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Barbri > Family Law > Flashcards

Family Law Flashcards

1
Q

Who can marry?

A

Adults, not too closely related, who aren’t currently married, with capacity to consnet

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2
Q

How to marry?

A

You need a license and a ceremony

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3
Q

Common Law Marriage

A

An exchange of consent between two people with capacity, cohabitation, a holding out publically of living together as spouses. Look at factors like common last names, operating a joint bank account, and using their names in common endavoerous.

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4
Q

Premarital Contract

A

A premarital agreement must be voluntaryily entered into, the contract must be in writing and signed by the party to be charged, both parties must make full and fair financial disclosures, and economic provisions must be fair and reasonable. Entry into a marriage is sufficient consideration to form the contract.

Each statement is to be analyzed independently in a premarital agreement and it won’t be enforced if it is unfair or unreasonable.

Spousal support cannot be waived on public policy grounds if one spouse would become economically dependent on the state.

Child custody and support in premarital agreements never bind the court. Each parent has an equal duty to support their child.

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5
Q

Grounds for Annulment

A
  1. Bigamy or Polygamy (void)
    - when there is a prior marriage that has not yet ended, the new spouse can argue that there is a strong presumption that the latest marriage is valid and that the prior marriage is later terminated by divorce, annulment, or death and continued cohabitation with the second partner validates second marriage.
  2. Consanguinity (void)
  3. Nonage (void or voidable depending on state law)
  4. Incurable physical impotence (voidable)
    - this is the ability to have children was misrepresented and the marriage may be annulled based on fraud.
  5. Mental incompetence (voidable)
  6. Lack of assent (voidable)
  7. Duress (voidable)
  8. Fraud involving the essentials of marriage (voidable)
    No spousal support, set aside as if the marriage never happened.
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6
Q

Grounds for No-Fault Divorce

A
  1. The marriage is irretrievably broken (irreconcilable differences or incompatibility)
  2. The parties have been living apart for a specified time (the period may be longer if unilateral)
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7
Q

Obligation to support

A

Each spouse must support the other and under the doctrine of necessaries one spouse can be liable to a third party for the other spouse’s purchases for necessary expenses like food, clothes, and health care.

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8
Q

Grounds for a Fault Divorce

A
  1. Adultery
  2. Willful desertion for a specified time
  3. Extreme physical or mental cruelty
  4. Drug addiction or habitual drunkenness
  5. Mental illness
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9
Q

Defenses to a Fault Divorce

A
  1. Collusion (an agreement between the spouses to simulate grounds for divorce or to
    forgo raising a valid defense)
  2. Connivance (the willing consent by one spouse to the other spouse’s misconduct)
  3. Condonation (the forgiveness of marital offenses with full knowledge of their
    commission)
  4. Recrimination (the party seeking the divorce is also guilty of misconduct for which a
    divorce may be granted)
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10
Q

Jurisdiction for Divorce

A

Where any party is a resident, the venue is the county where the person resides, it is recognized in all other states, Provisions of the decree relating to property rights, spousal support, child support, etc., are given full faith and credit only if the court had personal jurisdiction over the defendant. In order to distribute property in a divorce the court needs personal jurisdiction over both parties.

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11
Q

Community Property

A

all property acquired during the marriage is deemed owned one-half by each spouse, and all property brought into the marriage or acquired by gift or bequest is separate property. Equally, divide at the time of divorce.

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12
Q

Marital Property

A

All property acquired during the marriage except for
a. Property acquired through gift, bequest, devise, or descent
b. Property acquired in exchange for property that a spouse owned before the
marriage or acquired through gift, bequest, devise, or descent
c. The income from or appreciation or improvement of property that a spouse owned before the marriage or acquired through gift, bequest, devise, or descent unless either spouse contributed to the property’s increase in value
Separate property can become marital property if it is inextricable mingles and can no longer be traced or if there is evidence of intention to make it marital property.
Portion of pension earned during a marriage is marital property.

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13
Q

Factors to consider when the equitable division of property

A

The purpose of spousal support is to ensure an adequate income stream for persons whose economic dependency was due to the marital relationship.

