Family Law

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Author:
johncburt
ID:
200105
Filename:
Family Law
Updated:
2013-02-13 16:42:02
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Family Law
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Bar Review
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  1. Controversies in Anticipation of Marriage (K, Gift, who cant marry)
    • 1. K to marry- Most states no good, few states actual damages, loss of reputation, mental anguish, health, punitive
    • 2. Gifts in contemplation of marriage: Get ring and other stuff back
    • 3. Limitations who may marry: Minimum age - 18, not closely related, opposite sex, capacity to consent, not still married
  2. Marriage - Procedure (2) and State of Mind
    • 1. License:
    • 2. Solemnization: Ceremony
    • 3. State of Mind: Not a result of drunk, force, duress, fraud, duress
  3. Common Law Marriage (3 - requirements)
    • 1. Exchange of consent 2 people w/ capacity
    • 2. Co-habitation
    • 3. Hold out publicly H&W

    If valid in state married, generally respected by other states
  4. Pre-marital Contracts - When Enforcable (6)
    • 1. Proper subject matter: property, trust, anything legal. May not enforce support modifications
    • 2. Entered into voluntarily:
    • 3. Full disclosure of wealth:
    • 4. Writing: signed by person asserted against
    • 5. Fair and Reasonable:
    • 6. Independant counsel: not required but good
    • 7. Void Marriage: enforced to extent necessary to avoid inequitable result
  5. Marriage Relationship - Rights/wrongs of spouses (7)
    • 1. Property: Controls her own prop
    • 2. Support: Must provide each other financial support - can be liable other persons debt for necessities or state law
    • 3. Suits between spouses: Most states allow, except for privledged, conselsual
    • 4. Marital Rape: Most states allow COA, but harder to prove, easier if living apart
    • 5. Spousal Abuse: Most state criminalize
    • 6. Spouse cannot be compelled to testify in criminal proceeding
  6. Marriage Relationship - Tortious Interference w/ marital relationship - Common Law - 3 COA
    • 1. Alienation of affection: COA against someone who steals affection. abolished most
    • 2. Criminal Conversion: COA against other person in affair. Abolished most states
    • 3. Negligent interference w/ consortium and services: Actionable in a tort case other spouse can sue tortfeasur
  7. Termination of Marriage - Annulment - Grounds - Void (3)
    • 1. Bigamy - void
    • 2. Closely related - void
    • 3. Under age - Void, ratified if stay married after 18
  8. Termination of Marriage - Annulment - Grounds - Voidable (2)
    • 1. Incurable impotence:
    • 2. Lack of capacity: Mental, duress, fraud as to essential part of marriage (doesnt want kids)
    • 3. Defenses: usually ratification
  9. Termination of Marriage - Annulment - how to handle Support/property
    • 1. Child: Kids are considered marital - support awarded
    • 2. Spousal: not generally
    • 3. Property: try to put parties in position as b4 marriage
  10. Termination of Marriage - Divorce - No Fault (2 Requirements)
    • Most states have no fault divorces, need to show:
    • 1. Living apart: specified time
    • 2. Irreconciliable differences:
  11. Termination of Marriage - Divorce - Fault Grounds (5)
    • Few states require fault. Grounds:
    • 1. Adultry
    • 2. Wilfull disertion
    • 3. voluntary drug addiction
    • 4. physical/mental cruelty
    • 5. Mental illness
  12. Termination of Marriage - Divorce - Fault Grounds - Defenses (4)
    • 1. Collusion: Spouses agree on a not real fault
    • 2. Connivance: One spouse consents to the act of another, adultry
    • 3. Condonation: forgiveness and resumed marriage
    • 4. Re-crimination: When both parties guilty
  13. Termination of Marriage - Legal Seperation - What is accomplished
    The parties can resolve all of their property and support issues.  It can later be escalated to a divorce
  14. Termination of Marriage - Juristiction and Recognition of Decrees (4)
    • 1. Domicil: 1 person must be domiciled in the jurisdiction for statutory period
    • 2. In Rem Action: Constructive service is ok for divorce but property division must have PJ
    • 3. Recognition of Decree: If person correctly domiciled, full faith and credit by all states
    • 4. Foreign Decree: Most states recognize as long as one spouse was domiciled there
  15. Termination of Marriage - Preliminary Interlocutory decrees of Divorce - What is the effect
    Look for fact patterns where decree is ordered but not final.  You cannot remarry and can continue to inherit during that period
  16. Termination of Marriage - Division of Property (3 methods)
    • 1. Community property
    • 2. Equitable division of all property
    • 3. Equitable division of marital property (most common)
  17. Termination of Marriage - Equitable division of marital property - Considerations of how to divide (9)
    • Most common. Not modifiable.  Court considers the following:
    • 1. Age, education earning capacity
    • 2. Durration of marriage
    • 3. Standard of living durring marriage
    • 4. Present incomes
    • 5. Source of money used to purchase
    • 6. Health of parties
    • 7. Debts
    • 8. Child custody, children needs
    • 9. Lieu of Spousal support
  18. Termination of Marriage - Seperate property - What is
    Owned prior to marriage, gift, inheritance
  19. Termination of Marriage - Marital Property (4 special non-tangible items)
    • All property accumulated during marriage
    • 1. Pension:
    • 2. Professional license: may give other spouse some reimbursement
    • 3. Damage awards torts: Marital prop
    • 4. Stock options: Marital prop
  20. Termination of Marriage - Mixed Property - When can it become marital (3) also tax consequences
    • 1. If co-mingled so you cannot tell the source or traced
    • 2. If it appears the intention to make it marital property, like putting house in both names
    • 3. improving with marital funds, W gets reimbursed
    • 4. No tax consequence: Division not treated as income or a deduction
  21. Termination of Marriage - Spousal support - Amount - types of factors court considers (6)
    • Court has broad discretion, considers:
    • 1. Durration, standard of living
    • 2. Age physical/mental condition
    • 3. Financial resources
    • 4. Each persons contribution to marriage
    • 5. Time needed for education
    • 6. Paying parties ability to pay
  22. Termination of Marriage - Spousal Support - Types of support orders (4)
    • 1. Permanent periodic payments:
    • 2. Rehabilitative support:
    • 3. Lump Sum:
    • 4. Reimbursement Support: to spouse that supported through school
  23. Termination of Marriage - Spousal Support - When can it Terminate (2)
    • 1. Periodic: Terminates on death or re-marriage
    • 2. Lump sum does not terminate
  24. Termination of Marriage - Child Support - How to determine amount (3)
    • 1. Number of children
    • 2. Amount each party makes
    • 3. Special Needs
  25. Termination of Marriage - Spousal Support - When can you Modify and who modifies
    Only periodic payments modifiable, based on significant change in need or ability to pay

