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Family Law > Family Law > Flashcards

Family Law Flashcards

1
Q

What are the 3 situations in which a marriage is Void?

A
  1. ) Prior existing marriage:
  2. ) Incest
  3. ) Mental Capacity
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2
Q

What are the basis for a Voidable marriage? (5)(IIIAF)

A
  1. ) Age
  2. ) Impotence
  3. ) Intoxication
  4. ) Fraud, Misrepresentation, duress, coercion, force
  5. ) Lack of intent
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3
Q

What are the grounds for a fault-based divorce? (8) (ABCDHIII)

A
  1. ) Adultery
  2. ) Cruelty
  3. ) Desertion (abandonment)
  4. ) Habitual Drunkeness (in some states).
  5. ) Bigamy
  6. ) Imprisonment
  7. ) Indignity
  8. ) Institutionalization
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4
Q

What are the 9 Defenses to “At-fault-“ divorces? (9)(CCCCRRIPJ)

A
  1. ) Recrimination and unclean hands (both spouses commit marital wrongful act of like conduct.
  2. ) Connivance: complaining spouse has given consent to participate in the marital wrong.
  3. ) Condonation: forgiveness for whatever wrongful act in which they were engaged. (knowledge, and resuming marital relations).
  4. ) Collusion: both parties fabricate grounds for divorce.
  5. ) Provocation: the misconduct of respondent is due to something the other spouse is doing.
  6. ) Insanity
  7. ) Consent: consent to commit adultery.
  8. ) Justification: one spouse leaves the home because of the other’s conduct.
  9. ) Religion: challenges to a divorce on religious grounds will fail in all jurisdictions.
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5
Q

What is marital property?

A

All property acquired DURING the marriage.

Much depends on whether it remains separate during the marriage.

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6
Q

If both spouses contribute to a mortgage, does the title of the home matter to the courts?

A

No, titling is not material.

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7
Q

What are the elements for a common law marriage?

A
  1. ) capacity - mental and legal capacity to marry.
  2. ) present agreement - both parties must intend to presently be married.
  3. ) cohabitation - the parties must live together
  4. ) holding out a marital relationship; hold themselves out as “spouses”

Most states don’t recognize

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8
Q

Is a common law marriage recognized in other states?

A

Yes, unless it violates a strong public policy of the other state.

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9
Q

What is required to meet the standard for a no-fault divorce?

A

Every jurisdiction has a unilateral no-fault ground for divorce, requiring neither fault nor
consent of the other spouse.

Generally requires that the marriage be irretrievably broken with no prospect of
reconciliation (often using the term “irreconcilable differences”)

No attempt at reconciliation required

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10
Q

What’s the deal with separations?

A

Some states require a minimum period of separation before a divorce will be granted.

The separation does not have to be agreed to by both spouses.

A spouse can unilaterally move out and start the separation period.

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11
Q

If a mediator is used, what are their requirements?

A

Be impartial and disclose any conflicts of interest he may have;

Clearly explain and control the mediation process and ensure that the parties have the
information to make an informed decision; and

Not coerce or improperly influence a party to make a decision.

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12
Q

What is community property? (Only used in 9 states)

A

Generally requires an equal division of property.

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13
Q

What is equitable distribution?

A

Majority rule

Requires an equitable, or fair distribution - NOT necessarily an equal 50/50 division.

Takes into consideration all of the circumstances between the parties.

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14
Q

What is “separate property?”

A

Includes assets acquired during the marriage by gift, descent, or devise.

Also includes anything acquired before the marriage.

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15
Q

What is community property?

A

Generally requires an equal distribution of the marital property.

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16
Q

What is “Equitable Distribution?”

A

Majority Rule

Requires an equitable, or fair (not equal) division.

Takes into account all the circumstances between the parties.

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17
Q

What qualifies as “Separate Property?”

A

Assets acquired during marriage by gift, descent, or device. SP also includes anything acquired before marriage.

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18
Q

Can marital property be transformed into separate property?