  1. The age, education, background, and earning capacities of both parties
  2. The duration of the marriage, and whether there were any prior marriages
  3. The standard of living during the marriage
  4. The present incomes of both parties and their vocational skills and employability
  5. The source of the money used to purchase the property
  6. The health of the parties
  7. The assets, debts, and liabilities of the parties
  8. The needs of the parties
  9. The child custody provisions
  10. Whether the distribution is in addition to, or in lieu of, spousal support
  11. Each party’s opportunity to acquire future income and assets
  12. Each party’s contribution to the acquisition of, or enhancement of the value of, the
    existing marital assets
  13. Each party’s contribution as a homemaker to the family unit
  14. Whether either party has dissipated marital property
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14
Q

Factors to consider for awarding spousal support/alimony

A
  1. The duration of the marriage and the standard of living established during the
    marriage
  2. The age and physical and emotional condition of the parties
  3. The financial resources of the parties
  4. The contribution of each party to the marriage
  5. The time needed for the party seeking support to obtain the training necessary to
    find appropriate employment
  6. The ability of the payor spouse to meet his needs while paying spousal support
  7. Marital fault (only in some states)
    If one spouse chooses to quit his job for lowe pay that doesn’t relieve the fact that they have to pay.
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15
Q

Permanent Periodic Spousal Support

A

paid regularly (e.g., monthly) to support a spouse who has neither the resources nor the ability to be self-sustaining. This is modifiable upon a substantial change in circumstances and terminates upon death or remarriage. Noted as monthly installments.

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16
Q

Rehabilitative Spousal Support

A

periodic payments for a limited time to enable a spouse to gain skills to become self-supporting. This is modifiable upon a substantial change in circumstances and terminates upon death or remarriage. Noted as monthly installments.

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17
Q

Lump Sum Payment

A

the nonmodifiable, fixed amount payable either all at once or broken down into a series of payments. This is noted on exams as the total amount. This is nonmodifiable and survives death.

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18
Q

Reimbursement Spousal Support

A

awarded to a spouse who supported the other
spouse while the latter obtained a professional license or degree. This is nonmodifiable and survives death.

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19
Q

Jurisdiction for Child Custody

A

UCCJEA: Child’s home state (where the child has lived for at least 6 months)

20
Q

Jurisdiction to Modify Child Custody

A

UCCJEA: A court has jurisdiction to initially enter or to modify a child custody or visitation order if the state (i) is the child’s home state, or (ii) was the child’s home state within the past six months and the child is absent from the state, but a parent or
a person acting as a parent (e.g., guardian) continues to live in the state

21
Q

How to determine custody?

A

Do what is in the best interest of the child.

Fitness of both parents, whether the parents agree on joint custody, parents’ ability to communicate and cooperate, child preference, level of involvement in the child’s life, the geographical proximity of parents’ homes, similarity of homes, effect of the award on a child’s psychological development, parents ability to carry out joint custody.

If it’s a third party look at the best interest of the child and the weight of the interest of natural parents.

22
Q

How to determine visitation?

A

The courts want to promote the relationship between a child and their parents. The absolute denial of visitation is rare. A custodial parent can’t withhold visitation if the other parent fails to pay child support. Removal of a child from the jurisdiction could be a violation of the visitation provisions of the custody order. Third-party visitation is based on the parent’s determination as to the appropriate visitors and visitation to a third party is given special weight. Can’t overrides a parent’s interest just because of the best interest of the child.

23
Q

Parentage

A

The child is the lawful child of their mother. Paternity is proven when the parents were married at the time of the birth of the child, the parents were married after the child’s birth, the father holds the child out as his biological child, the father consents to be named on the birth certificate, the father has acknowledged paternity, there is a judicial decree establishing paternity. Presumed to be fathers if born 300 days after marriage.

24
Q

Steps of Adoption

A

Termination of biological parents’ rights
Creation of a new legal parent-child relationship
Consent of bio parents is generally required.

25
Q

How to terminate parental rights?

