Family Law Flashcards
(80 cards)
1
Q
Ceremonial (statutory) marriage
A
To be valid, parties must obtain a license and participate in a ceremony.
Requrirements:
- Capacity to marry;
- Waiting period between date of issuance of license and date of ceremony
- expiration date - most states impose expiration date on marriage license
- ceremony must be performed in front of 2 or more witnesses and someone must solemnize marriage
2
Q
Medical testing pre marriage
A
A state can mandate testing, but they cannot condition a license on results of testing.
3
Q
When will a marriage license not be issued
A
- One party already married
- parties too closely related
- Marriage is a sham
- Parties are incapable of understanding the nature of the act
- One or both parties is under influence of drugs/alcohol
- A party lacks consent due to duress or fraud
4
Q
Common law marriage
A
Parties agree they are married, cohabit as married, and hold themselves out in public as married.
Only certain states recognize common law marriage.
5
Q
Annulment of marriage
A
Voids a marriage and treats it as if it never happened. It does not need to be judicially dissolved.
6
Q
Annulment - when is a marriage void
A
- Where there was a prior exisiting marriage - the later marriage is void
- Incest
- Mental incapacity
7
Q
Annulment - When is a marriage voidable
A
Voidable means valid until judicial decree dissolves marriage.
Grounds are age, impotence, intoxication, fraud, duress or lack of intent.
8
Q
Are children of an annuled marriage considered marital children?
A
Yes
9
Q
Defenses to a voidable marriage - Annulment
A
Equitable defenses of unclean hands, laches and estoppel are recognized
10
Q
Divorce - Residency requirements
A
Most states require at least one party to be a resident of the state to grant a divorce in that state
11
Q
No-fault divorce
A
Where marriage is irretrivably broken and there is no prospect of reconcilation. The irreconciable differences must exist for a specific period of time prior to the filing of the divorce action.
12
Q
Fault-based divorce
A
Can grant fault-based divorce for the following reasons:
- Adultery - usually proven by circumstantial evidence
- Cruelty: Course of conduct that is harmful to P’s physical or metnal health that makes continued cohabitation between the parties unsafe or improper
- Desertion: Results when one spouse voluntarily leaves the marital home with intent to remain apart on permanent basis
- Habitual drunkeness
- Bigamy
- Imprisonment
- Institutionalization for insanity
13
Q
Division of property - Community Property States
A
Most community property states require equal division of marital property
14
Q
Division of property - Equitable distribution states
A
Most states apply this rule. Objective is a fair distribution of marital property, not necessarily equal division.
15
Q
What is marital property?
A
Most states say it is all property acquired during marriage. Some states say that it is all property owned by eitehr spouse.
Burden of proof is on party asserting that property is nonmarital.
16
Q
What is non-marital property?
A
- Property acquired before marriage
- Property excluded by the parties’ valid agreement;
- Property acquired by gift or inheritance (except for gifts between spouses); or
- Any award or settlement payment recieved for a cause of action or claim that accrued before the marriage, regardless of when payment was received.
17
Q
Factors relevant to distribution of marital property
A
- Length of marriage
- Prior marriages
- Age, health
- Earnings and earnings potential
- Liabilities and needs of both spouses
- Contributions to education
- Income
- Medical needs
- Retirement of both spouses
- Housemaking/childrearing services
- Reduction in value of marital property by one spouse
- Economic circumstances of each spouse at time of divorce
- Custody of any minor children
18
Q
Professional degress/licenses-marital property
A
Not a marital property interest, but can impact alimony
19
Q
Retirement or pension benefits
A
Marital property if acquired during marriage
20
Q
Personal injury claim/Worker’s comp award
A
Some states - if cause of action accrued during marriage, it is marital property
Other states - allocate procceedings or awards between marital property and eperate property. E.g. awards for lost wages, medical expenses etc typically split as marital property, damages for pain and suffering is seperate property
21
Q
Expectancy interest in property
A
Not marital property
22
Q
Social security payments
A
Not subject to equitable distribution
23
Q
Post seperation property
A
Can be marital property in most states
24
Q
Unexercised stock options
A
Marital prop if acquired during marriage
25
Alimony
One spouse's monetary obligation to provide other spouse with support in form of income. Awarded if recipient cannot provide for their own needs.
26
Factors in determining amount of alimony
- Financial Resources (including property to be awared in the divorce)
- Child support
- Spouse's earning potential and other spouse
- Spouse's standard of living;
- TIme to find employment or complete any education or training necessary for a job;
- Length of marriage and contributions to marriage;
Age and phuscal and mental health of each spouse
Marital misconduct
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Types of alimony support
1. Lump Sum - fixed amount, cannot be modified in absence of fraud
2
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Lump sum alimony
Fixed amount, which can’t be modified in the absence of fraud
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Permanent alimony
An award for the remainder of the dependent spouse‘s life. Usually only awarded when the marriage was one of long duration - 15 years or more.
