Family Law Flashcards
What are the common controversies arising in anticpation of marriage?
(1) Fraudulent inducement - if the consent of either party to a marriage was fraudualy obtained, the marriage will be viod from the time its invalidity is delcared by the court
(2) Premarital gifts conditioned on Marriage - Under the traditional rule, a gift conditioned on marriage was retured to the donor if the donr was not at fault for the breakup. Under modern view, such gifts are returned to the donor regardless of fault.
(3) Contracts restraining or promoting marriage - Disfavored because marriage is a fundamental right. However, partilal restraints may be valid if they are reasonable.
What is the incestous marriage rule?
Other common limitaitons
UDMA - May not marry if
(1) Ancestors or descendents
(2) Siblings (regardless of whether half blood or adopted OR
(3) Uncles, Aunts, neices, newphews
Minors - Persons must be 18.
(4) Physcial incapacity - if you cant consummate, and the other party was unaware, voidable.
(5) voidable for fraud if a party makes a material misrepresentation that affects the esstentials of marriage.
What are the marriage requirements?
(1) Marriage license
(2) Solenmized by a ceremony conducted by authorized clergyman or judge
(3) Consent - consent if parties intended to take on the usual obligations of marriage.
What is a common law marriage?
(1) Cohabited
(2) Held themselves out to be married
(3) intended to be married.
MOST STATES will recognize a common law marriage if it was validy obtained in a jurisidction that permits it UNLESS doing so contradicts a powerful public policy of the jurisidction with the greatest interest in the marriage of the parties.
Most states will enforce a prematrial agreement as a valid contract if it is
(1) In writing and signed by both parties
(2) Executed after full disclosure of the property and financial obligations of both parties AND
(3) Voluntary - (a) independent legal counsel (b)length of time between agreement and marraige (c) sophistication of parties (4) Presence of other pressing reasons to continue with marriage (pregnancy).
Under the UPAA - party who it is sought against must prove agreement was (1) not voluntary OR (2) Unconsciable when it was executed and that he or she did not recieve or waive fair and reasonable disclosure and did not have, or reasonably could not have had, an adequate knowldege of the others assets and obligations.
Child custody and support in Premarital contracts?
Spousal support in Premarital contracts
(1) Most courts decide custody according to the best interests of the child at the time of the custody hearing, regardless of premarital agreement.
(2) Child support - Parents have an absolute obligation to support their children. A premarital contract CANNOT adversely affects a child’s right to support under any circumstance. Such agreements are NOT binding on the court and are unenforceable.
(1) During the marriage, generally void as against public policy
(2) UPAA - modifcation or eliminiation of spousal support is permitted so long as such provisions do not make the former spouse eligible for public support. Other jurisidctions they are void as against public policy.
What are the rights and responsiblties of spouses?
Property rights - Under the common law’s unity theory of marriage, the legal identify of the wife disapperared and husband controlled virtually all the property. Today, both spouses retain full rights to their own property during and after marriage.
Necessaries doctrine - At common law, husbands were legally responsible for supporting their wives. Here, the wife could purchase necessaries on credit and charge them to her husband. The creditor who furnished could recover fair market value of goods and services even though the husband did not enter into the contract.
Today, most states have modified the necessaries doctrine holding both spouses liable to creditors for necessries purchased by the other spouse.
When can a marriage be annuled?
If it is void or voidable.
Common grounds are -
(1) Lack of capacity to concent at the time of the marriage
(2) Lack of capacity to physically consummate the marriage
(3) underage minors without parental consent
(4) Marriages prohibited by law
Ratification may be a defense to voidable marriage. - Ratification is where the party who seeks annulment fails to bring an action within a reasonable time after discovery of the defect.
When can someone seek divorce?
(1) One party is at fault OR/AND
(2) No - fault divorce. - (1) minmum duration of seperation and OR (2) irreconcillable difference.
Marital action jurisdiction rule
(1) Jurisidction over marital actions is vested solely in state courts
(2) Annulment - Under majority view, a state where either party is domiciled has jurisidction to enter an annulment decree. Ex parte annulments are allowed in the state where either party is domiciled.
(3) Divorce - Under the full faith and credit clause, a divorce validly granted in one state is entitled to full faith and credit in other states. Valid and must be recognized in other states if the peitioning party
(1) Was domiciled in the state that granted the divorce (regardless of PJ over other spouse) AND provided adequate notice of the proceeding to the other spouse.
Divisible divorce - A distinction is made between the marriage and the martal property. A state does not have jurisidction to divide marital property that is located in another state in the abscence of personal jursidction over the defendant spouse.
How is property divided at divorce?
(1) Cateorgize the property as seperate or matiral THEN
(2) Determine an equiatible distibution of the martial property between the spouses.
Seperate property generally includes (1) property aquired by either spouse before the marriage (b) aquired by the spouse during marriage by gift, bequest, devise, or descent (c) property aquired with proceeds of seperate property and (d) Passive appreacition of seperate property.
Marital property includes all property aquired during marriage that is not seperate property. Active appreciation of seperate property is usually caterogized as marital property.
Distribution - courts have considerable discretion and will consider
(1) income, property, liabilities of each party
(2) duration of marriage
(3) obligations for support arising out of a prior marriage
(4) accustomed lifestyle
(5) contributions made my each spouse toward accumulation
(6) marital fault is NOT considered.
When is spouse entitled to spousal support?
How is the amount determined?
When can it be modified?
Spouse (1) Lacks property suffiicent for his or her reasonable needs and is ubable to support himself through gainful employment OR (2) is the custodian of a child such that it would be inapproparitate for him to work.
When determining the amount, courts look at
(1) financial resourses
(2) time necessary for spouse to obtain job
(3) duration of marriage
(4) standard of living established during marriage
(5) age and physical/emotional condition
(6) ability of the spouse to support while meeting their own needs.
Marital fault not considered.
Spousal support can be modified when there is a substantial change in curcimstances making the prior order unreasonable.
Under UDMA - changed circumstances so substantial and continuing it would make the order unconscible.
How is child support determined?
How can it be modified?
Parents have absolute obligation to support their children.
(1) income of non - custodial parent
(2) Childs healthcare needs AND
(3) be based on specifically descriptive numerice criteria.
CHild may lose support if they fail to follow parents reasonable instructions.
Rebuttable presumption that the states fomula is proper.
Lasts untill they are 18.
Same for spousal support.
What is the standard used by the courts when making child custody decisions?
Best intrests of the child. Moreover, a parents misconduct is generally not considered unless it causes significatint harm to the child. General factors included are
(1) Needs of the child for meaninful relationsihp with both parents
(2) Ability and willingess of the parents to acitvely perform parental dutues
(3) Mental and physical health of all involved
(4) interaction and interrelationship with siblings
(5) intention to relocate the principal residence of the child
(6) wishes of the parents
(7) Wishes of the child - in some states, if child is suffiicent age, court must award custody as the child wishes.
When determining between parent and third party, presumption is for the parent.
What are non - custodial parents vistation rights?
What are a third parties visitation rights?
Entitled to visitation UNLESS the court determines that visitation would seriously endanger the child’s well being. (parent convicted of violent crimes).
Minorrity of states - non parent may visit if (1) non parent has substantial relationship with the child and (2) visitation is in the childs best interest. However, must give great weight to parent’s wishes due to constiutional concerns.
