Essay Rules Flashcards
(18 cards)
How can separation agreements be invalidated?
Separation agreements can be invalidated, in whole or in part, if the court makes a finding of fraud or unconscionability.
When is a contract unconscionable?
A contract is unconscionable when it is so unfair to one party that no reasonable person in the position of the parties would have agreed to it. The contract or part of the contract at issue must have been offensive at the time it was made. Unconscionability may also be applied to prevent unfair surprise.
How may husbands be able to invalidate child support obligations?
It is possible that Wife’s failure to inform Husband that the child was not his was a fraudulent misrepresentation on her part.
Can support awards be modified?
Yes, support awards can be modified and are subject to changing circumstances.
Can property divisions be modified?
No, property division awards cannot be modified. The division of the marital assets was determined based upon known facts and circumstances as they existed at the time of divorce.
How can spousal support awards be modified?
Spousal support awards can be modified based upon a significant change in a party’s circumstances.
Can non-paternity of a child be established after entry of the divorce decree to provide grounds to modify the child-support award?
Traditionally, courts have been loath to modify an established parent-child relationship, citing the child’s best interest as reason to deny admission of evidence of non-paternity or to deny a motion to disestablish paternity. However, some states have recently recognized the interests of erroneously identified fathers. Should the court be in a jurisdiction that allows erroneously identified fathers to offer proof of non-paternity, the motion might succeed.
Marital Property
In most states, all property acquired during the marriage is marital property and subject to equitable distribution. The definition of marital property is typically broadly applied and includes retirement benefits and, under some circumstances, equity in nonmarital property. Classification of the appreciation in non-marital property will typically depend on whether it remains separate property and if the appreciation can be attributable to spousal labor. Title to the property is immaterial.
Claim that property is non-marital
If a party claims that an asset is nonmarital and not subject to equitable distribution, then the burden is placed on that party to prove the assertion.
Separate Property
Most states treat certain property as separate, such as property acquired before the marriage; property excluded by the parties’ valid agreement entered into before, during, or after the marriage; property acquired by gift or inheritance, or property acquired in exchange for such property, except when it is between spouses; property a party has sold, granted, conveyed, or otherwise disposed of in good faith and for value before the date of final separation; property to the extent that it has been mortgaged or otherwise encumbered in good faith for value before the date of final separation; and any award or settlement payment received for any cause of action or claim that accrued before the marriage, regardless of when the payment was received. A minority of states subject all property owned by either spouse to equitable distribution (“hotchpot approach”).
Dissipation of Marital Property
In most states, the fact that a divorce is granted on a fault ground is not a factor in the distribution of the property. However, dissipation of marital property may be a factor. Dissipation occurs when one spouse uses marital property for his sole benefit after the marriage has irreconcilably broken down, such as the purchase of expensive gifts for a paramour.
Factors for the Distribution of Marital Property
Courts consider several factors when determining the distribution of marital property. Courts consider contributions to increases in marital property, including homemaking and child rearing services. Additionally, courts will consider the age, health, earnings, earning potential, liabilities, and needs of both spouses. Equitable property distribution is highly discretionary.
Residency Requirements for Jurisdiction
A court hearing a family-related dispute must generally have both subject-matter jurisdiction and personal jurisdiction. Most states have residency requirements to establish subject-matter jurisdiction.
UCCJEA
Most states have adopted the Uniform Child Custody Enforcement and Jurisdiction Act (“UCCJEA”). The purpose of the UCCJEA is to prevent jurisdictional disputes with courts in other states on matters of child custody and requires the court to have subject-matter jurisdiction. In an initial custody determination, a court has subject-matter jurisdiction to enter custody orders if the state is the child’s home state.
Child’s Home State for UCCJEA
A state is the “home state” when the child has lived with a parent or guardian for at least six consecutive months immediately prior to the custody proceeding. A court can decline jurisdiction if the party has wrongfully removed a child from another state.
Doctrine of Divisible Divorce
Under the doctrine of divisible divorce, a court may have sufficient jurisdiction to grant a divorce, but lack such jurisdiction with respect to other divorce-related matters, such as property division, without personal jurisdiction over the other spouse. A court may not exercise personal jurisdiction over a defendant unless the defendant has minimum contacts with the state in which the court sits and the exercise of jurisdiction would be fair and reasonable.
Fault Grounds for Divorce
Fault grounds for divorce include adultery, cruelty, desertion, habitual drunkenness, bigamy, imprisonment, indignity, and mental disorder. To prevail on the grounds of cruelty, most jurisdictions require that the plaintiff demonstrate a course of conduct by the other party that is harmful to the plaintiff’s physical or mental health and that makes the continued cohabitation between the parties unsafe or improper. The conduct of the defendant must be serious and typically cannot be based on one isolated incident. The majority of jurisdictions permit divorces on the basis of cruelty in cases of physical abuse, while only some permit it in cases of only emotional abuse or mental cruelty.
Physical Custody Determination
Physical custody is the right to have the child reside with the parent and provide for routine daily care and control of the child. The standard for determining child custody is the best interests and welfare of the child. In addition, courts can consider who the primary caretaker of the child was during the marriage and the separation, and prior to the divorce, as factors in determining who should have custody. Nearly every jurisdiction requires the court to consider the presence of domestic violence between the parties when awarding custody and some jurisdictions have created rebuttable presumptions in favor of the nonabusive spouse.
