Family Flashcards
(129 cards)
1
Q
Marriage
A
Marriage is a civil contract that involves parties who are legally capable of consent, the exchange of
mutual promises, and the imposition of rights and obligations. A marriage contract cannot be modified or
terminated without state intervention.
There are two types of marriage: ceremonial marriage and common-law marriage
2
Q
Ceremonial marriage
A
A ceremonial or statutory marriage requires that the parties obtain a license to get married and
participate in a ceremony (i.e., solemnization).
3
Q
Marriage license restrictions
A
Age: All states minimum, most under 18 with parental consent/judicial approval
Waiting periods
Medical testing (can’t condition on results)
License expiration (after set period of time)
4
Q
When will a marriage license not be issued
A
One party is married to someone else
y The parties are too closely related
y The marriage is a sham
y One or both parties cannot understand the nature of the act
y One party is (or both parties are) under the influence of drugs or alcohol or
y A party lacks consent due to duress or fraud.
Same-sex marriage is permitted and recognized in all states.
5
Q
solemnization
A
The marriage ceremony must be performed in front of two or more witnesses, and the marriage must
be solemnized by a judge, political official, or member of the clergy. The license must be filed with the
appropriate governmental office.
6
Q
Common-law marriage
A
The parties must agree that they are married (consent), cohabit as married, and hold themselves out to
the public as married. The parties’ intent must be evidenced by words in the present tense (e.g., “we are
married”). And as with ceremonial marriages, the parties must be of age, not be too closely related, and
understand the nature of the act.
Most states have abolished common-law marriage. But under conflict-of-law principles, a marriage that
is valid under the law of the place where it was contracted is valid elsewhere unless the marriage violates
a strong public policy.
7
Q
Annulment
A
An annulment voids a marriage and declares that it was never valid (as opposed to divorce, which
terminates a valid marriage). An annulment action involves two types of marriages: void and voidable.
8
Q
Void marriage
A
Treated as if it never happened, so it need not be judicially dissolved.
Grounds: Prior existing marriage, incest, mental incapacity
Defenses: Denial of the existence of the impediment that makes the marriage void (removal of impediment makes it voidable)
9
Q
Voidable marriage
A
Valid until a judicial decree dissolves the marriage.
Grounds: Age, impotence, intoxication, fraud/duress, lack of intent.
Defenses: The equitable defenses of unclean hands, laches, and estoppel
10
Q
Distribution of property, etc. for annulment? Impact on children?
A
The party seeking the annulment can request an equitable distribution of property as well as
spousal support, child support, child custody, attorney’s fees, and other costs related to the dissolution
of the marriage. However, children of an annulled marriage are considered marital children.
11
Q
putative-marriage doctrine
A
A party who participated in a ceremonial marriage and believes in good faith that the marriage is valid
may use a state’s divorce provisions even if the marriage is later found void.
12
Q
Residency requirement for divorce
A
Most states require that at least one party be a resident to seek divorce or legal separation in that state.
13
Q
No-fault divorce
A
No-fault grounds for divorce arise when the marriage is irretrievably broken and there is no prospect
of reconciliation. Irreconcilable differences must have existed for a specified period of time before the
divorce action was filed.
14
Q
Fault based grounds for divorce
A
Adultery (shown by opportunity + inclindation to commit and did so, usually circumstantial).
Cruelty (harmful to physical or mental health, cohabitation unsafe or improper as a result)
Desertion (doesn’t apply if by mutual consent)
Habitual drunkenness
Bigamy
Imprisonment (at least a specified period of time)
Institutionalization for insanity (no reasonable prospect of discharge or rehabilitation)
15
Q
Defenses to fault-based divorce
A
justification (desertion due to misconduct)
Unclean hands (Ps own behavior or acts were questionabl)
Provocation
Consent
Connivance (P consented or participated in the marital wrong)
Condonation (P knowingly forgave and resumed marital relations with guilty spouse)
Collusion (fabricated grounds for divorce)
Recrimination (both committed the same offense)
Insanity (did not know the difference between right and wrong or lacked the ability to understand that an act was wrongful)
16
Q
Division of property
A
Some states follow a community-property system, and those states typically require equal division of
marital property.
However, most states apply an equitable-distribution system. The objective of an equitable-distribution
system is a fair distribution of marital property, taking into consideration all of the circumstances between
the parties. Therefore, equitable distribution does not always require equal distribution.
Property division cannot be modified because the property division is based on the parties’ assets at
the time of the divorce. So though changes in circumstances after divorce may impact spousal or child
support obligations, they have no impact on property division.
17
Q
marital property
A
In most states, only property acquired
during the marriage is considered
marital property and subject to
equitable distribution.
But some states follow the “hotchpot”
approach, which subjects all property to
equitable distribution.
18
Q
when distributing marital property, courts consider the following factors
A
y Length of the marriage
y Prior marriages
y Age, health, earnings, earning potential,
liabilities, and needs of both spouses
y Contributions to education
y Needs for future acquisitions
y Income, medical needs, retirement of
both spouses
y Standard of living
y Contributions to increases in marital property,
including homemaking and child-rearing services
y Value of separate property
y Reduction in valuation of marital property
by one spouse
y Economic circumstances of each spouse at the
time of divorce
y Custodianship of any minor children
19
Q
Professional license/degree MP?