A

Yes, if marital funds or efforts by owner-spouse enhance its value/or build equity during marriage.

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19
Q

How does a court deal with future retirement/pension benefits?

A

If a spouse works during the marriage and creates or earns profits or benefits that will not be received until after the divorce, the profits will be considered marital property

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20
Q

How does a court deal with Professional licenses/degrees?

A

Most courts do not treat these as Marital property, but may award reimbursement for a spouse’s actual contribution to educational and living expenses.

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21
Q

How does a court deal with Personal Injury Claim proceeds? (2 approaches)

A
  1. ) If the cause of action accrues during marriage, even if the spouses are separated, all demands are treated as marital property.
  2. ) Damages are divided between MP and SP by type.
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22
Q

A divorce with a personal injury claim of compensatory damages, how does the court handle it?

A

Compensatory damages are separate property of the injured spouse.

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23
Q

A divorce with personal injury claims for lost wages, how does the court handle it?

A

Lost wages, lost earning capacity and medical expenses are MP.

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24
Q

Is a modification of a property division award allowed?

A

No - a property division is not modifiable because it is based on the parties’ assets at the time of the divorce.

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25
Q

Do changes in parties’ circumstances affect the property division award?

A

No - don’t affect the award.

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26
Q

What factors are considered when a court is considering Spousal support?

A
  1. ) Financial resources of both parties
  2. ) Standard of living during the marriage.
  3. ) All other factors (age, health, financial prospects, current familial support of spouses)
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27
Q

What is permanent alimony?

A

an award for the remainder of the dependent spouse’s life (generally only appropriate after a long marriage).

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28
Q

What is “limited-duration” alimony?

A

Typically awarded when the marriage was of short duration. (making permanent alimony inappropriate).

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29
Q

What is rehabilitative support?

A

support for a limited period of time, such as until the spouse receives education or employment.

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30
Q

What is reimbursement alimony?

A

it compensates a spouse for financial sacrifices made during the marriage that resulted in a reduced standard of living to secure an enhanced standard of living in the future.

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31
Q

In most jurisdictions, what happens when the receiving spouse remarries?

A

Spousal support may be terminated.

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32
Q

What 2 types of jurisdiction must a court have to hear family-related disputes?

A
  1. ) Subject matter jurisdiction

2. ) personal jurisdiction

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33
Q

Can a state court grant a divorce to one spouse if it does not have personal jdx over the other spouse?

A

Yes, if it has personal jdx over at least 1 spouse.

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34
Q

In a situation where a court only has personal jurisdiction over 1 spouse and not the other, what can it NOT do?

A
  1. ) Address property division
  2. ) Address spousal support
  3. ) Address child support
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35
Q

Can a parent bargain away child support payments, or agree to a release or compromise that would negatively affect the childs welfare?

A

NOPE

36
Q

When does the Uniform Interstate Family Support Act (UIFSA) govern?

A

When a state has personal jurisdiction over an out-of-state parent in an action to establish or enforce child support, or establish paternity.

37
Q

What situations can a court be found to have personal jdx over an out-of state parent?

A
  1. ) When the parent is personally served within the state or consents to jdx.
  2. ) Parent resided with the child in the state in the past, or
  3. ) Parent engaged in sexual intercourse in the state, and the child may have been conceived by the act of intercourse. (Recently Tested)
38
Q

How is the amount of child support determined?

A

Typically based on income received by the obligor (paying) parent.

39
Q

What model have most states adopted to determine child support amount?

A

The Income-Shares Model.

combined net income of both parents to determine the child support amount

40
Q

What “other factors” may be considered in determining the child support award amount?

A
  1. ) Best Interests of the Child.
  2. ) Age
  3. ) Special Needs
  4. ) Assets of both parties
  5. ) Standard of living during marriage.
41
Q

When are child support modifications permissible?

A

When there has been a Substantial Change in Circumstances regarding (1) the childs needs, or (2) the parents’ financial situation.