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Limited duration alimony
Usually awarded when the marriage was a short duration, but there is still an economic need for support
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rehabilitative alimony
Usually awarded to enhance and improve the earning capacity of the economically dependent spouse for a limited period of time, such as until spouse, receives education or employment
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Reimbursement alimony
To compensate a spouse for financial sacrifice is made during the marriage that resulted in a reduced standard of living to secure an enhanced standard of living in the future. Rarely awarded.
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Palimony
Support provided by one unmarried cohabitant to another after dissolution of a stable long-term relationship. Only available in a few states.
34
Modification of alimony support
Party seeking modification usually has the burden of establishing a significant and continuing change in circumstances in the needs of the dependent spouse or financial abilities of obliger that warrant modification
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Modification of alimony - Willful or voluntary reduction in income
No reduction in support payments on this basis
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Modification of alimony - death of spouse
Death of the spouse, terminate the alimony support
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Modification of alimony - remarriage
If the spouse receiving support remarries, then support may be terminated
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Modification of alimony - Cohabitation
If the spouse receiving support cohabits with someone who is not family, then the spousal support may be modified if the recipient spouse needs for the support decreases as a result of the cohabitation. This is not automatic.
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Modification of alimony - retirement
Impact depends on jurisdiction
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Child’s right to child support
Both parents are legally required to support their minor children. Obligations of support are adjusted as physical possession of a child changes between parents.
Visitation rights cannot be denied for nonpayment of child support, but the parents can enter into private agreements regarding child support payments. Parents cannot agree to any release or compromise that would negatively affect the child’s welfare.
41
Child support of non-marital children
Non-marital children cannot be denied child support, government, benefits, or wrongful death claims. Non-marital children may inherit from their father’s estate as long as paternity has been established.
42
Ways to establish paternity
Paternity can be established through blood tests ordered by the court, prior statements regarding paternity by deceased family members, medical testimony on the probability or improbability of conception, or defendants acknowledgement of paternity.
43
Can there be a time limit on filing a paternity petition?
No, a time limit is unconstitutional, unless there is a reasonable opportunity to pursue such an action, and the limit is substantially related to the government’s interest in restricting such an action
44
Marital presumption
It is assumed that a child born to a woman is the child of that woman and her husband
45
Refusal to pay child support - estoppel
A husband who is not the biological father of his wife’s child may be stopped from denying his obligation to pay child support when there is a representation by the husband that he would provide for the child, the wife relied on the representation, and the wife suffered an economic detriment as a result of the reliance
46
Does the court have personal jurisdiction over an out of state parent?
Yes, the court has personal jurisdiction over and out of state parent because of the uniform interstate family support act
47
Methods of calculating amount of child support due
1. Income shares model: A child should receive the same proportion of parental income as if the parties continued to live together (most states)
2. Percentage of income model: Determines the minimum amount of child support by using a percentage of the supporting parent’s net income (parent not looking after the kid), determined by the number of children supported.
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Where court deviates from child support guidelines
When the court deviates from one of the methods of calculating child support, it must set forth specific findings explaining and supporting the deviation. Once a child support award has been paid, the payer does not have to monitor how the money has been spent.
49
Modification of child support
Standard rule is that a substantial change in the child’s needs or parents financial situation that is expected to be continuing allows for modification of child support.
Most jurisdictions do not allow for modifications because of voluntary reduction in obligor’s pay.
50
Termination of child support
Child support can be terminated when the child reaches 18 years of age, the child marries, the parental rights of terminated, or the child or parent dies.
Child support payments can be extended if the child is in college or the child is a disabled adult child who cannot support themselves.
51
Jurisdiction for modification of child support
A court cannot modify a child support order rendered by a court with continuing jurisdiction in another state unless the parties, (including the child) no longer reside in that state or the part is expressly agreed to the jurisdiction of the second state.
52
How to enforce awards of child support?
- Civil contempt: Obligor with ability to pay may be found in civil contempt and can be sent to jail until amount fully paid.
- Criminal contempt - jail sentence may be imposed upon obligor who willingly fails to pay amount owed.
- Other sanctions e.g. interception of tax refund, suspension of driver’s license, seizure of assets etc
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Enforcement of child support in other jurisdictions
Governed by Uniform Interstate Family Support Act. Once an order is registered in another state, it is enforceable to the same manner and same extent as child support order issued by the original state.
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Child custody: Legal custody
The right of a parent to make major decisions about the child’s life
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Child custody: physical custody
The right of a parent to have the child reside with the parent and the obligation to provide for routine daily care and control of the child.
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Joint custody
Parents must both be willing and able to cooperate with respect to the well-being of the child.
Joint legal custody – neither a parent has a superior right to make major decisions.