A
No
20
Q
Retirement or pension benefits, MP?
A
Yes, if acquired during the marriage.
21
Q
Personal injury recovery or workers comepsnation benefits, MP?
A
Marital-property approach = Yes, if the cause of action accrued
during the marriage
y Allocation approach:
○ Pain, suffering, or disability = No
○ Loss of consortium = No
○ Lost wages, loss of earning capacity, medical expenses =
Yes, if attributable to time during the marriage
22
Q
Goodwill, MP
A
Jurisdictions are split
23
Q
Accrued sick and vacation days, MP?
A
split
24
Q
Future interests, MP?
A
No
25
Social security benefits, MP
NO
26
Post-separation property, MP?
Yes, if acquired before divorce (majority rule). Some say no.
27
Unexercised stock options, MP?
Yes, if acquired during the marriage.
28
Spousal maintenance
Spousal maintenance (i.e., alimony) is one spouse’s obligation to provide the other spouse with support in
the form of income. It is awarded if the recipient cannot provide for the recipient’s own needs. Alimony can
be required for a definite or indefinite period of time, and the obligation to pay it cannot be discharged in
bankruptcy. Factors used to determine an award of spousal maintenance typically include:
y Financial resources of the spouse seeking support (e.g., property to be awarded in the divorce)
y Each spouse’s earning potential and the other spouse’s ability to pay support
y Spouses’ standard of living during the marriage
y Time necessary to find employment or complete any education or training necessary for a job
y Length of the marriage
y Contributions to the marriage (particularly those that enhanced the other spouse’s earning potential)
y Age
y Physical and mental health of each spouse
y Marital misconduct
29
Types of spousal support
Lump sum: fixed amount can't be modified in absence of fraud.
Permanent: remainder of depedent spouse's life (unless certain circumstances occur) typically long marriages 15+ years
Limited duration: short marriage, still economic need for support
Rehabilitative: limited period to enhance and improve earning capacity of dependent (until education or employment)
Reimbursement: Compensate for financial sacrifice durring marriage resulted in reduced standard of living to secure an enhanced standard of living in the future
Palimony: One unmarried cohabitant to another after dissolution of stable, long-term relationship (only a few states)
30
Modification of spousal support
Spousal support may be modified, even when it is deemed permanent. The party seeking modification
typically has the burden of establishing a significant and continuing change in circumstances regarding
the needs of the dependent spouse or the financial abilities of the obligor that warrant the modification.
y A willful or voluntary reduction in income will not result in a reduction of child-support payments.
y The death of a spouse terminates support.
y If the receiving spouse remarries, support may be terminated.
y If the receiving spouse cohabits with someone who is not family, then spousal support may be
modified if the receiving spouse’s need for the support decreases as a result of the cohabitation;
however, this is not automatic. Additionally, alimony pendente lite (i.e., alimony paid during the
pendency of divorce proceedings) may not be terminated due to cohabitation.
y The effect of retirement depends on the jurisdiction.
31
Divorce jurisdiction, general
A court hearing family-related disputes must have subject matter jurisdiction and personal jurisdiction over
the parties. Most states have statutory residency requirements that range from six weeks to two years.
And matrimonial courts have equity powers in matters related to matrimonial actions.
32
A nonresident defendant/respondent may attack an ex
parte divorce for lack of jurisdiction by demonstrating
that
t the plaintiff/petitioner (1) was not domiciled in the
divorcing state at the time the judgment was granted or
(2) left the state’s domicile immediately thereafter.
33
Divisible divorce doctrine
allows a court to grant a divorce decree, dissolving the marital status, even if it lacks personal jurisdiction to decide other issues like alimony, child custody, or property division. This means that the divorce itself is valid and recognized, but other aspects of the divorce need to be addressed separately.
34
Indigent parties in divorce cases
The court cannot require that indigent parties pay costs
and fees to access the court system. Though there is no
right to legal counsel in divorce proceedings, the court
has the discretion to award attorney’s fees and costs if
one party is unable to afford them.
35
child support
Child support is the payment by one parent to the other
for the support of a common child.
36
Child's right to child support
Both parents, regardless of marital status, are legally
required to support their unemancipated child until the child reaches 18 years of age. Some jurisdictions impose this obligation through college or even
indefinitely if the child’s physical and mental condition requires.
37
Parent's obligations for child support
The parents’ respective obligations of support are adjusted as physical possession of a child changes
between them. However, visitation rights cannot be denied for nonpayment of support. And though
parents can enter into private agreements regarding child-support payments, they cannot agree to any
release or compromise that would affect the child’s welfare.
38
nonmarital children and child support
A nonmarital child cannot be denied child support, government benefits, or wrongful-death damages.
A nonmarital child may inherit from the father’s estate so long as paternity is established.
39
Establishment of paternity
Paternity can be
established via judicial decree or other means, such as when the father consents to being named on the
birth certificate or acknowledges that he is the child’s father.
