Family Law Flashcards
marriage requirements
majority
license
ceremony
consent
capacity
common law marriage
live together for specified amount of time
legally able to marry
present agreement that 2 parties married
hold themselves out as married
marriage saving doctrines
Generally, bigamous marriages are void. But a couple of marriage-saving doctrines exist that will recognize one’s most recent marriage if they apply.
Under the presumption in favor of the validity of the most recent marriage, the most recent marriage is presumed to be valid. This presumption can be rebutted by evidence showing that the previous marriage was still going. But it’s an equitable doctrine and the court might rule that a spouse with unclean hands is estopped to deny the validity of the subsequent marriage, especially if the subsequent spouse was innocent, divorce from the first spouse was later attained, etc.
Under the UMDA impediment-removal doctrine, a subsequent marriage is deemed valid upon the removal of the impediment to its validity—the first marriage.
Premarital agreements
Must be
- in writing; and
- signed by both parties
Enforceability of premarital agreements (Generally)
Enforceable unless party against whom enforcement is sought can show (1): involuntariness; (2): inadequate financial disclosure; or (3): unconscionability
presentation of a prenup close to the wedding night may render agreement involuntary if
party has difficulty conferring with legal counsel
strong independent reasons to continue with the marriage exist such as pregnancy
risk of sign. financial loss and embarrassment
(OLDER CASES MORE SYMP)
Enforceability of premarital agreements under UPAA
Prenups enforceable unless (1): involuntary; or (2) (a): unconscionable when signed (b): challenging party didn’t receive or waive disclosure of other party’s finances; and (c): neither knew nor reasonably could have known about other’s finances before signing.
premarital agreements: child custody and support
premarital agreements affecting child custody or support are not binding on a court and won’t be enforced unless in the child’s best interests.
Presumption of legitimacy
A child born to a married woman is presumed to be the child of the woman’s husband.
Biodad might lack a constitutional right to control the upbringing of the child in such a case if they don’t rebut the presumption by filing a timely paternity action
state statutes limiting such rights are justified state’s strong interest in preserving an intact family unit.
parentage by estoppel
applies where (1): person acts like child’s parent such that (2): he induces reliance on the parental relationship; and (3): it would not be in the best interest of the child to sever the relationship
res judicata
divorce judgments recognizing paternity render subsequent challenges to paternity void in some states.
in others, not the case
what does a separation agreement address
property division
alimony
custody; and
child support
When will a court invalidate a separation agreement (generally)?
A separation agreement will be invalidated if it is (1): procured by fraud, duress or overreach; and (2): is substantively unfair
When will a separation agreement touching on alimony and property division be set aside under the UMDA
Such agreements are binding on the court unless it finds the agreement grossly unfair.
When has there been fraud, duress or overreach in the procurement of a separation agreement?
failure to advise spouse to seek independent legal counsel
taking advantage of spouse by convincing her not to get lawyer
misstatement of spouse’s legal rights
mediation misconduct
misleading spouse on paternity
mediation misconduct
mediator must (1): help both parties understand the mediation process so that (2): both parties may exercise self-determination in crafting their own solutions
Mediators have a duty to be (1): impartial or unbiased; and (2): free from conflicts of interest.
substantive unfairness
A separation agreement won’t be set aside simply because one party made a bad bargain.
concealment of sizeable assets and/or
agreement will leave one party destitute.
Divorce: Jurisdiction
A court must have smj and pmj over at least one spouse to entertain a divorce action
Ex-parte divorces
A state court may maintain a divorce action without personal jurisdiction over one spouse if (1): the plaintiff-spouse is a domiciliary of the rendering state; and (2): meets the state’s durational residency requirements.
Ex-parte divorces involving economic or child support issues are not entitled to full faith and credit with respect to those issues.
divisible divorce
allows one party to terminate the marriage in the absence of pj over the defendant-spouse and reserve economic/support issues for later resolution
Is personal jd over the respondent-spouse required for property distribution
yes
five Divorce Grounds
cruel and inhuman treatment
adultery
abandonment
habitual drug addiction and drunkenness
no-fault (irretrievable breakdown)
no-fault divorce
to procure a no fault divorce, a party must show (1): irreconcileable differences; or (2): separation of a year or less depending on state law or both.
Alimony Factors
Courts have discretion in assessing alimony and consider factors such as
each spouse’s needs
each spouse’s ability to pay
the spouse’s earning capacity
duration of the marriage
separate assets
spousal contributions as a homemaker
need to maintain a party’s post-divorce standard of living..
infidelity only in some states
types of alimony
temporary
rehabilitative
reimbursement
permanent
temporary
while case is pending
rehabilitative
alimony awarded for the purpose of recipient becoming self sufficient by (1): redeveloping a prior vocation; or (2): preparing for a new one
a minority of states won’t award such alimony if the requesting spouse is capable of being self-sufficient.
