Flashcards in Family Law Deck (120):
Rights before marriage include
(1) Breach of promise to marry (rare today)
(2) Gifts in contemplation of marriage
(3) Antenuptial agreements
Gifts made conditioned on the subsequent marriage are
null if the marriage fails to take place, consider the type of property given, the conditions attached, the intent of the donor.
With regard to antenuptial agreements, many states have adopted the
Uniform Premarital Agreements Act (UPAA)
Under antenuptial agreements, parties can agree to d
(1) disposition of property at divorce
**Courts are NOT bound by provision in the agreement regarding children.
A waiver of alimony in a prenup will be upheld unless
doing so will cause the disadvantaged spouse to become a public charge.
For an antenuptial agreement to be valid, it must
(1) be in writing and signed
(2) entered into voluntarily
(3) have full disclosure of assets OR proof that the party had independent knowledge
Under UPAA, before looking at whether there was a full disclosure of assets or independent knowledge in an ante nuptial agreement, the court must first find that the agreement was
When analyzing ante nuptial agreements, some courts look at
(1) general fairness
(2) whether the parties had independent counsel
The law that applies to ante nuptial agreements is
(1) the parties choice of law in the agreement, if present
(2) the law of the state w/ the most significant relationship to the parties
(3) the law where the agreement was executed
The requirements of marriage are
(1) a license
(2) a ceremony with an authorized officiant
(3) no legal impediments to the marriage
(4) the capacity to consent
In order to get a marriage license, some states require
(1) a medical certificate showing no disease
(2) most states provide a 72 hour waiting period after the application before the ceremony can take place
**Failure to follow procedural requirements will NOT invalidate the marriage (void vs. voidable)
Legal impediments to marriage include
(1) related-ness, like ascendants, descendants, siblings, etc.
(2) relatedness by marriage, step-relations, adoptions (many states)
(3) marriage between first cousins is permitted in some states
(4) you can't be married to someone else
(5) Can't be of the same gender in many states
In order to have the capacity to consent to marriage, you must have
the mental ability to consent at the time of the ceremony
The age requirements for marriage are
(1) generally 18 to marry freely of own will
(2) parental consent required between 16 and 17
(3) judicial consent required if under 16 (usually pregnancy related reasons)
The three requirements for a valid common law marriage are
(1) consent to marriage (capacity and impediment requirements must be met)
(3) Holding yourself out publicly as husband and wife
**States that do NOT permit common law marriage will regard a common law marriage as valid if entered into in a state that permits common law marriage
Marriage by estoppel and putative marriage apply when
(1) equitable remedy that may be given by some courts to the innocent party who acted in good faith when entering an invalid marriage
(2) in some states, the putative spouse can acquire all the rights of a legal spouse
If spouses take title to property in joint names,
a tenancy by the entireties is presumed.
Under the doctrine of support, spouses owe
support to one another.
The doctrine of necessaries allows a creditor
to make one spouse liable for the other spouse's purchases of necessary expenses (food, clothing, health care)
A protective order can be
granted against the other spouse, ex parte (w/o notice to the other spouse) and last for between one month to several years depending on the jurisdiction.
The two causes of action for tortious interference with marriage are
(1) alienation of affection
(2) criminal conversation
**These causes of action have mostly been abolished.
Alienation of affection requires
(1) genuine love and affection
(2) love and affection was alienated and destroyed
(3) D's acts caused the loss of love and affection
**Note: the love and affection must have been present BEFORE D acted. Proof of damage is required and highly subjective. Punitives are available in some states.
Criminal conversation requires P to prove that
(1) the spouses were married
(2) adultery between the D and the spouse during the marriage
Damages are the same as for alienation of affection
a declaration that a marriage is invalid.
