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requirements for valid marriage (4)
must be UM, ACK !
1) already unmarried (bigamous marriages are void)
2) of age: 18 in most states, unless parental consent
3) unrelated: can't marry family members
4) consent, both (i) knowing (= understanding the nature of the action, and (ii) voluntary (= having freedom to choose w/o intimidation).
requirements for valid marriage: consent
CONSENT MUST BE
(1) knowing: understanding the nature of the action.
fraud or fradulent inducement can invalidate a marriage if there was misrepresentation involving the "essentials of the marriage" + reliance;
misrepresentation of "essentials"= inability or unwillingness to engage in normal sexual relations (NOT financial or past history).
reliance = would not have married has misreprentation not occured.
(2) voluntary: freedom to choose wihtout intimidation, e.g., marriage entered into under duress can be avoided.
mental capacity to marry
--an ability to understand actions and voluntarily agree to them (lower than other Kual standards)
--Can be incompetent for other purposes but be competent to marry.
exs: under the influence may lack capacity, or
if induced to marry b/c of fraud, duress, coercion.
procedural requirements of marriage: license and solemnization
1. most states require obtaining license prior to solemnization. Some have waiting period.
2. solemnization: can be done by (1) member of the clergy or (2) a judicial officer.
common law marriage
--Legal status conferred to couples living as H/W, despite not having undergone ceremony. Must OW have capacity to marry. --conflict of laws: a state may recognize if validly entered into in the jxn.
(1) an exchange of consents b/w to people with capacity
(3) a holding out publicly of living together as H and W, PRESENT INTENT.
Premarital Contracts: contents
Usually pertain to distribution of property upon divorce or death.
Under Uniform Premarital Agreement Act ("UPAA"), parties to agreement may K with respect to (i) the parties' right and obligations in property of either or both, (ii) right to buy, sell, lease, assign, dispose of, or control property, (iii) disposition of property upon separation, dissolution, death, or other event, (iv) modification or elimination of spousal support, (v) making of will, trust, or other arrangement to carry out provisiosn of agreemnet, (vi) choice of law governing construction, (vii) any other matter not in violation of public policy of criminal statute.
Provisions on child custody NEVER bind the court.
Premarital Contracts: Enforcement
to be enforceable, most courts require:
(1) entered into voluntarily,
(2) K in writing and signed by party to be charged,
(3) both parties make full and fair disclosure of assets
(knowing consent of what is being waived, some courts require independent counsel to review it),
(4) the economic provisions are fair and reasonable.
under the UPAA, the standard to invalidating a prenup is very high. to be enforceable, must be (1) entered into voluntarily, and (2) it was not unconscionable OR disclosure requirements are met.
disclosure - (i) actual (financial statement) (ii) waiver of disclosure or (iii) general knowledge of extent of property.
Unconscionabilty is an issue only if there is NO disclosure/waiver, judged at the time of execution of the agreement.
Putative Spouse Doctrine
Some states permit a court to provide equitable relief to a party who acted in good faith in intereing into a marriage that was later declared invalid. A court may award that party rights as a spouse but gneerally NOT to spuersede those of the legal spouse, if there was one.
Gifts in contemplation of marriage
in most states an engagement right is treated as a gift made in contemplation of marriage and is conditional; must be returned if marriage does not take place.
conflict of laws: marriage validity
General rule: the law of the state where the marriage K was entered into will determine validity.
(1) if the state being asked to recognized the marriage has a strong public policy against that type of marriag,e then the marriage may not be recognized (e.g., marriages in which the parties went to another state to avoid the restrictions imposed by domiciliary state)
(2) where the is a specific statutory prohibition in the state being asked to recognize the marriage. (e.g., same sex)
the process used to have a marriage decalred invalid.
voidable marriages: valid until challenged and must be annulled in order to be dissolved; can also be ratified. only the parties can challenge the marriage, e.g., nonage (in most states), lack of capacity
Void marriages: have no legal status and do not require a legal proceeding to invalidate. can be challeged by anyone, e.g., bigamous marriage, consanguinity.