Blood tests ordered by the court
y Prior statements regarding paternity by deceased family members
y Medical testimony on the probability or improbability of conception
y The father’s acknowledgement of paternity
40
impact of establishment of paternity
Once established, paternity provides the child’s father with the rights to visitation and custody, as well as
a duty to support the child.
41
Time limit on filing of a paternity petition?
A time limit on the filing of a paternity petition is unconstitutional unless there is a reasonable opportunity
to pursue a paternity action and the time limit is substantially related to the government’s interest in
restricting such an action.
42
marital presumption and paternity
Under the marital presumption, a child born to a married woman is presumed to be the child of that
woman and her husband. This presumption also applies in cases of artificial insemination if the father
consented to the procedure and it was performed by a physician. A husband who is not the biological
father of his wife’s child may be estopped from denying his obligation to pay child support when:
y The husband represented that he would provide for the child
y The wife relied on his representation and
y The wife suffered an economic detriment as a result of the reliance.
43
personal jurisdiction over out-of-state parent for child support
A court obtains personal jurisdiction over an out-of-state parent pursuant to a long-arm provision in the
Uniform Interstate Family Support Act (UIFSA), which has been adopted in every state. Grounds for
obtaining personal jurisdiction over a parent include (mnemonic: PC × 4):
y Personal service on the parent
y Consent of the parent
y Past residency with the child in the state
y The parent Causes the child’s residency in the state
y The parent previously resided in the state and provided Prenatal expenses or child support
y The child may have been Conceived in the state
y The parent asserted parentage in the state’s Putative father registry
y Any other Constitutional basis for personal jurisdiction
44
Amount of child support
The amount of child support ordered is based on child-support guidelines. There is a rebuttable
presumption that the amount calculated pursuant to those guidelines is correct. If the court decides
to deviate from the amount stated in the guidelines, it must set forth specific findings explaining and
supporting the deviation.
Child-support awards are typically based on parental income from any source. Most jurisdictions also
include medical insurance in the child-support awards, but premiums are subtracted from the net income
of the parent responsible for making the payment.
45
Methods of calculating child support
Income-shares model (majority rule): Children receive the same proportion of parental income they would have
received if the parties continued to live together
Percentage-of-income model: The number of children supported determines the percentage of the
supporting parent’s net income owed as child support
Melson formula: Modifies the income-shares model by allowing supporting parents to retain
sufficient income to meet their own basic needs
Additional factors:
y Best interests of the child
y Ages of the children
y Support obligations of the parties
y Assets of the parties
y Medical expenses outside of insurance coverage
y Standard of living
y Unusual needs and obligations
(e.g., special education)
46
modification of child support
Modification is permitted in most jurisdictions. The standard for modifying child support is whether there
has been a substantial change in circumstances regarding the child’s needs or the parents’ financial
situation that is expected to continue. In most jurisdictions, a voluntary reduction in the obligor’s pay does
not result in a reduction of child support.
The burden to substantiate such a change is on the party seeking modification. Typically, this modification
is retroactive to the date of service of the motion for modification.
A court may not modify a child-support order rendered by a court with continuing jurisdiction in another
state unless:
y The parties (including the child) no longer reside in that state or
y The parties expressly agree to permit another state to exercise jurisdiction.
If an aspect of a child-support obligation may not be modified under the law of the state that first imposed
the obligation, then that aspect cannot be modified under the laws of any other state.
47
When is child support terminated
The child reaches the Age of majority (typically 18 years of age)
y The child Marries
y Parental rights are terminated
y The child is Emancipated or
y The child or the parent Dies.
48
Contempt for failure to pay support. Other sanctions?
An obligor who has the ability to pay but fails to do so may be found in civil contempt and can be sent to
jail until the amount owed is fully paid.
An obligor may also be found in criminal contempt and sentenced to jail for willingly failing to pay the
amount owed.
The court may also impose other sanctions such as the interception of a tax refund, credit bureau
reporting, suspension of a driver’s license or occupational license, seizure of assets, garnishment of
wages, or requiring payment of attorney’s fees.
49
Enforcement of child support in other jurisdictions
The modification and enforcement of interstate child support is governed by the UIFSA. The UIFSA
applies when the obligor or child resides in a jurisdiction different from the one in which the original
order was issued. Once a child-support order is registered in another state, it is enforceable in the same
manner and to the same extent as in the issuing state. However, only the issuing state may modify the
original support order. The other state’s responsibility is simply to enforce the order.
50
types of custody
Legal custody: The right of a parent to make major decisions about the child’s life (e.g., health,
education, religion) and/or
y Physical custody: The right of a parent to have the child reside with the parent and the
obligation to provide for routine daily care and control of the child.
51
joint custody
Legal and/or physical custody can be shared under a joint-custody arrangement if the arrangement meets
the “best interests of the child” standard. Additionally, the parents must be willing and able to cooperate
with respect to the well-being of the child.
y Joint legal custody: Neither parent has a superior right to make major decisions. Joint legal custody
is the outcome in the majority of cases.
y Joint physical custody: Does not necessarily require a 50-50 time-sharing arrangement.
