KNS - Family Law Flashcards
(132 cards)
1
Q
1 - Breach of the promise to marry is rare today in most states. In those states where it exists, what does it provide?
A
Breach of the promise to marry provides for tort damages including actual damages (like loss of deposits or purchases for the wedding), as well as loss to reputation and mental anguish. Punitive damages may also be available.
2
Q
2 - What is the gifts in contemplation of marriage rule?
A
Gifts made conditioned on the subsequent marriage, like engagement rings, are null and must be returned if the marriage fails to take place.
- If you receive a Q on this, consider the type of property given, the conditions attached, and the intent of the donor.
3
Q
3 - Premarital Agreements - Have been tested four times in the last 20 questions -
Many states have adopted the Uniform Premarital Agreements Act (UPAA). What does this allow?
A
The Uniform Premarital Agreements Act allows parties to make agreements about property and alimony in the even of death or divorce. AKA prenup agreements.
4
Q
4 What can a party agree to in a premarital agreement?
A
Parties can agree to the disposition of property at divorce and to alimony. Generally, waiver of alimony in a prenup agreement will be upheld unless doing so will cause disadvantaged spouse to become a public charge.
5
Q
5 - Are courts bound by the provisions in a premarital agreement regarding children?
A
No - courts cannot be bound by provisions in the agreement regarding children (think child custody and child support)
6
Q
6 - What are the requirements for validity of a premarital agreement? There are three - AND THIS IS OFTEN TESTED
A
A premarital agreement must -
- Must be in writing and signed
- Must be entered into voluntarily (without fraud, duress, or overreaching) and
- Must include full disclosure of assets or there is proof that party had independent knowledge of the assets. The idea is that the party needs to know what they are waiving.
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Q
7 What must occur for a court to reach the question of whether there was a full disclosure of assets in the prenuptial agreement?
A
Under the UPAA, the court must determine first that the agreement was unconscionable when executed AND THEN whether there was a fair disclosure of assets or independent knowledge of the assets.
Therefore, IF THE COURT DOES NOT FIND A PREMARITAL agreement unconscionable, then court doesn’t even reach the question of whether there was a full idsclosure of assets.
8
Q
8 What else do some courts consider in regard to premarital agreements?
A
Some courts will consider general fairness to the parties and whether the parties were represented by independent counsel.
- Note - if you see facts that only one party had a lawyer or one party’s counsel drafted the agreement, and there were oppressive conditions in it, talk about it in your analysis. - courts tend to focus on general fairness and whether a party was at least afforded a lawyer to look at the agreement before being asked to sign.
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Q
9 - With premarital agreements, what state law applies?
A
the parties can agree on the state law to apply and if they do not, the law of the state with the most significant relationship to the parties and the transaction OR the law where the agreement was executed will apply.
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Q
10 - Marriage - what are the requirements of a marriage? - there are four.
- Note - marriage requirements have not been specifically tested in the last 20Qs but you need to know the requriements because they come up in annulment of marriage which often is tested.
A
Requirements of a marriage -
- license
- ceremony with authorized officiant
- no legal impediments to marriage
- capacity to consent
11
Q
11 - Requirements of Marriage - #1 - license - what are the specific requirements regarding the license?
A
License -
- Some states require a medical certificate showing no disease.
- Most states provide a 72 hour waiting period after the application before the ceremony can take place.
NOTE - FAILURE OT MEET procedural requirements of a license will NOT invalidate the marriage. In the event there is a defect in the license and that the parties remain married for a period of time, states have determined they don’t want to invalidate marriages that were entered into, just because of an issue with the license. So failure in licensing requirements generally will not render a marriage invalid.
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Q
12 - Requirements of Marriage - #2 - Ceremony with authorized officiant. What are the requirements for this?
A
States vary in people authorized to perform marriage ceremonies. Typically judges, religious personnel, etc.
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Q
13 - Requirements to Marriage - #3 - No legal impediments to marry - what is included with this?
A
No legal impediments to marriage allowed -
- Too closely related -
a. Cannot marry grandparents, parents, children, grandchildren, siblings, aunt/uncle, nice/nephew, whether by whole or half blood.
b. Many states prohibit marriages between those related by marriage, step-relations, or adoption.
c. Marriage between first cousins is permitted in some states. - Another legal impediment to marraige is being married to someone else already.
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Q
14 - Requirements to Marraige - #4 - Capacity to consent. What does this mean?
A
Capacity to Consent -
- Capacity - must have the mental ability to consent at the time of the ceremony - so you look at THAT moment in time.
a. consider someone under the influence of alcohol or drugs or mentally handicapped - they may lack consent to enter into a valid marriage. - Age - must be of the age of majority, generally, 18. parental (16-17) or judicial consent (under 16) required for underage marriage.
