Family Outline Flashcards
What are the requirements of a statutory marriage
Get a license
perform ceremony (solemnization)
How states recognize a Common Law marriage
Only a few states recognize CL marriage. But under conflict of law principle, a state that doesn’t recognize it must give full faith and credit to CL marriages from a state that does accept them.
Unless it violates public policy of the receiving state.
What kind of intent is required to recognize a CL marriage
Must evidence with words in the present tense. “ we are married” as opposed to “ we will get married someday”
What is a heartbalm action
Actions available to ppl who thought they were in a CL marriage. Civil suit for money damages based on the damaged to a jilted party’s reputation. These actions are abolished in most states.
Difference between voided and voidable marriage
Void- as if the marriage never happened. Anyone can request the court to void it (spouses or parents of the minor who got married, or the minor)
Voidable- valid until a judicial decree disolves it. Only the spouses can bring the cause of action.
Reasons to void a marriage
Bigamy (someone is still married to another person)
incest
mental incapacity
What are the grounds to a VOIDABLE marriage
Minority
Impotence
intoxication ( was drunk when the ceremony took place to the point they could not understand what was happening)
fraud
duress
lack of intent ( a sham, joke)
What is equitable distribution of property in annulment
Even though annulment places spouses as if the marriage never happened. the equitable distribution can request the court to:
Equitable distribution of property
spousal support
child support
custody
attorney’s fees
other costs related to the dissolution of the marriage
what is a defense to a claim that marriage is void
to deny the existence of the impediment. (ex. if the grounds is bigamy-divorce the first wife
What defense can be raised against a claim of a voidable marriage
equitable defenses
unclean hands
laches
estoppel
What are the two types of divorce?
No-Fault
Fault
Define no fault divorce
Marriage is irretrievably broken and no prospect of reconciliation
irreconcilable differences must exist for a specific period before filing for divorce
What are the grounds for fault divorces?
Adultery
cruelty
desertion
habitual drunkenes
bigamy
imprisionment
institutionalization due to insanity
How to prove adultery
must show that spouse had opportunity and inclination to commit adultery
How to prove cruelty
Must demonstrate a course of conduct that is harmful to the plaintiff’s physical and mental health, making continued cohabitation unsafe or improper
How to prove desertion
spouse voluntarily leaves with the intent of not returning. Different from separation under mutual accord
What are the defenses to fault divorce allegations?
recrimination
unclean hands
connivance
condonation
collusion
provocation
insanity
consent
justification
religion (not broadly accepted)
What are the 2 forms to divide marital property in a divorce?
Community property ( used in some states) 50-50 division
Equitable distribution= used in most states) applies fair distribution of marital property ( it won’t necessarily be equal.
what is marital property
all property acquired during marriage
What are the exceptions to marital property
Non marital property is:
aquired before marriage
property excluded by agreement among parties
property gifted or inherited
payment for a cause of action accrued before the marriage, even if the payment happens once they are married
can the distribution of marital property be modified after granted?
No, the division is based on the parties’ assets at the time of the divorce.
What is spousal maintenance
the obligation of one spouse to provide for the other with income. It is awarded to the spouse that cannot provide their own needs
What factors are considered to grant spousal maintenance
financial resources (includes property awarded in the divorce)
child support
spouses earning potential
other spouse’s ability to pay support
standard of living
time to find a job or complete education necessary for a job
length of marriage
contributions to marriage
age and health
marital misconduct
what are the types of support for spousal maintenance?q
Lump sum
permanent- for marriages over 15 yrs long
limited duration- short marriages
rehabilitative- to improve earning capacity of dependent spouse. (ex. until she finishes school)
reimbursement-compensate spouse’s for financial sacrifices made during marriage causing lower std of living
Palimony- for unmarried cohabitants (only in few states)
can spousal support be modified>?
yes. the party seeking mod. has the burden of establishing a significant and continued change in circumstances in the needs of the dependent spouse or the financial abilities of the provider
when does the spousal support ends
Death
marriage of receiving spouse
when does the spousal support may stay the same
If provider wilfully reduces income
if receiving spouse cohabitates with someone who is not family and the need of support decreases.
Can parents negotiate child support terms?
Yes. But they cannot agree to release or compromise that will affect the child’s welfare.
Why is important to establish paternity of non marital children
As long as paternity is proven, non marital children
can:
obtain child support, gov. benefits or wrongful death claims
inheritance
How to establish paternity
Judicial decree or if father consents to being named as father at birth or acknowledges being the father
What are the best ways to prove paternity
Blood test
prior statements regarding paternity by deceased family members
medical testimony
defendant’s acknowledgment of paternity
Can a mother force a non biological father to support her child?
