Family Law Flashcards
(8 cards)
CL Marriage; Elements; Conflict of laws
Putative-Marriage Doctrine
No-fault divorce
Fault-based divorce
- Capacity: mental and legal capacity to marry
- Present agreement: both parties must intend to presently be married
- Cohabitation
- Holding out a marital relationship
Conflict of laws
* A marriage valid in one state will be valid in another state unless it violates a strong public policy of the other state
No-fault divorce
* Every jurisdiction has a no-fault ground for divorce
* Irreconcilable-differences standard
Fault-based divorce
* Fault-based grounds generally include adultery, cruelty, desertion, etc.
Ending a Marriage:
Annulment; Putative-Marriage Doctrine
Divorce and Separation; Requirement Grounds for Divorce; Defenses
Division of Property; Treatment of Specific Types of Marital Property; Modification
Division of Property at Divorce; Community property; Equitable distribution
MP and SP; Specific types of marital property; Modification; Putative marriage
Annulment Actions
* Void marriage—Prior existing marriage; Incest; Mental incapacity
* Voidable marriage—Age; Impotence; Intoxication; Fraud / Duress; Lack of intent
Putative Marriage
* A party who participated in a ceremonial marriage and believes in good faith that the marriage is valid may seek legal remedies like spousal support and property distribution
Divorce and Separation
* Most states require that at least one partyt be resident to seek divorce in that state
* No-fault grounds arise when marriage irretrievably broken
* Fault-based grounds include adultery, cruelty, desertion, habitual drunkenness, bigamy, imprisonment, and institutionalization for insanity
* Defenses include justification, provocation, unclean hands, consent, connivance, condonation, collusion, recrimination, and insanity
Divisions of Property
* Community property system typically requires equal division of MP
* Equitable distribution: fair distribution of MP, taking into consideration all circumstances between parties
Marital Property
* Property acquired during marriage considered MP
* SP includes (CAGEE): property Conveyed for value; any Award or settlement payment that accrued before marriage; property acquired by Gift or inheritance; property Excuded by parties’ valid agreement; and property Encumbered in godo faith and for value before final separation
Treatment of Specific Types of MP
* Future retirement/pension benefits—Yes, if acquired during the marriage
* PI claim proceeds—If the cause of action accrues during marriage
* Approach 1: All proceeds are treated as MP
* Approach 2: Damages are divided between by type
* A property division is not modifiable
Financial Support of Spouses and Children:
Spousal Support; Factors; Types of support; Modification; Divisble Divorce Doctrine
Factors
* Factors used to determine award of spousal support typically include: Financial resources; Earning potential; Standard of living during marriage; Time necessary to complete education or training for a job; Length of marriage; Contributions to the marriage; Marital misconduct; Age; Health
Types of support
* Permanent alimony—Typically awarded after long marriage
* Limited-duration—Typically awarded when marirage was of short duration, but ther eis still economic need for support
* Rehabilitative alimony—Limited period of time to enhance and improve earning capacity (e.g., until spouse reeceives education or employment)
* Reimbursement alimony—Compensate spouse for financial sacrifices made during the marriage that resulted in a reduced standard of living to secure an enhanced standard of living in the future
Modification of spousal support
* May be modified, even when “permanent”
* Party seeking modification must establish a significant and continuing change in circumstances that warrants modification
* If receiving spouse remarries, most jurisdictions will terminate
* Effect of retirement depends on jurisdiction
Divisible Divorce Doctrine
The court can grant a divorce, 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
Financial Support of Spouses and Children:
Child Support; Paternity; UIFSA; Amount of child support; Modification; Termination; Jurisdiction over existing child support obligations; Enforcement
Child Support
* Both parents are legally required to support their minor children
Paternity
* 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
* Time limit on filing paternity petition unconstituional unless reasonable opportunity to pursue action and time limit substantially related to governemnt’s interest in restricting
UIFSA
* The UIFSA governs when a state has PJ over and out-of-state parent in an action to establish or enforce child support or establish paternity
* PJ over an Out-Of-State Parent
* Personal service on the parent
* Resided with the child in the state in the past
* Parent causes child’s residency in the state
* The child may have been conceived in the state
* Parent previously resided in state and provided prenatal expenses or child support
Amount of child support
* All jurisdictions have adopted child support guidelines (most use an income-shares model)
* Guidelines presumed to provide the correct amounts, but courts may deviate based on Best interest of the child; Age of the child; Special needs; Standard of living during marriage; Assets of parties; Medical expenses
Modification
* Child support modifications permissible when substantial change in circumstances regarding child’s needs or parents’ financial situation
* A court will only modify child support amounts prospectively, from the date of the motion
Termination
* When the child reaches the age of majority
* The child marries
* Parental rights terminated
* Child emancipated
* Child or parent dies
* Some jurisdictions have the authority to order support beyond age of majority when child is in college (subject to reasonable parental demands)
Jurisdiction over existing child support obligations
* Under UIFSA, state that issued initial child support order has continuing exclusive jurisdiction to modify order
* Exceptions:
* Both parents and the child no longer reside in the state; or
* Both parents expressly agree to permit another state to exercise jurisdiction
Enforcement
* The receiving parent may register an order in the new state
* The new state can then enforce the support order
Child Custody:
UCCJEA
Best Interests of the Child Standard
Visitation and Parenting Time; Unwed biological father; Third Parties
Modification of Custody Order; Relocation
UCCJEA home-state jurisdiction, significant-connection jurisdiction, and exclusive-continuing jurisdiction.
