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Bar Exam (Austin) > Family > Flashcards

Family Flashcards

1
Q

Gifts in contemplation of marriage

A

If the marriage does not take place, gifts are conditioned on the marriage!
o The engagement ring must be returned!

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2
Q

Uniform Premarital Agreements Act (UPAA)

A
  • Can agree to keep property separate
  • Can waive spousal support

**Court is not bound by provisions regarding children
- Includes child custody and support = COURT IS NEVER BOUND!

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3
Q

Requirements for a Valid Premarital Agreement

A
  1. In writing and signed
  2. Entered into voluntarily
    o Signed the night before the wedding without lawyers looking at it may be involuntary!
  3. Full disclosure or independent knowledge of assets

Additional requirements?
o UPAA -> Courts look at if agreement was unconscionable
o Some courts consider whether the economic provisions are fair and reasonable

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4
Q

Pre-Marital Agreements

A

The court must consider each provision to ensure that it is fair and doe snot violate public policy

***If there is a pre-marital agreement, there must be an analysis for each provision!

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5
Q

Requirements for Valid Marriage

A
  1. License (failure to meet this will not invalidate the marriage)
  2. Ceremony with authorized officiant
  3. No legal impediment (Can’t marry your sister or married to someone else)
  4. Capacity to consent (Of age and not drunk!)
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6
Q

Common Law Marriage

A
  1. Consent to marry
  2. Cohabitation
  3. Holding themselves publicly as spouses
    - common last name, joint bank accounts, telling others in community…

If a valid common law marriage is formed in one state, it will generally be regarded as valid even in those states that do not recognize common law marriage!

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7
Q

Alienation of affection - Tortious Interference with Marriage

A

3rd party is alienating affection of spouses

Requirements
1. Genuine love and affection between valid married spouses
2. Evidence that love and affection was destroyed
3. Defendant’s actions caused the loss of love and affection!

Damages can be awarded!

**Have been abolished in most states soooo

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8
Q

Criminal Conversation

A

Requirements
1. Valid marriage
2. Adultery with 3rd party

Damages can be awarded!

**Have been abolished in most states soooo

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9
Q

Annulment

A

Declares marriage invalid because an impediment that existed at the time of the marriage makes it legally void or voidable

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10
Q

Void Marriage

A
  • Invalid because it failed to meet the essential requirements of legal marriage
  • No legal action needed
  • Can be attacked by third party

If the impediment causing the marriage to be void is removed (example, spouse from a prior valid marriage dies), the UMDA and some state’s provide that the marriage becomes valid if the parties continue to cohabit
- Other states do not allow validation and hold that the marriage remains void and the parties need to marry after the impediment is gone to have a valid marriage

Examples -> Bigamy and too closely related (marrying a family member)
o Bigamy = marrying someone when they are already married to someone else!

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11
Q

Voidable Marriage

A

Valid until declared null
- Because of an impediment that existed at the time of the marriage, one of the spouses may bring an action to have the marriage annulled
- No collateral attacks by third parties
- Can be remedied

Examples
- Non-age, capacity, duress, fraud

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12
Q

Effect of Annulment

A
  • Marriage set aside as if it never existed
  • Children remain being considered marital children
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13
Q

No-fault Divorce

A

Requires the showing of one of the following:
1. Irreconcilable differences – both spouses agree OR
- Simply cannot get along anymore
2. Living separate and apart for specified time OR
3. Incompatibility

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14
Q

Fault Grounds for Divorce

A
  • Adultery
    o Spouse presents circumstantial evidence of opportunity and inclination
  • Desertion (Abandonment)
  • Cruelty
    o Extreme physical or mental
  • Habitual drunkenness or drug abuse
  • Insanity
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15
Q

Jurisdiction for Divorce

A

One spouse must be domiciled in state (be a bona-fide resident of the state)

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16
Q

Court’s jurisdiction to determine property rights for a divorce

A

Generally, a court cannot determine out-of-state property or award support unless the court has personal jurisdiction over both parties

In an ex-parte divorce (one where only the plaintiff is before the court), the court can grant divorce but it cannot award spousal support or divide out-of-state property