Rights under the states divorce statute do not apply (though children of the purported marriage are considered legitimate, and some states have limited support rights)
see chart in CMR pg 6
doctrine of necessaries
each spouse has a continuing duty to support each other, can enforce this through doctrine of necessaries, where a third party seeks reimbursement from one spouse for necessary services provided to the other. usually 3rd P must proceed first against the assets of benefited soupse, then against marital assets, then against separate assets of other spouse.
Evidentiary Issues: Marital Communications
There is a privilege for communications made in private b/w spouses.
Exception: (1) evidence offered in suits by one spouse against the other, or
(2) in proceedings related to the custody of the children.
In federal court and some states, in a criminal proceeding a spouse MAY testify against the other, but ONLY as to communications not covered by the privilege (such as things she witnessed, or spouse also told 3rd Ps.); the testifying spouse owns the privilege and MAY NOT be compelled to testify.
Legal Separation: Definition
a legal roceeding that determines property rights and the custody of children. it can define the permanent status of the relationship of the parties or can bea temporary situation if the parties eventually obtain a divorce. it does NOT terminate the marriage
Divorce: no fault v.s fault
A decree of absolute divorce terminate the marriage relationship.
the grounds for "no fault" divorce is whether the marriage is (1) irretrievably broken (irreconcilable differences or incompatibility) and/or (2) the parties have been living apart for a specified time.
the only defense to a no fault divorce is to deny the existence of one of those grounds.
if one party denies marriage is irretrievably broken, the petitioner must show that marriage is IB by proving one of the fault grounds:
the usual "fault" grounds for divorce are (1) adultery, (2) willful desertion (abandonment) for specified time (usually 6 mos), (3) unreasonable behavior (e.g., mental illness, drunkeness/drugs, etc), (4) voluntary (consentual) separation for a period of time (usually 1 year), (5) involuntary separation (nonconsentual) for longer period (usually 2 years).
defenses to fauld grounds: (1) collusion (agreemnt b/w spouses to simulate grounds for dovorce or forgo raising a valid defense, (2) connivance (willing consent by one spouse to other spouse's misconduct--usually adultery, and abolished in most states), (3) condonation (forgiveness of marital offenses with full knowledge of commission, resumption of marital relations after forgiveness is key element of the defense), (4) recriminatino (defense when party seeking divorce is also guilty of misconduct for which a divorce may be granted--no longer recognized defense).
Jurisdictional rules for dissolution: SMJ and PJ
SMJ: court has if there is a
(1) valid marriage (b/c OW would be an annulment),
(2) the petitioner has at least a minimum number of days of residency.
PJ: must have
(1) in rem Jxn: jxn over status of marriage by statute, and (2) in personam jxn: obtained by
(i) personal service in the state, (ii) personal service out of the state on a resident, OR (iii) jxn unsing the long arm statute if the individual is no longer a resident of the state (a connection, usually requiring that the parties lived there while they wre married and one of the parties still resides there).
in personam jxn is REQUIRED for orders regarding child support, maintenance or property located outside the state.
Recognition of Decrees: Full Faith and Credit
A divorce decree (UNLIKE a marriage) is a judgment, entited to full faith and credit.
the jxnal requirement for granting a divorce is DOMICILE which is (1) residency + (2) INTENT to remain.
the basis for attacking adivorce decree entered into by another jxn is to attack the requirement of domicile.
can result in a "divisible divorce": the divorce can be valid as to one spouse (thereby indirectly valid as to the other spouse), but if the ct has no PJ over the other spouse, cannot get "personal orders", e.g., property rights--child support, alimony.
Division of Property: Factors to determine division
NOT equal! Most require "just" division, factors are:
1) economic circumstances (need)
2) contribution, including homemaker services
3) value of separate property (value of each's will be considered, though overemphasis on this may lead to reversal
4) duration of the marriage.
