Family Law Flashcards
(87 cards)
1
Q
When might a state refuse to issue a marriage license?
A
the fiances are too closely related
one party is already married
one party is underage
one party is incapable of consent
2
Q
what might a state require before getting married
A
waiting period between getting the license and getting married
premarital medical testing - BUT a state cannot refuse to issue a license based on those results
3
Q
what is required for a marriage ceremony?
A
someone authorized by law must before the ceremony
two witnesses
*some states allow for a proxy to stand in for a party who cannot attend the ceremony
4
Q
Four Cs of common law marriage
A
capacity
consent
cohabitation
conduct
5
Q
when might a state not give interstate recognition to a marriage?
A
when they have a strong public policy against recognizing the marriage
6
Q
what is a heartbalm statute?
A
eliminates tort of breach of promise to marry
also eliminates tort suits of alienation of affection, seduction, and criminal conversation
7
Q
what is an annulment?
A
judicial decree that some impediment to marriage existed at the time of marriage which lead to marriage being void or voidable
8
Q
what is a void marriage and what constitutes one?
A
does not technically need an annulment to have no legal effect
- incest
- bigamy
- lack of mental capacity
9
Q
what is a voidable marriage and what constitutes as one?
A
valid unless and until annulment
1. age
2. impotency
3. under the influence of alcohol or narcotics at marriage
4. sham marriages
5. fraud, duress, force
10
Q
what are the consequences of an annulment?
A
courts have general equitable powers to unwind annulled marriage through an equitable division of property (may award spousal support too)
putative marriages - good faith, then innocent spouse can seek relief as if they were married
children generally remain unaffected
11
Q
what is a nonfault divorce?
A
requires that the marriage be irretrievably broken - “irreconcilable differences”
12
Q
what are grounds for a fault-based divorce?
A
- adultery - evidence of opportunity and inclination
- cruelty
- desertion/abandonment - (1) leave voluntarily and (2) intend to remain apart permanently
- habitual drunkness
- bigamy
- imprisonment
- institutionalization
- indignity
13
Q
what are defenses to divorce?
A
- recrimination and unclean hands
- connivance
- condonation
- provocation
- insanity
14
Q
describe whats needed for mediation
A
court may adopt the substance of the mediation agreement
neutral, unbiased mediator
15
Q
what happens in equitable distribution states?
A
when spouses divorce, courts can divide marital property in an equitable manner
courts cannot divide/reallocate spouses’ separate property
16
Q
what happens in community property states?
A
split community property equally
17
Q
what happens in hotchpot states?
A
don’t recognize the difference between community property and separate property. Any and all property that spouses hold at the time of divorce can be divided equitably
18
Q
what is separate property?
A
property that a spouse
- earned before marriage
- obtained during marriage through gift or inheritance of a third person
- obtained during marriage, but paid for with SP
- earned after the marriage ends - states differ on end date
19
Q
what is marital/community property?
A
all property acquired during a marriage through a spouse’s efforts
20
Q
are businesses MP or SP?
A
Depends!
value of any business goodwill will already be incorporated into business’s value
business goodwill can be marital proerty or separate property - goodwill generated during marriage will be MP
21
Q
is intellectual property cp or sp?
A
depends when it was created
22
Q
are degrees mp or sp?
A
always sp - degrees are not property
23
Q
are tort awards mp or sp?
A
depends when you acquired the right to sue
24
Q
are pensions mp or sp?
A
depends when you earned the pension
25
what are the relevant factors for dividing marital property?
- length of marriage
- prior marriages
- age, health, earning potential, liabilities, and needs of both spouses
- contributions to education
- needs for future acquisitions
- income, medical needs, retirement of both spouses
- contributions to increases in marital property, including homemaking and child-rearing
- value of separate property
- reductions in valuation in marital property by one spouse
- standard of living enjoyed during the marriage
- economic circumstances of each spouse at the time of divorce
- custody of any minor child
26
what is rehabilitative spousal support?
temporary - meant to get spouse back on their feet/into the job market
27
what is permanent spousal support?
when the marriage was particularly long and there is no reasonable likelihood the spouse will reenter the job market
28
what factors are considered in determining spousal support?
- financial resources of both spouses
- marital standard of living
- time to find a job, get a new degree, or otherwise become more self-sufficient
- length of marriage
- contributions to the marriage
- age and health of the spouses
- marital misconduct of either spouse
29
what are common reasons to lower or terminate spousal support?
