Family Law Flashcards
(37 cards)
Ceremonial marriage
- Consent: both parties agree
- Capacity: parties are legally capable of consent
- Compliance with legal formalities: license & ceremony
-License
◦ Age—meet minimum age requirement (usually 18 years old) or have parental consent
◦ Waiting period between the license and ceremony
◦ Premarital medical testing required by some states but results cannot block issuance
◦ Expiration date—most jurisdictions impose expiration date on a marriage license
◦ Not issued when:
(i) a party is married to someone else
(ii) parties are too closely related
(iii) parties entered into marriage as a sham
(iv) parties are incapable of understanding nature of the act
-Ceremony—most jurisdictions require solemnization by an officiant with two witnesses
present - Same-sex marriage
-Same-sex couples may marry in all states
-All states and the federal government must recognize a same-sex marriage legally entered into in another state
common law marriage
-Consent: both parties must agree they are presently married
-Capacity: both parties must have the capacity to consent (i.e., old enough and not too closely related)
-Cohabitation: the parties must live together
-Holding out: both parties must hold themselves out as married in public
Conflict of laws: A marriage (including a common law marriage) valid in one state will be valid in another state unless it violates a strong public policy of the other state.
A valid marriage, including common-law marriage, can be terminated only by annulment, divorce, or death.
*need a divorce to officially divorce, can’t just separate
Putative Marriage
- Most jurisdictions have adopted the putative marriage doctrine.
- Arises when an innocent party participated in a ceremonial marriage and believes in good faith that the marriage is valid, but they later discover that there was an impediment to the marriage (e.g., the other spouse was still legally married to someone else)
- The innocent party is considered a “putative spouse”
- Allows the party to seek legal remedies like spousal support and property distribution
Putative marriage: division of property
Putative spouses may be entitled to an equitable distribution of property that would have been classified as marital property had the parties been legally married.
annulment
voids a marriage as if it never validly formed
Void: a marriage null from its inception due to specific grounds; no judicial decree required
(1) Bigamy—already legally married to another; Enoch Arden statute can make the marriage voidable if the parties in good faith but incorrectly believed the previous spouse died & some jurisdictions then require a divorce proceeding from the previous spouse
(2) Incest—all states restrict marriages by blood relationships and nearly half bar marriages between first cousins
(3) Incapacity—one party lacks the ability to understand the nature of the marriage contract
Voidable marriage: a marriage valid until declared void after a challenge by either party; judicial decree required
-Grounds include nonage, impotence, intoxication, fraud, misrepresentation, duress, coercion, force, or lack of intent
-Validation—voidable marriages can be validated once the impediment is removed, e.g., underage spouse stays in marriage after reaching age of consent
Property distribution: a party seeking annulment may request an equitable distribution of property and in some states, spousal support; once completed, the property distribution may not be modified
Limited Divorce “divorce from bed and board”
Recognized in most states and used by some for religious or medical reasons; the parties live apart and remain legally married but the court can resolve support and property issues
divorce & separation
-fault & no-fault
-separation
-mediation
No-fault divorce
o Every jurisdiction has a no-fault ground for divorce.
o The typical standard is irreconcilable differences.
Fault-based divorce (can defend)
o Fault-based grounds for divorce typically include adultery, cruelty, desertion, etc.
o Cruelty—arises as a fault-based ground if there is physical abuse
*In most states, the fact that a divorce is granted on a fault ground, such as adultery, is not a factor in the distribution of property.
*Marital misconduct may be taken into account in many states in determining spousal support. The weight marital misconduct is given in determining alimony is dependent on the jurisdiction.
Separation: Before divorce, some states require parties to separate for a period of time (e.g., one year).
Mediation: Sometimes parties are required to engage in mediation as part of the separation and divorce process.
- The mediator must follow a code of conduct:
- Be impartial and disclose any conflicts of interest they might have (e.g. pre-existing relationship with a party)
- Clearly explain the process and make sure the parties have all the information required;
- Control the mediation proceedings (e.g. address signs of domestic violence or threats); and
- Not coerce or improperly influence a party to make a decision.
Division of Property at Divorce
Community property
o Only nine states: Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin
o Generally requires an equal division of the marital property
Equitable distribution (Majority Rule)
o Requires an equitable, or fair distribution of all marital property
o Not necessarily an equal 50/50 division
o Takes into consideration all of the circumstances between the parties
Marital Property and Separate Property
MP is equitably divided between spouses, but SP generally remains the property of the owning spouse.
SP includes:
- Assets acquired during marriage by gift, descent, or devise; and
- Anything acquired before marriage.