Exception
- Martial property located with the state

**Courts must have personal jurisdiction over both parties to distribute assets

**Courts generally cannot split property unless they were married or had cohabitation agreement/common law marriage

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17
Q

Defenses to Divorce

A

No-Fault
- Deny the existence of one of the grounds

Fault
Collusion
- Agreement between the spouses to simulate grounds for divorce or to forgo raising a valid defense

Connivance
- Willing consent to the other spouse’s misconduct

Condonation
- Forgiveness of marital offenses with full knowledge of the wrongs

Recrimination
- Arises when the party seeking the divorce is also guilty of misconduct for which a divorce may be granted

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18
Q

Community Property (Not common)

A

All property acquired during the marriage is deemed owned ½ by each spouse, and all property brought into the marriage or acquired by gift or bequest is separate property

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19
Q

Equitable division of all property (Not common)

A

The court divides all property owned by either spouse, whether acquired before or after the marriage

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20
Q

Equitable division of marital property (Most common and what we’ll follow!)

A

Each spouse takes their separate property, and the court only divides the property acquired during the marriage

Factors considered
- earning capacity of each party
- duration of marriage
- standard of living
- source of money used to purchase marital assets
- custody of minor children

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21
Q

Two-Step Process for division of property

A

Step One -> Classification of Property
- Determine what is marital property and what is separate property
Step Two -> Equitable Division of Property
- Make an equitable division of the marital estate no matter how the property is titled

**Equitable division does not necessarily mean equal!!!
**Property distribution decrees are not modifiable

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22
Q

Separate Property

A
  • Property owned before marriage
  • Property acquired by gift or inheritance
  • Property acquired in exchange for separate property
  • Income and appreciation of separate property
  • Pain and suffering awards
  • Personal damages
    o Future medical expenses or future lost wages
  • Property acquired after legal separation
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23
Q

Marital Property

A
  • Property acquired during marriage
  • Earnings
  • Employment benefits -> pensions and stock options
  • Lost wages
  • Reimbursements -> medical bills incurred and paid with marital property
  • Recovery for damage to marital property

**All of these are subject to equitable distribution by the court

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24
Q

Property that Changes Character (Was separate but is considered marital now)

A

Commingling
- Separate property can become marital if inextricably intertwined

Transmutation of Separate Property
- Separate property becomes marital property based on intent of parties

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25
Q

Improvement of Separate Property

A
  • Using marital funds to improve separate property
  • Still considered separate property
  • Court will grant reimbursement to spouse
26
Q

Property Acquired Before Marriage but Paid for After Marriage

A

Property should be apportioned between separate and marital estates in proportion to the contribution of separate and marital funds to pay for the property

27
Q

Professional License or Degree

A
  • Not marital property
  • But will be considered
28
Q

Equitable Division Analysis

A
  • Equitable ≠ equal
  • Trial court is given a great deal of discretion
    * Remember, the conclusion is not what matters, the ANALYSIS IS WHAT MATTERS AND WILL GIVE YOU THE ALL THE POINTS!!

Factors considered in dividing the property
o Age, education, background, and earning capabilities
o Duration of the marriage, and whether there were any prior marriages
o Standard of living during the marriage
o Present Income and employability
o Source of the money used to purchase the property
o Health of the parties
o Assets, debts, and liabilities of the parties
o Needs of the parties
o Custody of minor children
o Alimony
o Opportunity to acquire future income and assets
o Contribution to marital assets
o Contribution as homemaker
o Economic fault

29
Q

Alimony

A

Alimony is paid to an economically dependent spouse (spousal support or maintenance)

30
Q

Permanent Periodic Support

A

Paid regularly to support a spouse who has neither the resources nor the ability to be self-sustaining
- Example -> $2,000 per month to spouse until death or marriage

**Prospectively modifiable upon a substantial change of circumstances such as death or remarriage
**On exam look for words “with no grand total”

31
Q

Lump Sum Support

A

Fixed amount payable either all at once or via series of payments -> often the present value of permanent periodic support
- Example -> $36,000 paid at a rate of $1,000 per month for 36 months