- death
- remarriage or cohabitation
- retirement
30
can court modify spousal support?
if there is a significant and continuing change in circumstances
31
what jurisdiction is required for family matters?
personal and subject matter
32
what is child support?
payment by one parent to the other for support of a common child
visitation rights ARE NOT tied to child support
the right to receive child support belongs to the child - parents cannot bargain it away
33
How long does child support last?
typically until the child reaches 18, but
- if child is still in high school full time, can be extended to 19
- some states extend through college degree
- child support can be extended indefinitely when child is incapable of self-support when they're adults
34
when else can support end?
when the child dies
the parent dies
the child is emancipated
child gets married
child commences active duty in military
parent's parental rights are terminated
35
how is the amount of child support determined?
child support guidelines
majority: income shares model
minority: percentage of income model
36
what is the income shares model calculated?
Child should receive the same amount of financial support as if the family continued to reside together
1. add both parents' incomes together
2. consult chart that gives the percentage of that income child(ren) would have received in an intact family
3. divides that child support in proportion to the incomes of the parents
37
what is percentage of income model?
the noncustodial parents has an obligation to share a certain percentage of their income with their children
1. determine noncustodial parents' income
2. consult chart that gives the percentage of that income
38
what happens with a voluntary reduction in income?
if a paretn is voluntarily unemployed or underemployed, the court may use their earning capacity rather than their actual income to calculate the child support award
EXCEPT: if change in job
- was made in good faith
- was not made for the purpose of depriving the child or punishing the custodial parent
39
when are there deviations from child support guidelines?
Court asks: what amount will be in the best interest of the child
courts must still calculate the guildelime amount and then set forth specific findings explaining their reasoning for deviation.
factors:
- age of child
- unusual needs
- other support obligations
- assets of the parents
- relative standard of living
40
what are grounds under UIFSA to obtain personal jurisdiction?
- personal service on the defendant
- consent of defendant
- past residency with the child in the state
- past residency in the state while paying child support
- defendant direct child to reside in state
- act of conception resulting in child's birth
- putative father registry maintained in the state
- any other basis under constitutions
41
how are child support awards enforced?
- civil contempt
- criminal contempt
- other sanctions
42
once the legal father is identified, he will have...
child support obligations and the right to pursue custody and visitation
43
Paternity suits?
courts may order a blood test, but if its not possible, other evidence may suffice:
- medical testimony based on the probability of conception
- defendant's own knowledge of paternity
- physical resemblance between the child and the defendant
- prior statements by deceased family members
44
what is the time limit on paternity suits?
states can impose a time limit, but must at least offer reasonable opportunity to bring suits; paternity generally needs to be established before the father dies
45
what is the marital presumption?
if a married woman gives birth, her SPOUSE is presumed to be the child's father
46
when can the mother rebut the marital presumption?
about half the states allow wife to challenge her husband's paternity by presenting evidence that he is not the father of the child, such that he:
- is impotent
- is sterile
- could not have engaged in intercourse with the wife during the probable time of conception
some states allow exclusion if disestablishing paternity would be contrary to the best interests of the child
47
when can the husband rebut the marital presumption?
states are generally hesitant to allow it when the man is the only father the child has ever known
48
when can an alleged biological father rebut the marital presumption?
some states allow the alleged biological father to bring a paternity suit. if the mother is married to another man and refuses to join, a state may entirely prohibit the alleged biological father from bringing a paternity suit regardless of when filed
49
what is "holding out" for paternity?
paternity can also be estbalished if
- the parents marry after the nonmarital child's birht
- the father consents to putting his name on the child's birth certificate
- the father holds himself out to be the father in some way
50
when can a husband be estopped from denying his paternity?
- the husband promised to provide for the child
- the wife relied on that promise; and
- the wife would suffer economic detriment from relying on that promise
51
what is legal custody?
the right to make major decisions for the child
52
what is physical custody?
right to daily care and control of the child; generally includes right to have child reside with the parent
53
what is joint legal custody?
parents make major decisions for the child jointly
- applies to majority of cases
- both parents must be willing and able to cooperate for the best interest of the child
- neither parent has a superior right to make decisions
54
what is joint physical custoduy?
need not be 50-50 but the child usually maintains a residence with both paretns
55
what is the best interests standard?
standard for determine child custody is the best interests of the child. factors:
- who has been the child's primary caretaker
- domestic violence
- child's preference if the child is sufficiently mature
- typically avoid separating siblings
56
what is third-party custody?
legal parents presumptively get custody of their childrent when a non-parent seeks custody, unless the parents are deemed unfit; parental custody would be detrimental to the child; or the parent's parental rights have been terminated
57
what are former stepparents/unmarried co-parents visitation rights?
no rights to ongoing contact
EXCEPT: court may award visitation if person acted as de facto parent prior to split
58
what are grandparents visitation rights?
most have statutes regarding visitation. courts generally consider a. the special weight that a fit parent's decision requires, b. the best interests, c. any specific statutory factors
59
how are custody agreements enforced?