15
Q
15 - Common Law Marriage - has been tested on 3 of the last 20 Qs.
What are the three requirements for a valid common law marraige?
A
the three requirements for a common law marriage -
- Consent to marriage (not just to cohabit)
- Cohabitation
- HOlding yourself out publicly as spouses
16
Q
16 - common law marriage requirements - one of them is consent to marry. What does this entail?
A
Parties have to actually say we want to be married and you need the capacity to consent and no legal impediments to wed.
17
Q
17 - Common law marriage requirements - one of them is holding yourself out publicly as spouses. What does this mean?
A
Look for facts like wehther they call themselves Mr and Mrs, whether they file tax returns as married filing, whether they have health insurance together, also look for legal docs and wehther the community considers them to be married.
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Q
19 - Marriage by estoppel or putative marriage - what is it?
A
Marriage by estoppel or putative marriage is an equitable remedy that may be given by some courts to the innocent party who acted in good faith when entering an invalid marriage.
- in some states, the putative spouse can acquire all the rights of a legal spouse.
Classic example - when a party enters into a marriage with someone who is still married ot someone else and they found out years later their spouse is married to someone else.
19
Q
20 Rights and Responsibilities Among Spouses - Property
Is title dispositive in equitable division of property upon divorce?
A
Each spouse owns and controls his or her own property but in the event of divorce, title will not be dispositive in the equitable division of property. It could be that one spouse has titled every piece of property that was acquired during marriage in his name. At the time of divorce, that doesn’t mean he gets everything.
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Q
21 Property rights and responsibilities among spouses - what happens if spouses take title to real estate in their joint names?
A
Generally, if spouses take title to real estate in their joint names, a tenancy by the entireties is presumed and therefore one spouse cannot convey or encumber the property without the consent of the other spouse.
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Q
22 - Rights and responsibilities among spouses - support - what type of support do spouses owe during marriage?
A
during marriage, spouses owe support to one another.
22
Q
23 - what is the doctrine of necessaries?
A
The doctrine of necessaries can be used to make one spouse liable to third parties for the other spouse’s purchases for necessary expenses, such as food, clothing, and health care.
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Q
24 - Spousal Abuse - Laws in every state protect victims of domestic abuse both in and outside of marriage.
What is a victim of abuse entitled to?
A
The victim is entitled to a protective order against the other spouse which can be granted ex parte (without notice) and can last for one month to several years depending on the jurisdiction. Typically, the ex parte order lasts for a short period of time and then notice is given to the other spouse. The other spouse can then come into court and refute the allegations.
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Q
25 - What is a claim of tortious interference?
A
A lot of states have eliminated these claims.
These are claims against a third party. Claim is that the third party came into the marital relationship and committed a tort that affected the marital relationship.
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#26 - What is the first type of tortious interference claim?
1. Alienation of Affection - with this claim, adultery is not a requirement.
Requirements -
a. genuine love and affection between spouses who are validly married (and proving this love and affection is not hard)
b. love and affection was alienated and/or destroyed.
c. defendant's acts caused the loss of love and affection - most difficult to prove.
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#27 What is the second type of tortious interference claim?
Criminal conversion -
Requirements -
a. Marriage of the spouses
b. adultery between the defendant and the spouse during marriage
c. Damages are the same as the alienation claim.
Note - in most cases where adultery is present, litigants bring both alienation of affection claims and criminal conversion claim in the same suit. Cannot double up on damages, but they do provide two avenues of relief.
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#28 - annulment - has been tested twice in last 20 questions -
What is an annulment?
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An annulment is a declaration that a marriage is invalid.
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#29 - When is an annulment available?
An annulment is available for defective marriages taht are legally void or voidable - AND THERE IS a big distrinction between a VOID marriage and a voidable one.
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#30 - what is a void marriage?
Void marriage -
1. fails to meet essential requriements, so invalid - in this case, people don't even actually need to bring legal action because they are not married but most parties do because they want the court to decide matters like property division.
2. can be attacked by one of the parties or collaterally by a third party
3. may or may not be remedied by continued habitation after removal of impediment to the marriage.
- UMDA and some states permit the marriage to be valid after removal of the impediment. For example, after the death of a prior spouse, a void marriage can be validated.
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#31 - What are some common examples of why a marriage would be void?
bigamy and too closely related.
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#32 - What is voidable marriage?
Voidable marriage -
1. event or condition affecting adequacy of consent to marriage contract - like age, or drunk, or mentally incapacitated, etc.
2. Treated as valid marriage until annulled
3. can be attacked only by or on behalf of a party to the marriage (so no third party attacks) and in some cases only by the party who is sought to be protected - AKA the person missing consent.
