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Flashcards in Family Law Deck (17):

What is the definition of marriage?

Marriage is the creation of the legal status of husband-and-wife.


What are the procedural requirements to marriage?

License and ceremony


What are the state of mind requirements to marriage?

Capacity to consent and intent.


What are the limitations to marriage?

Under age – voidable.
Too closely related [consanguinity] – void.
Same-sex [most states] – void.
Do not have the mental capacity or physical capacity – voidable.
Are committing bigamy or polygamy – void.


Premarital contracts?

Premarital contracts must be: conscionable, in writing [not oral], signed by both parties.
Furthermore there must be: full and fair disclosure, capacity, no duress, no fraud, and no overreaching.


What are the three ways to terminate a marriage?

Annulment: declaration that a marriage is in valid.

Divorce: decree of dissolution of marriage terminates the marital relationship.
--no-fault – only need irretrievable breakdown of the marriage.
----New Mexico – incompatibility is ground.
--fault – in New Mexico, includes adultery, abandon it, cruel and inhumane treatment.
** jurisdiction: domicile requirements – at least one party must have a physical presence [6 months] plus intent to stay. The person filing for divorce must give the other party adequate notice of the proceeding, meaning personal service, waiver of service or notice by publication.

Legal separation: same in all respects as divorce, except: marriage is not terminated; parties are not free to remarry; petition is called a verified petition for legal separation; decree is called a final decree of legal separation.


What are the procedural steps to divorce?

The petitioner files the petition, and the respondent responds. Alternatively, both parties can sign a petition creating a joint petition. The petition is called the verified petition for dissolution of marriage.
--A petition must contain allegations that the marriage is irretrievably broken or a must cite irreconcilable differences.
--The petition must include the vital statistics of the marriage: the date of the marriage, the date of the separation of the parties, whether either party is in the military, and request for arrangements as to division of property and debt.
--if there are children, the petition must also include the names and the date of the birth of the children, whether wife is pregnant, request for custody, timesharing, and child support.

One services accomplished a mutual restraining order goes into effect [also called a temporary domestic order].

The next step is discovery; temporary orders; mediation and arbitration.

The process is completed with a mutual settlement agreement and a parenting plan [if there is a settlement or a final agreement between the parties] or a trial on the merits [if there is a court hearing].


What is a community property state?

New Mexico is a community property state. This means all community property is deemed owned half by each spouse, and all separate property is completely owned by that spouse.


What is a community presumption?

There is a community presumption: all assets acquired during the marriage is presumptively community property. Absent a showing of the parties agreement or that title was taken in a form that overcomes the community presumption, the burden of proof that a particular set is separate property is on the party so contending.


What are the criteria for maintenance?

Need – insufficient property to care for his/her reasonable needs. Ability – inability of oneself to support sellthrough appropriate employment; ability of other stuff to pay.
** The alimony guidelines are not a statutory requirement, although they are commonly used as persuasive with judges.


What are the New Mexico alimony factors?

Age, health and means of support of each spouse;
current and future earnings and earning capacity of each spouse; good faith after of the spouses to maintain employment or to become self-supporting;
duration of marriage;
liquid assets and non-liquid assets;
premarital agreements.
** maintenance is terminated upon death or remarriage, unless clearly stated otherwise.


Joint custody?

Joint custody can mean either joint legal custody [parents share the decision-making, but the child remained with one parent] or joint physical custody [child devides times between each parents home], or both.


What is the standard that is applied in awarding custody, visitation, and child support?

Best interest of the child (WISH factors).
--wishes of the child and parents – 14 years and older;
--interaction and integration of the child into the home and community; --sharing upbringing and decision related to child;
--health, physical mental, of the parties.


Custody orders?

Custody orders are always modifiable by motion. Standard is changed circumstances.


What is the child's home state?

Home state = the state in which the child lived with a parent [or a person acting as a parent] at least six consecutive months prior to the commencement of the action.
--A court initially entered or it can modify a child custody or visitation order it this day is the child home state.
--after initial child custody or child visitation determination, court has exclusive continuing jurisdiction over matters as long as: either the child or the child and one parent has a significant connection with the state and substantial evidence relating to the matter is still available to the state; or the child and the child's parent continues to reside in the state.


Grandparents rights?

New Mexico has statute where grandparents rights are protected in dissolution proceeding or proceeding for legal separation or paternity.
--The court shall grant reason visitation privileges to a grandparent of a minor child not in conflict with the child's education or prior establish visitation or timesharing privileges.


Paternity and support?

Paternity – must be established before there is child support obligation in right to visitation. Action may be brought my mother, the child, or by state agency if the child receives support, but no later than child's 21st birthday. Tissue, blood, DNA testing is often determinative. Effective nonpaternity – case lost be dismissed. Rights of unwed father to relationship with newborn – dad must: be willing himself to assume custody of child – not just a block adoption; publicly acknowledge paternity, take steps to establish legal responsibility for child, demonstrate commitment to child.