42
Q

Who has the burden in supporting a modification in child support?

A

The party seeking the modification.

Must show Substantial Change in Circumstances

43
Q

Under what circumstances, as it relates to a parent, may warrant a modification of child support?

A
  1. ) a parent’s change in occupation which substantially changes their income
  2. ) remarriage of a parent???
  3. ) an increase or involuntary decrease in income by either parent.
44
Q

Will a court modify a child support award Prospectively?

A

YES. Only.

45
Q

Will a court modify a child support award retroactively?

A

NO.

46
Q

When does a parent’s obligation to pay child support end?

A

When child reaches age of majority, 18.

Some jdx’s until the child gets out of college.

47
Q

What are “reasonable parental demands?”

A

An employable child’s right to support is contingent on compliance with reasonable parental demands;

an employable child who fails to comply, even if attending college, risks the loss of parental support.

48
Q

Under UIFSA, what court can modify the child support order?

A

Under UIFSA, the state that issued the initial child support order has continuing exclusive jurisdiction to modify the child support order.

49
Q

What are the 2 exceptions to the UIFSA statute that the first court to enter child support order has exclusive jdx?

A
  1. ) The parties (both parents) AND the child no longer reside in the state; or
  2. ) The parties expressly agree to permit another state to exercise jurisdiction.
50
Q

Under UIFSA, can the receiving parent register a child support order in another state?

A

Yes, and the non issuing state can enforce the child support order.

51
Q

What are the 3 types of Custody?

A
  1. ) Legal Custody
  2. ) Physical Custody
  3. ) Joint Custody
52
Q

What is Legal Custody?

A

The right of a parent to make major decisions regarding the child

53
Q

What is Physical Custody?

A

The right to have the child reside with a parent or guardian and the obligation to provide for routine daily care and control of the child.

54
Q

What is Joint Custody?

A

Generally requires that the parents are both willing and able to cooperate with respect to the wellbeing of the child; typically neither parent has a superior right to make major decisions.

55
Q

What is the purpose of the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA)

A

To prevent jurisdictional disputes with courts in other states on matters of child custody and visitation.

56
Q

When does a court have subject-matter jurisdiction to preside over custody hearings?

A

If not continuing exclusive JDX then….

  1. Home State JDX:
    - When it’s the child’s home state and has been the home state for a period of six months or since birth (if the child is less than 6 months old, OR

-Was the child’s home state In the Past 6 months, and the child is absent from the state, but 1 parent still lives there.

  1. Significant-Connection JDX: Exists when
    (i) No other state has or accepts home-state jdx; (ii) the child and at least one parent have a significant connection with the state; (iii) there is substantial evidence in the state concerning the child’s care, protection, training, and personal relationships.
  2. Default JDX/Appropriate Connections
    - If no state has Home State JDX or Significant-Connections JDX, then whatever state has appropriate connections will have JDX
57
Q

Under the “Significant-connection jurisdiction, when can a court enter or modify an order?

A
  1. ) No other state has or accepts home-state jurisdiction;
  2. ) The child and at least one parent have a Significant Connection with the state; and
  3. ) There is Substantial Evidence in the state concerning the child’s care, protection, training and personal relationships.
58
Q

When does Exclusive-Continuing Jurisdiction terminate?

A

Courts that make the initial ruling in a custody case have exclusive jurisdiction over the matter

  1. ) Both parties no longer reside in the state, OR
  2. ) The child no longer has a significant connection to the state, and any substantial evidence connected to the child’s condition is no longer available in the state.
59
Q

Does new significant-connection to another state terminate exclusive-continuing jurisdiction?

A

No, not necessarily

60
Q

What is the standard for determining child custody?

A

The best interest of the child.

61
Q

When will courts consider the the wishes of a child regarding custody?

A

When the child is older and has sufficient maturity to express a preference. The Court will look at the child’s reasoning behind her preference.

62
Q

Will courts consider Race or Religion in determining custody?