4. Marriage can be ratified by continued cohabitation after removal of infirmity - like drunk spouse sobers up and they live together as married - they have ratified the marriage and cannot seek to have it annulled.
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#33 - What are some examples of voidable marriage?
nonage, incurable physical impotence, lack of capacity, duress, fraud - BUT FRAUD must affect an essential element of marriage to count (like you said you were pregnant with their baby but you knew it was another mans).
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#34 - Jason and Meg married after a whirlwind courtship while both were taking the bar review course. At the wedding, Meg was so drunk, she could barely stand up. Two weeks later, meg learns Jason is still married and left his wife back in state A. Can the marriage but annulled, and if so, by whom and on what basis.
Meg can seek an annulment because the marriage is void because Jason is still married, and it is voidable because she was drunk (no capacity) at the ceremony (note that she may have ratified after she sobered up and held herself out as married) but she and jason can still seek annulment because the marraige is void.
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#36 - What are the five effects of annulment?
1. the marriage is set aside as if it never existed
2. children remain legitimate
3. child support can be awarded
4. spousal support can be awarded, but not in all states.
5. property generally treated as if never married; put spouses in "premarital" state.
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#37 - Divorce and separation - has been tested 2 of the last 20 times -
Who has jurisdiction over a divorce?
Jurisdiction over divorce
1. One of the spouses must be domiciled (residence and intent to remain) in the state seeking to enter the divorce.
2. Generally, if a spouse is a resident of the state for a minimum period of time (90 days to 6 months), then there is a presumption he is domiciled there and the court will have jurisdiction.
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#38 - Who has jurisdiction over financial matters in a divorce?
Compare jurisdiction for a divorce (where court only needs domicile over one party) to jurisdiction over determining financial issues (like property rights and support). For financial issues relating to divorce, the court must have personal jurisdiction over BOTH parties.
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#40 - grounds for divorce
1. No fault divorce - what is it?
No fault divorce -
1. allows for dissolution of marriage without regard to marital fault.
2. generally, can be allowed on proof of
a. irreconcilable differences - this type of divorce may require agreement of the spouses to get divorced.
b. living separate and apart for a specified time period is another type of no fault divorce.
- if the spouses agree, it is generally for a shorter period
- if it is unilateral no-fault and only one party wants a divorce, that time can be longer.
c. incompatibility - party alleges incompatibility
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#41 - grounds for divorce
2. fault divorce - what is it?
Fault divorce - very fact driven -
1. Adultery -
a. often proven by circumstantial evidence of OPPORTUNITY and INCLINATION - these are the two prongs of the test for adultery.
2. Desertion for a specified time - unjustifiable departure from the marital home for a specified period of time with no intent to return.
3. Cruelty (physical or mental)
4. Habitual drunkenness or abuse of drugs commencing after marriage
5. insanity (may require that the spouse was institutionalized).
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#42 - What are the defenses to divorce for no fault divorces?
For no fault divorces, defenses are generally unavailable, but one spouse can claim reconciliation to restart the time clock for living separate and apart.
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#43 - What are the defenses for divorce on fault based grounds?
The defenses for fault based grounds are rarely used, but still exist.
1. Collusion - The parties agreed to simulate the grounds for divorce - example - the parties say we both committed adultery to get divorced quickly, but then one party changes his mind and asserts this as a defense.
2. Connivance - the plaintiff willingly consented to the other spouse's conduct - think swingers couples
3. Condonation - the plaintiff forgave the martial offense with full knowledge of the offense (generally, requires sex after forgiveness).
4. Recrimination - the plaintiff is also guilty of marital fault (doctrine of unclean hands). Idea is the plaintiff seeking a divorce on FAULT grounds cannot get a divorce on fault grounds because they are also at fault.
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#44 - Some states have legal separation. When is legal separation permitted?
Legal separation is often permitted for the same grounds as divorce.
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#45 - What are the effects of legal separation?
1. parties are still married
| 2. parties can seek to have their rights regarding property, spousal support, child custody, and child support decided.
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#46 - what may the court do with property in legal separation?
the court may permanently divide marital property when legal separation is granted. If so, after acquired property is separate property. If there is no final property division at the time of legal separation, property will be divided when (and if) divorce is granted.
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#47 - why would people choose legal separation over divorce?
religious reasons, elderly people, or to keep marriage status for insurance or tax benefits.
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#48 - PROPERTY DIVISION - GETS tested 50% of the time!
What are the three main approaches to dividing property at divorce?
The three main approaches to dividing property at divorce are - community property states, equitable division of all property owned by either spouse, and equitable division of marital property.
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#49 - What happens in community property states?
In community property states, all property acquired during marriage is owned one half by each spouse and property owned before marriage is separate.