Fualt such as misconduct is generally NOT considered. Economic misconduct MAY be, and is viewed as dissipatation of marital partnership asets.
Valuation of property: determined at time of sepration, the time of filing, time of trial or on date of final order, depending on jxn.
Division of Property at Dissolution
NOT equal! Most require "just" division.
1. community property: all property acquired during the marriage is deemed owned one half by each spouse, and all property owned prior or acquired by gift/bequest is separate property.
2. all property: court has authority to divide all property aowned by either spouse at time of divorce, regardless of source.
2. equitable distribution (majority rule): the court must divide marital property (defined by statute), and the court may NOT divide separate property.
Property distribution decrees are NOT modifiable!
Division of Property: Separate Property Dfn and Rules
Separate property: property acquired before the marriage,
BUT property acquired in contemplation of marriage may be considered marital property.
property acquired AFTER marriage is PRESUMED marital property: burden of proof on person challenging marital classification to show it was acquired as
(1) gift or inheritance
(2) in exchange for separate property (requires tracing)
(3) excluded by valid agreement (e.g., nupital agreements)
Special Rules for
(1) property increasing in value:
increases in value due to purely economic factors (inflation, etc.) is classifed as separate; increases due to marital contributions are marital.
(2) property acquired both before and after marriage:
when acquired over time by marital contribution (funds or efforts), most states use "Source of Funds" rule:
to extent property is acquired with marital funds or efforts, its treated as marital property. it is considered separate to extent it is acuqired before marriage or with separate funds.
First: determine the proportion of separate vs marital funds used to acquire the equity;
then, this proportion is multiplied times the equity, (FMV at dissolution, less outstanding mortgage if real estate).
transmutation of property
Property can change nature or charage (from separate to marital and viceversa). most common methods:
(1) retitling: when proeprty is placed in both the H and W name, a gift to marital partnership is presumed.
(2) commingling: the mixing of arital and separate funds; mere commingling NOT ENOUGH, court needs commingling + intent
Special Property considerations: Pensions
(1) retirement pensions: considered marital property, whether vested/not or mature/not. to extent earned during marriage, marital, b/c considered deferred compensation. DIVISION
can be divided by (i) present value method: assessed and value is marital property, court uses other tyes of property to offset the value (pension not actually divided), or (ii) if, as and when method (possibily using a Qualified Domestic Relations Order ("QDRO"--an order to pension admin to pay a part of pension to an ex-spouse). Used where pension is large (not enough current marital prop to offset) or not vested/risk of forfeiture. Pension is divied if, as, and when it matures. If governeed by ERISA, and will be divided at time pension is payable, court will use QDRO
(2) disability pensions: NOT marital property
(3) military pensions: treated same as civil
(4) Social Security Benefits: and other benefits designated by state statute (like FF or police pensions) are NOT marital property subject to division.
Special Property considerations: Educational Degrees
not marital property, but if one partner contributed to acquisition, court can compensate the spouse who made the contributions--not by putting a vaule on the degree, but by providing more of the marital prop or making some other equitable award. to compensate spouse for contributions or career sacrifies, no return on investment.
Special Property considerations: Goodwill
the goodwill of a commercial business is marital property if the business is marital.
the goodwill in a professional business: 3 approaches:
(1) not maital (minority), or (2) always marital (minority), or
(3) subject to division to extent it is saleable (has FMV). if it is the reputation of the professional drawing business (and that is the goodwill value), goodwill belongs to professional and considered separate property.
Special Property considerations: Personal Injury Awards
usually looks to see what the personal injury award was intended to compensate.
earnings earned after the divorce are treated as separate property.
reimbursements for medical expenses paid with marital funds are marital; compensation for lost wages that would have been earned during marriage are marital. compensation for personal injury to a body part is separate.
Property: Marital Debt
usually divided. if joint, the dossolution decree does not affect thrid party creditors, b/c 3rd P is ot party to dissolution.