A

Courts will generally not use race or religion in determining custody.

63
Q

Who has the presumption of custody?

A

Legal parents.

A statute saying other wise would be unconstitutional because it wouldn’t give “special weight to the parent’s determination of her child’s best interest.”

64
Q

Do parents have a constitutional right to have contact with their children?

A

YES>

65
Q

Generally, the non-custodial parent is allowed what?

A

Reasonable visitation (or parenting time) with a minor child.

66
Q

What rights does an unwed biological father have?

A

A substantive due process right to have contact with his child, but only when the father demonstrates a commitment to the responsibilities of parenthood. (E.g. participation in child rearing or providing financial support).

67
Q

Who has the burden in an action to modify a custody order?

A

The burden is on the parent seeking modification to establish that the modification is warranted.

Most juridsdictions require a SUBSTANTIAL CHANGE IN CICRUMSTANCES to modify the custody order.

68
Q

Will a court modify a custody order based on the custodial parents relocation?

A

Yes, if the relocation is for a legitimate and reasonable purpose - not just restricting other parents access.

69
Q

What are the factors used to determine if a modification based on relocation is allowed?

A
  1. ) Best interest of the child
  2. ) The relationship of the non-relocating parent with the child
  3. ) Age and needs of the child
  4. ) The child’s preference
  5. ) The quality of life of relocating parent and child.
70
Q

In a premarital agreement, are clauses relating to child custody and support enforceable?

A

NOPE

71
Q

For a premarital agreement to be enforceable, what are the 3 requirements?

A
  1. ) Full Disclosure of assets
  2. ) Fair and Reasonable
  3. ) Voluntary
  4. ) Must be in writing, and signed by the party to be charged.
72
Q

Under the Uniform Premarital Agreement Act (UPAA) how is a premarital agreement made unenforceable?

A

At least one of these:

  1. ) Involuntariness [fraud, duress, coercion], OR
  2. ) Unfairness or unreasonableness TOGETHER with a lack of reasonable knowledge or disclosure.
73
Q

Regarding a prenuptuial agreement, what is required for it to be Voluntary?

A

Parties must enter into the contract voluntarily (i.e. free of fraud, duress, or coercion).

74
Q

For a premarital agreement to be enforceable, does the other party have to seek independent representation?

A

No, but it is a factor courts will consider.

75
Q

Regarding a premarital agreement, at what time does the court look to whether the agreement was fair and reasonable?

A

At the time of execution.

Current trend is for courts to enforce contractual agreements that may not be fair as long as there has been fair disclosure.

76
Q

Regarding premarital agreements, what is the full disclosure requirement?

A

Premarital agreements must provide full disclosure of financial status, including income, assets, and debts of all parties.

77
Q

What are separation agreements?

A

They are made between spouses who are planning for divorce to define property division, spousal support, child custody, custody, and visitation.

78
Q

How can a separation agreement be invalidated?

A

Can be invalidated in part, or in whole, if the moving party can show unconsciounability or fraud.

79
Q

What is the purpose of a Property Settlement Agreement?

A

To settle the economic issues of the marital estate. It is entered into by the parties before a divorce decree is issued.

80
Q

How can a property settlement agreement be invalidated?

A

In part of in whole if a party can show unconscionability or fraud.

81
Q

What rights do “unwed fathers’ have?

A

The protections under the 14th amendment Due Process Clause IF they have shown commitment to being a parent.

82
Q

What is a Putative Father Registry?

A

A registry that allows unwed fathers to register themselves as the father of a child.

If mom tries to terminate father rights, he gets notified and a hearing.

83
Q

Legally, what is adoption?

A

A statutory legal action in which the previous parent-child relationship is terminated and a new parent-child relationship is established.

84
Q

What are the limits on parental authority?

A

1.) Parent has right to make decisions about how child is raised, including religion, BUT courts may intervene in the best interest of the child.

85
Q

How do courts deal with parents and medical treatments?

A

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.

Family Law (1 decks)

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