52
Uniform Child Custody Jurisdiction and Enforcement Act, jurisdiction order
The purpose of this act (the UCCJEA) is to prevent jurisdictional disputes with courts in other states on
matters of child custody and visitation.
Home-State Jurisdiction (Initial Custody Determination)
A court has subject matter jurisdiction to preside over custody hearings and to enter or modify custody or
visitation orders if the state (1) is the child’s home state or (2) was the child’s home state in the past six
months and the child is absent from the state but one of the parents (or guardians) still lives there.
The child’s home state is the state in which the child has lived (1) with a parent or guardian for at least
six consecutive months immediately prior to the custody proceeding or (2) since birth, if the child is less
than six months old.
Significant-Connection Jurisdiction
A court can enter or modify an order if:
y No other state has or accepts home-state jurisdiction
y The child and at least one parent have a significant connection with the state and
y There is substantial evidence in the state about the child’s care, protection, training, and
personal relationships.
Default Jurisdiction
If no state has jurisdiction through home-state or significant-connection jurisdiction, then a court in a state
with appropriate connections to the child has jurisdiction
53
Exclusive continuing jurisdiction, child custody
A court that makes an initial ruling has exclusive jurisdiction over the matter until the parties no longer
reside in the state or the child no longer has a significant connection to the state.
54
Declining child custody jurisdiction
If a court has initial jurisdiction or exclusive continuing jurisdiction, it may decline to hear the case if it finds
the forum to be inconvenient. The court considers the following factors:
y Whether domestic violence has occurred and is likely to continue in the future, and which state could
best protect the parties and the child
y The length of time the child has resided outside of the jurisdiction
y The distance between the competing jurisdictions
y The parties’ relative financial circumstances
y Any agreement of the parties
y The nature and location of the evidence relevant to the pending litigation
y The ability of each state’s court to decide the issue expeditiously and the procedures necessary to
present the evidence and
y The familiarity of each state’s court with the facts and issues.
55
Temporary emergency jurisdiciton, child custody
A court may exercise temporary emergency jurisdiction when a child is in danger and requires immediate
protection. If there is no prior custody order, an emergency order remains in effect until a decision by the
child’s home state.
56
Enforcement of another state's child custody order?
Registration of another state’s custody order need not be accompanied by an enforcement request.
y For the expedited enforcement of a child-custody determination, a hearing is held on the first
possible judicial day after service of the order.
y A warrant for child custody may be issued if the child is likely to suffer serious physical injury or be
removed from the state.
57
Uniform deployed parents custody and visitation act
This act applies specifically to parents who are in the military. The act provides that when imminent
deployment is not an issue, the court cannot use a parent’s deployment as a negative factor in
determining the best interests of the child. This act also sets out procedures for temporary custody and
out-of-court custody, and it prohibits entry of permanent-custody orders before or during deployment
unless the military parent consents.
58
Courts determine child custody matters by assessing the
Best intersts and weflare of the child
59
GAL
In highly contested child-custody cases, a guardian ad litem may be appointed by the court to advocate
for the child’s preferences and act on the child’s behalf
60
Factors for determining child custody
Relevant
Preference of child of sufficient maturity
Sibling placement
Domestic violence
Not relevant
Race
Religion (unless negative effect on child)
Parents' sexual conduct (unless negative effect on child)
61
In deciding custody between parents, courts will consider
who the primary caretaker was during the
marriage, during separation, and prior to the divorce. There is no longer a maternal presumption.
62
parents and third parties custody
In deciding custody between parents and third parties, parents are presumptively entitled to custody of their
children except when (1) the legal parent is unfit or (2) parental custody would be detrimental to the child.
63
noncustodial parent visitation
A noncustodial parent is allowed reasonable visitation (or “parenting time”) with a minor child. Denial
of visitation is warranted only when visitation would seriously endanger the child’s physical, mental, or
emotional health.
Restrictions (e.g., supervision, denial of overnight visits) may be imposed on visitation. However, a
parent’s sexual relationship or cohabitation can be a basis for a restriction only if it adversely impacts
the child. Additionally, courts cannot deny a parent’s visitation rights due to HIV or AIDS or a failure to
pay child support.
64
third parties visitation
Fit parents have a fundamental constitutional right to the care, custody, and control of their children.
Consequently, a fit parent’s decisions regarding third-party visitation must be given special weight.
Stepparent and nonbiological coparent: Typically limited to individuals who acted in loco parentis with the child prior to the divorce.
Grandparent: Subject to the special weight given to a fit parent's decision.
Unwed biological father: Fundamental constitutional right to have contract with his child if he demonstrates a commitment to the responsibilities of parenthood.
65
intererference with custody
Interference or refusal to comply with a visitation order can be remedied by a change in custody, contempt
proceedings, or makeup time.
66
Enforcement of custody orders
Sanctions for failing to comply with a custody order may include compensatory visitation, attorney’s fees,
court costs, fines, and/or jail time. Tort damages may be awarded to a parent for the period of time that
the child was wrongfully out of the parent’s custody.
