FAM LAW

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BlasterGirl
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162779
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FAM LAW
Updated:
2012-07-16 23:47:45
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Family Law
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Family Law
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  1. III. TERMINATION OF MARRIAGE
    A. Annulment
    B. Divorce & Separation 
    C. Child Support
         1. Independent From Visitation Rights
         2. Termination of Duty to Support
         3. Tax Consequences of Child Support
     
    INDEPENDENCE: Child support is independent of the noncustodial parent's visitation rights. Visitation cannot be withheld b/c of failure to pay child support.

    TERMINATION: Upon child's emancipation, marriage, termination of parental rights, death of supporting parent. Can be indefinite for severely disabled child. Some states require parent to pay for college. Other states hold this unconstitutional.

    TAX: Neither includable income nor deductible 
  2. III. TERMINATION OF MARRIAGE
    A. Annulment
    B. Divorce & Separation 
    C. Child Support
    D. Modification
         1. Spousal Support
         2. Child Support
         3. Overdue Payments 
    MOD SPOUSAL SUPPORT: Only periodic payments may be modified based on substantial change in circumstances regarding needs of recipient or ability of payor.

    MOD OF CHILD SUPPORT: Modifiable based on substantial change of circumstances affecting needs of child or ability of payor to pay. 

    PAST DUE PAYMENTS: cannot be retroactively modified.  
  3. III. TERMINATION OF MARRIAGE
    A. Annulment
    B. Divorce & Separation 
    C. Child Support
    D. Modification
    E. Enforcement of Awards
         1. Uniform Interstate Family Act
              a. Methods of Enforcing
              b. Modifying 
    UIFSA provides methods of enforcement and guidelines for modifications of support orders issued in ANOTHER STATE.

    METHODS: Income witholding. Notification sent to (i) out-of-state employer, (ii) support enforcement agency in obligor's state.

    MODIFYING: Court that issues order has continuing and exclusive jurisdcition to modify it. Role of court in another state only to enforce, UNLESS: (i) parties no longer reside in state, (ii) parties consent on record to nonissuing court's assertion of J to modify.
  4. III. TERMINATION OF MARRIAGE
    A. Annulment
    B. Divorce & Separation 
    C. Child Support
    D. Modification
    E. Enforcement of Awards
    F. Mediation
         1. Mediator Duties
    G. Separation Agreements
    Mediator is a neutral third party helping divorcing parties work through child support, custody, visitation issues. May not advocate or coerce. Confidential. 

    DUTIES: Must explain process, right to independent counsel, ensure parties have enough info to make informed decision, be impartial, disclose potential bias, control power imbalance.
  5. III. TERMINATION OF MARRIAGE
    A. Annulment
    B. Divorce & Separation 
    C. Child Support
    D. Modification
    E. Enforcement of Awards
    F. Mediation
    G. Separation Agreements
         1. Effect
         2. and Divorce Decrees 
    DEFINED: An agreement entered into during marriage under which parties agree to live apart and resolve economic issues (spousal support, prop division, child support and custody rights). Must be voluntary, full & fair disclosure.

    EFFECT:  Prop and Money provisions will be enforced by court. Child issues will be enforced ONLY IF in best interest of child. Court not bound. 

    If DD states SA merged into DD or if specific provisions are repeated in the DD, the entire agreement assumes the status of a court judgment and is enforceable as such. (Note: a statement by the court of incorporation is insufficient to merge).
  6. IV. CHILD CUSTODY
    A. Defined
    B. UCCJEA
    C. Best Int Std
    D. Joint Custody
    E. Counsel for Kid
    F. Visitation
    G. Enforcement
    H. Modification of Custody
    DEFINED: Legal (right to make major decisions affecting child's life) or physical (actual possession and control of the child. Joint custody can mean either joint legal, joint physical, or both.
  7. IV. CHILD CUSTODY
    A. Defined
    B. UCCJEA
        1. Purpose
        2. Initial Custody Determination
        3. Exclusive Continuing J
        4. Decline J
        5. Temp ER J
        6. Enforcement
    C. Best Int Std
    D. Joint Custody
    E. Counsel for Kid
    F. Visitation
    G. Enforcement
    H. Modification of Custody
    Uniform Child Custody J & Enforcement Act

    PURPOSE: Avoid J disputes, promote cooperation, facilitate enforcement of custody & visitation orders.

    • INITIAL DETERM: (1) Home State (2) Other
    • Home State:
    • Rule: Ct has J to initally enter or modify child custody or visitation order if state is (i) child's home state, or (ii) was child's home state within past 6 months and child is absent from state but parent continues to live there.
    • Defined: A child's home state is the state where child lived w/parent for at least 6 consequtive months preceeding the action.
    • Home State N/A: If no other state has or accepts J and (i) child and at least one parent has signficant connection w/state, and (ii) substantial evidence concerning child is available in state. 

    EXCL CONT J: Court making initial child custody/visitation determination has exclusive continuin J until ct determines: (i) neither child nor parent continue to reside in the state, or (ii) child no longer has signficant connection to state and substantial evidence no longer available in the state.

    DECLINE J: Ct may decline J if inconvenient forum and another court more appropriate or if party seeking court's J has engaged in unjustifiable conduct (unclean hands).

    TEMP ER J: Ct has temp, ER J if kid abandoned or it's necessary in an emergency to protect kid cuz him or sibling or parent subjected to or threatened w/abuse.