H and W joint debt: court orders H to pay, does not, MC comes after W. W must pay b/c joint debt and MC not party to axn, BUT W can either (1) have the ct hold him in contempt OR (2) seek indemnification after paying MC.
Property: Omitted Property Rule
Generally property divisions are FINAL and NONMODFIABLE. (though chidh custody/support and maintenance generally are modifiable). However if some property is omitted at time of dissolution:
if discovered before the appeal time has passed, ct will divide.
if discovered after time has passed, then separate action in equity must be maintained.
Maintenance (alimony): dfn and factors
dfn: support paid by one spouse to another during a legal separation or divorce. Usually based on need. To obtain, individual requestin must establish that she is unable to meet reasonable needs through appropriate employment.
factors in awarding maintenance:
1) financial resources of each party (including ability to pay)
3) standard of living (usually only long-term marriages)
4) duration of marriage.
Maintenance (alimony): types
types of maintenance that court can order:
1) permanent maintence (used to be called alimony); an open ended award that is modifiable but does not end until court order
2) durational maintenance: for a specific duration; has ending date and modifiable only during period that it is being paid.
3) lump sum: may also be paid in installmnts and generally non-modifiable
4) reimbursement spousal support: a minority of states allow this type of award to compensate a spouse who contributed to other's acquisition of professional degree/license. not based on need and is generally non-modifiable.
Maintenance (alimony): termination
termination generally occurs on either
(1) the death of either party,
(2) the remarriage of person receiving maintenance (or cohabitation, some states) or
(3) by agreement of the parties.
Maintenance (alimony): Modification
Modification: if it can be modified, is modified by
(i) substantial and (ii) continuing CHANGED CIRCUMSTANCES that make the original order unreasonable. (or can be set by separation agreement)
Decree generally must state whether or not it is modifiable. Burden of proof on party seeking modification.
Modification Circumstances: usually include
(1) an increase in obligor's income:
--alone will NOT be basis of modification,--BUT EXCEPTION when at time of dissolution, obligor was unable to financially meet reasonable needs of obligee; subsequent ability to meet b/c increased income may justify modification. (ONLY reasonable needs, never more).
(2) increase in obligee's income:
--WILL justify a reduction to extent maintenance is no longer needed for reasonable needs.
--A person receiving maintenance has ongoing obligation to become self supporting, UNLESS court determined OW (i.e., disabled, or caring for minor children, etc.) Failure to seek employemnt and become self supporting can form basis for modification.
(3) decrease in obligor or obligee's income:
--a decrease may justify depending on reason: voluntary decrease court will NOT reduce, involuntary (lay off, illness, etc.,) can constitute a ground for reduction in amount of maintenance.
--may be factor in modification. to extent person receiving maintenance begin living with someone assisting/should be assisting, person paying maintenance can use as ground for modification--(distinguish from remarriage, which is automatic termination).
Child Support: factors for amount, Child Support Guidelines (statutory)
BOTH parties obligated to support child. factors for amount:
(1) needs of the child, including special needs,
(2) resrouces of parents, and
(3) the standard of living the hcild would have enjoed of marriage remained intact.
All states have child support guidelines, which set the presumtively valid amount: rebuttable presumption by parent asking for different amount b/c presumed amount is unjust or inappropriate or not int the best interest of the child.
custodial parent's hare of child support deemed paid directly to child, non-custodial parent writes check but court consideres time sharing.
Child Support Guidelines: Special considerations: Health Insurance, Educational Expenses, Dependency Exemption
1) Health insurance: considered in child support awards and may be ordered. failure to maintain court ordered insurance makes obligro liable for costs. a qualified medical child support order ("QMCSO"--orders insurance co to privde benefits to th children through custodial parent, though may not be the parent that has insurance) may be considered.
2) educational expenses: generally not included in presumed guideline amoutn . private school: custodial parent must argue for deviation based on finding that presumptive amount unjust/innapp/not in best interest. if court orders, those amounts become part of child support award.
