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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
Q

permanent period spousal support

A

paid regularly
indefinite period of time
can be modified upon proof of substantial change of circumstances

26
Q

lump sum

A

fixed payment all at once or in installments
for specified period of time
cannot be modified

27
Q

rehabilitative spousal support

A

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
Q

reimbursement spousal support

A

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
Q

modification of spousal support

A

must should substantial change in circumstances (self-induced reduction in income is not sufficient)

30
Q

termination of spousal support

A
  1. most jx: if cohabitating with someone in marriage-like relationship
  2. periodic support terminates upon remarriage or death of either spouse
31
Q

Child support/parent duties

A

both parents equally share duty to support their children

must pay based on (1) ability to pay and (2) needs of the child

32
Q

how child support is determined

A

child support guidelines (# of children, parents income)

courts can deviate b/c they are guidelines

33
Q

child support and visitation

A

separate issues, visitation cannot be terminated based on failure to pay child support

34
Q

duration of child support/termination

A

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
Q

OG jx to enter child support order

A

proper where the 1st petition under UIFSA is filed

36
Q

other courts jx to enter child support order

A

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
Q

Jx to enforce child support order

A

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
Q

Jx to modify existing child support order

A

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
Q

how to modify child support order

A

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
Q

federal statute governing child custody

A

UCCJEA - uniform child custody jurisdiction and enforcement act

helps states cooperate and work together regarding interstate enforcement of child custody

41
Q

initial custody determination - primary test

A

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
Q

initial custody determination - when home state doesn’t apply

A

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
Q

Types of child custody

A

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
Q

standard applied in awarded child custody

A

best interest of child

court has great discretion

45
Q

factors in best interest of child standard

A

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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