Family Law Flashcards
Marital Property
Property acquired during the marriage is marital property unless acquired through gift, bequest, devise, or descent.
When gift given to both parties court looks at donor’s intent. Wedding gift is marital property.
Spousal Support
Purpose of spousal support is to ensure adequate income stream for spouse whose economic dependency resulted from marital relationship. States vary if alimony is based on marital fault.
Court considers standard of living during the marriage, duration of marriage, age and physical and emotional condition of the parties; time needed to find employment; ability of payor to meet his needs.
permanent support is awarded to spouse with neither the resources nor ability to be self-sustaining.
most jurisdictions rule that neither spouse’s earning capacity nor professional license on which it is based is distributable. Not property b/c cannot purchase, transfer or inherit. Some jurisdictions have compensated supporting spouses for contribution in other ways - based on unjust enrichment, factor in alimony award, or awarding reimbursement alimony
rehabilitative alimony consists of periodic payments for limited period of time for spouse to gain skills or education necessary to become self-supporting.
reimbursement alimony is a fixed sum to spouse who supported other spouse while latter obtained degree or license.
Child support
Support is based on monetary need and ability to pay\
state guidelines formula is based on number of children, ages, specials needs, parents’ income.
ct may deviate from guidelines but must make findings of fact justifying deviation.
Parents have equal duty to support their children.
modifiable based on substantial change of ciircumstances.
Jurisdiction over divorce
to establish jurisdiction over divorce action, one party must be bona fide resident of juris where action is brought.
states may set minimum durational residency requirements before action can be filed.
plaintiff’s residence alone may be basis for state granting divorce.
ct cannot determine out-of-state property rights or rights to support unless it has personal jurisdiction over both parties.
in ex-parte divorce ct can grant divorce but not award spousal support or divide out of state prop. Exception for marital prop in the state.
No fault divorce
most states offer no-fault divorce
must be a showing that the marriage is irretrievably broken and parties have lived apart for specified period of time.
one spouse thinking of marriage can be saved and disagreeing that it is broken down is insufficient if other believes it cannot be saved.
Property distribution
Ct has jurisdiction to order equitable distribution of all marital property no matter how title is held.
Ct can only split property if married or valid cohabitation agreement (enforced if sex is not only consideration).
marital fault not a factor unless led to dissipation of assets.
Separate property / separate and some paid for during marriage (mortgage)
if prop acquired before marriage but paid for after marriage with marital funds, cts apportion prop between separate and marital interests in proportion to contribution of separate and marital funds used to pay for it.
Premarital Agreement / same for settlement agreement except entered into during the marriage.
Premarital agreement must be in writing, voluntary and based on full and fair disclosure of financial worth
entry into marriage is sufficient consideration
agreement must contain fair and reasonable economic provisions. Unconscionability determined at time agreement is formed.
Against public policy to enforce waiver of spousal support if spouse would be dependent on state.
Court not bound to child custody provision. Court decides on the best interest of child.
Factors for joint custody are fitness of the parents; whether they agree on joint custody; their ability to communicate and cooperate; preference of children; level of involvement in children’s lives; proximity of parents’ homes; effect on children’s psychological development
cts may consider which parent was primary caregiver.
Common law marriage
marriage valid where entered will be recognized in other states, even states that don’t provide for common law marriage.
basic requirements for CL marriage; capacity to enter into marriage, exchange of consent, cohabitation, and holding out publicly of living together as spouses.
Cts to determine if sufficient holding out look to conduct such as using a common last name, opening joint bank account, and telling others in community that they consider themselves married.
Adoption (father unwed consent)
Generally, a child may not be adopted without the consent from both biological parents.
unwed parents have a right to raise their children.
father-child relationship is protected by due process if father is part of family unit and participates in child rearing.
whether consent must be obtained from unwed father depends on how involved the father is with the child.
unwed father who never attempted to establish a legal or personal relationship with the child has no rights with respect to adoption
unless unfit, an involved unwed father has due process right to block adoption.
Factors considered with respect to father’s involvement whether parents lived together (or whether father visited regularly) whether father admitted paternity or paid child support, and whether father had any responsibility for supervision, education, protection, or care of child
UCCEJA
A state court may exercise jurisdiction if it is home state of child at time proceedings began or within six months of the proceedings and a parent still resides in state.
child’s home state is state in which child lived with a parent for at least six consecutive months before commencement of the proceeding
court that makes initial custody determination has continuing and exclusive jurisdiction over the matter until that court determines that neither the child nor parents continue to reside in the state or the child no longer has a significant connection with the state and substantial evidence relating to child’s care, protection, training, and personal relationship is no longer available in state.
PKPA
requires states to enforce custody order of another state only if state entering custody decree had home state jurisdiction
jurisdiction standards similar to UCCEJA
A state may not modify a custody order if a party continues to reside in issuing state and under that state’s laws, the court continues to have and does not decline jurisdiction.
Child custody
best interest of child
factors parents’ wishes; child’s wishes; interrelationship of child with parents, siblings, and others; child’s adjustment to home, school and community; and mental and physical health of the parties.
Preference of child over 12 is usually given great weight.
Tender years doctrine grants custody of young child to mother unless she is proven unfit. But has questionable constitutional validity because gender basied bias. Many courts grant to primary caregiver.
not in best interest to split up siblings.