    Issuing state modifies unless neither spouse lives there or both agree on record to allow other court to modify
  26. Termination of Marriage - Child Support - When can you modify and what court modifies
    Significant changes in childs needs or ability to pay

    Issuing state modifies unless neither spouse lives there or both agree on record to allow other court to modify
  27. Termination of Marriage - Ways to Enforce Support (7)
    • 1. Civil Contempt
    • 2. Some states criminal
    • 3. Judgment
    • 4. Seizure of Rproperty
    • 5. Attach wages
    • 6. Tax refunds
    • 7. Professional license suspended
  28. Child Custody - Uniform Custody Jurisdiction and Enforcement Act - How is jurisdiction determined- Home State
    The home state typically gives custody order.  Home state is where the child lived with a parent or guardian for at least 6-months before commencement of proceeding.

    If you cant establish a home state, then state where child and 1 parent have a significant connection with the state
  29. Child Custody - Uniform Custody Jurisdiction and Enforcement Act - Home State Retains jurisdiction until what
    • Court who made the order keeps jurisdiction until determined that:
    • 1. Neither child or parents live in the state; or
    • 2. Child does not have significant relationship to issuing state
  30. Child Custody - Uniform Custody Jurisdiction and Enforcement Act - Home State - Why can a Court decline jurisdiction
    if: it determines to inconvenient to the parties or bad acts, like taking the child out of state w/o permission
  31. Child Custody - Best Interest of Child - Who will be the Primary care giver - Consideration (7)
    • 1. Wishes of child and parents
    • 2. Child's relationship w/ parents
    • 3. Siblings
    • 4. School
    • 5. Community
    • 6. Health
    • 7. Age 12 - Child preference very heavy
  32. Child Custody - Best Interest of Child - When will Joint Custody be granted - considerations(9)
    • 1. Fitness each parent
    • 2. If Parents agree
    • 3. Parents ability to communicate together
    • 4. Child's pref
    • 5. Parents level of involvement
    • 6. Geographical proximity
    • 7. Similarity of homes
    • 8. Effect on phsycological development
    • 9. Ability to physically carry out order
  33. Child Custody - Best Interest of Child - When Grand Parents visits and constitutional limits
    Most states provide for grand parent visits if in best interest.  However, constitution limits this because a parents opinion of best interest cannot be overlooked by court
  34. Rights of Unmarried Co-habitants - Same Sex - What do states allow them to do
    Some states allow same sex marriage, others allow the parties to enter into domestic partnership agreements
  35. Rights of Unmarried Co-habitants - K between co-habitants - how can they protect their rights
    Express K for earnings and property rights will be enforced. Unenforceable if sexual relations is the only consideration. Implied K, less likely to be enforced.
  36. Rights of Unmarried Co-habitants - Property rights - what is the usual court remedy
    Court will generally use an equitable distribution and constructive trust
  37. Non-marital children - Presumption of marital child
    If a woman is married, it is a presumption the kid is H's
  38. Non-marital children - Children's Constitutional Rights - US and Immigrant
    Gets all the rights of a normal child.  Like right to support, inherit, wrongful death. No SOL on inheritance.