Joint physical custody – does not necessarily require 50–50 time sharing arrangement
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Uniform child custody jurisdiction and enforcement act
Purposes to prevent jurisdictional disputes with courts in other states or matters of child, custody and visitation
58
UCCJEA - Initial Custody Determination (Home state jurisdiction)
Court has SMJ to provide over custody hearings and either enter or modify custody or visitation orders if the state:
- Is the child’s home state I.E.the state in which the child has lived with a parent or guardian for at least six consecutive months prior to the custody hearing, or since birth, if the child is less than six months old.
- Was the child’s home state in the past six months, and the child is absent from the state, but a parent or guardian continues to live in the state
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UCCJEA - Significant connection jurisdiction
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 about the child care, protection, training, and personal relationships
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UCCJEA: What if home state or significant connection jurisdiction does not apply?
If no state has jurisdiction through these tests, the court in the state with appropriate connections to the child has jurisdiction
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Exclusive - continuing jurisdiction - Child custody
A court that makes an initial ruling on child custody has exclusive jurisdiction over the matter until the part is no longer reside in the state, or child no longer has significant connection to the state
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Can court decline jurisdiction - child custody
When the court has either initial or exclusive continuing jurisdiction, it may decline to hear the case if it finds forum inconvenient
63
Best interests of the child standard and other factors to determine custody
The standard for determining child custody is the best interests and welfare of a child.
Factors include:
- the primary caretaker during the marriage, separation, and prior divorce is relevant
- Race or religion cannot be used as factors to determine custody
- parent sexual conduct is only a factor if the parents conduct has or will have a negative effect on the child
- child’s preference is taken into account if the child is a sufficient maturity
- Siblings are generally not separated from each other
- Domestic violence is almost always a factor
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Custody - 3rd Party Rights vs parents rights
Parents presumptively entitled to custody of their children in cases against third parties. An exception is where the legal parent is unfit or parental custody would be detrimental to the child.
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Visitation of non-custodial parent
Allowed reasonable visitation with a minor child. Denial of visitation is only allowed when it would seriously endanger a child’s physical, mental or emotional health. Certain restrictions may be imposed.
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Visitation - Third parties
Visitation is sometimes granted to step parents and same-sex non-biological coparent. Grandparent visitation is subject to special weight given to a fit parent’s decision.
67
Enforcement of visitation order
Sanctions or tort damages damages awarded to the parent for the period of time the child is wrongfully out of the parent’s custody.
68
Parental consent - medical care
Parental consent must be obtained, regardless of the parents marital status, except in the case of an emergency. A parents’ religious beliefs can be overridden by a court to prevent serious harm to the child.
69
Premarital agreement
A valid marriage is sufficient consideration for a premarital agreement. In most states, a premarital agreement must expressly state it’s applicability to a divorce..
70
Separation agreement
Prepared at the time of separation and can define property division, spousal support, child support, custody and visitation. It is generally merged into the final judgment for divorce or otherwise governed by contract law.
71
When will a premarital agreement be enforceable?
Generally, will be enforceable if:
- there is a full disclosure of financial status of each party at the time of execution;
-the agreement is fair and reasonable; and
- The agreement is voluntary .
Must be writing and signed by the party to be charged . UPAA requires the party against whom enforcement is sought prove any involuntariness or that the agreement was unconscionable when it was executed, and they did not have or could not have had reasonable knowledge of the other person‘s assets and obligations.
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Clauses in marital agreements preventing modification
Clause that prevents modification of property rights, including spousal support is permitted. A clause that prevents modification of child support is not enforceable.
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Adoption - Voluntary Termination
Where the biological parents give up their parental rights of the minor child and consent to the child’s adoption by the adoptive parents
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When must prospective adoptee consent to their own adoption?
If they are above 14 years old.
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ADOPTION - Involuntary termination by a court
This typically occurs in the case of abuse, neglect, or dependency, or when consent to an adoption unreasonably withheld.
Adoption and safe families act – state can move for termination of parental rights if the child is outside of the home and not with a relative for 15 of the past 22 months, as long as the state has made reunification attempts.
76
Legal effects of adoption
Adoptive parents have the same rights and responsibilities as biological parents and the adoptive child has all the rights and responsibilities of a biological child. In most states, no visitation is permitted between the adoptee and their biological parents.
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Definition of domestic violence and relief granted
- Perp of violence must be in relationship with victim or household or family member. Generally requires continuous behavior but a single episode can qualify
Relief is an injunctive order and can also include exclusive possession of residence, child custody and support
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Ex Post Facto Law - Civil v Criminal
The ex post facto clauses generally prohibit state and federal governments from enacting criminal laws that have a retroactive punitive effect. But a civil law also will be deemed to be an ex post facto law when its retroactive effect is so punitive that it clearly overrides the law's nonpunitive purpose.
79
1ST Amendment
The First Amendment protects the right to publish lawfully obtained, truthful information about matters of public significance and the right to attend a criminal trial. Government actions that abridge those rights must survive strict scrutiny—i.e., they must be the least restrictive means to achieve a compelling government interest.
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