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#50 - what happens in states that follow the equitable division of all property owned by either spouse?
court equitably divides ALL property owned by either spouse, whether the property was marital or separate.
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#51 - what happens in states that follow the equitable division of marital property? (Most popular approach)
Each spouse takes her separate property and the property acquired during marriage is divided equitably.
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#52 - Are property distribution decrees modifiable?
No, property distribution decrees are not modifiable, however, SUPPORT AWARDS are.
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#53 - What is the typical two step process in property division for the most popular approach?
1. Classification - classify property as either marital property or separate property.
2. Division - make an equitable division of the marital estate no matter how the property is titled.
* ** Note - equitable division does not necessarily mean equal. It may be, but it does not have to be.
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#54 - What is included in separate property? LONG LIST but you need to know.
Separate Property -
1. All real and personal property owned by a spouse BEFORE marriage, including assets held in individual retirement accounts.
2. Property acquired by a spouse at any time by gift, bequest, devise, or decent.
3. property acquired in exchange for property acquired before the marriage. So if they spouse had separate funds he bought a house with during marriage, the house is his separate property.
4. income from and appreciation of separate property (but see special issues in property division below)
5. pain and suffering awards, victim of crime compensation awards, future medical expenses, and future lost wages, and
6. Property acquired by a spouse after an order of legal separation where the court has made a final disposition of property.
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#55 - What is included in marital property?
Marital property includes
1. all property acquired by either or both spouses during marriage up to the final divorce decree (some jurisdictions use the date of separation or the date of filing for divorce)
2. includes value of vested and unvested pension, vested and unvested stock option rights, retirement or other fringe benefit rights relating to employment that accrued during the period of marriage.
3. includes recovery in personal injury, workers comp, social security disability, and other similar actions for WAGES lost during the marriage, reimbursement of medical bills incurred and paid with marital property, and property damage to marital property.
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#56 - What are some special issues in classification of property?
Commingling, transmutation of separate property, improvement of separate property, property acquired before marriage but paid for after marriage, pensions, professional license or degree, tax consequences
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#57 - What is commingling?
Commingling - separate property can become marital if the property is inextricably intertwined. Courts will attempt to trace property but if they cannot, if becomes marital property.
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#58 - What is transmutation of separate property?
Transmutation of special property - separate property can become marital property based on the intent of the parties. For example, husband uses 10k of his separate property as a down payment on a home for him and his wife titled in both their names. There can be a presumption of gift based on joint title (in most states) and the 10k would be classified as marital property).
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#59 - What is improvement of separate property and what happens if it is improved?
Improvement of separate property - when separate property is improved by the use of marital funds or the efforts of either spouse, courts in most jurisdictions will grant the marital estate or non-owning spouse reimbursement for the value added.
Example - husband inherits a piece of property worth 1k during the marriage. If husband's labor improved the property and the improvements caused an increase in value OR if marital funds were used to improve the estate (even if wife did not participate), the increase due to husband's effort would be marital.
BUT - if neither spouse ever visited the property and the property had increased in value because an interstate exit was planned nearby, etc, then the increase in value would remain separate because the increase was due to market factors, not the contribution of either spouse.
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#60 - What happens with property acquired before marriage but paid for after marriage?
Courts are split. Majority view seems to be that property should be apportioned between separate and marital estates in proportion to the contribution of separate and marital funds to pay for the property.
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#61 - are pensions marital or separate property?
Pensions are considered to be marital property subject to division even if the non-working spouse did not contribute.
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#62 - Note - courts use different formulas to calculate the share of the pension that was earned by the party during the marriage and the amount will be subject to division.
Example -
Greg and Sue both work throughout the marriage for the same company, which puts 4% of each employee's income into a 401k plan that was started the year after they married. Greg makes much more money than Sue. He has 40k in his and she has 8k in hers. How will the court divide each interest, if at all?
WIth all things being equal, it will add the 40k and the 8k and divide it up, giving each spouse 24k. even though greg makes more money, he will not receive more in division.
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#63 - is a professional license marital property or separate property?
A professional license or degree is NOT considered to be marital property subject to division. However, to avoid unfairness, some jurisdictions consider it when awarding alimony.
*** a minority of jdx value the degree then award more property or alimony to the other spouse based on the valuation.
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#64 - is property division in divorce a taxable event?
No
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Equitable division - Once the court identifies and values the marital property, the court will make an equitable division - not necessarily equal. Remember, the court's division of the property is not subject to modification once the divorce is final. What are the factors to consider when making equitable divisions of marital property?
