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family law > general > Flashcards

general Flashcards

1
Q

o UMDA
o UPAA
o UIFSA
o PKPA
o UCCJEA

A

o UMDA = Uniform Marriage and Divorce Act
o UPAA = Uniform Premarital Agreement Act
o UIFSA = Uniform Interstate Family Support Act
o PKPA = Parental Kidnapping Prevention Act
o UCCJEA = Uniform Child Custody Jurisdiction and Enforcement Act

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2
Q

marriage requirements

A

3 requirements:

  1. Consent from both parties
    * Some states  participate in ceremony AND sought marriage benefits
    * Other states  parties consented to marriage obligations
  2. Marriage license
  3. Ceremony (judge or clergy)
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3
Q

common law marriage

A

 Live together for statutory period
 Legally able to marry
 Present agreement of marriage
 Hold out as married

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4
Q

bigamy
Equity doctrine
UDMA rule

A

Marriage not valid when one person still married UNLESS its saved under either
* Equity doctrine —> strong persumption that most recent marriage is valid (rebuttable if evidence that first marriage not resolved)
* UDMA —> marriage may be validated upon removal of previous impediment (ex. 1st marriage terminated)

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5
Q

premarital agreements
-general unenforcability factors
-UPAA unenforcability rule

A

Generally —> enforcable if no fraud, duress, coercion

 In writing & signed by both

 Full disclosure (property/finance obligations)

 Voluntary – look at:
* Presence of independent legal counsel
* Length of time between agreement and marrieage
* Sophisticaion of parties/ ability to understand agreement
* Presence of other pressing reasonas to proceed w/ marriage
* Other reasons for proceeding with marriage

 UPAA-Unenforcable if
* Involuntary OR
* Unconscionable at execution AND no full disc. prior to execution

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6
Q

UPAA rule on premarital agreements determining spousal support & intramarital agreements on PAs

A

UPAA —> valid unless it makes other spouse eligible for welfare/public support

NOTE —> agreements limiting spousal support during marriage generally void (against public policy)

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7
Q

spouse support during marriage

A

Courts cant intervene during a valid marriage to resolve disputes about support/finances/expenditures
 BUT spouse is liable to creditors who provide necessities (food/clothing/shelter/ (some states) medical expenses)

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8
Q

Jx for…
divorce
Econ/child/spouse support

A

 Divorce —> Plaintiff spouse has to be domiciled in state seeking divorce (look for duration statute) AND give notice to other spouse

 Economic/child/spousal support —> court must have PJ over D spouse

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9
Q

jx for child custody/kidnapping/adoption

A

 Court MUST have SMJ to issue/modify child cusotdy
* PJ or physical presence of party/child is NOT required

 UCCJEA/PKPA/adoption —> court has SMJ for child custody/parent kidnapping/adoption ONLY if it has:
* Home State Jx —> (a) child’s home state OR (b) where child lived with a parent for 6+ mos. immediately befofre action filed AND parent/acting parent is still present in the state
* Significant Connection Jx —> (1) no home state AND (2) kid and at least one parent has sig connection to state AND (3) substantial evidence in state exists
* Most Apprioriate Forum Jx —> all other courts decline jx bc this court is more appropriate
* Emergency jx —> child physically present AND abandoned or in an emergency
* No other state jx —> when no other state has jx

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10
Q

Jx to create child support order for first time

A

Need min contacts PJ with both resident and non resident parent

Usually not enough to conceive child in a state alone, need to avail yourself ot benefits of forum state

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11
Q

grounds for divorce

annulment
fraud
fault divorce
no fault divorce

A

Annulment grounds
 Lack of capacity (fraud, duress, mental incapacity)
 Bigamy
 Consanguinity
 Underage at time of marriage
o Fraud
 Misrepresentation prior to marriage about a material fact AND marriage would not have been consented to
* Usually not for character/financial situtation misrep
NOTE: wavided if continue to cohabitate

Divorce
 Cruel and inhuman treatment
 Adultery
 Abandonment for set amount of time
 Habitual drunkenness/drug addiction

No fault divorce - usually irreconcilable differences or separation for a statutory period

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12
Q

setting aside divorce or separation agreements

A

Divorce settlement
* Substantiall unfair AND
* fraud OR mediator misconduct

Separation agreement
* Unconscionable OR fraud

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13
Q

property division

separate property
MP
MP distribution & factors court considers
MP accrual (where does the MP line end?)
Professional license
Marital fault as a consideration (what is the one thing that can be considered?)
How to modify property division award after the fact?