3) dependency exemption (taxes): usually to custodial parent but parties can agree to change that.
Termination of Child Support
Generally terminates when
1) the child or non-custodial parent dies, though some states require pruchase of life insurance that protect's child economic interest if parent dies while child still minor/in need of support
2) the child becomes emancipated (when the minor (i) marries, (ii) joins the active military, (iii) becomes self-supporting. custodial parent usually has duty to notify other parent of emancipation.
3) child turns 18, BUT excpetions if (i) child becomes diabled before 18th birthday, (ii) child has not completed high school, (iii) in minority of states, obligation may continue while child in college up to age 21 or 22, as long as certain requirements met.
Modification of Child Support
Substantial and continuing changes that make original order unreasonable.
1) increase in obligor's income (child entitled to share in increased income of both parents, though ct may require showing increased need) (DIFFERENT than maintenance, where increase in obligor's income alone not basis)
2) a decrease on obligor or obligee's income
involuntary: then child support will be modified
voluntary: court will examine reason: if to avoid support, not modify. if for another reason (like obtain add'l eduation) the ncourt may find valid reason and modify temporarily.
Child Support: Subsequent Family "Sword and Shield" Doctrine
The needs of the children of a second family cannot be used to reduce the amount of suppor tthta is curently being paid to the first family (as a "sword"). The person paying the child support who has the second faily CAN sue the needs of that family as a defense (a "shield") to increased amounts of child support to the first family.
Child Support: Increased Income = Percentage Change then PF case of Changed circumstances
If the current income of the parent would change the child support amount on the guidelines by more than a certain % (usually b/w 10 and 20%) it constitutes a prima facie case of changed circumstances.
Payee spouse not required to show additional changed circumstances b/c difference b/w the guideline amounts is more than the 10-20% change. It can be increase or decrease
Enforcement of Maintenance and Child Support Orders
Every time a child support amount becomes due and is not paid, it becomes a judgment, and all judgment remedies are available, e.g., garnishment.
Additional remedies for failure to pay child support:
1) contempt and actual imprisonment of person not paying child support (to coerce payment), must show (i) current ability to pay + (ii) refusal or intentionally and contumaciously placed in position of inability to comply.
2) special enforcement devices, e.g., liens against property, security bonds, tax intercept, and Uniform Interstate Family Support Act.
Uniform Interstate Family Support Act ("UIFSA")
IN ALL 50 STATES; A state law that is used to enforce child support across state lines.
existing orders can be enforced through registration
or direct wage withholding--if wage withholding order in one state, payee can take that order and send it directly to employer of person who is obligated to pay and have that wage witholding enforced--no court needed.
MODIFICATION of existing orders can take place,
the decree state retains CONTINUING EXCLUSIVE JXN as long as one party remains in the state; BUT
if all leave, the party seeking to modify must go to OTHER PARTY'S STATE to modify.
ONLY the decree state has ability to modify DURATION.
Uniform Child Custody Jxn Enforcement Act ("UCCJEA")
Jxn for child cusotdy is governed by UCCJEA. 48 states have enacted.
Rules apply to both original actions and modification.
Jxn for Original orders:
(1) primary basis for jxn to make original orders is HOME STATE (= child has resided for 6 months immediately prior to the proceeding) OR the EXTENDED home state (= the home state w/in last 6 mos, although child no longer lives there, one of parents continues to live in that state). UCCJEA has ABSOLUTE PREFERENCE for home state/extended home state.
OTHER bases for jxn:
(2) (if NO home state) court may take jxn if significant connection to child AND at least one parents AND evidence concerning child in that state; OR
(3) if all courts having jxn decline to exercise it or no state has jxn, OR
(4) emergency jxn: temporary emergency jxn can be obtained when child is present in state and has been abandoned, abused or neglected.
A court MAY DECLINE to exercise jxn b/c
(1) a person requesting jxn has engaged in unjustifiable conduct (unclean hands), OR
(2) the court determines that another jxn is a more appropriate forum (inconvient forum).