The two types of marriages subject to annulment are
(1) void; and
A "void" marriage is one that
fails to meet an essential requirement and is invalid (e.g. too closely related, bigamy)
A "void" marriage can be attacked by
(1) one of the parties; or
(2) a third party, like the IRS
A "void" marriage may be remedied by
continued habitation after removal of the impediment under the Uniform Marriage and Divorce Act and in some states (e.g. after the death of a prior spouse, void marriage can be validated by continued habitation)
A "voidable" marriage is one where an
event or condition affecting the adequacy of consent is present (e.g. drunk, incurable physical impotence, duress, fraud, lack of capacity, etc.)
A "voidable" marriage can be attacked
only by one of the parties and is treated as valid until annulled (the reverse of a "void" marriage)
A "voidable" marriage may be ratified by
continued cohabitation after removal of the infirmity (i.e. too drunk at a wedding to have capacity, but continue to cohabitate)
The effects of annulment are
(1) the marriage is set aside as if it never existed
(2) children remain legitimate
(3) child support can be awarded
(4) spousal support *may* be awarded, but not in all states
(5) property generally treated as if never married, put spouses in "premarital" state
Jurisdiction over the PARTIES in a divorce proceeding is proper where
(1) one of the spouses is domiciled in the state
(2) if the spouse is a resident state for some minimum period (generally 90 days to 6 months) there is a presumption of domicile
Jurisdiction over FINANCIAL ISSUES and PROPERTY in a divorce proceeding requires
the court to have personal jurisdiction over both parties.
The modern rule for divorce grounds is
Generally, no-fault divorce requires
(1) irreconcilable differences; or
(2) living separate and apart for a specific period
The grounds for fault-based divorce are
(1) Adultery (provable by circumstantial evidence, but often requires corroboration)
(3) Cruelty (physical or mental)
(4) Habitual drunkenness or abuse of drugs commencing AFTER the marriage
(5) Insanity (might require institutionalization)
The defense to fault-based divorce are
(1) Collusion (parties agreed to simulate grounds)
(2) Connivance (P consented to other spouse's misconduct, e.g. swingers)
(3) Condonation (P forgave the marital offense, generally requires sex
(4) Recrimination (spouse is also guilty, unclean hands)
Under legal separation, a couple is
(1) still married
(2) but can seek to have rights regarding property, spousal support, child custody, and child support decided.
The four main issues to decide upon a divorce are
(1) property division
(2) spousal support
(3) child custody
(4) child support
The three main approaches to property division at divorce are
(1) community property - all property acquired during the marriage is divided in half, all property acquired before is kept separate
(2) equitable division of ALL property owned by each spouse
(3) equitable division of MARITAL property and separate property is kept separate
****#3 is the most popular method
The two-step process to property division is
(1) classify the property into marital and separate property
(2) make an equitable division of the marital estate no matter how the marital property is actually titled
****Equitable does not necessarily mean equal
Property distribution decrees (are/are not) modifiable
The six types of separate property are
(1) All real and personal property owned before the marriage
(2) Property acquired at any time by gift, bequest, devise, or descent
(3) Property acquired in exchange for property acquired before the marriage
(4) Income from and appreciation of separate property
(5) Pain and suffering awards, future medical expenses, future lost wages
(6) Property acquired after an order of legal separation and the court has made a final disposition of property
Marital property includes
(1) All property acquired DURING the marriage up to the final divorce decree (some states use the date of separation or date of divorce filing)
(2) Value of vested/unvested pensions, stock option rights, retirement or other fringe benefits of employment that accrued DURING the marriage
(3) recovery for wages lost DURING the marriage, reimbursement for medical bills paid for with marital property, property damage to marital property
Under commingling, separate property can become marital property if
it is inextricably intertwined (e.g. a bank account). Courts will still try to trace the property.
Under transmutation, separate property can become marital property based on
the intent of the parties.
