Family Law

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Marriage by Estoppel

arties who have told the world they are married should not be allowed to claim that they are not married in a dispute between the parties themselves. If a person uses fraud to induce the marriage, they can't later seek annulment based on their own fraud.

Annulment

Marriage invalidated retroactively, canceled, as if never happened. Granted in relation to a voidable or void marriage. Voidable (it lacks an element - such as lying about being sterile); void marriage (already being married to someone else)

Where may annulment be grated?

In the state where one or both are domiciled.

For what reasons may annulment be granted?

Fraud, duress, impotency, mental incapacity existing before the marriage was undertaken.

What is fraud?

A knowing misrepresentation made with the intention that the other party will rely on it to his detriment. 1) FRAUD, 2) DURESS, 3) IMPOTENCE, 4) MENTAL INCAPACITY,

What are different types of fraud?

Misrepresenting health, pregnancy, having had sex, religious beliefs. Love and affection misrepresented is not fraud by itself.

Duress

Pressure brought against a spouse may be grounds for annulment.

Duress:

Ex.: Being forced to marry someone. Grounds for annulment.

Impotence

Implicit in the concept of marriage are procreation and consortium. Grounds for annulment.

Mental incapacity

Which existed at the time of the marriage. For marriage, mental capacity is judged lower than for most other contracts.

Defense to an annulment

1) Knowledge (by the complaining spouse); 2) Ratification (continuing to live together after knowing of problem), 3) Res Judicata (issues were litigated previously and decided), 4) Statute of limitations in state, 5) Laches (Complaining spouse waited too long)

Children in void or voidable marriage

Children are legitimate no matter which, and entitled to child support even if annulled marraige. (They're not bastards, as in common law)

Property and alimony in annulment

Upon annulment most states say that alimony and property rights can't be granted. Without a statute that says they can, there are few equitable or contractual remedies, but states without such statutes, will award temporary alimony to needy party if they're not the one seeking annulment.

Divorce

Dissolution of marriage. Includes common law and ceremonial marriages.

Divorce jurisdiction

Authority to grant divorce rests with the states (under the exception to federal subject matter juridiction). This is true regardless of diversity of citizenship. A fed. court can't grant a divorce ore determine property division and support. State courts with equity jurisdiction have authority to grant divorce. Statte MUST have jurisdiction over one or both of the parties. When it has only over 1 party, it grants an ex parte divorce but it can't divice property, award support or decide custody.

Divorce jurisdiction domicile

The place where a person physically is present, with the intention to make that place his or her permanent home. Most states also require at least 1 year of residence.

Uniform Marriage and Divorce Act (UMDA)

This act and most states make an exception for military personnel stationed in a state for a specified period of time.

Minimum residency requirement

Very short in Nevada (6 weeks)

Migratory divorce

Divorce obtained when party travels to another state, establishes dominicile (like Nevada) and divorces there. Quickie divorce.

Foreign divorce

One obtained in a foreign country

Who passed first no-fault divorce?

California in 1960s

What's the UMDA (Uniform Marriage and Divorce Act)?

It was proposed by the Natl Conf of Commissioners on Uniforn State Laws to help states adopt no-fault concept of divorce.

What's the procedure for filing for divorce?

First, jurisdiction must be established (BOTH, domicile and residence), then one party files a complaint or petition for divorce, then cooling off period, then trial, then a divorce decree. (If parties have not come to agreement, judge decides). Then there's a waiting period after the decree is entered and the time it becomes final (6 mos.?) During this time the decree is interlocutory (not final), and the parties remain married. It can be vacated, and if one dies, the other is a widower.

Bifurcated divorce trial

When each major aspect of the divorce is tried separately

Do most states have cooling off period?

Yes

What are the Married Women's Property Acts?

When distribution of property began to apply to women upon divorce.

What kind of marital property division theories are there?

1) Equitable; 2) Community property

How does equitable work?

It divides property as either separate property, or marital property. Private is not subject to equitable distribution. Marital is. However, if spouse commingles separate property, the entire parcel is marital property. If one spouse helped another get a degree, the court will conisder the license as a marital property. Community Property - Arizona, California, Idaho, Louisiana, Texas, Nevada, New Mexico, Washington and Wisconsin (9 states) have commnity property. All property acquired during marriage belongs to both regardless of who or how it was purchased. Upon death or divorce, community property is split in half.

What is spousal support?

Alimony.

Is alimony discretionary with the court and can it be limited?

Yes, upon fault in a state that doesn't have no-fault.

