Family Law Essay Rules Flashcards
Memorize Relevant Rules of Family Law (27 cards)
When is a Premarital Agreement Enforceable (Generally in Many States)
If there has been full disclosure, the agreement is fair and reasonable, and it is voluntary. The agreement must be in writing and signed by the party to be charged.
When is a Premarital Agreement Enforceable under the Uniform Premarital Agreement Act (UPAA)
The party against whom enforcement is sought must prove (1) involuntariness or (2) both unconscionability at the time of execution and lack of disclosure and adequate knowledge of the other’s assets and obligations.
Full Disclosure for a Premarital Agreement
Full disclosure requires disclosure of all income, assets, and liabilities of both parties.
Voluntariness to Enter into a Premarital Agreement
Entering into a contract voluntarily generally means there was no fraud, duress, or misrepresentation. Courts consider factors such as time-pressure, the parties’ previous business experience, and the opportunity to be represented by independent counsel. A party’s insistence on the agreement as a condition to marriage is not considered duress.
System of Equitable Distribution Upon Divorce (followed by most states)
The objective of the equitable-distribution system is to order a fair distribution of all marital property, taking into consideration all of the circumstances between the parties. In most states, all property acquired during the marriage is marital property and subject to equitable distribution. Whether the appreciation in nonmarital property will be subject to equitable distribution will depend on whether the appreciation can be attributable to spousal labor.
Market Appreciation (Determining when increases to SP can be divisible)
Market appreciation, that is not the result of spousal labor or the contribution of martial assets remain separate property and are not divisible.
Property Gained During Separation (Before Divorce)
In most states, property acquired by one spouse after separation but before divorce is marital property and subject to equitable distribution.
Factors the Court Considers in the Distribution of Marital Property
Courts consider a number of factors in determining the equitable distribution of marital property. Some of the relevant factors include the length of the marriage, the age, health, earning potential, and needs of both spouses, the value of separate property, the spouses’ standard of living, and economic circumstances of each spouse at the time of divorce. The court is given broad discretion to consider these factors in making a property division.
Invalidation of a Separation Agreement
Separation agreements can be invalidated, in whole or in part, if the court makes a finding of fraud or unconscionability. A contract is unconscionable when it is so unfair to one party that no reasonable person in the position of the parties would have agreed to it. The contract or part of the contract at issue must have been offensive at the time it was made. Unconscionability may also be applied to prevent unfair surprise.
Modification of a Property Division (Marital Assets)
Though a support award can be modified subsequent to a divorce decree, the property division award cannot be modified. Unlike support awards, which are subject to changing circumstances, the division of the marital assets was determined based upon known facts and circumstances as they existed at the time of divorce.
Modification of a Spousal Support Award
Spousal support awards can be modified based upon a significant change in a party’s circumstances.
Can non-paternity of a child after entry of a divorce decree provide grounds for modifying the child-support award?
Traditionally, courts have been loath to modify an established parent-child relationship, citing the child’s best interest as reason to deny admission of evidence of non-paternity or to deny a motion to disestablish paternity. However, some states have recently recognized the interests of erroneously identified fathers.
What is martial property (MP)
In most states, all property acquired during the marriage is marital property and subject to equitable distribution. The definition of marital property is typically broadly applied and includes retirement benefits and, under some circumstances, equity in nonmarital property.
Importance of title to property for a MP or SP classification
Title to the property is immaterial.
What is separate property (SP)
Most states treat certain property as separate, such as property acquired before the marriage; property excluded by the parties’ valid agreement entered into before, during, or after the marriage; property acquired by gift or inheritance, or property acquired in exchange for such property, except when it is between spouses; property a party has sold, granted, conveyed, or otherwise disposed of in good faith and for value before the date of final separation; property to the extent that it has been mortgaged or otherwise encumbered in good faith for value before the date of final separation; and any award or settlement payment received for any cause of action or claim that accrued before the marriage, regardless of when the payment was received.
“Hotchpot Approach”
A minority of states subject all property owned by either spouse to equitable distribution.
Impact of fault-based divorce on division of marital property
In most states, the fact that a divorce is granted on a fault ground is not a factor in the distribution of the property.
Dissipation of marital property
May be a factor in the division of marital property. Dissipation occurs when one spouse uses marital property for his sole benefit after the marriage has irreconcilably broken down, such as the purchase of expensive gifts for a paramour.
Proper Jurisdiction for a family-related dispute (general)
A court hearing a family-related dispute must generally have both subject-matter jurisdiction and personal jurisdiction. Most states have residency requirements to establish subject-matter jurisdiction.
Uniform Child Custody Enforcement and Jurisdiction Act (“UCCJEA”)
Most states have adopted the Uniform Child Custody Enforcement and Jurisdiction Act (“UCCJEA”). The purpose of the UCCJEA is to prevent jurisdictional disputes with courts in other states on matters of child custody and requires the court to have subject-matter jurisdiction. In an initial custody determination, a court has subject-matter jurisdiction to enter custody orders if the state is the child’s home state. A state is the “home state” when the child has lived with a parent or guardian for at least six consecutive months immediately prior to the custody proceeding. A court can decline jurisdiction if the party has wrongfully removed a child from another state.
Doctrine of Divisible Divorce
A court may have sufficient jurisdiction to grant a divorce, but lack such jurisdiction with respect to other divorce-related matters, such as property division, without personal jurisdiction over the other spouse. A court may not exercise personal jurisdiction over a defendant unless the defendant has minimum contacts with the state in which the court sits and the exercise of jurisdiction would be fair and reasonable.
Fault grounds for divorce
Fault grounds for divorce include adultery, cruelty, desertion, habitual drunkenness, bigamy, imprisonment, indignity, and mental disorder.
Cruelty (Fault-based grounds for Divorce)
To prevail on the grounds of cruelty, most jurisdictions require that the plaintiff demonstrate a course of conduct by the other party that is harmful to the plaintiff’s physical or mental health and that makes the continued cohabitation between the parties unsafe or improper. The conduct of the defendant must be serious and typically cannot be based on one isolated incident. The majority of jurisdictions permit divorces on the basis of cruelty in cases of physical abuse, while only some permit it in cases of only emotional abuse or mental cruelty.
Physical Custody of a Child
Physical custody is the right to have the child reside with the parent and provide for routine daily care and control of the child.