Separate property can become marital property when improved by
(1) the use of marital funds; or
(2) efforts of the non-owning spouse
For property acquired before marriage but paid for after marriage, the majority view requires that
the property be apportioned according to the contribution of separate and marital funds to pay for the property (classic case: single person buys a house, pays mortgage for 5 years, then gets married, then uses marital funds to pay for the next 10 years)
Pensions are considered to be (marital/separate) property,
marital; even if the non-working spouse did not contribute
A professional license or degree (is/is not) marital property.
is not. But to avoid unfairness, some jurisdictions consider it when awarding spousal support. A minority value the degree and award more property or alimony based on the valuation.
Property division incident to a divorce or legal separation (is/is not) a taxable event.
Factors to consider in making an equitable division of property are
(1) age, education, background, earning capabilities, vocational skills, employability
(2) duration of the marriage, prior marriages
(3) standard of living during the marriage
(4) present income
(5) source of money used to purchase the property
(6) health of the parties
(7) assets, debts, liabilities
(9) provisions for child custody
(10) each party's contribution, whether earning income or as a homemaker
(11) dissipation of marital property (gambling it away)
(12) whether property is in lieu of/addition to alimony
Alimony is paid to the
economically dependent spouse.
The four types of alimony are
(1) permanent periodic support
(2) Lump sum
(3) Rehabilitative support
(4) Reimbursement support
Factors to consider when awarding alimony are
(1) standard of living during the marriage
(2) duration of the marriage
(3) age/physical/emotional conditions
(4) financial resources of each party
(5) contribution of each party to the marriage
(6) time needed to obtain education or training to become employable
(7) ability of payor spouse to meet needs and pay support
(8) in some states, marital fault
The Standard Duration of Physical Resources Contributes Timely and Abley and not Faulty
The two PRIMARY considerations when awarding alimony are
(1) the need of the dependent spouse and
(2) the ability of the other spouse to pay
A spousal support award is modifiable based on a
substantial and material change of circumstance.** A voluntary reduction of income is generally not sufficient (i.e. quitting a job or incarceration).
**Lump sum and reimbursement support are generally not modifiable (treated as contract rights).
Periodic payment alimony is generally terminable if
(1) the recipient spouse remarries
(2) death of either spouse
(3) in some states, the recipient spouse cohabitates with another
The tax consequences of alimony/spousal support are that
it is DEDUCTIBLE to the payor and INCLUDABLE in the income of the recipient.
Marital separation agreements entered into after marriage are valid if
supported by consideration. Similar standards as to pre-marital agreements apply. Courts are not bound by provisions relating to children.
Contracts between cohabitants are valid unless
sex is the only consideration.
Modification of a separation agreement depends on whether it is
(1) merged into the divorce decree (modifiable by court, subject to contempt)
(2) not merged (enforceable only be contract remedies, not modifiable)
In awarding child support, courts will follow
the child support guidelines of their state but can deviate from the guidelines if it is in the best interests of the child (BIOC)
The majority of states follow the ____ _____ approach to awarding child support.
Child support is independent of and cannot be conditioned on
Child support generally lasts until
(1) age of majority (18)
(2) death of the child
(3) emancipation of the child
(4) termination of parental rights
(5) in some states, until the child gradates from high school or some other age or completion of education**
(6) longer period if child is mentally or physically disabled
**Most states will not extent to pay for college unless agreed to by the parties or provided for in a statute.
The ____ has been adopted in all 50 states and D.C. to simplify the collection of child support.
Uniform Interstate Family Support Act (UIFSA).
Under UIFSA, jurisdiction is proper where the
first petition under UIFSA is filed.
Under UIFSA, another state can exercise jurisdiction only where
(1) the second petition is filed before the time to answer the first has expired;
(2) the petitioner objected to jurisdiction in the first action;
(3) the second state is the child's home state
Once a court enters a valid child support judgment, it maintains ________ during the life of the order UNLESS
continuing exclusive jurisdiction; no parties reside in the issuing state OR the parties consent to another state's jurisdiction.
