Family Law Flashcards

Question

Voidable marriage definition and requirement

Answer 1

valid until spouse seeks annulment Requires judicial decree

Answer 2

1. Age 2. Impotence 3. Intox 4. Fraud, misrep, duress, coercion, force, etc. 5. Lack of intent (jest/hilarity)

Answer 3

if underage of consent and didn’t seek parental consent can ask for it o Parent of minor child can also seek it o Overage party cannot seek it if overage at that time o Underage party cannot seek it once reaches age of majority and continues to cohabit (ratification)

Answer 4

one party naturally and incurably is impotent Exception: party knew prior

Answer 5

alcohol or drugs Exception: if parties continue to live together (ratification)

Answer 6

- Fraud that goes to the essence of the marriage - Must be present at time of marriage - Must immediately cease living together once fraud discovered

Answer 7

low morals, bad habits, bad temper, financial status Jxs differ on woman claiming to be pregnant who is not

Answer 8

Exception: if marriage consummated Marriage of limited purpose: when parties agree to only some aspects of marriage. Ex: green card marriage.

Answer 9

o Can still ask for spousal support, equitable distribution of property, child support, attorney’s fees, temp spousal support o Courts try to place parties in same position as before marriage

Answer 10

considered martial children

Answer 11

o Deny the impediment (impotence, that other party is child, etc.) o Only stops annulment, but can still pursue divorce, dissolution

Answer 12

Protects party that is unaware of the impediment. Unknowing party may use state’s divorce provisions even if marriage found to be void.

Answer 13

legal dissolution of a valid marriage Residence requirements in most states (for one party) Separation periods: Many states require prior to official divorce, must have period of separation (married but living apart) to try to reconcile.

Answer 14

o Most states recognize no-fault divorces | o All states recognize fault divorces. (Some have removed it completely, but some still have.)

Answer 15

1) Irretrievably broken (irreconcilable differences) – typical 2) Incapacity - 50% of states require parties to be separated for period of time before they can file for divorce - 1 spouse wanting to reconcile does not stop the dissolution - Most states have abolished traditional defenses - Modernly, no-fault more common

Answer 16

1) Adultery: voluntary sex with someone other than spouse 2) Cruelty or inhumane treatment 3) Desertion (abandonment): leaves without cause or consent 4) Habitual drunkenness: frequent habit of getting drunk that impairs marriage 5) Bigamy: party knowingly entered into prior legal marriage before this one 6) Imprisonment 7) Indignity: negative behavior that renders them intolerable and their life burdensome 8) Institutionalization: for specific time prior to commencement of divorce and no reasonable prospect of discharge/rehab

Answer 17

Have to show opportunity and inclination to commit and can do so through circ evidence

Answer 18

* Has to be course of conduct * Or makes cohabit unsafe/improper * Must be serious * Most allow based on physical, only some based on emotional

Answer 19

* Intent has to be to remain apart permanently * Some jx find it when spouse forces other one out or when fear/harm if return * If mutual consent, does not count

Answer 20

* Some states allow this as grounds * Alcoholism not a requirement * Possible defense: assumption of risk

Answer 21

• Maybe, if for a specified period of time

Answer 22

* Ex: vulgarity, habitual laziness, sexually deviant behavior, etc. * Most don’t recognize

Answer 23

Must be affirmatively pled when asserted: * Recrimination: when both spouses commit a wrongful act. Ex: both committed adultery. * Unclean hands: when P’s own behavior is in question * Connivance: when P has given consent to engage in the marital wrong * Condonation: forgiveness. Must have knowledge. Resume marital relations after. In CL, once forgiven, cannot be used as grounds later. * Collusion: both parties have conspired to fabricate grounds for divorce * Provocation: misconduct due to something P was doing * Insanity * Consent: to the misconduct * Justification: e.g., leaves bc other’s misconduct * Religion: will always fail

Answer 24

o Widely recognized, rarely used | o If parties live apart, court can still determine support/property?

