Family Law 2 Flashcards
(5 cards)
Ending A Marriage
Division of Property; Marital Property; Factors
DIVISION OF PROPERTY
* Community-property system — equal division of MP
* Equitable-distribution system (majority rule) — fair distribution of MP, taking into consideration all of the circumstances between the parties
Marital property — property acquired during the marriage; most states treat certain property as nonmarital property (e.g., property by gift or inheritance, property excluded by the parties’ valid agreement)
Factors — when distributing MP, courts consider:
* Length of marriage
* Contributions to increases in MP
* Earning potential
Re: only portion that accrued during the marriage is MP
Financial Support
Spousal Maintenance; Factors; Types of Support; Modification; Jurisdiction
Spousal Maintenance
Awarded if recipient cannot provide for her own needs
Factors
* Financial resources of spouse seeking support
* Earning potential
* Length of marriage
Types of Support
* Rehabilitative — awarded for limited period to enhance and improve earning capacity of economically dependent spouse
* Reimubrsement — compensate spouse for financial sacrifices made during marriage
Modification — substantial change in circumstances regarding needs of dependent spouse (e.g., receiving spouse remarries) or financial abilities paying spouse
Jurisdiction — court generally must have SMJ and PJ over parties; residency requirement that ranges from 6 weeks to 2 years
* Divisible divorce doctrine — court does not need PJ over both spouses to terminate a marriage
Financial Support
Child’s right to support; paternity; PJ over out-of-state parent; amount of child support; modification
Modification; PJ over an out-of-state parent
Child’s right to support — both parents must support their child until 18 years or age
Paternity — provides child’s father with rights to visitation and custody, as well as duty to support the child
* Time limit on filing paternity petition is unconstitutional unless reasonable opportunity to pursue action and time limit is substantially related to govt. interest
* Marital presumption — child born to married woman presumed to be child of that woman and her husband
* Estoppel — nonbiological father may be estopped from denying obligation to pay child support when representation, reliance, and economic detriment
PJ over an out-of-state parent — under UIFSA, grounds for obtaining PJ over a parent include:
* Personal service on parent
* Consent
* Past residency w/ child in the state
* Parent causes child’s residency in the state
* Parent resided in state and provided prenatal expenses or child support
* Child may have been conceived in the state
* Asserted parentage in state’s putative father registry
* Any other constitutional basis
Amount of child support — amount is based on best interest of the child, assets of the parties, standard of living, and child-support guidelines (note — awards based on parental income from any source)
* Income-shares model (majority rule) — aims to maintain standard of living
* Percentage-of-income model — # of children determines % of supporting parent’s income owed as child support
Modification — substantial change in circumstances regarding child’s needs or parent’s financial situation
* Court may not modify order rendered by court with cont. jx in another state unless parties & child no longer reside in state or parties agree
Child Custody
“Custody”; UCCJEA; Standard; Visitation; Modification; Relocation
Custody can mean legal custody (right of parent to make major decision about child’s life) and physical custody
UCCJEA — determines when court has SMJ to preside over custody hearings and to enter or modify custody or visitation orders
* Home-state jx — (1) child has lived w/ parent for at least 6 consecutive months immediately prior to custody of proceedings or (2) in past 6 months and child is absent from state but one of the parents still lives there
* Significant connection jx — child and at least one parent have significant connection and substantial evidence in state about child’s care, protection, training, and personal relationship
* Default jx
* Exclusive cont. jx
Best interests of the child
* Preference of child
* Primary caretaker during marriage, during separation, and prior to divorce
Visitation
* Noncustodial parent — allowed reasonable visitation; denial warranted only when visitation would endanger child’s health
* Third parties — fit parents have constitutional right to care, custody, control of their children, so their decisions must be given special weight
* Unwed biological father — constitutional right to have contact if he demonstrates commitment to resp. of parenthood
Modification — substantial change in circumstances to determine whether modification of custody or visitation is wrarranted
Relocation — allowed if legitimate and reasonable purpose for move; courts consider:
* Child’s preference
* Factors that affect child’s best interest
* Ability to preserve relationship between nonrelocating parent and child
Marital Agreements
Validity; UPAA; Governing law
Enforceability — marital agreements must be in writing and signed by party to be charged; enforceable if:
* Full disclosure of assets and obligations
* Agreement is fair and reasonable and
* Voluntary
UPAA — party who seeks to avoid must prove:
* Involuntary or
* Unconscionable and party did not have, or reasonably could not have had, adequate knowledge of other’s assets and obligations
Most states apply law of state with most significant connection to agreement and subsequent marriage