- Custody can mean
- Legal custody: The right of a parent to make major decisions about the child’s life (e.g., health, education, etc.) and/or
- 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
UCCJEA
* The purpose is to dictate which court has jurisdiction to decide child custody and visitation
Home-state jurisdiction (Initial Custody Determination)
* A court has SMJ if it is:
* The child’s home state (i.e., the state in which the child has lived with a parent for at least six conseuctive months immediately prior to the custody proceeding) ; 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
Significant-connection jurisdiction
* A court can enter or modify an order if: (1) No other state has or accepts home-state jurisdiction; (2) The child and at least one parent have a significant connection with the state; and (3) 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 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
Declining Jurisdiction
If a court has initial jurisdiction or exclusive continuing jurisdiction, it may decline to hear the case if it finds the forum to be inconvenient
Best Interests of the Child Standard
* Relevant Factors
* Preference of child of sufficient maturity
* Sibling placement
* Domestic Violence
* Irrelevant Factors
* Race
* Religion
* Parents’ sexual conduct
Visitation and Parenting Time
* Generally, noncustodial parent allowed reasonable visitation with minor child
* Parents have constitutional right to visitation, but court may deny if contact would seriously endanger physical, mental, or emotional health
* Unwed biological father—has substantive DP right to have contact with child, but only when commitment to responsibilities of parenthood
* Third Parties—limited to cases in which they have acted in loco parentis with child
Modification of Custody Order
* Re: home state (or significant connection state) has exclusive cont. jurisdiction
* The parent seeking modification must show a change in circumstances
* Relocation—must show legitimate and reasonable purpose if custodial parent proposing to relocate in a way that impairs noncustodial parent’s ability to visit child
* Courts consider bests interest of child, relationship of non-relocating parent with child, etc.
Marital Agreements; Premarital agreements; Separation agreements; Property settlement agreements; Conflict of laws
Premarital agreements
* Clauses relating to child custody and support unenforceable
* Must be in writing and signed by party to be charged
* Enforceable if (1) Full disclosure; (2) Fair and reasonable; and (3) Voluntarily entered into
* UPAA—to argue an agreement is unenforceable, must show at least of the following: (1) Involuntariness; or (2) Unconscionability when executed and lack of reasonable knowledge or disclosure of the other’s assets and obligations
* “Voluntary”—courts consider time-pressure and opportunity to be represented by independent counsel
* “Unconscionability”—courts will look for factors such as duress, undue influence, etc., and the fairness of the terms themselves at the time of execution. Current trend for courts to enforce K agreement as long as fair disclosure
Separation agreements
* Planning for divorce to define property division, spousal support, etc. May be invalidated in part or in whole if party can show unconscionability or fraud
Property-settlement agreements
* Settle economic issues of marital estate
* Entered into before divorce decree issued
Conflict of laws
* The state in which agreement executed; or The state with most significant relationship to parties and transaction
Adoption; Unwed fathers’ rights; Legal effect of adoption
Adoption
* Previous parent-child relationship terminated and new parent-child relationship established
Unwed fathers’ rights
* Substantive DP rights if they have shown commitment to being a parent
Putative father registry allows unwed fathers to register
* If registered, father will receive notice and hearing before rights terminated
Jurisdiction for: (1) an initial divorce decree, (2) support order, or (3) custody order
Modification of a (4) divorce decree, (5) support order, or (6) custody order
Validity of an agreement (e.g., premarital, separation, or property settlement)
(1) Initial divorce decree
* Divisible Divorce Doctrine—court with SMJ over divorce action and PJ over one spouse can grant divorce
* Residency Requirement—at least one party be resident to seek divorce
* Division of Property
* Community-property system
* Equitable-distribution system
* MP versus “hotchpot” approach
Spousal Support
* SMJ and PJ over parties
* Factors used to determine award
* Types of support
(2) Child Support
* UIFSA—court obtains PJ over out-of-state parent under UIFSA
* Amount
(3) Custody
* UCCJEA
* Home-State Jurisdiction
* Significant-Connection Jurisdiction
* Default Jurisdiction
* Exclusive Continuing Jurisdiction
(4) Modification of Divorce Decree
* Property division cannot be modified
* Spousal Maintenance
* May be modified, even when deemed permanent. Party seeking modification must establish a significant and continuing change in circumstances regarding needs of spouse or financial abilities of obligor
(5) Child Support Modification
* Standard is whether there has been substantial change in circumstances regarding child’s needs / parent’s financial situation
* Court cannot modify order rendered by cour twith cont. jurisdiction unless parties no longer reside in state or parties agree another state to exercise jurisdiction
(6) Child Custody Modification
* Change-in-circumstances standard
* Relocation with child may be permitted if legitimate and reasonable purpose
Validity of Agreement
* UPAA requires (1) involuntariness; or (2) The agreement was unconscionable when executed, that the party did not receive or waive fair / reasonable disclosure; and party could not have had adequate knowledge of other’s assets / obligations
* Voluntariness, fairness, and asset disclosre relevant to enforceability in all jurisdictions