Answer 25

when party is asking for decree for support of a party (like wife and kids) that does not authorize them to live apart, still considered to be married and cannot remarry

Answer 26

once dissolution, still not finalized for a period of time

Answer 27

Requires neutral [usually] court appointed mediator who is unbiased and not colluding

Answer 28

Agree on separation agreement and submit to court with parental plan for approval

Answer 29

``` o Impartial o Disclose COI o Explain the process clearly o Make sure parties have info they need o Control mediation as it occurs o Should not coerce or improperly influence one party to agree to something o Fair and unbiased ```

Answer 30

Community property: marriage is partnership, so equal distribution of property. Only 9 states use. Equitable distribution: fair distribution (not necessarily equal).

Answer 31

Stays with spouse that it belongs to. Definition: asset acquired during marriage by gift, descent or devise. Ex: Husband buys house pre-marriage, then gets married, but if uses marital property to pay mortgage (etc.) during marriage, house can take on characteristics of marital property and during divorce other spouse could have interest on that house. Increase in value of house could be marital prop. If he puts title in wife’s name too, then marital prop. He has burden to show it’s not.

Answer 32

marital property and subject to equitable distribution.

Answer 33

whether the appreciation can be attributable to spousal labor.

Answer 34

still separate, appreciation not marital prop.

Answer 35

marital prop.

Answer 36

likely marital prop

Answer 37

- All property acquired during marriage - Increases in marital property resulting from either spouse’s efforts - Improvement due to marital funds. E.g., pensions, house, etc. - Gifts (between spouses?) - Most common: wages - Broadly determined and applied - Much depends on whether it remains separate during marriage - Titling doesn’t matter

Answer 38

Burden of proof on person claiming something is marital prop

Answer 39

- Prop acquired before marriage - Prop excluded pursuant to a valid agreement (e.g., prenup) - Prop acquired by one spouse by gift or inheritance - Prop party has sold, granted or conveyed for value before date of final separation - Prop that was mortgaged or encumbered in good faith before final separation - Award or settlement payment received for any cause before marriage. Ex: car accident before marriage, even if you get the payment after marriage.

Answer 40

- Length of marriage - Prior marriages - Econ circs of each spouse. Age, health, closeness to retirement, earnings potential, spousal needs… - Contributions to ed or career of other spouse - Needs for future acquisitions - Income, medical needs, retirement - Increases in marital prop. Homemaking, childrearing, etc. - Value of the separate prop - Reduction in value of marital prop by one spouse - Standard of living - Econ circ at time of divorce - Custodianship of any minor children - Dissipation of assets. Sometimes a spouse will dissipate the assets intentionally. In all at-fault states, basis for the fault is not factored into prop distribution.

Answer 41

1. Future profits or benefits: Anything earned during marriage will get split. (Let’s say someone works during marriage but payoff doesn’t come until after, doesn’t matter, still equitably divided.) 2. Special licenses or degrees 3. Retirement or pension benefits 4. Personal injury claims proceeds 5. Goodwill 6. Accumulated sick and vacation time 7. Future interest 8. Social security 9. Post-separation prop: prop acquired after separation but pre-divorce 10. Stock options

Answer 42

Not generally divisible (acquisition of knowledge). Spousal reimbursement: But court can reimburse spouse for amounts spouse contributed to other’s education (cost value approach). Could affect alimony or distribution of marital assets too.

Answer 43

- Marital prop - Subject to equitable distribution - Military benefits too - Present value of the pension (not future) - Portion accrued prior to marriage not marital prop, but portion accrued after is.

Answer 44

1) Marital prop approach: If cause of action occurred during marriage, marital prop (even if proceeds come after divorce). 2) Separate and marital allocation: Depends on nature. If lost income, etc., then marital prop. Pain and suffering/disability awards not marital prop. Consortium claim: one spouse gets hurt, second spouse can file this claim if they lose value of life too due to accident. Separate prop of non-injured spouse.

Answer 45

- Martial prop if developed during marriage - Intangible, like rep of business - But has to be independent of individual

Answer 46

Split jxs: some say marital prop, some not, some say only those accrued during marriage are marital prop