Types of alimony

1) Permanent; 2) Alimony in gross; 3) Rehabilitative alimony. Permanent is until the person remarries or dies. Alimony or gross - awarded in one lump sum; can be claim against the estate. Rehabilitative alimony - To provide support during training or education to strengthen employment opportuntiies.

Do courts consider length of marriage, fault, earning capacity and future earning prospects and health in awarding alimony?

Yes!

Does alimony die upon the death of either spouse?

Generally yes. Also upon remarriage of the recipient spouse.

Does UMDA impose a greater burden on a party requesting a change in alimony due to substantial change in circumstances?

Yes.

Most alimony modifications honored only to future payments or past?

Only future with exception fo a few states where it's retroactive. However, Full Faith and Credit Clause does not require other states to honor retroactivity regarding alimony because it's not a final order.

Is child custody awarded during the pendency of a divorce?

Yes, temporary custody.

What criteria does the court use?

The best interests of the child.

What factors are looked at in "the best interests of the child" decision?

Age of child, phys. and mental health of child, each parent's fitness to care for child, emotional stability of parent/moral misconduct, financial situation of parents, desires of chld if he's mature. Some states allow a child of 12 or 14 to choose his preference.

Does the tender years legal presumption of giving the child automatically to the mother persist?

Not in most states. Usually courts determine who is the primary caretaker.

What is joint custody?

1) Joint legal custody (bot parents have an equal voice as to decisions, but one parent has possession, while other has visitation); 2) split custody *parents share the day-to-day living arrangements.

What is required to modify custody decree?

The petitioning parent must show "substantial change in circumstances." Courts try to determine if child will be harmed under these new circumstances.

When both parents live in one state, there's no prob w/modification, but what if one state created the modificiation and now another state is involved?

There are 2 statuts to help states decide what to do: UCCJA (Uniform Child Custody Jurisdiction Act), and, PKPA (Parental Kidnapping Protection Act).

Explain UCCJA (Uniform Child Custody Jurisdiction Act)

UCCJA (Uniform Child Custody Jurisdiction Act) was adopted in all states plus Wash. D.C. It helps decide if a state has jurisdiction. Forum state has jurisdiction if any of these is true: 1) Was forum state the home state the date proceedings started, or any date within 6 months when proceedings started but person claiming custody removed the child from there and other parent still living back there? 2) It's in best interest of child that forum state assume jurisdiction of child because the child and his parents have a significant connection, there's substantial evidence there of the child's past or future care, protection, training, and personal relationships; 3) If child is physically in the forum state and he has been abandoned, or there's an emergency requiring him to be protected; 4) If no other state has or is wiling to exercise jurisdiction. Presence of child in another state is not enough to confer jurisdiction to a state. This is to avoid giving incentive of abduction.

Do courts have to have personal jurisdiction over a parent to require them to pay child support?

NO

What is PKPA (Parental Kidnapping Protection Act).

Federal statute dealing with kidnapping. PKPA takes precedence over UCCJA because of supremacy of Constitution. Both PKPA and UCCJA require a state to enforce a custody decree of a sister state without modification (unless original decree no longer meets jurisdictional requirements). State determines which state had jurisdiction, and that state's decree is enforced.

Do federal courts have jurisdiction to grant divorces, award alimony or decide child custody?

No.

Are visitation rights and child support related?

No. Each is a separate thing. Visitation cannot be withheld.

What can non-custodial parent do if he's being denied visitation?

he can initiate contempt proceedings. The court might even switch the custody to the other parent.

Who pays support to whom, if support is shared, and one parent makes more than the other?

The parent that makes more pays the other.

If a noncustodial parent's income increases, will this be sufficient to change the original award?

No. A change in cirumstances is necessary.

Must a court follow the Child Support Guidelines?

No, it's only a guideline.

Till when does child support continue?

Till child is major, dies, or beyond the age of majority if the child has special needs.

What are URESA and RURESA?

They are 1) Uniform Reciprocal Enforcement of Support Act and 2) Revised Uniform Reciprocal Enforcement of Support Act. They are in effect in some form in every state. RURESA also serves to enforce alimony as well as child support and allows collection across state lines. It uses 2 actions: a) where support decree already exists b) Initiating state does not have to have entered a support decree. It decides if there is probable cause that the Defendant has a duty of support. State A will xfer the case to State B (responding state), where it locates Defendant, serves him with notice to obtain personal jurisdiction, and holds a trial without need of the Pltf appearing (affidavits are submitted instead).

What is Child Support Enforcement Act of 1984?

It's a Congressional act to make child support collection easier. It provides these tools: a) automatic withholding, b) tax-refund intercept, c) liens, d) federal parent locator service, e) health insurance (forces obligor to provide insurance if he has access to low-cost health insurance). These tools can also be used for alimony support.