Habeas corpus proceedings are generally unavailable for child-custody or visitation disputes, but they
are available when a parent has legal but not physical custody. The current trend is to use suits in equity
to enjoin conduct in violation of a custody order.
Custody and visitation orders between states are enforced under the Full Faith and Credit Clause if the
original order was registered in the second state. The new court cannot modify the out-of-state order
unless (1) the prior court declines jurisdiction and the new court has proper jurisdiction and (2) the out-ofstate party is given sufficient notice of the hearing.
67
modificaiton of child custody orders
Most states use a change-in-circumstances standard to determine whether modification of a custody
or visitation order is warranted. Violation of a child-visitation order does not automatically change the
designated custodial parent, but it is a factor considered in modification of an order.
68
relocation and child custody agreements
Relocation with a child may be permitted if there is a legitimate and reasonable purpose for the move.
In some states, there is a presumptive right to relocate so long as the child’s welfare will not be prejudiced.
Courts consider the following factors:
y The nature and quality of the nonrelocating parent’s involvement with the child
y The child’s age and needs
y The child’s preference, if the child is of sufficient maturity
y The ability to preserve the relationship between the nonrelocating parent and the child
y Whether the relocating parent has any history of promoting or preventing parenting time for the
nonrelocating parent
y Whether the relocation will enhance the quality of life of the child and the parent seeking relocation
y Each parent’s reasons for requesting or opposing the relocation
y Any other factors that affect the child’s best interests
69
Change in cohabitation and custody
Some states will consider a change in custody when the custodial parent is living with a nonmarital
partner. However, custody is generally not changed unless there is a showing that the cohabitation is
having an adverse effect on the child.
70
parental consent for medical care
Parental consent for a child’s medical care must be obtained regardless of the parents’ marital status,
except in an emergency. And though a parent has the right to raise a child as the parent sees fit—including
decisions related to the child’s religious upbringing—parental decisions may be limited to protect the
health or safety of the child or if there is a significant social burden (e.g., contagious illness).
71
Premarital agreement
A valid marriage is sufficient consideration for a premarital agreement. In many states, a premarital
agreement must expressly state that it applies to divorce. Premarital agreements are unenforceable
regarding child custody and support clauses. Most states apply the law of the state with the most
significant relationship to the agreement and subsequent marriage.
72
Separation agreement
A separation agreement can address property division, spousal support, child support, child custody,
and visitation. It is generally merged into the final judgment for divorce. If no merger occurs, then
enforcement of the separation agreement is governed by contract law. Provisions regarding child
custody and support may be modified if the terms are not in the child’s best interests.
73
Property settlement agreement
A property settlement agreement can settle the parties’ economic issues. It is entered into by the parties
before a divorce decree is issued. Such an agreement is enforceable so long as it is not fraudulently
procured or unconscionable.
74
Validity of marital agreement
A marital agreement must be in writing and signed by the party to be charged. A marital agreement is
enforceable if:
y At the time it was executed, each party fully disclosed its financial status
y The agreement is fair and reasonable and
y The agreement was voluntary.
Under the Uniform Premarital Agreement Act (UPAA), which has been adopted in about half of the
jurisdictions, the party who seeks to avoid enforcement must prove that:
y The party entered the agreement Involuntarily or
y The agreement was unconscionable when executed and the party
○ Did not receive or waive fair and reasonable disclosure and
○ Did not have, or reasonably could not have had, adequate knowledge of the other’s assets
and obligations.
If the marriage is voided, a premarital contract is enforceable only if it will avoid an inequitable result.
75
impoverished spouse and spousal support based on premarital agreement
An agreement may be set aside if it would leave one spouse woefully impoverished to the extent that the
spouse becomes dependent on the state.
76
modification prevention in a premarital agreement
A provision in a marital agreement that prevents modification of property rights, including spousal support,
is permitted. But a provision that prevents the modification of child support is unenforceable.
77
voluntary termination of parental rights
Voluntary termination occurs when biological parents give up their parental rights over a minor child and
consent to the child’s adoption by the adoptive parents.
78
unwed father's failure to register with a state registry...
An unwed father’s failure to register with a state registry (1) constitutes a waiver of his right to notice of
the adoption and (2) irrevocably implies his consent to the adoption if he and the child never developed
a relationship. Additionally, an unwed father’s right to object may be denied if he does not demonstrate a
commitment to the responsibilities of parenthood.
79
A prospective adoptee who is over 14 years of age must
consent to the adoption
80
involuntary termination of parental rights
Only a court can involuntarily terminate a person’s parental rights. Involuntary termination typically occurs
as part of an abuse, neglect, or dependency case, or when consent to an adoption is unreasonably
withheld. It also may occur due to abandonment, abuse of a sibling, or the termination of parental rights
over a sibling.
81
Legal effect of adoption
Adoptive parents have all the rights and responsibilities of biological parents, and an adopted child has all
the rights and responsibilities of a biological child.
In most states, no visitation is permitted between the adoptee and her biological parents. However, some
states authorize visitation between an adoptee and a nonparent (e.g., stepparent) when they share a
substantial relationship and visitation is in the child’s best interests.
