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Bar Prep > Family Law > Flashcards

Family Law Flashcards

1
Q

Premarital Agreements

A

REQUIRES:

(1) Written;
(2) voluntarily; and
(3) full disclosure of assets, or proof of independent knowledge of assets

ENFORCEMENT:
Fairness of contract;
Child custody provisions are not enforceable

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2
Q

Ceremonial Marriage

A

Procedural Requirements:

(1) License
(2) Ceremony with authorized officiant
(3) No legal impediment
(4) Capacity to consent

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3
Q

Common Law Marriage

A

Requires:

  1. Consent to be in exclusive permanent relationship;
  2. Cohabitation; and
  3. Holding out publicly as spouses living together

Common Law marriage accepted in non-common law marriage states.

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4
Q

Obligation of Support / Necessaries Doctrine

A

Each spouse has an obligation to support the other, and one spouse may be liable for another spouse’s purchases.

Necessaries Doctrine - one spouse can be liable to spouses’ creditor for things like food, shelter, medical expenses.

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5
Q

Tortious Interference with a Marriage

A

Third party comes into marital relationship and commits a tort that affects the marital relationship. Many states have eliminated.

  1. Alienation of Affection Claim - (1) love and affection between spouses that are married; (2) love and affection alienated or destroyed by third party. Adultery is NOT a requirement.
  2. Criminal Conversation - (1) love and affection between spouses that are married; (2) adultery between third party and spouse.
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6
Q

Annulment

A

A judicial declaration that marriage was invalid due to some impediment at time of marriage.

Grounds for annulment:

1) Bigamy (void) An utter nullity and no legal action required.
2) Consanguinity (void) An utter nullity and no legal action required.
3) Non-age (voidable)
4) Incapacity to consent (intoxicated, duress, fraud) (voidable)

Jx: A state where either party is domiciled may enter annulment decree (or state where marriage was entered into and recognized).

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7
Q

Divorce & Separation

A

A divorce decree terminates the marriage relationship.

No Fault Grounds: (1) Irreconcilable differences; (2) Living separate; (3) incompatibility.

Jx: at least one spouse must be domiciled in state where divorce action brought.

Full Faith & Credit Clause: A divorce decree is recognized in other states as long as court had jx to grant.

Real property located outside of state or support decrees require personal jx over BOTH parties.

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8
Q

Fault Grounds for divorce

A

Traditionally, divorce required proof of fault. Some states retain fault grounds, but every state offers a form of “no fault” divorce.

Grounds for fault:

1) Adultery (requires showing of opportunity & inclination)
2) Desertion
3) Cruelty
4) Habitual drugs/alcohol
5) Insanity

Defenses for fault:
Collusion (Simulating grounds for divorce);
Connivance (P consents to other spouses misconduct);
Condonation (Knowledge and forgiveness for offense);
Recrimination (Doctrine of unclean hands, P also committed fault)
No Fault
Grounds: (1) Irreconcilable differences; (2) Living separate; (3) incompatibility.

DEFENSE FOR NO FAULT: Reconciliation (need to re-establish time apart again)

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9
Q

Legal Separation

A

A legal parting that does not terminate the marriage.

Parties can seek rights regarding property, spousal support, child support and custody determined at separation proceeding.

Separation Agreement: entered into after marriage to handle all of the financial issues upon separation or divorce. Must have consideration to be enforced. Merged with Divorce Decree if submitted to court, otherwise only contract remedies available.

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10
Q

Property Division

A

Either:

1) Equitable division of marital property; or
2) Community property

Court Approach:

  1. Classify property as either marital or separate;
  2. Equitably distribute marital property (or 50/50 for community)

Property acquired during marriage is marital property.
Gifts or inheritance are treated as separate property.

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11
Q

Classification of Property

A

Marital Property:

      • Earnings
      • Pensions
      • Property obtained together
      • Appreciation due to one spouse’s effort
      • Separate property intended to become marital by titling it such

Separate Property:

      • gift or inheritance
      • property owned prior to marriage
      • appreciation because of time on separate property

commingled property - separate property can become intertwined with marital property and can become marital property.

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12
Q

Distribution of Property

A

Courts have significant discretion in determining equitable distribution.

Length of marriage
Standard of living during marriage
Contributions of each spouse towards marital property
Income and employability of each party
Health
Needs of parties
Assets, debts, liabilities
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13
Q

Alimony (Spousal Support)

A

Alimony is paid to an economically dependent spouse based (1) needs of the claimant spouse; and (2) the ability of the other spouse to pay.

Four types of Alimony:

  1. Permanent Periodic
  2. Lump Sum (cannot be modified & survives death)
  3. Rehabilitative
  4. Reimbursement

Factors considered:

  1. Financial resources of each party
  2. Standard of living during marriage
  3. Time necessary for party seeking support to obtain employment (or training)
  4. Contribution of each party to marriage (including childcare, career support, etc.)
  5. Ability of paying spouse to meet their own needs.
  6. Length of marriage.
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14
Q

Descriptions of Alimony Types

A
  1. Permanent Periodic - pay X amount to spouse until remarriage or death.
  2. Lump Sum (cannot be modified & survives death) - lump sum or installments over time.
  3. Rehabilitative - get spouse to gain education/skills so they’re self-sufficient and not economically dependent on prior spouse.
  4. Reimbursement - Used when one spouse put the other one through school at a disadvantage and that spouse did not get the benefit of that degree.
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15
Q

Modification / Termination of Spousal Support

A

Modification requires a substantial, material, and unanticipated change in either party’s circumstances.