1. Age, education, background, and earning capabilities of both parties.
2. duration of the marriage, and if there were any prior marriages
3. standard of living during the marriage
4. present income of both of the parties and their vocational skills and employability
5. source of money used to purchase the property
6. health of the parties
7. assets, debts, and liabilities of the parties
8. needs of the parties
9. provisions for the custody of minor children
10. whether distribution is in lieu of or in addition to alimony
11. each party's opportunity to acquire future income and assets
12. each party's contribution to the acquisition of, or enhancement of the existing marital assets
13. each party's contribution as homemaker to the family unit and
14. whether each party has dissapated marital property (economic fault)
Note - marital fault is generally not a consideration but can be.
Also note - court can divide the property in kind of by contribution.
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#66 - Alimony - gets tested often -
Who receives alimony?
alimony is paid to the economically dependent spouse.
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#67 - how many types of alimony are there? Can a court award more than one?
There are four types of alimony. Courts can award more than one type.
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#68 - is alimony popular now?
There is a trend to award less money now with alimony than in the past because of the 2 earning households and less economic dependence.
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#69 - how much discretion does the trial court have when awarding support?
A LOT
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#70 - Alimony -
What is permanent periodic support alimony?
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permanent periodic support alimony
1. Example - periodic alimony of 2k per month to wife until her death or remarriage.
2. duration - indefinite
3. modification - can be increased, decreased, or terminated upon proof of substantial change of circumstances.
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#71 - Alimony
What is lump sum support?
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Lump sum support -
1. example - the sum of 36k paid at a rate of 1k per month for 36 months
2. duration - for a specified time period; can be payable in installments or in a lump sum.
3. modification - none- treated like a contract right, binding on payor's estate, even if they die.
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#72 - Alimony -
What is rehabiliitative support?
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rehab support -
1. example - rehab alimony to wife of 1k per month for 36 months to gain education or skills.
2. duration - for specified time period, unless modified by court
3. modification - can be incresed, decreased, terminated upon proof of substantial change of circusmtnaces.
Note - designed to restore disadvantaged spouse's earning capacity ot the point that he/she is no longer economically disadvantaged relative to the other spooiuse.
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#73 - alimony - what is reimbursement support?
Reimbursement support -
1. example - the sum of 20k as reapyment for the supporting spouse's contribution to the increased education provided to the other spouse.
2. duration - for specified period of time, can be payable in installments or in a lump sum.
3. modification - none treated as a contract right an can be awarded even if the supporting spouse is not otherwise eligible for spousal support.
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#74 - what factors should be considered when awarding alimony?
1. the standard of living established during the marriage.
2. the duration of the marriage.
3. the age and physical and emotional conditions of both parties
4. the financial resources of each party. consider marital property, separate property, and wehther the party will receive child support.
5. the contribution of each party to the marriage, including, but not limited to, services rendered in homemaking, childcare, education, and career building of the other party.
6. the time needed to obtain education or training to enable either party to find appropriate employment where applicable (important factor in rehab award consideration)
7. The ability of the payor spouse to meet his needs and pay support.
8. in some jurisdictions, court may consider marital fault - majority rule is that fault can matter with alimony but generally doesnt matter with property division.
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#75 - what are the two primary considerations when awarding alimony?
The two primary considerations when awarding alimony are the NEED of the claimant spouse and the ability of the other spouse to pay.
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#76 - After 22 years of marriage, parties divorce due to husband's adultery. he earns over 60k per year. wife has been a homemaker, but recenly got her bachelor's degree and began a job as a teaching assistant making 22k a year. She wants to get her master's degree so she can make more money. What should the court consider in awarding support? What type, what amount, what duration?
Rehab to get master's degree, consider permanent periodic or lump sum because of the length of the marriage and contributions as a homemaker.
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#77 - modification of spousal support -
1. is spousal support modifiable? When?
Spousal support is modifiable based on substantial and continuing change in circumstances affecting the needs of the recipient spouse or the ability of the other spouse to pay. Some states use the word "material" in addition or in place of "substantial"
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#78 -
Will a voluntary reduction in income be sufficient to reduce the obligation (i.e. leaving the job or incarceration)?
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It varies, but generally, a voluntary reduction in income will not be sufficient to reduce the obligation. It varies, but some courts will consider new legal obligations to another spouse or children in modifying spousal support.
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#79 - in what three situations can spousal support terminate?
1. PERIODIC PAYMENTS generally terminate:
1. remarriage of the recipient
2. death of either spouse
3. in some jdx, on the cohabitation with another person
Note - lump sum awards survive death and are not modifiable
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#80 - What are the tax consequences of spousal support? Need to know
1. post 2019, spousal support payments are not income to the recipeint or deductible by the payor.
2. for divorce decrees entered and separattion agreements executed before 2019, spousal support payments are deductibel by the payor and are income to the recipient unless the instrument is modified to comport with the new rule.
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#82 - when is a separation agreement entered into?