Besides URESA, RURESA and Child Support Enforcement Act of 1984, can any other child support payment tol be used?

Revocation of licenses to practice to those who are delinquent in their payments. Federal govt. program Aid to Dependent Children required all states to have it if the states require Aid to Dependent Children help.

How does IRS treat child support?

Child support payments are not considered icome, nor are they deductible by the payor parent. Children are taken as dependent exemptoins by the parent whom the child resided with for a majority of the year. As part of settlement agreement, this can be changed.

How does IRS treat alimony?

As income, and the payor can deduct it providing: 1) they're in cash not property, 2) paid under divorce decree or separation agreement, 3) spouses cannot be members of same household, 4) payments terminate on death of recipient by statute or order of court, 5) spouses can't file jointly, 6) payments can't represent child support, 7) decree can't say that payments are not to be treated as alimony for tax filing.

How does a parent-child relationship get formed?

1) When a wife gives birth to a child of her husband, 2) adoption, 3) paternity proceedings

What's adoption?

Process where parental relationship is transferred to another.

What's baby brokering?

Where babies are being arranged for adoption (private placement). This has been banned in some states, tho all allow agency placement.

Subsidized adoption

State provides all or part of his required medical care at the expense of the state.

How can a child be made available for adoption?

1) Bio parents must waive parental rights (bio parents are guaranteed through due clause a hearing, right to equal treatment), 2) Statute cannot favor the mother over the father. 3) Waiving of rights must be in writing, witnessed and notarized, then approved by court or it's not binding. Some states won't accept consent before birth of child, and some require 48 hour waiting period after child's birth. Once a consent is signed, mother is given 2 to 10 days to change her mind.

What is open adoption?

Where the child may know who the bio mother is.

What about bio fathers?

Unless he abandoned the child, he must receive notice of the adoption proceeding and a change to be present. If he has lived with the mom, he has a right to veto the adoption.

Can a court terminate a bio parent's rights?

Yes, on basis of abuse or extreme neglect. Abandonment, nonsupport, conviction of crimes, for ex. A parent shown unfit by "clear and convincing" evidence, can have his rights terminated.

Can religion, age, health, economic status, home environment and physical or character defects being gauged by court for adoption?

Yes, but religion can't be used to deny adoption.

Can race be used as a factor in adoptions?

Nope.

Is a hearing required for adoption?

Yes, in the first hearing, an interlocutory decree is entered. In the second, the adoption is made final.

Are adoption records sealed?

Yes.

Can records ever be unsealed?

Yes, hereditary disease, seeking natural parents, and some states allow a registry system so the parents and bio children can connect up.

Are both adopted children and bio children referred to as "child" or "issue" in wills and trust documents?

Yes, both

When an adopted child dies, to whom goes the inheritance?

To the adopted family

It is legally presumed that the husband of a woman is the father of the child for support and care, can the mother raise the issue of paternity?

The husband has to give consent before the wife can commence a paternity action against a father who is not the husband (if she had the baby inside the marriage to her husband)

What are most paternity suits filed for?

For illegitimate children. This establishes the child's rights (to support from the father and to inheritance if the father dies). States cannot abolish completely the inheritance rights of a child born out of wedlock, but many states require the child to have been acknowledged in some way during his life to be included under intestacy statutes.

Are there statute of limitations for paternity proceedings?

Yes, most states have statutes of limitations, however, these may be moot because any state that receives federal funding via Aid to Dependent Children must allow paternity actions to be filed until the child is 18 in compliance with the federal Child Support Enforcement Act Amendments of 1984.

Do STATE welfare legislations discriminate against illegitimate children by denying welfare benefits to households in which the adults aren't married?

Yes

Artificial insemination - is the sperm donor the legal father?

Some states have solved this by saying no.

Surrogacy - what can you say about it?

It's a problem. Another woman would bear the children for the husband. Impregnated artificially. Only wife has to adopt the child. Very few states have surrogacy statutes. Most courts are opposed and will ignore any surrogacy contract exists, considering it void. The surrogate gets visitation, the sperm donor gets custody, and the sperm donor's wife gets no legal rights at all.

Where are surrogacy contracts unenforceable?

Arizona, Indiana and North Dakota. In 11 other states, surrogacy is very difficult to enforce.

What is the USCACA (Uniform Status of Children of Assisted Conception Act?

Guidelines for surrogacy, but no state has adopted these yet.

What is gestational surrogacy?

Where the surrogate is implanted with an in vitro fertilization embryo. In this case, courts have decided for the biological mother.