Answer 47

e.g., future inheritance not distributable??

Answer 48

not subject to equitable distribution??

Answer 49

Most say marital prop, some say separate, some depends on filing date

Answer 50

if acquired during marriage, marital prop even if exercised after Not taxed as regular income. Tax-free at time of transfer. Taxed when sold using original tax basis.

Answer 51

Not modifiable once divided. Change in party circ after divorce not considered.

Answer 52

* Obligation of one spouse to provide support for other in form of income * Ordered if one spouse cannot support themselves with own employment * Usual occurs after marriage, but could occur during marriage (both have obligation to support each other equally during marriage). * Can be for any length of time * Cannot be discharged in bankruptcy * Can be waived for other things (ex: give me the house and I’ll waive it)

Answer 53

- Financial resources of both parties. Ability of payor to pay. - Standard of living during marriage - Time (to find job or complete ed) - Length of marriage. Short-term: 0 to just under 7. Moderate-term: 7 to just under 16/17. Long-term: 16/17 and more. - Contributions to marriage. Ex: homemaking/childcare while other worked. - Age and health of parties - Sometimes marital misconduct/fault. Many jx preclude as a factor, but some consider adultery. Trend is usually only if it reduced marital assets. - Children - All sources of income - Tax treatments and consequences of alimony or maintenance

Answer 54

1. Lump sum 2. Permanent alimony/maintenance 3. Durational alimony/maintenance of limited duration 4. Rehabilitative alimony 5. Reimbursement maintenance 6. Palimony 7. (Marital home may be ordered as a form of alimony or even child support)

Answer 55

Downside: cannot be modified later unless fraud shown

Answer 56

Mostly in long-term marriages or exceptional circs. Usually to comp for lost earning potential.

Answer 57

Usually only if no other category adequate. Cannot exceed length of marriage usually.

Answer 58

Usually to get spouse rehabilitated and back on their feet. Usually specific and defined. Auto terminates at end of period.

Answer 59

To comp spouse who made financial sacrifices that resulted in lower standard of living. Some handle in prop division.

Answer 60

- Only recognized in a few states - Applies to unmarried couples who are cohabitants - Relationship has to be long and stable - As long as sex not part of contractual relationship, can seek it - Need not be in writing

Answer 61

- Can be modified usually even if permanent - But cannot if no original alimony/maintenance was awarded/reserved - Movant has burden to show significant change in circs in needs of recipient or financial abilities of payor - Voluntary income reduction by payor or increase by payee does not reduce payor’s support obligation or payee’s support owed

Answer 62

Death: • Continues until death of spouse. • Payor’s obligation usually not included as obligation of an estate unless specified. Remarriage: • If payor remarries or adopts children could modify. • If receiver gets remarried, courts may terminate. • If second marriage is annulled, typically first payor’s obligation will not restart. Cohabitation: • If recipient shacks up with non-fam member, support could be modified or terminated (but not auto, esp if cohabitant does not have obligation to pay support) • How long have they lived with cohabitant? • Have they held themselves out to be married, how long? • Do both contribute to where they are living? • Do they support each other or their children? • Does not terminate alimony pendant lite (alimony paid during pendency of divorce litigation) Voluntary retirement: • Some jx deny mod, some jx will mod

Answer 63

Most require some residency for SMJ (6-2 years). Full faith and credit applies if one spouse resident of state for that length.

Answer 64

full equity powers (division of prop, divorce/annulments, custody, support/alimony, attorney’s fees, separation agreements, etc.)

Answer 65

when couple lives in one state but then one moves to another state and that other spouse asks for divorce/spousal support in other state Allowed for new state to grant divorce without other spouse being present, but that court does not have power to issue orders regarding prop division, spousal support or child support.

Answer 66

Ex parte order can be attacked. Ex: showing P wasn’t domiciled in divorcing state; showing they left right after decree. If PJ & SMJ attach at time of divorce, no collateral attack by respondent allowed.

Answer 67

o Cannot require them to pay fees/costs o But no right to legal counsel o Court can award attorney’s fees and costs

Answer 68