Procedures in a Child Custody Case
1) parenting plan: may states require submission of proposed plan re decisions about child will be made after divorce
2) appointment of guiardian ad litem (person who will make rec to court as to best interest of the child). in most states, court has discretion to appoint, some states mandatory in cases of alleged abuse or neglect
3) interview of child: court can interview as to his wishes but usually at discretion of judge, generally in chambers and statute usually requires interview be "on the record" with counsel present
Child Custody Orders: types
1) sole custody: one parent makes all major decisions, resides.
other parent (i) ENTITLED to unsupervised visitation unless it would be harmful to child (BUT restrictions can be placed on visitation if necessary to protect), and
(ii) is entitled to access to all child records.
2) joint custody, either
(i) joint legal custody = parents share in major decisions (medial, school, religion),
(ii) joint physical custody: parents share time with child, not necessarily equal time.
most states have preference for joint legal custody
3) third party custody: court can award custody to third party, many states require finding of parental unfitness, or if extraordinary circumstances. ALL states biological parents enjoy presumption that they are entitled to custody of the child.
Child Custody: standard and factors to be considered
the standard in making a custody award is THE BEST INTEREST OF THE CHILD.
factors as to child's best interest:
1) the child's wishes (teens generally have opp to express views, but court not obligated to accept them)
2) parent's wishes
3) mental and physical health of all parties including history of abuse (including domestic violence--court may need to make specific findings as to why it is in best intrerest of child)
4) need for continuing relationship with both parents
factors NOT considered are
1) gender or age of children (to rebut outdated "tender years" presumption)
2) financial status of the parties.
Third Party Visitation Rights
Parents are entitled to visitation. Most states allow grand or stepparents to seek visitation, must always be finding that its in best interest of child (usualy when parents divorcing, or dies, other parent refuses visitation).
Under Troxell, there is rebuttable resumption that it is NOT in best interest of child to order visitation over objection of parents who are married and living together with child--protection of the nuclear family from 3rd party intervention.
Modification of Child Custody: UCCJEA
Sets forth jxn for an original order and for modification.
General rule: the state that granted orginal order has CONTINUING EXCLUSIVE JXN to modify.
If original order was not entered in state A, can modify order ONLY IF
(i) the court with continuing exclusive jxn NO LONGER has jxn or refuses to exercise it, AND
(ii) one of those ases for jxn under UCCJEA (home/extended home state, signification connection, emergency) exists.
only ONE state has modification jxn.
Standard for Child Custody Modification, Enforcement
Std: changes circumstances.
1) breakdown of joint custody
2) facts previously not considered (e.g., original custody hearing judge heard no evidence concerning father's abusive relationship with mother, court can modify b/c exclusion of that evidence doesnot apply in "best interest of child", this standard requires that all evidence be heard.)
Enforcement: remedies available for violation include
1) contempt of court and
2) tort liability for custodial interference.
Parental Kidnapping Prevention Act ("PKPA")
federal law that
(i) applies to enforcement and modifcation of child custody awards (NOT original awards, only modifications)
(ii) requires that a state give full faith and credit to custody decree from another state if that state jxn was based on home state.
Many states have statutes that require a parent to give other parent notice when child is to be relocated. if objection, a hearing is held. best interset standard controls, but KEY DIFFERENCE is burden of proof regarding the establishment of best interest related to the move. other states treat relocation as ground for modification.
Separation Agreements: Requirements and Terms
Most divorces resolved through separation agreements: they are settlement agreements, designed to settle aspects of the dissolution.
Requirements: as general rule, must:
1) be in writing or made orally on the record;
2) be attendant on the divorce;
3) be approved by the court (standard in most court in determining validity is if conscionable)
4) must be full and fair disclosure of all assets for agreement to be binding.
Terms can include:
1) all aspects of dissolution
2) terms that a corut could not order to but which parties could agree
3) court NOT BOUND by terms related to children!