A separation agreement is entered into after marriage and it is enforceable if supported by consideration - AKA give and take by both parties.
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#83 - in what ways is a separation like a premarital agreement?
Just like premarital agreements, there must be full and fair disclosure and the agreement must be entered into voluntarily.
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#84 - Can parties waive alimony or property division in a separation agreement?
In a separation agreement, parties can waive alimony or property division.
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#85 - Can parties agree on custody and child support in a separation agreement?
Yes, unlike in a prenup agreement, parties can agree on custody and child support in a separation agreement BUT the court is not bound by the parties' constract concerning children.
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#86 - Can you make modifications to a separation agreement?
It depends on if the separation agreement merged into the divorce decree or not.
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#87 - What happens if the separation agreement merged into the divorce decree?
#87 - if the divorce decree includes the terms of the separation agreement or expressly merges the terms of the separation agreement, the provisions become part of a court order. It is modifiable by the court and subject to contempt.
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#88 - What happens if the separation agreement does not merge into the divorce decree?
If the separation agreement does not merge into the divorce decree, AKA if the parties do not submit the agreement to the court, the contract is nonmodifiable and is enforceable only by contract remedies.
BUT NOTE - child support and custody can always be modified if in the best interest of the child.
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#89 Rights of Unmarried Persons -
Are contracts between cohabitants valid?
Contracts between cohabitants are valid unless sexual relations is the only consideration (giving up a career or taking care of the home can be enough consideration).
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#90 - In a contract between cohabitants, will express contracts regarding earnings and property rights be enforced?
In a contract between cohabitants, express contracts regarding earnings and property rights will generally be enforced.
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#91 - what about implied contracts?
Implied contracts (partnership or constructive trust) may be used to award support.
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#91 - Child support -
What duties do parents owe to their children?
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Both parents share equally the duty to support their children based on the child's need and the ability of the parent to pay. An agreement by parents that does not meet the needs of the child will not be enforced by the court.
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#92 - how much discretion do courts have when deciding how much child support to award?
Courts have less discretion because of the proliferation of child support guidelines.
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#93 - Which approach to child support do most jurisdictions follow?
MOst jurisdictions follow the income shares approach, which considers the number of children and the income of the parents to determine a base line of child support.
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#94 - with child support, what discretion does the court have?
The court has discretion to add amounts for health insurance and other extraordinary education expenses. Courts can also deviate from the guidelines if it is in the best interest of the child.
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#95 - How are child support and visitation tied together?
Child support and visitation are not tied together. Child support is paid independent of visitation.
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#96 - how long does child support last?
Generally, until the age of majority OR,
- death of the child
- emancipation of the child
- Termination of parental rights
NOTE - some states will allow child support to continue past 18 if child still in high school until some age or completion of education.
NOTE ALSO - most states will not extend child support to pay for college unless agreed on by the parties or provided by statute.
ALSO NOTE - support may continue for some longer period if the child is disabled.
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#97 - What is the Uniform Interstate Family Support Act (UIFSA)?
UIFSA has been adopted by all 50 states and DC to simplify the collection of child support when the parties move out of state.
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#98 - Under UIFSA, who has jdx to issue child support orders?
Under UIFSA
- Jurisdication is proper where the first petition under UIFSA is filed.
- Another state can only exercise jdx if:
a. the second petition is filed before the time to answer the first has expired.
b. the petitioner objected to jdx in the first action
c. The second state is the child's home state.
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#99 - Under UIFSA, who has jdx to enforce child support orders?
Under UIFSA - the issuing court has continuing jdx to enforce.
Another state can enforce by:
a. direct enforcement - obligee mails the order to the obligor's employer in another state and the employer can withold wages.
b. registration - child support order is registered in antoher state and is then subject to enforcement in that state.
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#100 - How does full faith and credit work under UIFSA?
Under UIFSA and federal law, states are required to give full faith and credit to child support awards from other states.
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#101 - under uifsa, who has jdx to modify child support orders?
1. once the court enters a valid child support order it maintains exclusive continuing jdx during the life of the order unless no parties reside in the issuing state or the parties consent to another state's jdx.
2. federal law, just like UIFSA, prohibits modification of child support orders by courts without continuind exclusive jdx unless no party resides in the issuing state or the parties consent to allow jdx.
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#102 - when can child support orders be modified?
1. child support is modifiable based on a SUBSTANTIAL and continuing change of circumstance affecting the needs of the child or the ability of the parents to pay.
2. like spousal support, a voluntary reduction in income will not be a ground for modification. Additionally, past due child support cannot be modified and is not a basis for prospective modification.
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#104 - What are the tax consequences of child support orders?
Child support payments are not income to the recipient nor deductible by the taxpayer.
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#105 - How is child support award enforced?
