Family Law Flashcards

Question

Interlockutory Decree

Answer 1

Most states require a waiting period before finalizing a dissolution

Answer 2

* Requires court-appointed neutral and unbiased mediator * Parties make agreement & parenting plan and submit it to the court to approve * Can help with most parts of divorce * Duties of mediator: * Be impartial and disclose conflicts * Clearly explain and control process * Do not coerce or improperly influence a party * Mediator misconduct can be grounds for not enforcing a separation agreement or property settlement

Answer 3

1. Community property 1. minority method 2. **Equal** distribution of property 2. Equitable distribution 1. Majority method 2. Fair/**equitable** distribution

Answer 4

* Marital * Most things aquired during the marriage * Divided between spouses * Gifts between spouses * Seperate * Most things acquired before marriage * Remains property of owning spouse * Assets acquired by gift, descent, or devise during the marriage * Anything the prenup says is separate * Property that a party sold for value or mortgaed or encumbered in good faith before the date of final separation

Answer 5

* Increases in separate property resulting from either spouse's efforts during marriage is martial property * Market appreciation is not martial property * Improvement due to martial funds is martial property * If non-owning spouse helps with mortgage it becomes marital property

Answer 6

The party that is trying to prove that something separate

Answer 7

* How long was the marriage? * Were there prior marriages? * What are the economic circumstances of each spouse? * Age? * Health? * How close to retirement? * Earnings and earning potential? * Needs? * Contribution to the education or career of the other spouse * Needs for future acquisitions * Homemaking and child-rearing services * Value of the separate proeprty * Was there a reduction in value in marital property by one spouse? * Standard of living * Custodianship of minor children * Dissipation of assets

Answer 8

Majority: Not distributable property, but may affect other things like alimony and distribution of assets Non-holding spouse may also get reimbursement for the amounts that they contributed to other spouse's education

Answer 9

Marital property (for all amounts that accrued during marriage) Looks at present value

Answer 10

_Two Approaches_ 1. If the cause of action occured during marriage, it is **all** marital property even if proceeds are received after the divorce 2. Damages are split by type: Compensatory goes to injured spouse, consortium goest to non-injured spouse, lost wages and medical expenses are split.

Answer 11

Martial property if developed during marriage and is idependent of individual (eg dry cleaner busines goodwill)

Answer 12

_Three methods (aka all of the options)_ 1. Marital property 2. Not marital property 3. Only days that accrued during marriage are marital property

Answer 13

Future Interest (eg future inheritance) is not divided Social security benefits are not divided Stock options acquired during marriage are marital property even is exercises after divorce

Answer 14

*property acquired between separation and dicorce* Majority: It is still marital property Two Minority: 1) separate property 2) depends on the date of filing

Answer 15

It is not modifiable after the fact

Answer 16

AKA maintenance and alimony it is the obligation of one party to provide the other with financial support

Answer 17

* Financial resources of both parties and the ability of the payor to pay * Standard of living during the marriage * Time to find a job or to complete education * Length of marriage * Contributions to the marriage * Did one spouse enchance the earning potential of the other spouse (eg by being a homemaker) * Age and health of the parties * Marital misconduct (only considered in some( * Children and who will be responsible for them * All sources of income * Tax treatment and consequences of the alimony and maintenance

Answer 18

* Lump sum * Cannot be modified later unless fraud * Permanent Alimony (rest of life) * Usually only after long-term marriage (16 to 17 years +) * Durational alimony * Used last * Typically cannot exeed the length of marriage * And is only for a short period regardless * Rehabilitative alimony * To help spouse improve earning capacity so they can become independent (eg while they go to school) * Auto terminates at end of period * Reibmursement alimonty * Copensates for the spouse who made financial sacrifies during marriage (eg supported spouse while in school) * Palimony * Minority of states allow it * For long-term unmarried couples who cohabited and ended relationship * Sex cannot be part of contractual consideration

Answer 19

* All types can be modified except lump sum * If no support was ordered, cannot modify that * Requires significant change in needs of recipient or ability to pay of payor * Voluntary income reduction is not a significant change for payor

