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48 terms

Family Law

breach of promise to marry
not actionable in any state. not breach of contract or tort.
premarital gifts given conditioned on subsequent marriage
can be recovered back. engagement ring.
premarital agreements
contract entered into in contemplation of marriage. traditionally designed to address economic issues (property), but can contract on any subject! 1. must be in writing, 2. signed by both parties
how to challenge prenup
show 1. unconscionability or 2. duress.
prenup is ____ if the wealthier party did not disclose his assets and challenging party did not waive disclosure, and challenging party did not have independent knowledge of his assets. OR if the provisions would leave the challenging party in unforeseen and extreme hardship. separate counsel = likely valid. level of business experience is also a factor. look to see if spouse w/ less money understood the rights they were forfeiting.
marriage capacity
1. must not be insane, 2. one man one woman
marriage requirements
1. need a license, 2. need a ceremony (w/ officiant), 3. need a witness (or two), of promises (no specific words needed)
validity of marriage
valid in all states if valid where contracted. includes common law marriage.
common law marriage
1. need capacity, 2. must exchange promises or commitments (not in front of anyone. but MUST prove it was said. proved by: a. cohabitation for any amount of time and b. holding yourselves out as married)
looks backwards from date of marriage to ground that predates the marriage. almost always a lack of capacity in one of the two. problem came up before marriage.
don't need marital misconduct, but it does mean that the issue arose after the wedding.
Grounds for annullment (Void)
you're not really married. you can leave anytime. you still might. grounds cannot be waived by the parties. can be attacked by 3rd party. 1. bigamy, 2. consanguinity (incest). can't marry mother, grandmother, daughter, granddaughter, sister, halfsister, aunt, niece.
Grounds for annullment (Voidable)
you must get an anullment before a judge. the grounds can be waived by the parties. can only be attacked by the couple. 1. non-age (too young) waivable if you stay in the relationship after 18, 2. insanity, 3. disability, 4. intoxication. 5. incurable physical impotence (if abstinent before marriage), 6. duress, 7. fraud (but it's a misrepresentation that goes to the heart of the relationship). someone told a big lie or kept a big secret.
no-fault divorce
doesn't point to one spouse or the other. says that marriage is irretrievably broken. no hope of reconciliation. requires: 1. evidence of separation (bedroom or house), 2. must be celibate during the waiting period (can't have sex w/ wife). but takes longer if only one says marriage is broken.
1. no intention to return, 2. no justifiable reason for it (e.g., military).
physical cruelty
only needs to happen once
mental cruelty
especially in front of 3rd persons, ignoring, not having sex with, etc. single episode usually not enough.
condonation (of adultery)
if you: 1. have knowledge, 2. forgive, 3. resume sexual relations. you don't have the right to bring up the adultery later.
other spouse tricked the spouse. it's a defense.
no real grounds for divorce, but both spouses agree to pretend.
D spouse can prove that the P spouse has been guilty of equally bad conduct (e.g., you're a cheater! but so are you!)
legal separation
can get one based on the same reasons you can get a divorce, INCLUDING failure to receive economic support from court. YOU REMAIN MARRIED, and you're not free to be with other people.
jurisdiction over divorce
1. requires at least one spouse to be domiciled in the state.
residency requirement
many states have that.
no PJ over D spouse (divisible divorce)
can only get divorce decree, but can't make economic remedies. (e.g., alimony).
divorce in foreign country
discretionary. need sufficient contacts/due process.
equitable distribution
everyone except community property states. two step process: 1. categorize assets, 2. distribute the assets.
categorizing assets
three categories: 1. husband's separate property, 2. wife's separate property, 3. marital property.
separate property
anything owned prior to marriage, gifts or inheritance in 1 name (includes appreciation). everything else is marital assets. goes automatically to the H or W depending on ownership.
marital assets
anything acquired in during marriage. we don't care what it says on the title. H puts name on car. BUT, if purchased during marriage, marital asset. includes stock options, gambling winnings, good will, personal injury. EVERYTHING! AFTER Separation: still a marital asset. exception: professional degrees are NOT treated as assets.
how to distribute marital assets
can't consider fault of divorce. look at age, health of two parties, earning capacity, custodian of minor children, length of marriage (longer = 50/50).
spousal support
goal: to ensure income to ex-spouse who has grown dependent on the other spouse. not automatic (need based). usually permanent periodic payments. can come to court and argue something changed. can be a lump sum alimony award. (e.g., if rich spouse is old). if cohabitates, can go to court and get it changed.
if she supported him in law school.
includes perks like free car.
pay support for minors
Goes through age 18. support usually ends at your death. modifiable if substantial and material change in circumstances. not allowed to "game the system" by voluntary impoverishment. CANT modify past due payments. need to go right away if you lose your job. can garnish wages. can revoke professional license or driver's license, recreational licenses, passport, civil/criminal contempt. Uniform Support Law.
Uniform support law
makes first state to issue support order have continuing, exclusive jurisdiction as long as the kid or the mom continues to live in the state.
separation agreements
similar to prenups, but deal with custody, child support, etc. generally enforceable if full disclosure of economic circumstances and the terms are fair. issues dealing with children are subject to judicial review.
legal custody
where is he going to school, what sports can he play, etc.
physical custody
where is he gonna live.
uniform child custody jurisdiction and enforcement act (UCJEA)
state has jurisdiction to enter into custody order if it's the home state of the child. (lived 6 mo prior to custody proceeding), or if it was the homestate w/in the last 6 months). all other states must abide by initial custody order. designed as a deterrent to parental kidnapping.
BIC (best interest of child) standard
to predict who's going to get custody. other factors: wishes of parents, wishes of child (if over 14). very, very, very, very discretionary.
custody challenge by non-parent (aunt, uncle, etc.)
it's a big deal to take someone's kid away, so it only happens in rare circumstances.
only denied if there is a danger to health or safety of child. THEN, supervised visits.
visitation challenge by non-parents (GP)
SCOTUS held that parents have due process right to raise child as they think fit. GP must show "extraordinary circumstances" (in order to show substantial state interest trumping the DP rights).
modification of custody order
always BIC. must be a change that alters the calculus. e.g., stability is something to think about. moving to a new school can be traumatic .
non-marital children discrimination
state cannot pass statute denying rights to inherit, right to sue for wrongful death, etc. court can mandate blood testing, and then they'll know.
terminating parental rights
1. by voluntary relinquishment (putting your child up for adoption). 2. state can take child away (must have showing the bio parent is unfit. burden of proof is clear and convincing evidence, can be appointed counsel if you can't afford). Grounds: 1. abuse, 2. abandonment, failure to communication, 3. neglect (sad stuff), 4. failure to pay child support for period of time, 5. severe mental illness/drug addiction. parents must consent to adoption unless their rights have been terminated, also need consent of child. if someone else has custody, need their consent too. adoption cannot be undone.
terminating child support
parent's cannot bargain away these rights. nonmarital children also have the same rights to child support as marital children. general rule is that both parents equally share duty to support children. Amount of support is usually based on need and ability to pay, and most states have adopted child support guidelines that dictate a formula. courts may deviate, but must make findings of fact justifying the deviation.