fam law MEE Flashcards
(15 cards)
alimony/spousal support
Spousal support may be a lump sum, permanent, limited duration, rehabilitative, or reimbursement. Permanent spousal support is typically awarded only when the marriage was one of long duration. Although jurisdictions differ on the definition of “long-term,” it typically refers to a marriage of 15 years or more. Rehabilitative support is for a limited period of time, such as until the spouse receives education or employment. The purpose of this type of support is to enhance and improve the earning capacity of the economically dependent spouse. The court would consider other factors including the couple’s standard of living during the marriage, the time it will take for a spouse to complete any education or training, the length of the marriage, and the parties’ age and health.
enforceability to prenuptial agreement
In many states, a premarital agreement is enforceable if there has been full disclosure, the agreement is fair and reasonable, and it is voluntary. The agreement must be in writing and signed by the party to be charged. However, under the UPAA, which applies here, the party against whom enforcement is sought must prove (1) involuntariness or (2) both unconscionability at the time of execution and lack of disclosure and adequate knowledge of the other’s assets and obligations. Thus, a court may not refuse to enforce a premarital agreement based on substantive unfairness unless it also finds lack of adequate disclosure or knowledge. Full disclosure requires disclosure of all income, assets, and liabilities of both parties.
Factors considered in determination of equitable distribution of marital property
Courts consider a number of factors in determining the equitable distribution of marital property. Some of the relevant factors in this case include the length of the marriage, the age, health, earning potential, and needs of both spouses, the value of separate property, the spouses’ standard of living, and economic circumstances of each spouse at the time of divorce.
enforceability of separation agreements
Separation agreements can be invalidated, in whole or in part, if the court makes a finding of fraud or unconscionability. 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.
Separation agreements also must be entered voluntarily.
changing spousal support order
Spousal support awards can be modified based upon a significant change in a party’s circumstances.
Modifying parent-child relationship
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.
division of property rule
Whether property is divisible depends on whether it is separate or marital property. Marital property is divisible on divorce, and is all property acquired during the marriage by either spouse in any way other than gift, devise, or descent. Property that is acquire by gift, devise, or descent, or before the marriage, is always separate property and can’t be divided.
Effect of fault on division
When making a division of property, courts generally don’t consider fault for the divorce, since their concern is to make a fair and equitable division of property, not to punish one of the spouses. However, if the reason for the fault cause diminution of the marital estate, the court may consider how much that diminution was and factor that into the split. This general happens when a cheating spouse gives large gift to a third party.
SMJ in family dispute
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.
SMJ in custody dispute
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. 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.
PJ and 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.
Cruelty fault
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 standard
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 non-abusive spouse.
voluntariness
To determine whether a separation agreement was voluntary, courts look at time-pressure, the parties’ respective legal sophistication, and whether each was represented by independent counsel.