Another state can enforce a UIFSA decree by
(1) direct enforcement (mail the judgment to the employer and the employer withholds wages)
(2) Registration (child support order is registered in another state and then is enforceable by that state's courts)
Child support orders can be modified based on
a substantial and material change of circumstance.
Voluntary reduction in income is not sufficient grounds.
The tax consequences of child support orders are that
(1) Not income to the payee and not deductible to the payor.
Child support can be enforced through
civil and criminal contempt proceedings
The _____ applies to interstate child custody disputes.
Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA)
Under the UCCJEA, the court with jurisdiction is the court
(1) of the child's home state
(2) if no home state, a state that has a "significant connection" to the child and "substantial evidence" related to the child's well-being
(3) if the top two decline jurisdiction, a state can assume "deferred" jurisdiction
(4) if no other state exercises jurisdiction, a state can by "default"
The child's "home state" is the state
(1) where the child has lived with a parent for at least 6 consecutive months; or
(2) that was the child's home state within the last 6 months and the child is absent from the state but a parent continues to live in the state
The issuing state of a child custody order has _________ unless _______.
continuing exclusive jurisdiction; no child or parent continues to reside in the state OR the child no longer has a significant connection with the state and there is no substantial evidence in the state
A court in a child custody case may NOT exercise jurisdiction if
(1) a proper proceeding was already pending elsewhere when the position is filed (unless the other court defers; OR
(2) the person seeking to invoke the court's jurisdiction engaged in unjustifiable conduct (e.g. kidnapped the kid to take him out of state)
A court in a child custody case MAY decline to exercise jurisdiction if
it determines that it is an inconvenient forum.
A court in a child custody case may exercise temporary emergency jurisdiction if
(1) the child is physically present; and
(2) the child has been abandoned; or
(3) it is necessary to protect the child from abuse
Federal legislation allows parties enforcing child support orders to seize
property, withhold wages, intercept tax refunds, revoke professional licenses.
The two types of child custody are
In any custody or visitation case, the primary consideration is the
Factors to consider in awarding child custody are
(1) the wishes of the parents
(2) the preference of the child
(3) the relationship of the child with the parents, siblings, and others
(4) the child's adjustment to home, school, and community
(5) the mental and physical condition of the parties
(6) the parent who was the primary caregiver (but no gender preferences)
**Trial court has A LOT of discretion here.
Joint custody is the default and is encouraged and awarded if both parents agree UNLESS
the parents are openly hostile and unable to communicate. Courts also look at geographic proximity.
Sole custody can be awarded when
strong evidence demonstrates that it is in the BIOC.
If sole custody is awarded, the other parent is entitled to
reasonable visitation, unless harm to the child will result.
Because of constitutional protections, a court will award custody to a parent over a non parent UNLESS the non-parent can show
(1) harm to the child; or
(2) unfitness (abandonment, neglect, abuse, surrendered custody)
*Previously surrendering custody erodes a parent's constitutional protection
**After making this finding, courts then do a BIOC analysis
Absolute denial of visitation to a parent is
rare but courts will deny and may restrict (e.g. supervised visitation) if injury to the child may result.
Every state has a statute that allows ______ to seek visitation
third parties, generally grandparents.
The constitutionality of these statutes is suspect, as the wishes of the parent are constitutionally protected and must be given "special weight".
Child custody can be modified upon a showing of a
substantial and material change of circumstances.
The _______ bears the burden of proof to modify a child custody order.
party seeking modification.
When considering modification, the primary concern is still
If not enough time has passed since the entry of a child custody order, states generally
require 1 to 2 years, unless the child's present environment is harmful to the child.
If one parent wants to relocate a child, states generally require
notice to the other parent and a court hearing to determine whether relocation is permitted.
In analyzing relocation of a child, courts consider,
(1) the BIOC
(2) the motivation (e.g. benefit to the family, moving b/c the parent got a new job, etc.)