Adoptions cannot be dissolved except in limited circumstances (e.g., discovery of an undisclosed mental
or physical illness).
82
Assisted reproduction parentage
The woman who gives birth to the child is the child’s mother, unless a gestational agreement states
otherwise. The husband of the mother is the child’s father.
83
gestation (surrogacy) agreement
The gestational mother, as well as her spouse if she is married, gives to the intended parents all parental
rights and obligations to the child being conceived. All parties to the agreement must petition the court
for approval. A child born to the surrogate mother within 300 days after the assisted reproduction is
presumed to be the product of the assisted reproduction.
84
Domestic violance requirements
To qualify as the perpetrator of domestic violence, a person must be (1) in a relationship with the
victim, (2) a member of the victim’s household, or (3) a family member of the victim. Domestic violence
generally requires a continuum of behavior, but a single episode may qualify.
85
relief from domestic violence process
An applicant seeking relief from domestic violence must first obtain an ex parte order granting limited
relief. This is followed by a hearing—after the defendant receives notice—on a petition for permanent
relief. The court may then enter an injunctive order prohibiting the defendant’s further abuse of and
contact with the victim. This protective order may address exclusive possession of the residence, child
custody, and/or support. A violation of the protective order can trigger criminal penalties.
86
Is parental authority over a child absolute
Parental authority over a child is not absolute. A court may terminate parental rights when it is in the
best interests of the child. Grounds for termination of parental rights include, but are not limited to,
abandonment, neglect, failure to support, and infliction of serious harm.
87
child consent to medical treatment? Parental consent for everything?
A child who is over a certain age may consent to medical treatment. And a child may obtain birth control
or treatment for a sexually transmitted disease without parental consent.
88
emancipated child
An emancipated child has all the rights and obligations of an adult. The child’s parents have no duty to
support the child.
89
A marriage (including a common law marriage) valid in one state will be valid in another state
unless
in violates a strong public policy of the other state
90
mediator requirements
Be impartial and disclose any conflicts of interest they might have;
Example 1: A pre-existing relationship with one of the parties
Clearly explain the process and make sure the parties have all the information required;
Control the mediation proceedings; and
Example 2: Address signs of domestic violence or threats during the
mediation
Not coerce or improperly influence a party to make a decision.
Be able to recognize and deal with signs of domestic violence
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Seperate property
Assets acquired during marriage by gift (except interspousal), descent, or devise; and
Anything acquired before marriage.
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professional licenses/degrees, MP?
Most courts do not treat degrees as MP
* The non-degree earning spouse would not be compensated for the value of the
degree.
* But that spouse could seek reimbursement for contribution to educational and living
expenses.
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personal injury claim proceedings, MP?
If the cause of action accrues during marriage (i.e.,
spouse is injured during marriage):
* Approach 1: All proceeds are treated as MP
* Approach 2: Damages are divided between by type:
o Compensatory (e.g., pain, suffering, disability) are SP of the injured spouse
o Consortium damages are SP of the non-injured spouse
o Lost wages, lost earning capacity, and medical expenses are MP (divided
equitably)
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spousal support during marriage
Spouses have a duty to support each other equally under family expense statutes.
o If a creditor provides a “necessary” item to one spouse, it can sue the other spouse for
payment if the purchasing spouse does not pay.
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If a man discovers that he is not the father of the child, impact on child support
some states will terminate the child
support order, while others may continue the support obligation.
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timing of modification of child support
A court will only modify child support amounts prospectively, from the date of the
motion moving forward (future payments).
A court will not reduce the amount of child support retroactively (will not reduce
amounts owed prior to the date of the motion).
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jurisdiction to modify child support
Under the UIFSA, the state that issued the initial child support order has continuing
exclusive jurisdiction to modify the child support order.
Exceptions:
* The parties (both parents) and the child no longer reside in the state; or
* The parties expressly agree to permit another state to exercise jurisdiction.
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how to determine fair and reasonableness of premarital agreement
Procedural Fairness: The court will look for factors such as duress, undue influence,
misconduct by a mediator, and whether the party had independent representation.
Substantive Fairness: The courts will also consider the fairness of the terms themselves.
Most courts evaluate fairness at the time of execution of the contract.
* A minority of jurisdictions will also evaluate it at the time of enforcement.
The current trend is for courts to enforce contractual agreements that may not be fair as
long as there has been fair disclosure.
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how to determine voluntariness of premarital agreement
Courts consider factors such as time-pressure and the opportunity to be represented by
independent counsel.
A party’s insistence on an agreement as a condition to marriage does not make it
involuntary
Free of fraud, duress, and coercion
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When determining the validity of a premarital agreement, states will apply the law of either:
The state in which the agreement was executed; or
The state with the most significant relationship to the parties and transaction (majority)
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In evaluating dissolution of adoption claims
courts typically consider the length of the relationship,
the child’s needs, and the parent’s motives.
Generally, an adoption may not be dissolved, although some states have permitted
dissolution in limited circumstances, (e.g., discovery of an undisclosed mental or physical
illness).