**Non-modifiable
**On exam look for words “as a total amount”

32
Q

Rehabilitative Support

A

Payments for limited time to enable a spouse to gain skills to become self-supporting
- Example -> $1,000 per month for 36 months to gain education or skills

**Prospectively modifiable upon a substantial change of circumstances such as death or remarriage
**On exam look for words “with no grand total”

33
Q

Reimbursement Spousal Support

A

Occasionally awarded to a spouse who supported the other spouse while the latter obtained a professional license or degree
- Example -> $20,000 as repayment for the supporting spouse’s contribution to the increased education provided to the other spouse

**Non-modifiable

34
Q

Factors Considered when Awarding Alimony

A

* Remember, the conclusion is not what matters, the ANALYSIS IS WHAT MATTERS AND WILL GIVE YOU THE ALL THE POINTS!!*

  • Standard of living during marriage
  • Duration of marriage
  • Age and physical and emotional conditions of both parties
  • Financial resources of each party
  • Contribution of each party
  • Time needed to obtain education or training
  • Ability of payor spouse to meet own needs
  • Some jurisdictions: Marital Fault

Two primary considerations are the needs of the claimant and the ability of the other spouse to pay

35
Q

Termination of Spousal Support

A
  • Recipient remarries
  • Either spouse dies
  • Most jurisdictions -> Cohabitation with another
36
Q

Tax Consequences of Spousal Support

A
  • Spousal support is not a taxable event!
  • Before 2019 -> are deductible by the payor and is considered income to recipient
37
Q

Separation Agreements

A
  • Entered into after marriage
  • Enforceable if supported by consideration
    o Must be voluntary and have been a full and fair disclosure
  • Can waive alimony and equitable distribution of property
  • Can agree on custody and child support
    o But court is not bound
38
Q

Contracts between unmarried persons - Rights of Unmarried Persons

A

Express contracts between unmarried cohabitants regarding earnings and property rights are generally valid and will be enforced

Exception
- Contracts with sex being the only consideration are UNENFORCEABLE

39
Q

Duration of Child Support

A

Duty to support a child ceases upon:
- Age of majority (usually 18)
- Death of child
- Emancipation of child
- Termination of parental rights

40
Q

Jurisdiction over Child Support Orders

A

Under the Full Faith and Credit for Child Support Orders Act, full faith and credit must be given to another court’s child support order if (1) the court has jurisdiction over the matter and the parties, and (2) the parties had reasonable notice and an opportunity to be heard

41
Q

UIFSA: Uniform Interstate Family Support Act

A

Provides methods of enforcement and guidelines for modifications of support orders issued in another state

42
Q

Original Jurisdiction - Child Support Orders

A

Proper where first filed
Another state can exercise jurisdiction only if:
o Second state is child’s home state

43
Q

Jurisdiction to Enforce - Child Support Orders

A

The court that initially issued the order has jurisdiction to enforce, and UIFSA helps parties enforce orders in other states

Another state can enforce the issuing state’s order under the UIFSA even though the other state does not have personal jurisdiction over an individual

Another state can enforce a child support order in 2 ways:
1. Direct enforcement
- Allows oblige to mail the order to obligor’s out-of-state employer, automatically triggering withholding unless there is a timely objection
2. Registration
- The issuing state sends the order to the state where the obligor resides. It is registered and filed as a foreign judgment, and then the order is subject to the same enforcement procedures as if the order has been issued in that state

44
Q

Jurisdiction to modify ***IMPORTANT TO KNOW!

