Family Law Flashcards
(30 cards)
Dissolution of Adoption
An adoption order works as a complete and final transfer of parental rights and responsibilities. except statutes authorizing dissolution if undisclosed mental or physical illness. courts typically look to the length of the relationship, the child’s needs, and the parent’s motives.
Retroactive Modification of Child Support
federal law absolutely forbids retroactive modification of child support obligations.
state law may not ordinarily be modified unless the hardship is particularly severe.
Modification of future support obligations
future support obligation must show a substantial change in circumstances. a significant involuntary income reduction. income loss is voluntary, most courts require a showing that reduction was made in good faith and not for the purpose of depriving the child or punishing the custodial parent.
Support rights of an employable child
A divorced parent may be required to provide college or other educational support for a child over the age of majority, but both married and divorced parents may terminate support to employable children who disobey reasonable parental commands
Choice of law: the premarital agreement
enforceability of a premarital agreement, states apply either the law of the state contract was executed or the state with the most significant relationship to the parties and the transaction.
Enforceability of Premarital agreement
under the UPAA, the party against whom enforcement of a premarital agreement is sought must prove (1) involuntariness (fraud, duress or coercion) or (2) that the agreement was unconscionable when it was executed and that full disclosure of assets and obligations was not received and not waived.
Premarital agreement regarding child support/custody
A premarital agreement regarding child support or custody is unenforceable if it is not in the best interest of the child.
Typically, a premarital agreement cannot bind a court deciding child support or custody.
Accrual of marital property
In the majority of states, the marital property continues to accrue until a final divorce decree is entered.
Court authority to negate parental agreements not in best interest of child
Parents may not enter into enforceable agreements that adversely affect the rights of their children; courts always retain authority to enter support and custody orders that are in the children’s best interests.
Calculating child support
As a condition of federal funding, states must employ numerical child-support guidelines and the guidelines must be applied regardless of the parent’s marital status. The support guidelines must take into consideration all earnings and income of the noncustodial parent.
Custody and Visitation
Custody and visitation disputes are governed by the court’s determination of the child’s best interests. Residential and relational continuity as well as meaningful contact with both parents are recognized as important sources of child well-being.
Interstate enforcement and modification of child support UIFSA
The UIFSA states that a registered child support order issued in state A is enforceable in state B in the same manner as an order issued by a court in state B. State A has the continuing and exclusive jurisdiction to modify the child support order if State A remains the residence of the obligee, the child or the obligor (state B can enforce the state A child support order, but can’t modify it).
Parental Kidnapping Prevention Act
The federal Parental Kidnapping Prevention Act (PKPA) provides that a state may not modify a custody decree issued by another state if either the child or any party continues to reside in the issuing state and the issuing state’s courts do not decline to exercise jurisdiction.
UCCJEA: continuing Jurisdiction
Under the UCCJEA, a state that properly issued a custody decree retains continuing, exclusive jurisdiction until all parties and the child have left the state, or until an issuing-state court has determined that there is no longer any significant connection between the child and the person remaining in the state and that substantial evidence is no longer available in that state.
modification of custody order: parent relocation
Custody order modification is permitted only when there has been a substantial change in circumstances since the original custody decree. One parent’s physical relocation that significantly impairs the other parent’s opportunity to exercise custody and visitation rights provided in the divorce decree is considered a substantial change in circumstances.
Settlement Agreement
A settlement agreement resulting from fraud, overreaching, or duress may be set aside if it is substantively unfair. Some courts have also held that spouses have fiduciary obligations toward each other that continue, when one spouse is unrepresented by counsel, during the negotiation of a settlement agreement.
impact of grounds for divorce on alimony and property division
In the determination of property division or alimony, most states permit consideration of financial misconduct, but only about half permit consideration of marital misconduct, such as adultery.
martial property: degree or license
Almost all states have rejected the claim that a professional degree or license is property subject to division at divorce. But some states authorize “reimbursement” or “restitutional” alimony to compensate one spouse for significant contributions to the other’s education or career.
Alimony or spousal support
Factors considered: the parties’ financial resources and needs, their marital contributions, and the marital duration. Some state statutes may consider spousal misconduct. In evaluating need, a court considers the standard of living enjoyed by the parties during the marriage and whether the recipient spouse will be able to achieve that level of economic self-sufficiency within a reasonable period of time following the divorce; health, the existence of separate assets, and the share of marital assets that the recipient spouse will receive.
Marital Property Definition
An asset is marital if it was acquired during the marriage by any means other than gift, descent, or devise. An asset that is initially separate property may be transformed into marital property if marital funds or significant efforts by the owner-spouse enhance its value or build equity during the marriage.
Separation agreement fraud
All states authorize invalidation of a separation agreement based on a finding of fraud or unconscionability with respect to asset or income misrepresentation.
Modification of property division award
A property-division award, whether it results from a judicial decision or a divorce settlement agreement, may not be modified after a divorce decree has been entered.
Conflicts of law: recognition of marriage
A marriage valid under the law of the place in which it was contracted is valid elsewhere unless it violates a strong public policy of the state.
Common law marriage
To establish a common law marriage, the proponent must show: 1) capacity to enter into marital contract, 2) present agreement that the two parties are married, 3) cohabitation, and 4) holding out a marital relationship to the community.