Donor eggs for in vitro fertilization - can the mother of those eggs be considered the mother of the child?

No. They're considered the same as sperm donors.

What is a ward?

A person who needs protection. It could be a minor, elderly person, someone mentally or physically impaired.

What is a guardian?

The person that protects the person and property of the ward. However, generally, it's one appointed by a court to protect the person.

What is a conservator?

It's a person appointed by the court to manage the financial affairs of the ward. Some states separate the conservator and guardian role. Conservator may be a relative of the ward, but more often the court will appoint a disinterested third party (bank, attorney), to do all financial things except write a will. These report to the court. They can be appointed to receive a damage award. In this case, the conservator is one or both parents of the child. The parents report to the court the disposition of the funds.

Can a prisoner marry?

Yes

How many states prohibit marriage between parent and child, brother and sister, uncle and niece?

All and Wash. DC

Is marriage between first cousins forbidden?

It is in 30 states.

Have nearly all courts prohibited marriage with step-relatives and half-blood?

yes

Incest - what is it?

Sexual relations with someone in the prohibited group, whether they marry or not.

What are the legal requirements in marriage?

1) No consanguinity, 2) Min. age, 3) Health standards (free of venereal disease and AIDS), 4) Mental capacity (tho the standard is lower than for other contracts), 5) pre-existing marriages (bigamy), 6) mutual consent, 7) gender, 8) formalities (some are mandatory and some are discretionary)

Marriages validly created in one state are valid in all other states except which?

Gay marriage in Hawaii

Common law marriage is what?

Agreement between man and woman to live together and hold themselves as husband and wife without complying with formalities.

Which states (how many) accept common law marriages?

13 - Alabama, Colorado, Georiga, Idaho, Iowa, Kansas, Montana, Ohio, Oklahoma, Pennsylvania, Rhode Island, South Carolina and Texas.

Common law marriages require a divorce?

yes

There are problems where common law marriage spouses move to state that doesn't accept common law such as...

Connecticut, Illinois, Indiana, Minnesota, mississippi, Missouri, Rhode Island, S. Dakota, Vermont, Wisconsin.

What is a putative marriage?

A marriage in which a person entered in good faith without knowing some legal impediment existed to a valid marriage

What is proxy marriage?

It's where the marriage is contracted or solemnized by one or more agents of the parties, rather than by the parties themselves.

What is heart balm action?

Where a marraige was supposed to take place and one committed breach of contract. 50% of states have this.

Agreements before marriage are?

For ex., agreements that restrict when marriage may take place or withold it till an event has occurred. They arevalid.

Can a contract restrict the right to marry forever?

No, even if supported by consideration (a gift made). Agreements before marriage must be reasonable.

What is an antenuptial agreement?

Premarital or prenuptial agreement.

What is UPAA (Uniform Prenuptial Agreement Act)?

The UPAA is a Uniform Act — that is, a proposed state law. Many types of Uniform Acts have been adopted by varying numbers of the 50 states, and the UPAA has been adopted by about half of the states (the 26 states listed below) and is used in each of these states in various versions. It outlines what prenups can and can't contain. They can contain property, spousal support, wills, life insurance.

In most states, an antenuptial agreement will be enforced if it's 1) In writing, 2) made after full disclosure by each party of his/her assets, and, 3) demonstrates each spouse has sufficient fair support. True or False?

True

Do courts enforce cohabitation agreements?

No. They're considered like prostitution. However, with more people living together, courts have tried to ignore the sexual aspect of the agreement. The landmark case is Marvin v. Marvin.

What is a cohabitation agreement?

An agreement between two people who intend to live together for the foreseeable future without getting married.

Do cohabitation agreements have to be in writing?

No.

Are legally separated people still married?

Yes, nearly all of their marital rights and duties continue.

If a couple reconciles does the separation agreement terminate?

Yes - however, property transferred in that agreement is not affected, same with any new will, it may survive too.

What is the Necessaries Doctrine?

Traditional common law rules where husband had an obligation to feed, provide clothing, shelter and medical care to his wife. Now it's to both.

Under current law, can a healthy spouse exempt the primary residence (up to $125,000) from having to spend all goods and $ to provide health care for spouse?

Yes

Is the other spouse liable if the spouse incurs for things other than necessities?

No

Women could not own property except jewelry and clothing until when?

1800s U.S.

Until 1965 marriage was considered only for the purpose of procreation - Griswold v. Connecticut found that the Const. had a penumbra of privacy rights for marriage true or false?

TRUE

The privacy rights found in marriage was the springboard forwhat other case?

Roe v. Wade

Has the Supreme Court recognized a general right of privacy tho?