A

Separate property
 Property acquired before marriage
 Gifts/bequests at any time
 Property sposes agreed was separate
 Passive appreciation of assets

MP
 Everything else
 Active appreciation caused by effort of spouse
 Future expectancies (even if not received until after marriage end)

MP distribution
 MP pooled and divided among spouses by court
 Factors a court will consider
* Marriage duration
* Age of spouses
* Earning capacity
* Lifestyle
* Income
* Separate property of each spouse

MP accural —> either upon permanent separation OR final divorce decree (depends on state)

Professional license
 Majority —> NOT MP but supprt from other spouse can be considered
 Min —> is MP, value of future potential earnings

Marital fault is usually irrelevant BUT economic misconduct is considered

Modificaiton of property division award —> NO unless fraud/duress

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14
Q

spousal support
UDMA general rule
Determining amount

A

UDMA
 Spouse lacks sufficient property AND unable to support herself (or has kid who needs care and cant work)

Determining amount
 Financial resources
 Time necessary to obtain job
 Standard of living during marriage
 Duration of marriage
 Age and physical/emotional condition
 Ability of spouse paying support
 Minority —> spousal misconduct

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15
Q

child support

Guidelines for support
College/edu support orders
Death

Modification
-general
-UDMA rule
-retro modifications
- child support modification Jx & Const. via UIFSA

A

Guidelines —> must account for all earnings and invome of non-custodial parent AND based on specific criteria

College/education —> Some states require it BUT paying parent can limit it if child does not follow reasonable parental instructions

Death —> CS terminates but estate has to pay for past due payments

modification
 general
* most states —> need substantial change in circumstances that make the arrangement UNREASONABLE going forward
* UMDA —> need substantial change in circumstances that make the arrangement UNSONSCIONABLE going forward
NOTE: some courts don’t allow modification if voluntary or anticipated, some allow if good faith

 retroactive
* FEDERAL LAW SAYS NO RETROACTIVE MODIFICAITONS OF SHILD SUPPORT

 Courts must give full faith and credit to CS orders – UIFSA
* original issuing court has exclusive and ongoing jx over the order UNLESS no one involved (parent(s) or child) live in original jx OR both parents agree to a new jx to modify

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16
Q

child custody and support considerations

A

THE BEST INTERESTS OF THE CHILD PREDOMINATE

FLIPDADS
 Financial ability of parents
 Lifestyle of parents
 Initial custory
 Primary Caregiver
 Desire of child
 Availability of parents
 Domestic Violence
 Siblings being separated

Parents
-financials
-lifestyle
-availability
-primary caregiverness
- initial custody taker
- domestic violence

Child’s
-wishes
- removal from siblings

17
Q

parental rights
visitation
constitutionality

A

Troxel – parents have a fundamental and constitutional right to control the upbringing of their child

Fit parents are presumed to be acting in the best interests of their child

Court only grants 3rd party custody if special circumstances (detrimental) —> abuse, neglect, abandonment, mentally incompetent, parent surrendered child

If statute/court explicitly allows child living with or seeing someone without taking into account the parents wishes at all, its struck down

18
Q

o Rights of unmarried co habitants

A

you can make an agreement but cant be based on sex (express/implied if comingled funds)

19
Q

Who’s kids are the Illegit kids out of wedlock

A

treated at least as a child of the mother, to be treated as father’s kid father must:
 Marry mother OR hold himself out as father

20
Q

what will parents lose if they try to challenge the state on it?

A

Parents cant challenge state police powers (ex. vaccines) or other shit like that

21
Q

spousal money management power over the other

A

o Spouses have no management power over the other’s money (except necessities)

22
Q

do courts get involved in ice skating lessons?

A

o Courts don’t get involved in ice skating lessons

23
Q

Preventing medical treatment

A

 Life saving care —> religion wont help you, the state will step it, best interests of child
 Elective procedures —> usually ok

24
Q

adoption
state putative father registry
when do fathers have rights?

A

an involved parent who demonstrates a “full commitment to the responsibilities of parenthood” will likely be able to successfully oppose an adoption petition by another and is entitled to notice of such proceedings

If state has putative father registry and father doesn’t register —> may not have const. right to be notified

Generally, biological fathers have rights. However,the state may make the parent exercise his rights within a specific time (e.g., two years)

25
Q

Artifical insemination

A

 If mother does AI w/ consent from husband, her husband is father
 AI donator cant claim fatherhood

26
Q

mediator bias

A

o Mediators must disclose bias

27
Q

how to determine relocation of child is allowed if one parent wants to move out of state or wherever?

A

good faith + best interests of child analysis = usually approved

28
Q

valid reasons for child custody/support modifications

A

custody: only if theres a substantial change in circumstances (usually unforeseen at time of judgment)

support: substantial change in circumstances that makes hte proper order unreasonable

YOU CAN NEVER RETROACTIVELY MODIFY CHILD SUPPORT

29
Q

property division based on premarital agreement will be enforced so long as it’s…
- …general rule

  • UPAA rule - courts will enforce PA unless it was
A

will be enforced so long as its…

-general rule
vuluntary made,
substantively fair,
and full disclosure of assets/obligations

-UPAA
- not voluntary OR
- Unconscionable at execution AND lack of disclosure

family law (1 decks)

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