It’s the KID’S money. Right belongs to the child. Parents can’t bargain away. Can agree regarding payments but cannot reduce/release the support.

Answer 69

Both parents legally required to support minor children. Equal resp unless circs indicate otherwise. Typically one pays another for support of the child.

Answer 70

Based on child’s needs not on parent’s ability to pay

Answer 71

Paid until reach 18 usually. Exceptions: o Until 19 if working full-time on high school diploma o Extended if physical or mental condition that disables child o Sometimes extended through college degree

Answer 72

Totally separate from visitation rights. Visitation cannot be denied bc payor not paying.

Answer 73

Can now get child support. Paternity needs to be proved before father dies. Can become marital kids if: - They marry after birth - Father consents to putting his name on the birth certificate - Father holds himself out to be the father, or - By judicial decree

Answer 74

Once established, rights and duties attached. If no paternity, child support cases dismissed.

Answer 75

- Blood test may be court ordered. If indigent, court will pay. - Prior statements by deceased fam members - Medical testimony - D’s own knowledge of paternity - Resemblance between child and D

Answer 76

No time limit bc would violate EPC

Answer 77

Nonmarital child or mom can file the claim

Answer 78

sometimes preponderance, sometimes clear and convincing

Answer 79

Married woman: presumption that child belongs to husband. Even if artificial insemination.

Answer 80

Some states say you’re estopped from doing so. Some states allow wife to present evidence. But some states exclude evidence of mom’s rebuttal if not in best interest of child.

Answer 81

Yes due to the equitable estoppel doctrine. But may be required to pay child support. Like when husband said he’d pay it and she relied on it and would suffer econ detriment from relying. But this is changing—non-dad husbands are being allowed to show not dad so do not owe child support. Cannot block bio dad from rights.

Answer 82

Courts do it through long-arm provisions. Uniform Interstate Family Support Act has been adopted by every state. 8 ways: 1) Personal service in the state forum on D parent 2) Consent of D parent 3) Past residency with child in state 4) Past residence in state not with child but providing support 5) D directed child to reside in that state or child forced to reside in that state due to D action 6) Had sex there (conception) 7) D asserted parentage via putative father registry maintained by state 8) Any other basis consistent with fed/state constitution for exercising PJ testing(?)

Answer 83

All jx have them. Can deviate from guidelines but court must specify why. Ex: if one parent’s income vastly higher than what child will need.

Answer 84

All sources of income.

Answer 85

1) Parents have fundamental obligation to support children 2) Combo income is what we are considering 3) Minimize litigation, make it a fair and efficient settlement

Answer 86

o Both parents have to file affidavit about net income and their worksheet o Once paid, payor cannot monitor how that money is spent

Answer 87

1) Income shares model • Used by most jx • Add both incomes, then determine child support • Allocation determined respective to each person’s net income 2) Percentage of income model • Use % of non-custodial parent’s income determined by # of children being supported

Answer 88

- Age of child - Any unusual needs - Support obligations of parties themselves - Assets of the parties - Medical expenses outside insurance coverage - Relative standard of living - Duration of the marriage - What is in the best interest of the child - Medical insurance and who is paying it

Answer 89

o Based on parent’s circ change or child’s circ change o Need a substantial change in the parent’s circ to modify child support: Change in occupation; Increase/decrease in income; Decrease in health; Remarriage that creates additional obligations. Ex: 10% change or more in amount owed. o Burden on party seeking mod o New number is retroactive back to date of service for motion for mod o But only prospective modification downward. o Can’t voluntarily reduce income and then seek to mod. Courts will also look at whether change made in bad faith, effect on child.

Answer 90

o Usually due to circs in the child changing o Automatically ends when age of majority reached (usually 18) o Could also occur when child goes to college in some states. Can be contingent on reasonable parental demands. o If some sort of disability occurs o If still in high school if they marry o Child asks for emancipation. Discuss TOC if fact-specific. Ex: Is child self-supporting after emancipation? Bc even if emancipated, not automatically terminated. Think about whether they have job and it is enough for them to be self-supporting. Ex: If child has child, not auto termination. o Child dies o Parent dies. Courts can require life insurance.