Answer 20

* Death ends it (unless specificed it is obligation of estate) * Remarriage * If payor remarries, court may modify * If recipient remarries, court may terminate * If second marriage is annulled, support is not revived * Cohabitation of recipient * May lead to modification or termination, but not automatically * Factors considered * How long has recipient lived with other person? * Have they held each out to be married and for how long? * Do they both jointly contribute to where they are living? * Do they both support the children of the other? * How much do they support each other? * Voluntary Retirement * Split on whether it is basis for modification

Answer 21

Alimony paid during pendency of divorce litigation Not terminated by cohabitation

Answer 22

Requires subject matter and personal jurisdiction over both spouses EXCEPTION: A court may grant only a divorce decree to one spouse even if it doesn't have personal jurisdiction over the other spouse BUT other spouse cann attack it arguing plaintiff was not domiciled in that state Subject matter jurisidiction generally requires some length of residency (up to 2 years) of at least one spouse

Answer 23

Both parents are legally required to support their minor children and have an equal responsibility (but may be varied based on circumstances)

Answer 24

General Rule = 18 Exceptions: - 19 if child is working full-time towards high school diploma - extended if child is disabled - can be extended through college degree

Answer 25

It is not. Visitation cannot be denied because child support is not being paid.

Answer 26

The child - Parent **cannot** bargain it away

Answer 27

Yes, as long as paternity is proven before father dies

Answer 28

* If the parents marry after the birth of the nonmarital child * Father consents to name on birth certificate * Father holds himself out as father * By judicial decree

Answer 29

* The rights to custody and visitation * The duty to support

Answer 30

* Blood test * Prior statements by deceased family members * Medical testimony based on the probability of conception * Defendant's own knowledge of paternity * The resemblance between the child and the defendant * Marital Presumption: A child born to a married woman is presumed to belong to the woman's husband * Included artificial insemination if father consented * NO TIME LIMIT

Answer 31

* Some states, a wife cannot * Others exclude such evidence if it is not in the best interest of the child * Half of the states allows wife to present evidence

Answer 32

Estoppel * When he said he'd pay it * Teh wife relied on it * The wife would suffer economic detriment from relying on it Exceptions: Some states allow father to prove they aren't biological father and don't need to pay

Answer 33

It is typically based on **all** the sources of income received by the paying parent Several models are used: * Most jurisdictions use an income share model: Net income of both parents is added together and responsibility is allocated * Some states use flat percentage of non-custodial parent's income based on number of children being supported All states use guidelines, but courts may deviate if they explain why (they are a rebuttable presumption)

Answer 34

**UIFSA** creates these options: * Personal service within the state * Consents to jurisdiction * Resided with the child in the state in the past * Or past residency, without child, but paid support * Child may have been conceived in that state * Defendant directed child to reside in that state * OR forced that child to reside their due to their own actions * Asserted parentage through state's father registry

Answer 35

* **Best interests of child** * Age * Special needs * Assets of both parties * Standard of living during the marriage * Medical Insurance paid (deducted from net income of the parent who pays for the insurance)

Answer 36

* If the parent's circumstances substantially change * Exs: change in occupation, remarriage, involuntary change in income * Substantial change = 10% change in amount owed * Voluntary changes in income generally aren't a reason to modify (**unless** it was in good faith and won't cause hardship to child) * If the child's needs subtantially change

Answer 37

* Burden of proof is on the parent requesting the change * Change is retroactive only to date of service of the modification motion

Answer 38

* Child reaches 18 (unless exception applies) * Child marries * Parental rights are terminated * Child emancipation * Child dies * Parent dies * NOTE: child giving birth does not auto terminate support

Answer 39

Their support can be contingent on compliance with reasonable parental demands

Answer 40

UIFSA applies, and says that the state that issued the order has continuing exclusive jurisdiction to modify unless: * Both Parents and the child no long reside in the state OR * Agreeemnt of the parties BUT can register order in other state for enforcement purposes

Answer 41

NONE: Paying parent cannot deduct it and it is not income for receiving parent

Answer 42

* Civil Contempt orders * If payor violates court order to pay * Court may require fine or incarceration until paid * Criminal Contempt * Failure to pay is willful --\> impose jail term * Sanctions * Withholding tax refunds * Suspend drivers license and other licenses * Seize property or assets * Order insurance of bond * Seize passport if they ow more than $5000