A husband who is not the biological father can be ESTOPPED from denying child support if:
He made a representation that he would provide for the child
The wife relied on that representation
The wife suffered an economic detriment as result of the reliance
how can a court obtain jurisdiction over out of state parent?
Pursuant the long arm provision un the Uniform Interstate Family Suppor Act UIFSA
How to calculate child support
State has guidelines that will consider all incomes from any source
What are the methods for calculating child support?
Income shares model: child receives same proportion of parent’s income as if they still lived together
Percentage of income model- determines the minimum amount of child support by using a % of the supporting (non custodial) parent’s net income, determined by the number of children supported.
Can the courts deviate from the child support guidelines?
Although there is a presumption of correctness, courts can deviate. The court must state the findings that led them to deviate (explain and support deviation)
Can child support be modified?
Yes. The standard is “ substantial change in circumstances regarding the child’s needs or the parent’s financial situation.
It needs to be continuing conditions- not temporary
When does de duty to provide child support ends?
age (18 yrs)
child gets married
parental rights are terminated
child or parent dies
emancipation
Extension can be granted if kid is still in college, disabled adult child unable to provide himself
-Which court has jurisdiction to modify child support?
Court may not modify a child support order by a court with continuing jurisdiction in another state unless:
the parties no longer live in that state or
the parties expressly agree to that jurisdiction.
If the original court can’t modify one aspect of that child support order, it can’t be modified by the second court.
How can I get the other parent to pay the child support
Civil contempt- order to pay and sent to jail if he doesnt
criminal contempt
Intercept tax refunds
report to credit bureau
suspend licenses
seize assets
garnish wages
order payment of attny fees
Can I ask an out of state court to enforce a child support order against an out of state parent?
Yes. This is governed by the Uniform Interstate Familiy Support Act (UIFSA)
- applies when obligor or the child lives in a different jurisdiction from the one issuing the order.
-You must register the order in the state and it will be enforced in the same way as in the original state
-only the issuing state can modify the order.
Define legal custody
right of parent to make major decisions about child’s life. (health, education, religion)
Define physical custody
the right of a parent to have the child reside with him and obligation to provide for routine daily care and control of the child
Define joint custody
Both parent must be willing to cooperate
joint legal custody- neither parent has superior rights on major decisions
joint physical custody-doesn’t require 50-50 living arrangements
What is the Uniform Child Custody Jurisdiction and Enforcement Act?
UCCJEA-
Purpose- prevent jurisdictional disputes with courts in other states regarding child custody and visitationn
What is the home state jurisdiction
Under UCCJEA- court has subject-matter jurisdiction to preside over custody hearings and either enter or modify custody or visitation orders if the state:
is the child’s homestate (6 consecutive months) or
was the child’s home state in the past six months, the child doesn’t live there anymore but a parent or guardian continues to live in that state.
What is the significant connection jurisdiction
A court can enter or modify an order if
No other state has home state jurisdiction
The child AND at least 1 parent have significant connection with the state AND
There is substantial evidence in the state about the child’s care, protection, training and personal relationships.
What happens if there is no home-state or significant connection jurisdiction
Then we apply the “default jurisdiction” - This is a state that has “appropriate connections” with the child.
What is the exclusive continuing jurisdiction?q
Is the jurisdiction from the court that made the original ruling. The court will keep that jurisdiction over matter until parties no longer reside in the state or child no longer has significant connections .
What are the effects of Temp Emergency Jurisdiction>
If child is in danger and requires immediate protection court can grant order.
Effect: If there isn’t a prior custody order in the court with exclusive jurisdiction, the emergency order will remain until the decision at the child’s home state.
What are the requirements to enforce another state’s order?
Register the order
Hold a hearing on the first judicial day after service of the order
Remove child if is like;y to suffer serious physical harm
What is the standard required to determine child custody
Best interests and welfare of the child
What are the factors used in determining what is the best interest and welfare of the child?
When granting custody the court will evaluate:
Who was the primary caretaker when they were a family
Race or religion cannot be used as factor
Sexual conduct won’t be a factor unless it has negative impact on child
Child’s preference (if mature enough)
Siblings ( preferably won’t separate)
Domestic violence is almost always a factor
In cases against third parties, the parents will always be preferred for custody
What are the rights of non custodial parent regarding visitation?
Non custodial has the right to visitation
Denial of visitation only if physical, mental, emotional harm is feared, (in exchange, supervised visits can be allowed)
Parent can’t be denied visitation rights for child support debt
Cohabitation with another person unless adverse impact on child
Fit parent rule
A fit parent has a fundamental right to care, custody and control of their children
Parent{s decisions regarding visitation with 3rd parties will be given special weight
Can a third party have visitation rights_
Usually when they’ve in loco parentis ( as parents) prior to the divorce.
Can grandparents have visitation rights?
Subject to special weight given to fit parent’s decision