(3) the move is NOT intended to thwart the relationship with the other parent
Child custody awards are enforced through
(1) civil contempt proceedings
(2) habeas corpus proceedings (for physical custody, not legal)
(3) suits in equity (to enjoin conduct in violation of the order)
(4) out of state decrees (enforced if certified copy is filed with the clerk of the court)
(5) child kidnapping statutes
If a child is removed from the state, the custodial parent must
(1) file the custody order in the new jurisdiction and seek enforcement; or
(2) obtain a writ of habeas corpus from the new jurisdiction
The _____ mandates that states give full faith and credit to another jurisdiction's child custody determination, if jurisdiction is proper.
federal Parental Kidnapping Prevention Act (PKPA).
**The PKPA jurisdiction provisions are the same as the UCCJEA but emergency jurisdiction is not temporary.
For international kidnapping, the _____ and _____ provide relief when a child is wrongfully removed to a foreign country.
International Parental Kidnapping Prevention Act (IPKA); Hague Convention on Child Abduction
When analyzing state laws covering child legitimacy under Equal Protection, courts apply
intermediate scrutiny (substantial relationship to an important government interest, narrowly tailored means, actual purpose, burden on government)
A legal action to establish a biological relationship and settle issues of paternity is called
a parentage action.
Once parentage is established, the parent owes
support and has rights of custody and visitation.**Usually women establish paternity so they can get child support.
The husband of the mother is presumed to be the father if
(1) the child is born during the marriage; or
(2) the child is born w/in 300 days of the marriage ending; or
(3) the child is born during a void or voidable marriage.
The presumption that the husband of the mother is the father can be rebutted, but requires
heightened proof (generally C&C).
In some cases, even if the husband can disprove paternity, many states
prohibit disestablishment of paternity based on the BIOC.
And most states have a time limit to bring a disestablishment action (e.g. w/in 6 months of the birth)
A child can be considered the child of an unwed father if
(1) after the birth, the father marries the mother; or
(2) the father holds the child out as his biological child; or
(3) the father consents to his name on the birth certificate; or
(4) the father acknowledges paternity (usually formally); or
(5) there is a judgment decreeing paternity
Under Due Process, unwed fathers have rights
to custody if they demonstrate parental responsibility (acknowledgment, supervision, education, protection, care, support).
An unwed father may be precluded from ___________ he did not legally recognize.
tort recovery for the death of a child.
The rules regarding paternity suits are
(1) once paternity is established, father can assert rights of custody and visitation
(2) statute of limitations is tolled (i.e. suspended) during minority of change, so it lasts until child is at least 18
(3) level of proof varies (preponderance or C&C)(4) blood tissue or DNA test is preferred method, but testimonial and other medical evidence can be sufficient
**These suits are usually brought by unwed mothers seeking child support.
Parental rights may be terminated
(1) voluntarily (usually in preparation for adoption)
A state may NOT terminate parental rights against the wishes of the parent UNLESS
the well-being of the child is endangered, like
(1) infliction of serious physical harm
(3) failure to provide support
(4) mental health of the parent renders unable to care for child
(5) unfitness (usually drug abuse)
**Generally parents cannot seek to terminate the rights of the other parent.
The two types of adoption are
(1) agency and
The requirements of adoption are
(1) termination of the biological parents' rights
(2) creation of new parents' rights
In child custody determinations, the wishes of children under age ___ are generally not considered but over the age of ____ are given great weight.
8; 12. Questioning generally occurs in the judge's chambers.
In adoption cases, the termination of the biological parents' rights requires
(1) consent of the biological parents, unless the rights were already terminated or consent is not necessary due to the BIOC
(2) consent of the unmarried father if the father is actively involved in the child's life (may not be necessary if father abandoned, failed to support, never attempted to establish a relationship, etc.)
In adoption cases, creating the new parents' rights involves
(1) consent of the adoptee in some states if the adoptee is over a certain age (usually 12 or 14)
(2) A home study investigation (can be waived for relative adoptions)
(3) payment of money is PROHIBITED (we don't buy and sell children)