Answer 43

* **Legal:** Right to make major decisions for child * Exs: health, eduction, religion * **Physical:** Right to have child reside with them and provide for daily care and control * **Joint:** Neith parent has superior right to make major decisions for child * Favored * Both parents must be willing to cooperate for the best interst of the child

Answer 44

Dictated by UCCJEA - Run down the list to figure out which applies 1. Home State Jurisdiction 2. Significant-Connection Jurisdiction 3. Default Jurisdiction (when no court has home-state or significant connection) - Where child has appropriate connections 4. Exclusive Continuing Jurisdiction (court that made the initial ruling in the custody case keeps jurisdiction) 5. Temporary Emergency Jurisdiction

Answer 45

Child's home state and has been their home state for six months or since birth if \< 6 months OR Was child's home state in past six months, child doesn't live there anymore, but one parent does

Answer 46

No other state has or accepts home state jurisdiction AND The child and at least one parent has a significant connection with the state AND There is substantial evidence in the state concerning the child

Answer 47

1. The parties no longer reside in the state OR 2. The child no longer has a significant connection to the state and no substantial evidence of the child's condition is available in that state

Answer 48

*applies to home states and courts of exclusive continuing jurisdiction* When the forum is no longer convenient based on the following factors: * When domestic violence has occurred and is likely to continue * Length of time the child resided outside of the jurisdiction * The distance between the jurisdictions * The parties' financial circumstances * Agreement of the parties * The nature and location of relevant evidence * Each court's ability to decided the issues * The familiarity of each state court with the facts and issues * If the child has been wrongfully removed from another state

Answer 49

* If the child is in danger AND * The child requires immediate protection *emergency order stays in palce until the home state changes it* EXCEPTION: If there is a prior custody order, must allow time for parties to return to prior court

Answer 50

The respondent must appear the day after being servied with an order, otherwise petitioner will get immediate physical possession **Exceptions:** * The custody order was not registered AND * The court did not have jurisdiction OR * The order was stayed or vacated OR * Notice was improper * OR the oder was registered but stayed, vacated or modified

Answer 51

When the child is likely - to suffer serious physical injury - wrongfully be removed from the state

Answer 52

* The official believes the person holding the vhild violated a criminal statute OR * Such action is requested by the court

Answer 53

* UDPCVA applies * If there is no imminent deployment, then the courts cannot use potential deployment negatively against the military personnel * Can't make permanent orders before or during deployment

Answer 54

PKPA * Supersedes any conflicting state law, and applies to interstate parental responsibility disputes * Purpose = discourage forum shopping * International PKPA prevents children from being taken out of country * Hague Convention requires return of child unless it puts the child in grave danger

Answer 55

**Best interest and welfare of the child** * Unless a parent is deemed unfit, a parent is in the best position to care for the child * Presumption of legal parents over third parties * Who was the primary caretaker prior to divorce? * Race *cannot* be a factor * Religion & past sexual conduct is *rarely* a factor * Court will consider older child's wishes if they have sufficient maturity * Avoid separating siblings (unless in best interests) * If domestic violence, rebuttable presumption in favor of nonabusive parent

Answer 56

Three scenarios: * The parents are deeemed unfit * It would be deterimental to child to place them with parents * The parents have terminated their rights **Exception to meeting scenarios:** Parent by estoppel when child has been living with third party for a while **Minority Exception:** Best interest standard will be applied for determining between parent and third party

Answer 57

Court appointed advocate for the child during highly contested cases

Answer 58

* General rule = parents have a constitutional right to have contact with their children * Practice = reasonable visitation time with minor children * Includes unwed biological fathers **if** they demonstrate a commitment to parental responsibilities * Denied **only** if it would seriously endanger the child * Can be limited by no overnights or require supervision * Third parties generally only get it in cases of in loco parentis * A fit parent is given special weight to deny nonparent visits * Cannot be denied due to sexual relationship or cohabitation unless adverse effects on child * Cannot be denied due to HIV under any circumstance

Answer 59

* No states gurantee it * BUT if it is denied, courts will look at: * The fit parent's decision * The statute * The best interests of the child