MP is all property or assets acquired during marriage by any means other than gift, descent, devise (e.g. wages earned during marriage)
While married, each spouse has full management rights of his or her earnings and a court may not overrule the spending decisions of a spouse if the other spouse objects.
In most states, marital property continues to accrue while the parties are separated and until a final divorce decree is entered.
SP can be transformed into MP if marital funds or efforts are used to increase its value or build equity.
Title—Taking title in one spouse’s name is not conclusive.
Specific types of marital property
-Future retirement/pension benefits
-Professional licenses/degrees
-Personal injury claim proceeds
Future retirement/pension benefits: If a spouse works during the marriage and creates or earns profits or benefits that will be paid out after divorce, the profits will be considered MP.
Professional licenses/degrees: Most courts do not treat degrees as MP
* The non-degree earning spouse would not be compensated for the value of the degree.
* But that spouse could seek reimbursement for contribution to educational and living expenses.
Personal injury claim proceeds—If the cause of action accrues during marriage (i.e., spouse is injured during marriage):
Approach 1: All proceeds are treated as MP
Approach 2: Damages are divided between by type:
o Compensatory (e.g., pain, suffering, disability) are SP of the injured spouse
o Consortium damages are SP of the non-injured spouse
o Lost wages, lost earning capacity, and medical expenses are MP (divided equitably)
Modification of a property division award
A property division is not modifiable after the fact because it is based on the parties’ assets at the time of divorce.
Changes in the parties’ circumstances after divorce do not affect the award.
Spousal Support
Spousal support (i.e., maintenance or alimony) is the obligation of one party to provide the other party with financial support.
Most jurisdictions consider various factors when determining the support award, including:
o Financial resources of both parties
o Standard of living during marriage
o Time it will take for receiving spouse to find employment or finish education
o Length of marriage
o Contributions to marriage
o Age and health of both parties
o Marital misconduct such as adultery (only in some states)
Types of Spousal Support
(1) Permanent alimony
- An award for the remainder of the dependent spouse’s life
- Typically, only appropriate after long marriages
- Primarily used when one spouse remained out of the workforce to take care of the home or children
(2) Limited-duration alimony
- Typically awarded when the marriage was of short duration
(3) Rehabilitative support
-A limited period of time, such as until the spouse receives education or employment (e.g. for a period of 4 years while a dependent spouse attends college, at which point the support obligation will automatically terminate).
(4) Reimbursement alimony
-Compensates a spouse for financial sacrifices made during the marriage that resulted in a reduced standard of living in order to secure an enhanced standard of living in the future (e.g. a spouse worked two minimum wage jobs and did not pursue a higher degree during marriage so that the other spouse could go to school and obtain an advanced degree or professional license. The working spouse may receive reimbursement alimony due to her past contribution to the marriage).
Modification of spousal support
In general, spousal support can be modified, even when it has been declared to be “permanent.”
The party seeking modification has the burden of establishing a significant and continuing change in circumstances that warrants the modification.
- If the spouse that’s paying support voluntarily reduces their income, generally a court will not reduce their obligation to the receiving spouse.
- But if the paying spouse incurs new obligations, then a court may consider modification (if spouse remarries and has kids, court may lower amount).
If the receiving spouse remarries, then most jurisdictions will terminate the spousal support.
Support during marriage
Spouses have a duty to support each other equally under family expense statutes.
This spousal support obligation is limited by the common law doctrine of nonintervention, which disallows judicial intervention in an intact family. Courts have relied on the nonintervention principle to deny a support petition when the couple is living together.
If a creditor provides a “necessary” item to one spouse, it can sue the other spouse for payment if the purchasing spouse does not pay.
Jurisdiction for Divorce
Generally, a court must have both subject matter jurisdiction and personal jurisdiction to decide a family law dispute.
Ex-Parte/Divisible Divorce: A state court may grant a divorce to one spouse if she is domiciled in the state, even if it does not have personal jurisdiction over the other spouse.
States are required to give full faith and credit to divorce decrees issued in other states.
The court can grant the divorce to one party, but it does not have jurisdiction to address property division, spousal support, or child support, unless there is PJ over the out-of-state spouse.
Child Support
Child’s right to financial support from parents
- Both parents are legally required to support their minor children.
- Parents cannot bargain away child-support payments in premarital or settlement agreement.
- Visitation rights cannot be denied for nonpayment of support.
Paternity
- Questions may arise as to the identity of a child’s father.
- Once identity and paternity are established, the child’s father has rights to custody and visitation, but he is also under a duty to support the child.