Separation Agreements: Enforcement
Depedent upon whether it is incorporated into the divorce decree or standing alone.
Usually incorporated, therefore become available for judgment remedies.
If not (for privacy reasons), court can simply refer to it, though in event on noncompliance only Kual remedies available.
All terms pertaining to children automatically incorporated into decree.
children born to unmarried mother. no longer distinctions b/w marital and non-marital children.
constitutional limits on discrimination against non-marital children (illegitimacy not suspect class but distinctions are subject to scrutiny).
Uniform Parentage Act ("UPA")
A man is presumed father of a child if
1) the child is born to his wife or woman he attempted to marry but marriage invalid, OR child born w/in 300 days of termination or marriage, OR
2) after child birth, he and child's moher attempted to marry (though later marriage may be declared invalid), and
(i) he has acknowledged paternity in writing, or (ii) his name is on birth certificate with his consent, or (iii) he is obligated to suppor the child purpsuant ot written voluntary promise or court order, or (iv) an expert concludes he is not excluded as a parent and probability of paternity is 98% or higher.
Presumptions can be rebutted by someone claiming to be father.
If two competing presumptions under UPA, the weightier one based on public policy will prevail.
An action generally may be brought by (1) child, (2) mother, (3) the state, (4) a putative father who wishes to establish his parternity (though may be dened if child's mother was married to someone else at time of birth, (4) a person with physical custody for 60 days, (5) a personal rep of mother or father, if deceased or a minor, but ONLY if no presumed father.
A paternity action is civil in nature (though prosecutors often bring them for purposes of obtaining a support order).
SOL is tolled for child's minority (so is greater than 18 years). Standard of proof may be clear/convincing (or in some states, preponderance).
recend trend toward allwoing disestablishment, using genetic evidence. Successful petitioner is not able to recover monies already paid under existing court orders.
Adoption: Procedures and Consequences
Is governed by statute, statutes strictly construed.
1) consent of natural/biological parents.
mothers required UNLESS parental rights already terminated (e.g., child abandoned), consent MAY NOT be required of unmarried father: he must either be a presumed ather or (in some states) filed with the putative father registry or filed a paternity action w/in short period after birth.
i.e., Father needs biology +!!!
2) consent of adoptee (if of a certain age)
3) time of consent: some states don't allow parent to consent until certain period of time after irth (12-72 hours)
4) withdrawal of consent: varies widely. trend is to shorten periods or eliminate if consent given before a judge.
5) guardian ad litem: some state require appointment to make rec to court as to whether it is in best interest of child to finalize adoption.
6) investigation, accounting and court approval: court will usually require investigation made and home study submitted (can be waived if stepparent adoption), and account of monies spent in connection to prevent baby-selling.
court holds hearing and after finding of all procedural requirements + best interest, grants approval of adoption.
(1) issuance of new birth certificate reflecting adoptive parents as legal parents, and
(2) for all legal purposes, that child is treated exactly like a biological child.
Rights of Unmarried Cohabitants: Property and Support
Determined by K law. Regardless of length of time living togehther, not subject to dissolutoin statute b/c not married; must argue ther ewas express K or implied K to share property. Ct can make equitable award based on finding of agreement to share property.
no statutory protection, no obligation to support. Ct may make equitable award but difficult to maintain equitable action, ct must find Kual (express or implied) agreement before it can order.
Domestic Violence: Orders of Protection
All states offer some form of order to protect victim. Usually available if parties are (i)living together or (ii)have child in common.
Abuse = intentionally attempting to cause or causing bodily injury; intentionally placing another in fear of bodily injury by threat.
emergency ex parte orders can be given ,but expire in short period of time (15 days), after which full hearing at which respondent may present a defense.
these orders can include:
1) resrain abuse and interference (violation is assault), 2) grant possession of resdence, (3) temporary custody and residency with children, 4) order an officer to evict a party, 5) award support, 6) award costs/atty fees to either party, 7) require conseling of offender to stop abuse 8) make provision for possession of personalty.
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