Answer 91

UIFSA: State that issued initial order has continuing exclusive jx. They have power to modify or enforce. Exception: if both parents and child no longer live there, no longer have power. Exception 2: all parties no longer agree this state has the power. Parties may register their order in another jx, but if aspect is nonmodifiable in state 1, also not modifiable in state 2.

Answer 92

o Paying parents cannot deduct it or include it as income o Custodial parent auto gets the exemption, but parents can agree otherwise o Parent who pays medical expenses can deduct for those

Answer 93

Through civil contempt orders, income withholding, withholding tax refunds, wage garnishment, crim contempt, or other sanctions

Answer 94

* Must violate a court order * Might be child supp, attorney’s fees, alimony or maintenance * Court may levy a fine or order incarceration until paid * Split on whether counsel required in indigent cases

Answer 95

* Jail term | * Court needs to find failure to pay willful BARD

Answer 96

* Intercept tax refunds * Suspend drivers’ licenses * Suspend professional licenses * Report to credit bureau * Seize prop or assets * Order insurance or bond to be posted * Award attorney’s fees * Order a job search * Seize a passport (But only if $5,000 or more???)

Answer 97

- Uniform Interstate Family Support Act adopted in all states - Order registered in one state, enforceable in other state - Only original state may modify the order - Always discuss this act when 2 states involved on exam

Answer 98

Legal custody: right to make major decisions (health, ed, religion). Can be shared. Physical custody: right to have the child reside with the parent; obligation to provide daily care and control. Can also be shared.

Answer 99

- Combo of both (legal and physical). - Statutorily favored - Parents must be able to cooperate with each other wrt best interest of child - Neither parent has superior right to make a decision, so usually a procedure to make decisions when conflict - Not necessarily 50/50 time; just spending significant time at the home of each

Answer 100

Best interest of the child

Answer 101

Establishes what state court has power to make custody determinations. 1) Home state jx 2) Significant connection jx: If no other state is the home state, and child and one parent have significant connections to a new state and sub evidence in that state concerning child’s care, protection, training 3) Default jx: no court that has home state or significant connection jx, then where child has appropriate jx

Answer 102

- Does not necessarily mean the birth state - Where child lived with parent for 6 months. If it’s state child was born in, does not have to be 6 months if still living there (like if child is 4 months old) - If child moved, new state can be home state if child has lived there for 6 months and still lives there. - If child moved less than 6 months ago and one of parents still lives there, that can still be home state.

Answer 103

Courts that make initial ruling will continue to have exclusive unless… - Both parties don’t reside there, or - Child no longer has significant connection to state and no sub evidence of child’s condition in the state.

Answer 104

New home state or court of exclusive continuing jx can decline forum no longer convenient for these factors: • When domestic violence occurred and likely to continue in state 1 • Length of time child has resided outside of that jx • Distance btw competing jx • Parties’ relative financial circ. Ex: Is one state cost prohibitive to a party if they had jx? • By agreement of parties • Nature and location of evidence relevant in case • Each court’s ability to decide the issues expeditiously and procedures necessary to present evidence • Familiarity of each state court with facts/issues

Answer 105

- Can assume this if child in danger and requires immediate protection - But if a prior custody order in existence, new court must allow time for parties to return to prior court to argue issues. If none, order stays in place until home state changes it.

Answer 106

Registration of order with the new court. Don’t need to immediately to seek enforcement.

Answer 107

Possible. Respondent must appear next judicial day after being served with order or else other party gets immediate physical possession unless: - Court order was not registered - Court did not have jx - Order has since been stayed or vacated, or - Notice was improper

Answer 108

Court may issue a warrant to take physical possession if child is likely to suffer serious physical injury or likely to be removed from the state.