A

a. Consent of the child’s biological parents generally is required
b. Consent is not required if parental rights are terminated in another proceeding
(e.g., for neglect, abuse)
c. Consent may be waived if the court determines that it is being unreasonably
withheld against the best interest of the child (e.g. if the child has been
abandoned)
d. Consent of the father of a nonmarital child may not be required if he has not
established a relationship with the child

26
Q

Spousal Abuse Orders

A

Every state allows for protective orders and for them to be granted ex parte. Can last one month to several years

27
Q

Alienation of Affection

A

If a third party diverts the affection of one spouse so that the other is deprived of a marital relationship the deprived spouse can bring this cause of action. This is mostly abolished. Require genuine love and affection between married couples, evidence that it was alienated, proof it was because of D.

28
Q

Criminal Conversation

A

When one spouse has sex with a third person other spouses can sue on this. Just need adultury and valid marriage. THis is mostly abolished.

29
Q

Negligent Interference with Consortium or Services

A

A spouse may maintain an action for loss of consortium or services due to injuries from D’s negligence.

30
Q

Family Privacy

A

Constitutional Right to Privacy in their homes and freedom from governmental interference in domestic affairs this includes
Right to marry
Right to procreate
Right to use or sell contraceptives
Right of Family Unit
Right to educate children outside of public schools
Right to decided care, custody, and control of children

31
Q

Child Support

A

Use a chart and determine based on parents’ incomes and custodial agreement. Child support is awarded based on monetary need and ability to pay.

Lasts until the child is 18, dies, is emancipated, or the parent terminates rights. Can be indefinite for disabled children. Courts will enforce agreements to pay for college but won’t extend child support into college.

32
Q

Jurisdiction for Child Support

A

UIFSA: Where the first petition under UIFSA is filed, another state can exercise if the second petition is filed before the time to answer the first has expired, the petitioner object to jurisdiction in the first action, and the second state is the child’s home state.

33
Q

Jurisdiction to Enforce Child Support

A

The court that initially issued the order has jurisdiction to enforce but UIFSA in other states can enforce with direct enforcement to mail the order to the obligers out of state employer to withhold wages, or you can register the support order with another state and it is treated as a foreign judgment and subject to the laws of the OG state.

Enforced with contempt of court, garnishing wages, tax refund, and license suspensions.

34
Q

Jurisdiction to Modify Child Support

A

The court that issues has continued and exclusive jurisdiction to modify, the other court is allowed to enforce unless the parties no longer live in the issuing state they can consent to jurisdiction elsewhere.

Can be modified when there is a substantial and continuing change of circumstances affecting the need of the child or the ability of the parent to pay.

35
Q

Best Interest of the Child Factors

A

Wishes of the parents
Child’s preference (under 8 can’t consider, over the age of 12 are given great weight)
Child’s relationship with the parents
Child’s adjustment
Parties’ mental and physical Health
Who has been the primary caregiver

36
Q

Non parental Vistiation

A

Usually for grandparents, allowed when there are extraordinary circumstances usually when one parent has died. Look at a BIOC.

37
Q

Relocation of a Child

A

require notice to the other parent and a court hearing to determine if it’s permitted. Can move out of state if BIOC, the move is to benefit the family and not to thwart the other parent.

38
Q

Voluntary Termination of Parental Rights

A

Right to due process, Ground for termination must be proved by clear and convincing evidence

39
Q

Involuntary Termination of Parental Rights

A

Infliction of harm to the child
Abandonment
Negligect or deprivation
Failure to provide support
Mental illness makes someone incapable
Parental unfitness

40
Q

Rights of unwed fathers in Adoptions

A

Look at the level of involvement, if he attempted to establish a legal or personal relationship otherwise has no notice to know his child is being put up for adoption. An unwed father who has shown no steps at parenthood will have no rights.

41
Q

Cohabitation Agreement

A

Cohabitation agreements are contracts between people that aren’t on the basis of sexual consideration only consideration. Proof on the contract is usually where it fails, but a ceremony saying they promise these things will suffice as proof.

42
Q

Effect of a Void Marriage

A

Marriage cannot be ratified, an interested party can seek an annulment.

43
Q

Effect of a Voidable Marriage

A

the marriage can be ratified and is valid until one of the parties annuls.

44
Q

Modification of Spousal Support

A

A substantial change in circumstances regarding needs or ability to pay

45
Q

Enforcement of Spousal Support

A

Contempt of court, seizure of property, garnishing wages , order to pay attorneys fees, and other methods under UIFSA.

Barbri (14 decks)

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