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limits on parental authority
o A parent has a right to make decisions about how to raise child (e.g., religion), but courts
may intervene in the best interest of the child.
o If medical treatment contradicts a parent’s religious beliefs, courts can intervene to protect
a child when necessary medical care is needed to prevent serious harm to the child’s health.
o States are permitted, under their police powers, to require vaccinations and refuse
admission to public schools for students who fail to receive them. These statutes do not
violate parental rights.
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UPAA vs non-UPAA (challenging validity of a premarital agreement)
UPAA
1) did not sign the agreement voluntarily or
2) the agreement was unconscionable when executed and there is some disclosure problem because:
a) the party did not receive fair and equitable disclosure, b) the party did not waive fair and reasonable disclosure; and c) the party did not have, or reasonably could have had, an adequate knowledge of the other's assets and obligations
Non-UPAA
1) No full disclosure of financial status; 2) terms not fair at the time of signing; or 3) agreement was procured with fraud or duress, or signed involuntarily.
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Emancipation requireemnts
A child may petition the court for a decree of emancipation when a child no longer lives with his parents and is self-supporting.
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husband who is not biological father of child, child support obligations?
A husband who is not the biological father of his wife’s child may be estopped from denying his obligation to pay child support under the doctrine of equitable estoppel. Under this doctrine, the husband may be required to pay child support when:
i) There is a representation by the husband that he would provide for the child;
ii) The wife relied on his representation; and
iii) The wife suffered an economic detriment as because of the reliance (e.g., loss of opportunity to obtain child support from the child’s biological father).
Although many jurisdictions recognize the doctrine of paternity by estoppel, some jurisdictions will permit it to be used only as a basis to prevent a party from denying his obligation to support as opposed to preventing a biological father from asserting his rights.[v] However, some states have recently placed greater emphasis on the interests of men who have been erroneously identified as fathers. In these jurisdictions, a husband’s child support may be terminated, and paternity may be disestablished, without considering a child’s financial interests.
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What is less than a divorce but allows a court to divide property
A limited divorce does not sever the marital ties but permits the parties to live apart. The court will determine support and property division in limited divorce actions.
Note: Limited divorce is known in some states as "divorce from bed and board."
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interlocutory decree
This represents the period of time between when a divorce is initially granted and when it is finalized. During this time, neither spouse may remarry.
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What issues may a mediator assist with in terminating a marriage?
A neutral, court-approved mediator assists both parties with spousal- and child-support issues, as well as custody and visitation rights.
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How is marital misconduct considered in determining spousal support?
Marital misconduct may be considered in many states when determining spousal support. The weight depends on the jurisdiction, with some jurisdictions considering it merely a factor and others giving it preclusive effect.
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when does child support terminate
In all jurisdictions, both parents, regardless of marital status, are required to support their minor children until the child reaches the age of majority or is emancipated. Some jurisdictions continue the obligation through college. Additionally, it can be continued indefinitely for a child incapable of self-support due to a disability.
In most jurisdictions, the obligation may also terminate if the child marries, parental rights are terminated, the child commences active duty military service, or the parent or child dies.
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Under the doctrine of equitable estoppel, a husband may be required to pay support for his wife's child even when he is not the biological father when which requirements are met?
1. There is a representation by the husband that he would provide for the child;
2. The wife relied on his representation; and
3. The wife suffered an economic detriment as a result of the reliance
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What Act provides a court with personal jurisdiction over an out-of-state parent to establish or enforce child support or to determine parentage?
The Uniform Interstate Family Support Act (UIFSA), which has been adopted by every state.
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emancipated requirements
To be emancipated, a minor child must be self-supporting and beyond the sphere of influence of his parents or independent of parental control.
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how are support answers generally enforced
Support orders are typically enforced through civil contempt, income withholding, or withholding of tax refunds.
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child custody modification requirements
The majority of jurisdictions apply a change-in-circumstances standard, requiring some substantial and unforeseen change since the issuance of the prior order. Some jurisdictions have also applied time barriers before an application for modification can be filed absent consent or endangerment. The purpose of these considerations is to promote stability in the child's life.
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What Act applies to interstate custody disputes, including visitation rights, as well as parental kidnapping cases?
The Parental Kidnapping Prevention Act (PKPA)
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How is child custody enforced
A party seeking enforcement can request assistance through the courts. The court can impose a variety of sanctions, including compensatory visitation, attorney's fees, court costs, fines, and jail time. Tort damages may also be awarded to a parent for the period of time that the child is wrongfully out of the parent's custody.
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While property division clauses are enforceable in a premarital agreement, what clauses are generally unenforceable?
Clauses relating to child custody and support in a premarital agreement are unenforceable.
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when does a courts continuing jurisdiction end (child custody)
A court that makes the initial ruling in a custody case has exclusive continuing jurisdiction over the matter until:
1. The parties no longer reside in the state, or
2. The child no longer has a significant connection to the state
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Under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), what is the test to determine if a court has home-state jurisdiction?