- A child born during marriage is presumed to be of the marriage
- A paternity action is allowed only before the child reaches the age of 18
Uniform Interstate Family Support Act (UIFSA)
The UIFSA governs when a state has personal jurisdiction over an out-of-state parent in an action to establish or enforce child support or establish paternity.
A court will be found to have personal jurisdiction over an out-of-state parent in various situations, including when the out-of-state parent:
- Is personally served within the state or consents to jurisdiction; or
- Resided with the child in the state in the past; or
- Engaged in sexual intercourse in the state, and the child may have been conceived by that act of intercourse.
Amount of child support
All jurisdictions have adopted child support guidelines (most use an income-shares model).
The guidelines are presumed to provide the correct amount, but courts may deviate based on specific factors:
- Best interests of child
- Age of the child
- Special needs
- Assets of both parties
- Standard of living during marriage
Child support modification
Child support modifications are permissible when there is a substantial change in circumstances regarding the child’s needs or the parents’ financial situation.
The party seeking the modification of child support bears the burden of showing a substantial change in circumstances and that change is expected to be continuing, rather than temporary. (e.g. change in occupation, remarriage, increase or involuntary decrease in income)
Voluntary reduction in income—if in good faith, the court may reduce the amount owed; if done to deprive the child or punish the parent in bad faith, the court might not reduce the obligation.
If a man discovers that he is not the father of the child, some states will terminate the child support order, while others may continue the support obligation.
Timing of modification:
- A court will only modify child support amounts prospectively, from the date of the motion moving forward (future payments).
- A court will not reduce the amount of child support retroactively (will not reduce amounts owed prior to the date of the motion).
Termination of child support
A parent’s obligation to pay support usually ends when the child reaches the age of majority (typically 18 years of age).
Some jurisdictions have the authority to order support beyond the age of majority when the child is in college (subject to reasonable parental demands)
Jurisdiction over existing child support obligations (modification & enforcement)
Modification:
- Under the UIFSA, the state that issued the initial child support order has continuing exclusive jurisdiction to modify the child support order.
- Exceptions:
* The parties (both parents) and the child no longer reside in the state; or
* The parties expressly agree to permit another state to exercise jurisdiction.
Enforcement:
- If a receiving parent moves to a new state, they may register a child support order in the new state, which will give full faith and credit to the support order.
- The new state can then enforce the support order (but only the initial issuing state may modify the order).
Child Custody
Legal custody is the right of a parent to make major decisions regarding the child (e.g., health, education, religion).
Physical custody is the right to have the child reside with a parent or guardian and the obligation to provide routine daily care and control of the child.
Joint custody both parents are willing and able to cooperate with respect to the wellbeing of the child; typically, neither parent has a superior right to make major decisions.
Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA)
The purpose of the UCCJEA is to dictate which court has jurisdiction to decide child custody and visitation.
- Initial custody determination (home-state jurisdiction): a court has subject-matter jurisdiction if it is:
- The child’s home state (and has been the home state for a period of six months or since birth, if the child is less than six months old); or
- Was the child’s home state in the past six months, and the child is absent from the state, but one of the parents still lives there.
- *A court can decline jurisdiction if the party has wrongfully removed a child from another state. - Significant-connection jurisdiction (if home-state jurisdiction is not met): a court can enter or modify an order if:
- No other state has or accepts home-state jurisdiction;
- The child and at least one parent have a significant connection with the state; and
- There is substantial evidence in the state concerning the child’s care, protection, training and personal relationships. - Exclusive-continuing jurisdiction: courts that make the initial ruling in a custody case have exclusive continuing jurisdiction over the matter until the court determines that:
- Both parties no longer reside in the state; or
- The child no longer has a significant connection to the state, and any substantial evidence connected to the child’s condition is no longer available in the state.
Best Interests of the Child Standard for Custody
The Supreme Court has held that a fit parent has a fundamental right to the care, custody, and control of his children and state courts must give “special weight” to a fit parent’s decisions on care, custody, and control.
Primary-Caretaker: Many courts consider who the primary caretaker of the child was during the marriage, separation, and prior to the divorce.
Child’s Preference: Courts will consider the wishes of an older child if sufficiently mature and will consider the child’s reasoning.
Race or religion: Courts generally will not use race or religion in determining custody. unless such religious practices would be detrimental to the child.
Third party rights: Grandparents, stepparents ,etc. may wish to have custody
- Legal parents are presumptively entitled to custody of their children, unless it can be established that the legal parent is unfit or it would be detrimental to the child.
- If a natural parent has had little or no contact with a child, or if the child has lived with the third party for an extended period of time, then courts have employed the terms “parent by estoppel” and “de facto parent” to get around the presumption.
