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Family Law > Family Law > Flashcards

Family Law Flashcards

1
Q

Marriage requirements

A
  1. Consent
  2. Marriage license
  3. Ceremony
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2
Q

Common law marriage requirements

A
  1. Live together for a specified time
  2. Capacity
  3. Present agreement that they are married
  4. Hold themselves out at married
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3
Q

Equity Doctrine

A

Creates a strong presumption that the most recent marriage is valid.

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4
Q

Enforceability of premarital agreements

A

Enforceable unless procured by:

  1. Fraud
  2. Duress
  3. Coercion
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5
Q

Under the UPAA, the premarital agreement must be:

A
  1. In writing
  2. Signed by both parties.
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6
Q

Premarital act under UPAA not enforceable when:

A
  1. Involuntary
  2. Unconscionable
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7
Q

Child custody/support in a prenup

A

NOT binding and any provision that adversely affects a child’s right to support is unenforceable.

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8
Q

Payment for necessities

A

A spouse is LIABLE to creditors who provides necessities (food, clothing, shelter) to the other spouse.

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9
Q

Jurisdiction in Marital/Divorce Actions

A

State courts have SMJ

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10
Q

Ex Parte Divorce

A

A divorce that is granted within a jurisdiction where only one of the spouses is validly domiciled

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11
Q

Economic or Child Support/Custody Issues

A

A court MUST have PJ over the defendant-spouse

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12
Q

Divisible divorce

A

One spouse can terminate the marriage (ex parte divorce) in one proceeding and reserve other issues for a later proceeding.

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13
Q

Is PJ or physical presence of a party or child necessary for a court order?

A

NOT necessary for court order, but jurisdiction is needed to enforce the order.

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14
Q

Under the UCCJEA, A court may decide child custody ONLY it it has:

A
  1. Home state jurisdiction
  2. Significant connection jurisdiction
  3. More appropriate jurisdiction
  4. Emergency jurisdiction
  5. No other state jurisdiction
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15
Q

Home State Jurisdiction

A
  1. Child’s HOME STATE; or
  2. (a) where child lived with a parent for 6+ months immediately before action was filed;
    (b) child is absent from state; and(c) parent (or acting parent) is still present in the state.
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16
Q

Significant Connection Jurisdiction

A
  1. NO home state
  2. Child and at least 1 parent have significant connection to the state; AND
  3. Substantial evidence exists in that state.
17
Q

Grounds for divorce:

A
  1. Cruel and inhumane treatment
  2. Adultery
  3. Abandonment for a set time
  4. Habitual drunkenness or drug addiction.
  5. No fault divorce
18
Q

Equitable division approach (most states)

A

Marital assets are divided among spouses by equitable distribution.

Separate property is NOT divided.

19
Q

What is separate property?

A
  1. Property acquired BEFORE marriage
  2. Gifts & bequests (even during marriage)
  3. Property agreed to be separate; and
  4. Passive appreciation of assets (increase in value due to pass of time).
20
Q

When does accrual of marital property end?

A

Some states—ends upon PERMANENT separation

Other states—ends upon FINAL DIVORCE decree.

21
Q

When can you modify a property division award?

A

ONLY IF exceptional circumstances exist (fraud, duress).

22
Q

When is spousal support awarded under UMDA?

A

Spouse:

  1. Lacks sufficient property; AND
  2. Unable to support himself/herself through employment OR
    is custodian of child with condition where spouse cannot seek employment.
23
Q

Modification of Spousal OR Child Support

A

Most states—SUBSTANTIAL & CONTINUING change in circumstances making prior order UNREASONABLE.

UMDA–changed circumstances so SUBSTANTIAL & CONTINUING as to make them UNCONSCIONABLE.

24
Q

What is parent’s legal obligation under Child Support?

A

A BIOLOGICAL parent is legally obligated to pay child support.

25
Q

Child Support Guidelines

A

Feder law requires:

  1. Account of all earnings and income of NON-CUSTODIAL parent; AND
  2. Based on specific descriptive and numeric criteria.
26
Q

College/Education Expenses

A

SOME states require support for college/continuing education.

27
Q

What does the UIFSA asks other state courts to do?

A

MUST give full faith and credit to support orders from other states.

28
Q

Modification of Child Support under UIFSA

A

CANNOT be modify child support of another states UNLESS:

  1. Court has jurisdiction to ISSUE an order; AND
  2. Either:(a) all parties DO NOT reside in the issuing state; or(b) each party has consented in writing to jurisdiction in another state.
29
Q

When does an Issuing State have continuing, exclusive jurisdiction over an ORDER?

A
  1. State is still residence of 1 part; OR
  2. All parties consent in a RECORD or in OPEN COURT.
30
Q

How do courts determine child custody?

A

Best interest of the child.

31
Q

Parent v. 3P Custody

A

A FIT LEGAL parent is given preference and its presumed that such custody is in the best interest of the child.

A will court will give 3P custody in showing special circumstances.

32
Q

Modification of Child Custody Order

A

Need SUBSTANTIAL CHANGE in circumstances.

33
Q

Division of Property of Unmarried Cohabitants

A

The party who has title retains sole ownership:

  1. Agreement b/t cohabitants; OR
  2. Equitable Remedy Theory
    • Resulting trust (gave money to acquire)
    • Constructive trust (wrongful conduct)
    • Quantum Meruit
34
Q

How can paternity be established?

A
  1. Birth certificate;
  2. Legal presumption (child born during marriage);
  3. Unmarried parents sign acknowledgement of paternity;
  4. Successful challenge by unmarried biological father;
  5. Paternity suit; AND/OR
  6. Paternity by estoppel.
35
Q

Unmarried Biological Father’s Right

A

Protected Under DP only if:

  1. Assumed parental responsibilities; AND
  2. Established substantial parent-child relationship.
36
Q

What occurs upon ADOPTION of child?

A

Severs the biological parent’s legal rights and responsibilities for the child.

Some states – Inheritance rights are NOT terminated if adopted by blood relative.

37
Q

Consent to Adoption

A

Need BOTH parents’ consent.

Non marital child – Father’s consent required ONLY if he assumed parental responsibilities.

38
Q

Jurisdiction for Adoption matters

A

Same as child custody determination under UCCJEA.

Family Law (1 decks)

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