Child support can be enforced through traditional civil and criminal contempt proceedings.
- as a result of federal legislation, parties may seize property, use wage withholding, intercept tax refunds, and revoke licenses to enforce child support payments.
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#106 - Child Custody -
Interstate custody and jdx - the uniform child custody enforcement act (UCCJEA) applies to interstate custody disputes.
UCCJEA applies to interstate custody disputes -
Initial award of custody
1. Primary test - Home State
Either:
a. state where child has lived with parent for at least 6 consecutive months, or
b. state 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.
Example - husband and wife married in oregon and had one child. Upon separation, wife takes child to CA to live with her parents. For the first 6 months of her absence, OR is the home state.
2. IF THERE IS NO HOME STATE, a court can assume jdx if the child has a SIGNIFICANT CONNECTIon with the state and there is substantial evidence of the child's well being in the state.
3. if state with home state or significant connection jdx declines, a state can assume deferred jdx.
4. if no other state exercises jdx, any state can by default.
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#107 - modification of an existing child custody decree under the UCCJEA -
Modification of Existing Decree Under the UCCJEA -
The issuing state exercises continuing, exclusive jdx unless
1. no child or parent continues to reside in the state
OR
2. the child no longer has a significant connection with the state and there is no substantial evidence in the state.
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#108 - Declining jdx under the UCCJEA
A court may not exercise jdx if
a. a property proceeding was already pending elsewhere when petition is filed, unless the other court defers
OR
b. the person seeking to invoke the court's jdx has engaged in unjustifiable conudct.
2. a court may decline to exercise jdx if it determines it is an inconvenient forum.
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#109 - Temporary Emergency JDX under the UCCJEA -
Temporary emergency jdx -
1. requirements -
a. child is physically present and
b. the child has been abandoned OR
c. it is necessary to protect child because child, sibling, or parent subject to abuse.
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#110 - Child Custody generally -
What does child custody mean?
Custody is an umbrella term that includes legal and physical custody.
1. legal custody includes the rights to make decisions regarding the child.
2. physical custody includes the possession and control of the child.
*** In any custody or visitation case, the hallmark consideration is best interests of the child (BIOC)
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#111 - What factors do courts consider with child custody?
It varies by jdx but generally these include:
1. the wishes of the parents (constitutionally protected)
2. the preference of the child
a. children under the age of 8 are generally not considered but over the age of 12 are given great weight.
b. questioning generally occurs in chambers.
3. the relationship of the child with the parents and siblings and others involved with the parents
4. the child's adjustment to home, school, and community.
5. the mental and physical health of the parties
6. parent who was the primary caregiver (but no gender preferences)
****** Trial court is vested with a great deal of discretion to determine custody and visitation.
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#112 - What is joint custody with child custody? Is it preferred? When will it not be awarded? What other factors are considered?
Joint child custody - can mean joint legal, physical, or both. Joint custody is intended to promote the involvement of both parents int he child's life.
In most jdx, it is encouraged and will be awarded if parents agree.
If parents are openly hostile or unable to communicate, courts will not award joint custody.
Courts consider a myriad of factors (mentioned above in last flashcard) and also consider geographic proximity, ability to communicate, and whether the parents agree.
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#113 - what is sole custody? When is it awarded?
Sole custody - can be awarded to one parent when strong evidence demonstrates that it is in the best interest of the child. The other parent will be entitled to reasonable visitation unless harm to the child will result.
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#114 - Custody to a nonparent -
Custody to a nonparent - becasue of the consitutional protections afforded
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#114 - Custody to a nonparent -
Custody to a nonparent - becasue of the consitutional protections afforded a parent, in a custody dispute between a parent and nonparent the standard is not simply the best interest of the child.
- the parent is entitled to custody unless the nonparent can show harm to the child or unfitness (i.e. abandonment, neglect, abuse, surrendered custody)
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#114 - parental visitation
absolute denial of visitation to a parent is rare. Courts may deny and will restrict visitation (ex: supervised visitation) if injury to the child may result.
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#115 - nonparental visitation -
every state has a statute that allows third parties, generally grandparents, to seek visitation.
- nonparent visitation generally applies in some extraordinary circumstances such as divorce, separation, or death.
- SCOTUS in Troxel found that if a parent is fit, his or her wishes on nonparental visitation are constitutionally protected and must be given special weight.
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#116 - modification of custody
- generally brought by motion of a party or the court in the orignal action. The party seeking the modification bears the burden of proof.
STANDARD - whether custody or visitation issue, modification requires SUBSTANTIAL AND MATERIAL change of circumstances affecting the child's well being since prior determination of custody.
Overriding concern - best interest of the child.
Note - states generally require a certain amount of time (1 or 2 years) to elapse since entry of the order, unless the child's present environment is harmful to the child).