sanctions
1. modify custody
2. hold the interfering party in contempt
3. impose a fine or jail time
award compensatory visitation time
4. award attorney's fees
5. enjoin further interference
60
under the UCCJEA, how does interstate enforcement of decrees work?
a. registration of order
b. expedited enforcement
c. warrant for child custody
d. law enforcement
61
when can custody agreements be modified?
most jx require a change in circumstances
some impose larger burden on a parent who unilaterally seeks to change custody soon after the initial order by requiring proof that the current order endangers the child
must be in the best interest of the child
62
when is relocation of the child allowed?
states are split
- some allow custodial parent to relocate if they can prove a legitimate and reasonable purpose
- some states ask whether the move is in the best interest of the child
- others place burden on the objecting parent
63
when does a court have jurisdiction over a custody agreement?
home state jurisdiction
signficant connection jurisdiction
default jurisdiction
64
when does home state jurisdiction exist?
where the child has lived with a paretn or guardian for at least 6 consecutive months before proceedings commence
- if under 6 months, where theyve lived since birth
state was the child's home state within past 6 months, but one of the parents still lives there
65
when does significant-connection jurisdiction exist?
the child has no home state or the home state has declined jurisdiction
the child and at least one parent have a significant connection with the state and
substantial evidence is avaialble in the state concerning the child
66
when is there default jurisdiction?
if no state has home state jx or significant connection jx, a court in a state that has appropriate connections to the child has jx
67
why might a state decline jx?
1. if the home state finds its an inconvenient forum
2. if the court with home state jurisdiction finds that it is only the home state because a party engaged in unjustified conduct
68
when does temporary emergency jurisdiction exist?
if the child is in danger and requires immediate protection
69
when does a court have exclusive-continuing jurisdiction?
courts that make the initial custody ruling have jx over the matter until a court determines taht
a. none of the parties reside in the state anymore
b. the child no longer has significant conenction, and any substantial evidence connected to condition is no longer available in state
70
what are the four types of marital agreements?
premarital agreements
separation agreements
property settlement agreements
cohabitation agreements
71
what is a premarital agreement?
agreements between prospective spouses that often alter the default rules of divorce for property division or spousal support
72
what can premarital agreements not include?
child custody
reduce child support
obligate the court to intervene in an ongoing marriage before separation or divorce
73
what can premarital agreements include?
determine how property will be divided
define some property as separate property
define or eliminate spousal support
74
what are the requirements of premarital agreements in UPAA states?
must be signed and in writing.
consideration is not required
75
how do you challenge a premarital agreement in a UPAA state?
party who seeks to invalidate has the burden of proving either
1. they didnt sign the agreement voluntarily, or
2. the agreement was unconscionable when executed and there is some disclosure porblem please
a. the party didnt receive fair and equitable disclosure
b. the party did not waive fair and reasonable disclosure
c. the party did not have or reasonable could not have had an adequate knowledge of the other's assets and obligations
76
how is voluntariness determined under UPAA?
contract is free from fraud or duress; also look at time pressure; sophistication and knowledge; opportunity to obtain a lawyer
mere insistence that once will not go through with the wedding if not signed is not considered duress
77
what are premarital agreement requirements in non-UPAA states?
signed and in writing. consideration is required, but getting married is the consideration
78
how do you challenge a prenup in a non-UPAA state?
main rule - party seeking must prove
a. no full disclosure of financial status
b. the terms were not fair at the time of signing
c. the agreement was procured with fraud or duress
EACH IS AN INDEPENDENT GROUND
79
what are separation agreements?
made between spouses who are planning for divorce; generally enforceable as long as theyre not unconscionable or based on fraud
80
what are property settlement agreements?
settle the economic issues between the parties to an impending divorce
81
what are cohabitation agreements?
contracts between unmarried are invalud if the only consideration is sexual relations
can divide property and/or define support obligations taht might persist even after a relationship ends
82
what are the basic rights under an adoption?
prior parent-child relationship is terminated; new relationship created
bio parents have no right to visitation
may not be dissolved except in rare cases
83
what is voluntary termination of parental rights?
bio parents may voluntarily terminate rights and consent to adoption
proper to final decree, parents consent may be withdrawn
84
what is involuntary termination of parental rights?
state must prove by clear and convincing evidence that one of the state's statutory grounds for terminating paretnal rights is present, including
- abuse or neglect
- abuse of sibling
- termination of parental rights
- incapacity
85
what is a protective order?
victims of DV typically appears ex parte and obtains a more limitied temporary order, then after notice and a hearing the court can implement a more permanent order
86
who can obtain a protective order?
most states require the perp of violence to be in a relationship with the victim, family member, or household member
87