A

Generally, the court that issues the controlling child support order has continuing exclusive jurisdiction to modify it

45
Q

Modification of Child Support Orders

A

Substantial and continuing change of circumstances affecting the needs of the child or the ability of the parent to pay

46
Q

Initial Custody Determination - Home State Jurisdiction

A

A court has jurisdiction to initially enter or modify a child custody or visitation order if the state:

Home State -> State where child has lived with parent for at least 6 consecutive months

OR

Was the child’s home state within the past 6 months and the child is absent from the state, but a parent or person acting as a parent continues live in this state

47
Q

Modification of Child Custody

A

Issuing court has continuing exclusive jurisdiction

Another state can only exercise jurisdiction if:
- No child or parent continues to reside in the issuing state, or
- The child no longer has a significant connection with the issuing state and substantial evidence relating to the matter is no longer available in that state

48
Q

Parental Kidnapping Prevention Act (PKPA)

A

A state may not modify a custody order if one of the parties continues to reside in the issuing state and, under that state’s laws, the court continues to have and does not decline jurisdiction

49
Q

Declining Jurisdiction - Child Custody

A
  • A court may decline jurisdiction if it is an inconvenient forum OR
  • If party engaged in unjustifiable conduct (wrongfully taking child from another state)
50
Q

Temporary Emergency Jurisdiction – Abandonment or Abuse - Child Custody

A

Court may exercise temporary emergency jurisdiction to protect the child from abandonment or abuse

51
Q

What is the standard for Child Custody?

A

BEST INTEREST OF THE CHILD! -> SAY IT AND THEN SAY IT AGAIN ON THE EXAM

Factors considered when awarding custody
o Parents’ wishes
o Child’s wishes/preference
o Child’s relationship with parents, siblings, and others involved with parents
o Child’s adjustment to home, school, and community
o Parties’ mental and physical health
o Primary caregiver

**TRIAL COURT IS GIVEN GREAT DEAL OF DISCRETION!! -> Conclusion really does not matter -> dazzle them with analysis **

52
Q

Visitation

A

When sole physical custody is given to one parent, the other parent is almost always entitled to a reasonable visitation
o If person has custody -> they cannot have visitation rights
o If person has visitation -> they cannot have custody

Parental visitation
o Denial is rare!

Nonparental visitation
o Extraordinary circumstances

53
Q

Modification of Child Custody

A

Substantial and material change of circumstances affecting the child’s well-being

Talk about the BEST INTEREST OF THE CHILD in the analysis

Relocation? -> ^^^^

54
Q

Parentage Action

A

Can be brought to establish a biological relationship and settle issues of paternity or maternity, usually paternity

55
Q

Jurisdiction for Divorce

A

One spouse must be domiciled in state

56
Q

Adoption and unwed father rights

A

Generally, a child may not be adopted without consent form both biological parents

Whether consent of unwed father is needed depends on his involvement with the child
- If unwed father demonstrates commitment to parenthood by participating in child rearing, relationship between father and child is protected by due process
- If not actively involved in child’s life -> no right to block adoption

Factors considered
- whether the parents lived together (of whether father visited regularly)
- whether father admitted paternity
- whether father paid child support and
- whether father had any responsibility for supervision, education, protection, or care of child

57
Q

Requirements for Adoption (memorize)

A
  • Termination of biological parents’ rights
  • Creation of adoptive parents’ rights
    o Consent of adoptee
    o Investigation into the adoption home and what not

**Consent of biological parents is generally required

58
Q

Presumptions of Parentage

A
  • Mother’s spouse is presumed to be father OR
  • Born within 300 days of termination of marriage
59
Q

Jurisdiction for Divorce

A

One spouse must be domiciled in state

60
Q

Custody dispute between Parent and Non-parent

A

The decision does not turn on the child’s best interest alone, the court must give great weight to the interest of the natural parent

**The natural parent has a right to her child, and absent voluntary relinquishment, the natural parent is entitled to custody unless it is shown that the parent is unfit

**ONLY UNDER SPECIAL CIRCUMSTANCES IS CUSTODY AWARDED TO A 3RD PARTY
- most common example is when a parent leaves a young child with 3rd party for years and later wants to regain custody

61
Q

Visitation of 3rd parties

A

SCOTUS has held that as long as parent is fit, that parent’s determinations as to the appropriateness of 3rd-party vision must be given special weight

A judge may not override a fit parent’s decision regarding 3rd party visitation merely because she feels a better decision could be made or visitation would be in the best interest of the child

Bar Exam (Austin) (17 decks)

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