Answer 109

Allows law enforcement to obtain return of child or enforce an order if official believes person holding child violated crim statute or requested by court.

Answer 110

o Applies UCCJEA to parents serving in military o If not imminent deployment, then courts cannot use potential employment negatively against military personnel o Sets out procedures for temp custody and out of court agreements o Prohibits permanent orders before or during deployment unless consent

Answer 111

o Adopted by all 50 states, but almost all states replaced it with UCCJEA. But some states still abide by UCCJA. o Did not allow another state to mod custody order if OG state still had jx. But some other differences with UCCJEA.

Answer 112

o Applies also to interstate parental responsibility disputes o Supersedes any conflict state law o Discourages forum shopping o International PKPA, Hague convention

Answer 113

Unless parent unfit, parent is determined to be in best position to care for child. No longer presumption for custody in favor of mom. Primary factor: who was primary caretaker prior to divorce. Other factors: - No race can be used as factor - Religion typically not a factor - Parents’ past sexual conduct not considered in most jx, unless has negative impact on child - Child pref may be factored in once at age of maturity - Siblings: courts avoid separating them, but not if keeping them together would not be in best interest of the child - Domestic violence is a consideration, in favor of non-abusive parent

Answer 114

- Legal parents presumptively get parental resp unless unfit, detrimental to child, or parent has terminated those rights. - Over grandparent or stepparent. Stepparent has presumption over stranger though. - Court must give special weight to parent’s desires in awarding custody, so if give grandparents right to custody without giving special weight to parents’ desire, unconstitutional. - But parent by estoppel/de facto parent principle: if child was living with 3rd party for extended period. - Some states use best interest and welfare of the child standard in all cases, even when 3rd party involved.

Answer 115

o Child will never be brought into court unless ordered by court for good cause o Guardian ad litem: used in highly contested cases; may be appointed by court for child; duty to advocate on behalf of child; parent usually has to pay for them

Answer 116

Generally parents have constitutional right to see their child. To deny non-custodial visitation is unusual. Only if seriously endangers child. But can restrict overnights. Can require supervised visits in public place or facility.

Answer 117

Sometimes. Ex: stepparents, grandparents, or LGBTQ non-biological co-parents. Typically only if in loco parentis (acting in place of parent) prior to divorce. Special weight given to fit parent’s decision to deny them visitation. Grandparents: • Most jx have a statute about this • None guarantee it • When grandparent requests visitation denied by parent, will look at fit parent’s decision, statute, and best interest of child

Answer 118

- Right to contact with child if shown any commitment to parenting child (rearing or financial) - If mom married to another man and refuses to join in a paternity action, state may preclude it, but going to look at: Has father committed to parenting resp; Best interest of child.

Answer 119

o Sexual relationship or cohabitation: courts unlikely to restrict visitation by parent due to sexual rel or cohabitation by that parent, unless adversely affects child o Courts cannot deny visitation due to HIV/AIDS

Answer 120

change of custody or contempt proceedings

Answer 121

- Compensatory visitation - Attorney’s fees - Award of court costs - Imposing a fine - Jail time - Tort damages for time lost

Answer 122

o Cannot deny visitation for failure to pay child support | o Also cannot deny visitation bc child says I don’t want to see them

Answer 123

Not available for custody or visitation disputes, but if a parent has legal custody but not physical custody, can request habeas proceedings. Court will often revisit the issue of custody and find out what is in the best interest of the child. Better option is a suit in equity??

Answer 124

full faith and credit: allows them to be enforced across states as long as registered in new state; new state cannot mod unless prior jx denies jx and party given notice

Answer 125

o Change in circs: must be sub and unforeseeable at time final judgement entered o Must be in best interest of child and to promote stability o Burden on parent seeking mod o Original state retains SMJ?? o Some states also apply a time barrier—If no immediate danger to child, must wait X number of days o If violation of visitation order, does not auto change custodial arrangement o Failure to pay child support also not a basis to mod visitation order