A court has subject-matter jurisdiction to preside over custody hearings if the state:
1. Is the child's home state (the state in which the child has lived for at least 6 consecutive months immediately prior to hearing, or since birth if the child is less than 6 months), OR
2. Was the child's home state in the past 6 months, and the child is absent from the state, but one of the parents/guardians continues to live in the state.
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An offer terminates by lapse if
no date is specified, after a reasonable time. And a revocable offer terminates by revocation if it is revoked by the offeror prior to acceptance.
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In June, a local chef learned of a new business that opened in the area. Hoping to attract the business as a new client, the chef sent the business an offer consisting of a catalog of menus available through his catering service and a form letter that he sent to all new businesses in the area. The letter was signed by the chef and included the following language: "Welcome! I specialize in creating delicious meals with local and organic ingredients, and I would be honored to be your catering source for all your business, promotional, and personal needs! To welcome you to the community, I would like to offer you a 25% discount off my catalog prices on any three-course meal order, for up to 100 people, submitted this calendar year. I hope to hear from you soon, and I look forward to doing business with you!"
No communication occurred between the parties until the end of November, when the business faxed an order form to the chef requesting a catered meal for 60 people at a promotional event for a 25% discount. The chef refused to provide the business with the catered meals at a 25% discount. As a result, the business sued the chef for breach of contract. The court found that both parties are merchants with respect to this transaction.
Is the business likely to succeed in its action?
Yes, because the chef had not revoked the offer before the end of the calendar
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The nonoccurrence of a condition may be excused if
benefits from the condition waives it by words or conduct. Once the condition is excused, then the waiving party cannot raise it as a defense.
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A fashion designer wanted to start selling her sneakers, so she contacted a clothing manufacturer to make the sneakers in accordance with her designs. After negotiating the price and other terms, the two parties entered into a written contract on January 1. Under the contract, the manufacturer promised to make the sneakers on the condition that the designer send the design specifications to the manufacturer by February 15. The manufacturer made clear to the designer that the first batch of sneakers would take at least two months to manufacture after receipt of the design specifications. The manufacturer also promised to deliver the first batch of sneakers to the designer by May 15.
On February 27, the designer sent the design specifications to the manufacturer without having sent the manufacturer any prior notification that there would be a delay. Despite the delay, the manufacturer proceeded to manufacture the first batch of sneakers according to the specifications, and they were completed by May 1. However, due to a paperwork error by the manufacturer, it failed to deliver the sneakers to the designer until June 1.
Which most accurately describes the legal obligations of the two parties under the contract on June 1?
The manufacturer was in breach for not delivering the sneakers by May 15
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A party to an illegal contract may recover restitution damages if
that party conferred a benefit on the other party and (1) was justifiably ignorant of the facts that made the contract illegal, (2) was less culpable than the other party, or (3) withdrew before the contract's illegal purpose was achieved and did not engage in serious misconduct.
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A court may reform a written contract due to mutual mistake if
A court may reform a written contract due to mutual mistake if (1) there was a prior agreement, (2) the parties agreed to put the prior agreement in writing, and (3) there is a difference between the prior agreement and the writing due to the mistake
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The UCC, which governs contracts for the sale of goods, provides special rules for auction sales. One such rule limits the seller's ability to bid at an auction sale. It allows a winning bidder to avoid the sale or pay the price of the last good-faith bid if
the auctioneer (1) knowingly accepted a bid by the seller or on the seller's behalf or (2) procured the seller's bid to drive up the price of the goods. However, the winning bidder may not do so if:
the seller bid at a forced sale* (e.g., a foreclosure sale initiated by a secured creditor) or
the seller gave notice reserving the right to bid.
*Debtors (here, the owner) and foreclosing creditors (here, the bank) are both treated as "sellers" under the forced-sale exception to auction sales.
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A buyer contracted with an owner of commercial property located in a strip mall to purchase the property for $750,000. The contract called for closing and delivery of possession to occur on March 1. At the time of contracting, the owner informed the buyer that the current tenants were wrongfully refusing to vacate the premises and would not do so until March 31. The owner notified the current tenants, who ran a call center on the premises, that they would need to vacate the premises before April 1. Although the current tenants stopped operating the call center before April 1, they were not able to empty the space completely because they had attached numerous cubicles to the floor, and the cubicles occupied the entire space of the property.
Shortly after entering the contract, the buyer ordered gymnastic equipment that was to be delivered on March 2. Unbeknownst to the owner, the buyer planned on using the property as a gymnastics studio. Due to the delay, the buyer was forced to rent a storage unit for this equipment for $1,000. By April 1, the fair market value of the property had risen to $755,000. In addition, the monthly fair market rental value of the property was $3,000.
If the buyer files an action against the owner for damages, what will she likely recover?
Here, the buyer can recover expectation damages, which are measured by the fair market rental value of the property for the month of March that she was denied possession ($3,000). But the storage-unit costs ($1,000) are not recoverable because it was neither foreseeable (consequential) nor commercially reasonable (incidental) to schedule a delivery on March 2 after learning that the current tenants would not vacate until March 31 (Choice A). Therefore, the buyer will likely recover only $3,000 in expectation damages.
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