Family Law Flashcards
Premarital Agreements (statute, requirements, enforceability, choice of law)
- statute: UPAA
- requirements: in writing + signed, entered into voluntarily, full and fair disclosure of assets (UPAA - only if unconscionable), fair and reasonable
- enforceability: provisions on child custody and child support never bind the court. spousal support agreements can’t render a spouse a public charge.
- choice of law: as set in agreement, or most significant relationship
Requirements for a valid marriage
- license
- ceremony with authorized officiant
- no legal impediment (not closely related/bigamy)
- capacity to consent (minimum age, not closely
alternatives to a legal marriage
COMMON LAW
- consent to marry
- cohabitation
- couple holds themselves publicly as spouses
ESTOPPEL
-protects the innocent party in an invalid marriage
grounds to annul a marriage
void marriage: bigamy/polygamy; consanguinity; nonage
voidable marriage: nonage, incurable physical impotence, mental incompetence, lack of assent, duress, fraud on the essentials of the marriage
*Note: in some states removing the impediment will validate marriage; states will presume the latest marriage is valid
divorce - jurisdiction, grounds, defenses
-jdx: bona fide resident; PJ to determine financial/property issues; entitled to FF&C as long as one party domiciled in the state
- grounds:
- -> no fault: marriage is irretrievably broken, parties have been living apart, they are now incompatible
- -> fault: adultery, abandonment, cruelty, drug addiction/drunkenness, insanity
-defenses: fault doesn’t exist; collusion, connivance (conspiring), condonation (forgiveness), recrimination (also guilty of misconduct)
definition of marital property +
considerations in dividing marital property
all property acquired by either spouse during the marriage, except property acquired by gift/devise/descent, in exchange for non marital property, income/appreciation from non marital property. separate property can become marital property if commingled.
*special split: property acquired before but paid after
factors: personal factors, length of marriage, standard of living, incomes, health, needs, child custody, spousal support
NOT: marital fault
spousal support - purpose, 4 types + considerations
purpose = ensure adequate income stream for spouses who have become economically dependent
- permanent periodic support
- rehabilitative support
- ->modifiable, terminates upon death/remarriage - lump sum
- reimbursement support
- -> nonmodifiable, survives death
considerations: standard of living, duration, personal conditions, financial resources, contributions to marriage, time for training, marital fault
child support (jdx/statute, standards) ~ for child support, enforcement, modification
jdx: UIFSA
~original jurisdiction: where original petition is filed/or a challenged petition for jurisdiction
~enforcement: initial court, can direct other states (direct enf’t/registration)
~modification: original court, unless no residence/consent elsewhere
~FF&C: under FFCCSOA
standard:
~original: based on child support guidelines (need + ability to pay)
~enforcement: contempt, attachment
~modification: substantial and continuing change of circumstances, not voluntary reduction in income, not retroactive
child custody (jdx/statute, standards) ~ original, modification, enforcement
jdx: UCCJEA
~original:
1. home state (6M + parent) or absent home state
2. child + parent have a significant connection + substantial evidence on child is available
3. deferred jdx
~enforcement: can register in state to be enforced
~modification: original state, unless jdx no longer met
~FF&C: under PKPA
standards:
~original: BIOC, consider wishes of parents (Constitution), child (over 12), child’s adjustment to home, mental/physical health
~modification: substantial/material change in circumstances
~enforcement: contempt, parent must provide notice if relocate
types of custody + considerations
- joint custody (physical or legal): fitness of parents, whether they agree, ability to communicate, child’s preference, involvement in lives, geographical proximity, similarity of homes, psychological development
- sole custody: if one parent has strong evidence in BIOC; other gets visitation
- sole custody to non parent: only if voluntary relinquishment, parent is unfit (abandonment, neglect, abuse)
- visitation to nonparent: extraordinary circumstances, BIOC, consider prior relationship; if parent objects that is given “special weight”
- visitation of parent: won’t deny unless harm to the child will result
parentage - establishing fatherhood
-marital father: presumed to be father if born during marriage/300D after, may rebut through clear + convincing evidence
-unwed father: presumed to be father if parents married after, father holds out as child, father consents on birth certificate, father formally acknowledges paternity, court order establishes
~protected by DPC if demonstrate parental responsibility
termination of parental rights/adoption
- voluntary relinquishment
- involuntary termination: physical harm, abandonment, neglect, failure to provide support w/o cause, mental illness, unfitness
-adoption:
~consent of natural parents/termination of their rights (consider involvement of unwed father)
~creation of new parental rights: consent of adoptee, home study