Answer 126

- Some place most weight on best interest of child - Some place presumptive right on relocating parent as long as won’t prejudice child’s welfare - Burden more often placed on relocating parent to demonstrate legit and reasonable purpose for the relocation - Other states place burden on objecting parent to show not in best interest of child or will harm child - Trend is to allow them to relocate provided legit reason - If joint custody, harder, courts protect nonmoving parent more - App should be filed prior

Answer 127

* Potential involvement of non-relocating parent * Age and needs of child, special needs * Ability to preserve relationship with nonmoving parent * Child pref * Movant’s history of promoting parenting time * Enhancing effect on child life * Each parent’s motive * Other factors in best interest of child

Answer 128

Some permit hearing to mod if custodial parent now living with non-marital partner. Usually no change in custody unless adverse effect on child.

Answer 129

o Upon death of parent or child reaching majority age (18) o If custodial parent dies, surviving parent usually gets custody o Religious beliefs may contradict with best interest of child, and some courts may interfere in those cases as child neglect. Exemptions: states can find emergency without finding parent neglectful. Parent generally has right to raise child as they see fit.

Answer 130

needed in certain circs. Ex: doctor who performs without parental consent could be liable (unless emergency; child is mature; public health issue)

Answer 131

* Premarital agreements/prenuptial agreement/antenuptial agreement * Separation agreements * Property settlement agreements

Answer 132

o Contract relating to property, spousal support, etc. if shit goes south. o Valid marriage is the consideration needed for such a contract o Many jx require express statement that says it applies to divorce o Not enforceable wrt child custody/support terms o Uniform Premarital Agreement Act: Adopted in 26 states. Provides uniformity to these contracts to impose same standards. o Uniform Premarital and Marital Agreements Act: Came after??

Answer 133

o Informal operating agreement of a divorce o Discusses property division, spousal support, etc. o Enforceable if no fraud or unconscionability (no fairness) o Modifiable regarding child support/custody if in best interest of child, but not generally wrt property division o Enforceable via decree—contract law vs. judicial enforcement

Answer 134

o Just to settle the econ issues of the marital estate o Usually entered into before divorce decree entered into o Enforceable as long as no fraud or unconscionability

Answer 135

prove (1) involuntariness or (2) both unconscionability at the time of execution and lack of disclosure and adequate knowledge of the other’s assets and obligations (even if the terms seem unfair or unreasonable, most courts will enforce the agreement because there has been full and fair disclosure)

Answer 136

a court may not refuse to enforce a premarital agreement based on substantive unfairness unless it also finds lack of adequate disclosure or knowledge. Even if the terms seem unfair or unreasonable, most courts will enforce the agreement because there has been full and fair disclosure.

Answer 137

1) Parties engaged in full disclosure 2) Court deems them fair and reasonable 3) Info given voluntarily/voluntarily entered into 4) In writing and signed by party being enforced against/charged

Answer 138

Full disclosure f financial status, income, assets, liabilities, etc…

Answer 139

- Modern trend: enforce if full disclosure even if not necessarily fair - Wealth, age of parties - Procedural/substantive fairness at time of execution - Make sure to discuss procedural fairness if one party not independently repped by counsel

Answer 140

- Entering into a contract voluntarily generally means there was no fraud, duress, or misrepresentation. - Time pressure (like being presented with it day before wedding), parties’ previous business experience, if given opp to be repped by independent counsel (if declined, fine) - Party insisting on agreement to get married not considered duress - Discuss whether party was informed of right to counsel and given opp to consult with counsel

Answer 141

Clear and convincing standard… 1) Involuntary or unconscionable when executed 2) Spouse did not waive reasonable disclosure 3) Spouse did not have or could not have had adequate knowledge of other’s assets/obligations - If marriage voided: premarital K enforceable but only if will void in equitable result May still invalidate if leaves one spouse woefully impoverished and dependent upon the state