    ENFORCEMENT: Order  may be registered in another state and enforced in same manner as one of its own orders. Ct may order respondent to appear and hand kid over to petitioner. May issue warrant to take physical possession of kid if likely to suffer serious phsycial harm or be removed from state. 
  8. IV. CHILD CUSTODY
    A. Defined
    B. UCCJEA
    C. Best Int Std
    D. Joint Custody
    E. Counsel for Kid
    F. Visitation
    G. Enforcement
    H. Modification of Custody
    • BEST INTEREST OF CHILD STANDARD:
    • Std applied in awarding custody/visitation is best int of child. Factors: wishes of kid and parents, kid's r-ship w/rents, siblings and others; kid's adjustment to home, school, community; physical/mental health of individuals involved.

    CHILD'S PREFERENCE: Over age 12, given great weight. Under 8, disregarded or very little weight.

    EFFECT OF PRIMARY CAREGIVER: Preference may NOT be shown based on gender or financial ability. If, after all relevant factors, court must choose b/t 2 qualified parents, award often will go to primary caregiver parent (the one most involved in child's day-to-day life).
  9. IV. CHILD CUSTODY
    A. Defined
    B. UCCJEA
    C. Best Int Std
    D. Joint Custody
    E. Counsel for Kid
    F. Visitation
    G. Enforcement
    H. Modification of Custody
    • In determing if appropriate, consider:
    • (i) parental fitness both parents
    • (ii) whether parents agree on joint custody
    • (iii) parent's ability to communicate and cooperate concerning the child's well-being.
    • (iv) child's preference
    • (v) level involvement both parents in child's life 
    • (vi) geographical proximity of two homes
    • (vii) (dis)similarity of the homes;
    • (viii) effect of award on child's psychological development;
    • (ix) parents' ability to physically carry out joint custody order

    If parents agree on jy cstdy, court usually goes along with unless not in best int. 
  10. IV. CHILD CUSTODY
    A. Defined
    B. UCCJEA
    C. Best Int Std
    D. Joint Custody
    E. Counsel for Kid
    F. Visitation
    G. Enforcement
    H. Modification of Custody
    Most courts may apoint guardian ad litem for kid in custody dispute if will provide substantial assistance in reaching child's best int result.
  11. IV. CHILD CUSTODY
    A. Defined
    B. UCCJEA
    C. Best Int Std
    D. Joint Custody
    E. Counsel for Kid
    F. Visitation
    G. Enforcement
    H. Modification of Custody
    • If sole physical custody to one parent, other must be given reasonable visitation rights independent of child support obligaiton.
    • LIMITATIONS: Ct may limit visitation (to supervised only) if parent engages in conduct may injure child but absolute denial is rare.  

    REMOVAL FROM J: Most cts allow custodial parent to move out of state as long as motivated by benefit to parent, not merely to frustrate visitation rights.

    REMEDY - Contempt is primary remedy for violation of visitation orders. Consistent & willful denial of visitation rights could result in modification.

    3P VISITATION: Most states have statutes entitling certain 3Ps to visitation. Based on best interest and prior r-ship w/3P. HOWEVER, USSC held unconstitutional to override fit parent's decision regarding 3P's visitation (Troxel).
  12. IV. CHILD CUSTODY
    A. Defined
    B. UCCJEA
    C. Best Int Std
    D. Joint Custody
    E. Counsel for Kid
    F. Visitation
    G. Enforcement
    H. Modification of Custody
    Enforced by contempt; state habeas corpus; suits in equity; UCCJEA. Under federal Parental Kidnapping Prevention Act (PKPA, FF&C must be given to another state's custody or visitation order if Act's J requirements met (same as UCCJEA except ER J not temporary). 
  13. IV. CHILD CUSTODY
    A. Defined
    B. UCCJEA
    C. Best Int Std
    D. Joint Custody
    E. Counsel for Kid
    F. Visitation
    G. Enforcement
    H. Modification of Custody
    Custody orders ALWAYS modifiable. Usually X amount time must lapse first unless child's physical,  mental, emotional healh endangered.

    STANDARD: Modifed only if substantial or material change in circumstances.

    BOP: Party seeking modification bears BOP.

    STD: Child's Best Interest.
  14. V. RIGHTS OF UNMARRIED COHABITANTS
    A. Same Sex Couples
    B. K B/T Unmarried Cohabs
    C. Division Prop
    D. Status
    SAME SEX: No legal recognition of same-sex couples under federal law. Some states have legalized marriage or domestic partnerships which determine rights.

    CONTRACTS: Express k b/t unmarried cohabs re: earnings & prop generally enforced. Unenforceable only when sexual relations constitute the ONLY consideration given. Implied k not likely to be enforced.

    DIVISION PROP: Absent express k, court will grant equitable distribution based on constructive trust, resulting trust and quantum meruit theories.

    STATUS: Unmarried cohabs do not assume any special status by living together.
  15. VI. NONMARITAL CHILDREN
    A. Defined
    B. Presumption
    C. Constitutional Limits on Discrimination
    D. Change in Status
    E. Paternity
  16. VI. NONMARITAL CHILDREN
    A. Defined
    B. Presumption
    C. Constitutional Limits on Discrimination
    D. Change in Status
    E. Paternity
  17. VI. NONMARITAL CHILDREN
    A. Defined
    B. Presumption
    C. Constitutional Limits on Discrimination
    D. Change in Status
    E. Paternity
  18. VI. NONMARITAL CHILDREN
    A. Defined
    B. Presumption
    C. Constitutional Limits on Discrimination
    D. Change in Status
    E. Paternity
  19. VI. NONMARITAL CHILDREN
    A. Defined
    B. Presumption
    C. Constitutional Limits on Discrimination
    D. Change in Status
    E. Paternity 

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