Termination requires:

  1. Recipient remarries; OR
  2. Either spouse dies (BUT lump sum defies death); OR
  3. Most jurisdictions: Cohabitation with another person
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16
Q

Contractual Rights of Unmarried Persons

A

Unmarried cohabitants do not have any special status by virtue of living together, unless satisfy common law marriage.

However, can seek remedies based on contracts or implied contracts regarding property division or rehabilitative alimony, so long as, sexual services were not the sole consideration supporting the contract.

17
Q

Child Support

A

Both parents have an absolute duty to support their children. Child support is determined by the (1) child’s need and (2) paying parent’s ability to pay. Generally lasts until the child reaches age of majority or is otherwise emancipated.

Income Shares Model:

1) Income of parents;
2) Number of children;
3) Ages of children;
4) Healthcare needs;
5) Special Needs

18
Q

Child Support Jurisdiction & Modification

A

Uniform Interstate Family Support Act (UIFSA)

Issuing court has “continuing exclusive jurisdiction” to modify child support order if there is a substantial and continuing change in circumstance (and child or one of the parties resides in-state) and other states must give full faith and credit so long as:

1) issuing court had proper jurisdiction; AND
2) the parties had reasonable notice and an opportunity to be heard.

MODIFICATION REQUIRES: A substantial and material change in circumstance that affects (1) needs of the children; or (2) a parent’s ability to pay child support.

Other state courts may enforce child support orders with direct enforcement via wages or registration of the child support order in that state.

19
Q

Child Custody Awards Available

A

Joint Custody - (Joint decision making = joint legal custody; physical custody) Shared Custody - True 50/50

Sole Custody - one parent if clear evidence that its in the best interest of child, and other parent will have visitation rights (unless harmful)

Custody to Non-parent - parent will generally prevail over non-parent unless parent is unfit (surrendering custody, abuse, neglect ** standard is HARM **)

20
Q

Child Custody Considerations

A

** BEST INTEREST OF THE CHILD **

HOME STATE - the state where the child has lived with a parent for at least 6 consecutive months; or state that was child’s home state for last 6 months, but now child absent and parent still there.

IF NO HOME STATE - “Substantial Connections & Substantial Evidence Test” - court can assume jx if the child has sig connection with state and substantial evidence of child’s well being in the state

RELOCATION STATUTE: Notice to parent and opportunity to be heard when one parent changes the child’s primary residence.

Factors:
- Parent’s Wishes
- Child’s wishes (under 8 not mature enough; over 12 given great weight)
- Ability and willingness of each parent to provide for child’s needs
- Relationship with parents, siblings, and others involved with parents;
- Child adjustment to home school community
- Mental and physical health of parties
-

21
Q

Modification of Child Custody

A

CUSTODY CAN ALWAYS BE MODIFIED - BOP on one seeking custody -
MUST BE IN BEST INTEREST OF THE CHILD.

Requires substantial and material change of circumstances that affects the child’s well being - parent’s well-being doesn’t matter.

Issuing state court exercises “continuing exclusive jx to make changes to existing order”

Courts must decline Jx if (1) a proper proceeding elsewhere, unless court would defer to the new state; OR (2) person who wants jx has done bad conduct; OR (3) forum non-convenience.

Court may exercise temporary emergency Jx to protect child if the child is present in that state; but full modifications must go back to issuing state.

22
Q

Non-marital children

A

Parentage Action - to establish biological relationship, generally to collect child support or inheritance.

Presumption that mother’s spouse is father; if born within 300 days of termination of marriage, even if void/voidable marriage. Presumptions can be rebutted with CLEAR AND CONVINCING EVIDENCE.

Unwed Father - if married after birth of child then father of child; if father holds out as parent, puts name on birth cert; or paternity acknowledgement; or court judgment - will be protected under due process if showing Parental Responsibility (support, education, etc).

Paternity Suit to collect child support - SOL tolled so can be done before 18 years old.

Intermediate scrutiny under Const’l law.

23
Q

Termination of Parental Rights and Adoption

A

Voluntary Termination (to place child up for adoption).

Involuntary Termination (child in danger) - State will terminate parent rights if infliction of serious physical harm;
abandonment;
neglect/deprivation;
failure to provide support;
mental health of parent resulting in inability to care for child;
parental unfitness.

24
Q

Adoption

A

State’s purpose is to find suitable home temporarily while parent gets better.

Creation of Adoptive Parent’s rights (sometimes child must consent - age 12+). No money, expect possibly pregnancy expenses. Sealed records for natural parent. Some states allow child to inherit from biological parent; but otherwise severed.

25
Q

Assisted Reproduction

A

Woman giving birth is presumed mother; unless surrogacy contract or court order naming mother. If court order, no adoption required.

If married; presumed father.

Egg and sperm donors are not parents - but sperm donor can have rights if agreed prior to birth of child.

Posthumous Conception - sperm giver must get written consent to use of sperm - full inheritance rights.

Gestational Agreements (surrogacy) - Most states only allow through gestational carrier.

Gestational carrier, uses intended parents to create baby (requires written agreement and court approval).
Genetic surrogate uses carrier’s own stuff + sperm.

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