Not really. So homoosexuality, fornication, sodomy, sexual activity by minors, adultery etc. are not affected.

Abortion was illegal until 1973 - true or false?

True

Landmark case for abortion Roe v. Wade was held in what year?

1973

Roe was limited in Planned Parenthood v. Casey (1992) which upheld Penn's laws how?

1) That a physician must give a woman alternatives to abortion, and, 2) an unemancipated minor must get parental consent for the abortion.

In Parenthood v. Casey, must a woman inform her husband of the plan to abort?

No becuase court said this was a woman's right to choose.

What statutes have states made as a result of the Casey decision?

Informed consent statutes

Domestic violence was a property of her husband, as a result, he could not be convicted of what?

Rape, assault or battery of his own wife.

What is a protective order?

An injunction

What is the VAWA (Violence Against Women Act)?

A 1994 act passed by Congress which gave civil rights to victims of violence motivated by gender

What does VAWA allow?

The women to file suit to collect damages, injunctive relief and attys fees

Do most states still prohibit prosecution of a husband for spousal rape?

Yes - however, 9 states have eliminated the marital rape exemption

Can 3rd parties execute against the property of a parent to enforce necessary family expenses?

yes

Can a parent who refuses to support a minor child be charged with CRIMINAL nonsupport?

Yes

As part of the duty of parents to support their children, do children have a DUTY to obey reasonable regulation of their parents?

yes - if a child refuses (say, a 16 yr old), the court might allow parents to stop supporting the child

If a parent refuses to give his child medical care, can the sate intervene?

yes

Truant

A child that does not attend school

Can sanctions be imposed against both parents and child in case of truancy?

yes

Are parents required to pay for college?

Only some states require this and only if the parents can afford it.

Under common law rules, do adult children have to take care of parents?

No

What's a filial responsibility statute?

Statutes in some states also called relative responsibility statutes, that alter the common law.

What does a filial responsibility statute require?

To support a needy parent if the adult child has the reousrces to do so after providing for his own kids and spouse - this is the case if an agency has provided help and wants reimbursement

What are legal disabilities of minors?

1) Can't marry w/out parent or guardian's consent; 2) can't make a will; 3) can't make a contract; 4) Has to have an ad litem sue for them (next friend)

Can a child under the age of 7 be held acccountable in a tort or crime?

Yes. If a minor commits a tort, he his held to a submective test to determine his capacity to understand the consequences of his act.

Many states have enacted statutes that hold parents liablie for the torts of their minor kids up to a certain amt. - true or false?

true

When a child engages in an adult activity (flying plane) is he held to same standard as adult?

Yes

When a minor commits a crime with malice, or involving a gun, can he be tried as an adult?

The court can grant a motion to try them as an adult.

What is a parents patriae?

The state, as it has an interest in protecting children from the abuse and or neglect of their parents. States try to rehabilitate parents, but if not possible, the parental rights are terminated.

Intra-family immunity - what is it?

In common law, immunity existed between husband and wife as well as parent and child. None between siblings. Under common law, husband and wife were viewed as one person, so one couldnt sue the other. When the MWPA (Married Women's Property Acts) were passed, court allowed suits related to property interests between spouses. Same was allowed when a parent damages a child's property. So there's no family immunity under property suits. The majority of states have abolished the spousal and the parent-child immunity even in personal injury suits. However, some states still keep it. In states where there's a parent-child immunity there are exceptions, such as suits by emancipated children, on intentional torts, and wrongful death of the other parent.

What is loss of consortium?

When spouse is injured by 3rd party, the other spouse has a claim for this based on the loss of spouse's companionship, affection and sexual relationship

What is loss of services?

When a child is hurt, they have a claim for a parent's right to the services of his or her unemancipated children.

Will court's hear a child's claim based on wrongful life?

No. However, parents can bring a wrongful birth action if parents had tried to avoid the birth but a deformed child was born. Or they can sue for wrongful pregnancy. However, they can't recover the costs of rearing the child.

What is vicarious liability?

When one person is liable for the torts of another

Does vicarious liability exist among famiy members?

No, except for these 2: 1) Many states' statutes impose limited vicariout liability on parents for the torts of their children, and, 2) Under the family purpose doctrine, the owner of an automobile is responsible for a tort committed by a family member when driving that auto for a family purpose

Can a spouse refuse to testify against his spouse?

Yes. The Fed. Rules of Evidence and rules of evidence in most states grant a special privilege to allow this. The theory is to preserve the confidential relationship that marital partners share. It does not apply if the married couple is living apart or if the litigated issue is one spouse against the other.

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