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#118 - relocation - Many states have statutes to address the relocation of the primary residence of the child. Statutes generally require notice to the other parent and a court hearing to determine whether relocation is permitted. When deciding if relocation is permitted, what factors does a court look at?
To determine relocation, courts will consider whether relocation is
- in the child's best interest
- is motivated by a benefit to the family,
and
- is not intended to thwart the relationship with the other parent.
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#119 - How are violations of custody and visitation enforced?
Violations of custody and visitation can be enforced through civil contempt proceedings.
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#120 - in what situations can state habeas corpus proceeidngs be used in child visitation?
this remedy is limited to physical custody of the child.
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#121 - what is a suit in equity with child custody?
This remedy asks the court to enjoin conduct in violation of the custody order.
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#122 - when will an out of state decree regarding child custody be enforced?
WIll be enforced if a certified copy is filed with the clerk of the court. Will not remove continuing exclusive jdx of another state but will allow enforcement of the order in the state.
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#124 - What type of scrutiny applies when it comes to nonmarital children?
Over the years, children born out of wedlock have received more constitutional protections. Intermediate scrutiny applies in an equal protection analysis.
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#125 - What is a parentage action?
A parentage action can be brought to establish a biological relationship and settle issues of paternity. Once parentage is established, the parent owes support and has rights of custody and visitation.
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#126 - when is there a presumption of parentage?
The husband of the mother is presumed to be the father if
| 1. the child is born
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#126 - when is there a presumption of parentage?
The husband of the mother is presumed to be the father if
1. the child is born during the marriage
2. the child is born within 300 days of termination of the marriage OR
3. the child is born during a void or voidable marriage.
Note - this presumption can be rebutted but it requires heightened proof (generally clear and convincing). In some cases, however, even if the husband can prove he is not the biological father of the child, many states prohibit disestablishment of paternity based on the best interest of the child.
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#127 - when can a child be considered the child of an unwed father?
If:
1. after the birth of the child, the father marries the mother
2. the father holds the child out as his biological child
3. the father consents to his name on the birth certificate
4. the father acknowledges paternity (usually requries formality)
5. there is a judgment decreeing paternity.
Unwed Fathers will be protected by the due process clause and can have rights to custody of their child IF they demosntarte parental responsiblity.
Unwed fathers may be precluded from tort recovery for the death of a child he did not legally recognize.
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#128 - what is a paternity suit?
A paternity suit is generally used by an unwed mother to obtain child support from the father. Once paternity is established, the father can assert rights of custody and visitation.
- statute of limitation is tolled during the minority of the child, so will last at least until the child reaches 18.
- level of proof varies - can be C&C or preponderance
- blood or tissue sampling is the superior method of establishing paternity but testimonial and other medical evidence has been sufficient.
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#129 -
May parents voluntarily relinquish parental rights?
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Yes - parents may voluntarily relinquish all rights to their children (often done in preparation for adoption)
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#130 - when may parents rights be involuntarily terminated?
The state may not interfere in family decision making unless the decision endangers the well being of the child.
The state may seek to terminate parental rights for:
1. infliction of serious physical harm on the child or other children in the hosuehold
2. abandonment
3. neglect or deprivation
4. failure to provide support for the child without cause for a specified time period (usually one year)
5. mental health of the parent that results in inability to care for the child.
6. parental unfitness - can be physical or psychological.
Note - generally, parents cannot seek to terminate the rights of the other parent.
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#131 - Adoption - what are the two types of adoption?
1. agency adoption - licensed adoption agencies act as intermediaries.
2. private adoption - private persons act as intermediaries to arrange adoption.
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#132 - What are requirements for adoption? First is termination of biological parents rights and second is the creation of new parent rights.
What does termination of biological parents rights mean?
1. termination of biological parents rights
a. consent of the biological parents required unless:
- rights were already terminated
- if reasonably withheld against the best interest of the child.
b. consent of unmarried father -
- required if father is actively involved in the child's life
- may not be necessary if the parent has abandoned the child, failed to support for a certain length of time, or never attempted to establish a relationship.
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#133 - the next requirement is creation of new parent rights. How does this happen?
a. consent of adoptee - in certain states, adoptees over a certain age (12 or 14, have to consent to adoption)
b. home study - most states require an investigation of the new home, but this can be waived for relative adoptions.
c. payment of money prohibited - exception for medical costs of pregnancy.
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#134 - are adoption records sealed?
Adoption records are generally sealed unless biological parents consent to contact.
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#135 - what are the consequences of adoption?
Adoption severs all rights and obligations of bio parents to the child and creates duties to adoptive parents and child. in some states, the adoptive child still has the right to inherit from the bio parents.
