.)
  4. capacity to consent
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6
Q

Requirements for valid common law marriage

A
  1. consent to marry
  2. cohabitation
  3. couple holding themselves out to be spouses
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7
Q

Req. for court to have jurisdiction over divorce

A

only 1 of the parties needs to be domiciled in jx (resident w/ intent to remain); usualy minimum residency period req.

to determined financial issues, court just have jx over the D

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8
Q

Do other courts recognize divorce decree?

A

Yes, under full faith and credit clause of constitution as long as 1 was domiciled in state granting divorce

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9
Q

Types of divorce

A

No fault and fault-based divorce

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10
Q

grounds for no fault divorce

A

requires showing that:

  1. both spouses agree that there are irreconcilable differences
  2. they have lived apart for specified time
  3. they are incompatible
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11
Q

grounds for fault divorce

A

adultery (filing spouse presents circumstantial evidence of opportunity + inclination; corroboration is often required)

willful desertion or abandonment (unjustified departure from marital home for specified amount of time w/ no intent to return)

extreme physical or mental abuse
drug or alcohol addition
insanity

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12
Q

Defense to no fault divorce

A

deny the existence of any of the 3 requirements

could argue restarting the clock based on reconciliation

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13
Q

defenses to fault-based divorce

A
  1. collusion - agreement by both spouses to allow what would normally be grounds for divorce
  2. connivance - willing consent of other’s actions (usually adultery)
  3. condonation - forgiveness with full knowledge of the wrongs + resumption of marital relationship after
  4. recrimination - party seeking divorce is also guilty of misconduct
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14
Q

legal separation/divorce from bed and board

A

doesn’t terminate marriage but rights are adjudicated

after acquired property is separate property

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15
Q

approaches to property division

A
  1. community property: property acquired during marriage; entitled to 1/2; separate property = property brought into marriage or gift
  2. Equitable division of all property: court divides all property owned by either spouse regardless of when acquired
  3. equitable division of marital property: court only divides property acquired during marriage (not necessarily 1/2)
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16
Q

process for property division

A
  1. classification of marital and separate property

2. equitable division of marital estate

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17
Q

Property classification - how separate property can become marital property (2 ways)

A
  1. commingling: separate property inextricably intertwined

2. transmutation: separate property treated in a way that evidences an intention to be marital property

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18
Q

improvement of separate property during marriage

A

if marital funds or efforts of spouse, the property remains separate but other spouse receives reimbursement for value added

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19
Q

property acquired before marriage but paid for after - 2 views

A

majority view: separated according to the proportion of type of funds used to pay for it

20
Q

pensions during marriage

A

portion earned during marriage is marital property

21
Q

professional license or degree during marriage

A

most jx: separate property but other spouse can be compensated for support provided

22
Q

factors considered during equitable division (lots)

A

age, education, earning capacity, duration of marriage, standard of living during marriage, current financial situation, health, needs of parties, child custody provisions, contribution as a homemaker

23
Q

Alimony/spousal support

A

paid to economically dependent spouse

some courts consider marital fault

24
Q

Types of alimony

A
  1. Permanent periodic spousal support
  2. lump sume
  3. rehabilitative spousal support
  4. reimbursement spousal support
25
permanent period spousal support
paid regularly indefinite period of time can be modified upon proof of substantial change of circumstances
26
lump sum
fixed payment all at once or in installments for specified period of time cannot be modified
27
rehabilitative spousal support
periodic payments to help spouse get to a point where they can sustain themselves for s specified amount of time can be modified upon showing of substantial change in circumstances
28
reimbursement spousal support
reimbursement for one spouse supporting another while obtaining professional license or degree (based on amount of support provided by spouse, not value of degree) for specified period of time cannot be modified, treated as k
29
modification of spousal support
must should substantial change in circumstances (self-induced reduction in income is not sufficient)
30
termination of spousal support
1. most jx: if cohabitating with someone in marriage-like relationship 2. periodic support terminates upon remarriage or death of either spouse
31
Child support/parent duties
both parents equally share duty to support their children | must pay based on (1) ability to pay and (2) needs of the child
32
how child support is determined
child support guidelines (# of children, parents income) | courts can deviate b/c they are guidelines
33
child support and visitation
separate issues, visitation cannot be terminated based on failure to pay child support
34
duration of child support/termination
child reaches age of majority (usually 18) [usually will enforce agreement to pay for college, but support not extended while in college) death of child emancipation of child termination of parental rights can be indefinite for a severely disabled child
35
OG jx to enter child support order
proper where the 1st petition under UIFSA is filed
36
other courts jx to enter child support order
only if: 1. 2nd petition is filed before time to answer 1st has expired 2. petitioner objection to jx in 1st action 3. 2nd state is child's home state
37
Jx to enforce child support order
OG jx: has jx to enforce their order other states: 1. direct enforcement: enforcing parents mails order to other's out of state employer automatically triggering withholding unless timely objection 2. registration under UIFSA: issuing state sends order to another state then that state can enforce as if its the OG state
38
Jx to modify existing child support order
OG court: has continuing and exclusive jx to modify other courts: cannot modify unless no party resides in OG state OR parties consent to jx elsewhere OR child no longer had significant connection to state and substantial evidence is no longer available in state (only issuing state can determine this)
39
how to modify child support order
must should substantial and continuing change of circumstances affecting the needs of the child or ability of parent to pay voluntary reduction in income not grounds for modification
40
federal statute governing child custody
UCCJEA - uniform child custody jurisdiction and enforcement act helps states cooperate and work together regarding interstate enforcement of child custody
41
initial custody determination - primary test
home state jx: court has jx to enter or modify child custody or visitation order if state is (1) child's home state (lived w/ parent 6+ consecutive months at time of hearing) or (2) was the child's home state w/i last 6 months + child absent from the state but 1 parent continues to live in state
42
initial custody determination - when home state doesn't apply
another court can enter or cmodify child custody/visitation order if (1) no other state has home state jx AND (2) child + 1 parent have significant connection to state AND (3) substantial evidence concerning child is available in the state
43
Types of child custody
Legal custody: right to make major decisions affecting child's life Physical custody: actual possession and control of child Joint custody: both parents have legal and/or physical custody
44
standard applied in awarded child custody
best interest of child court has great discretion
45
factors in best interest of child standard
wishes of parents (constitutionally protected right to care, custody, and control; given special weight) child's preference (8+, 12+ great weight) child's relationship w/ persons of interest child's adjustment to home, school, community parent's mental and physical health who has been child's primary caregiver

2022 MEE (11 decks)

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