Answer 60

Remedies = change in custody or contempt proceedings Examples: * Compensatory visitation * Award attorneys' fees * Impose fine * Order jail time * Habeas corpus petition if parent has legal custody but not physical custody

Answer 61

If order is registered in second state, in can be enforced BUT second state cannot modify unless: * prior court denies jurisdiction AND * out of state party is given sufficient notice

Answer 62

When there is a substantial and unforeseen (at time order was entered) change in circumstances * Modifiction must be in best interest of child and promote stability * Burden is on the custodial parent seeking relocation to prove it is for a reasonable and legitimate purpose * Some states switch that burden to non-relocating parent * Application needs to be filed **before** relocation * If joint custody, harder to relocate * Factors: * Best interests of the child * Relationship pf the non-relocating parent with the child * And ability to preserve it * Relocating parent's history of promoting parenting time * Age and needs of the child * The child's preference * Quality of life of relocating parent and child * Parent's motives

Answer 63

* Relocation * Custodial parent is living with nonmarital partner * Modification only if choabitation has adverse affect on child

Answer 64

* Medical procedures unless: * emergency * child is older and mature OR * public health issue OR * child is getting sexual health * Religous beliefs, but court can intervene if the beliefs are not in best interest of child * Upbringing - Parent can raise child as they see fit

Answer 65

Can apply to divorce and death * Can * Division of property * spousal support * Can't * Child support * Child custody

Answer 66

1. Full Disclousure 1. of financial status (income, assets, etc.) 2. Fair and Reasonable 1. Was it procedurally and substantively fair? 2. Usually only care at the time of execution 3. Also consider age, wealth, and health 3. Voluntary 1. Free of fraud, duress, or coercion 1. Requiring agreement as condition to marriage is not duress 2. Look at time pressure and opp to be reped by independent counsel 4. In Writing 5. Signed by the party you are trying to enforce against EXCEPTION: court may invalidate agreement if it leaves one spouse impoverished and dependent on state

Answer 67

Need one of the following: * Involuntariness OR * Unfairness or unreasonableness + lack of reasonable knowledge or disclosure

Answer 68

If a party can show unconscionability or fraud

Answer 69

Yes, as long as sex is not the only consideration If there is no agreement, courts will use equitable distribution of property

Answer 70

Either: * The state where the agreement was executed OR * The state with the most significant relationship to the parties and the transaction

Answer 71

They are sealed **except** for the parents' medical records

Answer 72

* Voluntarily (natural parent gives consent) * Unwed fathers consent by failing to register in adoption registry and having no relationship with child * If child is newborn though, unwed father has constitutional right to develop a relationship * Unwed fathers also consent by failing to demonstrate a commitment to the responsibilities of parenthood * Involuntary termination by a court * Based on abuse, neglect, or dependency

Answer 73

Yes if they are 12/14 or older (depends on state)

Answer 74

* Clear and convincing evidence of one of the following: * Abandonment * **Objective test:** Parent failed to commit to child * **Subjective test:** Parent intended to abandon child * Sibling abuse * Incapacity * Termination of parental rights over a sibling OR * Abuse and neglict of the child over time * Child was outside the home for 15 out of 22 months and not with a relative

Answer 75

Child has all the rights of a biological child and parents have all of the duties to them as if they were a biological child Most jurisdiction give biological parents no visitation Adoptions may only be dissolved if there is undisclosed mental or physical illness

Answer 76

1. Typically physical abuse (not mental or emotional abuse) 2. Perpetrator is in relationship with the victim, a family member, or household member 3. Typically need a continuum of behavior, but single episode may qualify

Answer 77

* Injuctive "No Contact" order is typical * Violation of it can result in imprisonment or fines * Two step process * Ex parte order for temporary order (TRO) * Notice to defendant and hearing for a permanent order (PRO)

Answer 78

* Child may petition court if they are: * self-supporting * Not living with parents * OR they are considered emancipated if they are married * What happens? * Child is no longer minor * They have duties and obligation of adult * Parent has no obligations

Answer 79

* Personal Jurisdiction * If you consent they have personal jurisdiction over you * Just need it over one spouse for decree, but need it over both for property division * Subject Matter Jurisdiction * Residency requirement: Depends on the state, but typically 6 months

Family Law Flashcards

(104 cards)