Answer 142

will uphold nonmod clauses, but court overrides regarding child support

Answer 143

contracts between unmarried persons which consider full-time companionship in exchange for financial support - Enforceable but not if only consideration is sex - Less likely to enforce if implied contract - Property divisions: when no express contract, courts turn to equitable distribution of property to avoid unjust enrichment

Answer 144

Most say state with most significant rel to the agreement and marriage is state law that applies to a prenup. Some use state where it was signed (executed).

Answer 145

* When previous parent child relationship is legally terminated and a new one granted * Once completed, child adopted for all purposes * Records are sealed, except birth parents’ med records can be accessed by adopted child * Most states also have residence reqs * Law prohibits payment to natural parents for adoption

Answer 146

Must be done before adoption. Voluntary and involuntary.

Answer 147

- If commitment to parenting, do have rights, like right to fight off adoption of child to another father. - Putative father registry: registration system where unwed father signs up and says committed to child and want to be informed about child (like possible adoption)

Answer 148

Consent of unwed fathers: One way is if they fail to register (if they don’t have relationship with kid). Irrevocable. Limitations: can be denied if doesn’t demonstrate commitment to resp of parenthood; consent of prospective adoptee??? If over 14 (some 12), a minor must approve an adoption. Withdrawal of consent can occur if prior to final decree of adoption.

Answer 149

- Only court can do this - Bases: abuse or neglect of child over time, sibling abuse, dependence, abandonment, incapacity, termination of parental rights over the sibling - Statutory based - Extreme remedy - Standard: clear and convincing evidence - Adoption and Safe Families Act: state can move to terminate when child is outside home for 15 of 22 months and not with a relative - Some states apply traditional adoption law if parent abandons child?? Objective test: parent failed to commit to child’s visitation/support. Subjective test: parent intended to abandon child. Loss of interest in child is not sufficient basis.

Answer 150

Requires a thorough investigation of new parents’ fitness. Can sometimes be waived if close fam member.

Answer 151

o Once it takes place, they have all rights/obligations of bio parent o Child has right of any bio child o Bio parents have no visitation. Stepparents can sometimes, depending on how sub the relationship was.

Answer 152

- may generally not be dissolved. - Exceptions: Sometimes discovery of undisclosed mental or physical illness - Will look at parent’s motives, length of relationship, and child’s needs - Not valid reasons: quarrelling, not wanting to pay support

Answer 153

Provides uniform rules for things like assisted repro, surrogacy, frozen embryos, etc. Only adopted by 9 states.

Answer 154

Physical, not mental or emotional

Answer 155

Every jx has statute for civil relief for victims. Nearly all require perp to be in a rel with V or fam or household member. Typically req continuum of behavior; sometimes single instance --> court action. ``` Relief: o Injunctive (typical relief) o No contact order, at residence o Parenting time o Child custody o Support? ```

Answer 156

To invoke, get ex parte order with limited injunctive relief (TRO). Then provide notice. Then hearing for permanent restraining order (PRO). Orders can last for year or indefinitely. Violation can result in imprisonment or fines.

Answer 157

* Can convey prop * Can enter into contract but not will. Option to disaffirm at age 18. * Right to consent to med care, but standard varies. Parent consent almost always necessary for emergency care, but risk to life can override. Minors can usually consent to abortion, treatment for STDs and BC.

Answer 158

* Torts: children judged by more moderate standard | * Crim acts: children usually in juvie court/laws; to provide supervision and rehab usually

Answer 159

o If self-supporting and not living with parent, may petition court for decree o But then no longer a minor and have duties and obligations of an adult o Can’t just be that they have a job; have to be self-supporting o Parents no longer have duty to support o Typically a married minor considered emancipated

Answer 160

* Child abuse, neglect laws * Compulsory attendance at school * Courts may terminate parent rights in spite of con law if in best interest/welfare of child. Grounds can include abandonment, neglect, failure to support child, inflicting serious harm on child, etc. Ex: parent’s religious views endanger health of child.

Family Law Flashcards

(185 cards)