    Congress can prefer marital children of immigrants
  39. Non-marital children - Treatment of Father - suits, citizenship, fathers rights
    • 1. Torts: Father cannot sue in tort wrongful death if he was not part of kids life
    • 2. M who has a child out of country is automatically a citizen
    • 3. Father who has kid out of country, out of wedlock, not automatically citizen
    • 4. Due process for fathers rights is dependant on his proven commitment to the child
  40. Non-marital children - How do you gain Lawful Father Status (3 ways)
    • Lawful Father if:
    • 1. Parents married after birth
    • 2. Holds himself out as father, on birth cert, formorally acknowledged
    • 3. Judicial decree of paternity
  41. Non-marital children - Father - Paternity Suit - What evidence and SOL
    • 1. SOL: tolled while kid under 18, so SOL must be more than 18
    • 2. Evidence: Resemblance, statements of paternity, blood, genetic tests.  If blood or geneticts show father, then case dismissed.  Otherwise prove by perponderance of evidence
    • 3. Records: Sealed
  42. Parent, Child and State - Child Consent - Abortion, birth control, medical
    Children under 18 cannot consent to abortion, birth control, or medical treatment.  However, courts can override if childs health/safety in danger.
  43. Parent, Child and State - What is Emancipation
    Court can remove childs minor status.  Marriage emancipates.
  44. Parent, Child and State - What are childs right to Support and School
    Parents need to support kids

    State can require education, parents can decide where
  45. Parent, Child and State - Parents right to raise
    Parents can raise their children as they want.  But courts can prevent abuse and supervise children with behavior problems
  46. Parent, Child and State - When can state Terminate both parents parental rights (grounds)
    • 1. Physical/sexual abuse
    • 2. abandonment
    • 3. failure to support w/o cause
    • 4. Mental illness so severe parent cannot handle it
    • 5. Parental unfitness
  47. Parent, Child and State - Adoption - What is the proceeding
    Legal Proceeding that terminates relationship between child and bio parent and establishes a relationship w/ adoptive parents
  48. Parent, Child and State - Adoption - Jurisdiction and Venue (4 options)
    • 1. Child lived in state prior six months
    • 2. Adoptive parents lived in state for 6-months - substantial info about childs care is there
    • 3. Agency over the adoption if have info and in everyones best interest
    • 4. Appears no other state has jurisdiction
    • 5. Venue: usually in county of adoptive parents
  49. Parent, Child and State - Adoption - What Procedural aspects are required for adoption (7)
    • 1. Consent of parents, maybe not fathers if unwed.  Not if state removed, or parent abandoned, need hearing
    • 2. Fathers rights: He can veto if he has manifest his significant participation
    • 3. Child's consent if over 12
    • 4. Consent cannot be withdrawn after decree, maybe b4 if best interests, need hearing
    • 5. Need court approval
    • 6. Most states prohibit payment of money
    • 7. Records sealed
  50. Parent, Child and State - Alternatives to Adoption -Gestational Agreement (surrogate mother) - What is required
    • A woman that gives birth to a child is the mother.  Some states allow Gestational Agreements:
    • 1. Agreement: that the birthing person give up any rights, and intended parents have legal right
    • 2. Required findings for court: All parties entered agreement w/ knowledge of rights
    • 3. Court approved: b4 conception, or not valid
    • 4. Termination: any party, including the court, can terminate b4 pregnancy
    • 5. Notice of Birth: Must give notice of birth w/in 300 days of birth
    • 6. Presumption: If child born w/i 300 days of assisteted conception, presumed result of the assistance

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