Family Law Final Exam

Void marriage

Void marriage

a marriage that was unlawful or invalid under the laws of the jurisdiction where the marriage occurred

Even if a marriage is void as a matter of law, some jurisdictions require

an annulment to establish that the marriage is void

annulment

legal procedure within secular and religious legal systems for declaring a marriage null and void

voidable marriage

a marriage that can be canceled at the option of one of the parties through annulment

civil annulment

court-granted declaration that a marriage never existed in the eyes of the law

religious annulment

declaration by a church or religious institution that a marriage was never valid in the eyes of the church.

divorce

a decree by a court that a valid marriage no longer exists

no-fault divorce

a divorce in which neither person blames the other for the breakdown of the marriage

ex parte divorce

a court has jurisdiction over only one party

estoppel

a bar or impediment which precludes allegation or denial of a certain fact or set of facts after a final adjudication of the matter in a court of law

res judicata

rule that a final judgment rendered by a court of competent jurisdiction on the merits is conclusive as to the rights of the parties and their privies, and, as to them, constitutes an absolute bar to a subsequent action involving the same claim, demand or cause of action

temporary spousal support

court-ordered monthly payment from one spouse to the other while a family law case is on-going

A state has jurisdiction to grant a divorce where…

at least one spouse is domiciled in that state and a minimum residency requirement is met

emancipation

a legal process that allows a minor to be freed from the control of their parents or guardians and gain some or all of the rights of an adult

Children seeking emancipation must be

1. Resident of the state where they are seeking emancipation

2. be within the statutory age range of the state range

3. must possess the ability to support themselves and manage their own finances.

voluntary emancipation

when a parent agrees to allow the minor to leave home and control their own finances and responsibilities

constructive emancipation

when the state emancipates a minor from abusive or irresponsible parents

express emancipation

a court order that can be voluntary or constructive

partial emancipation

a legal status where a minor gains some rights and responsibilities but remains under parental control.

wage deduction orders are effective in collecting support if:

1. the parent is regularly employed, and

2. does not change jobs frequently

wage deduction order

a way to enforce child support payments, by which an employer sends a portion of the obligor-parent’s wages to a state agency which then sends the money to the parent who has custody of the child.

gross income

the parents’ income from all sources, including wages and investments, with no deductions for taxes or other expenses. Non-wage benefits from an employer may also be included

net income

gross income minus federal and state income taxes, Social Security tax, Medicare tax, and health insurance. Some states will allow other deductions such as retirement contributions or child support payments to other families, and payment on debts that were incurred during the marriage for the benefit of the family

Prenuptial agreement

legally binding contract between two people engaged to be married that covers what happens to each person’s assets and debts in the event of a divorce

Texas says that prenups

must be in writing and signed by both parties and that they are enforceable without consideration

Prenups CANNOT protect…

child support and custody, day-to-day household matters, illegal provisions, anything that encourages divorce, anything fair or unjust

Steps to create and enforce a prenup

1. Discuss the prenup

2. Collect information (full and fair disclosure)

3. Write a first draft

4. Edit and negotiate

5. Sign and notarize

6. Enforce (if necessary)

Common mistakes that can invalidate a prenup:

• Including provisions for child support and custody of unborn children

• Less than full financial disclosure by one or both parties

• Including provisions that are blatantly unfair or unjust to one party

• One partner did not have the opportunity to consult an attorney

• The prenup was signed very shortly before the wedding

• There is evidence that the prenup was signed under duress or coercion

• One or both parties didn’t have their own lawyer

postnuptial agreement

a contract established between a married couple that will establish how to divide marital property and financial interests in the event of death or divorce

A postnuptial agreement must be

in writing, voluntarily entered into, signed by both parties, and notarized.

temporary spousal support

court-ordered monthly payment from one spouse to the other while a family law case is on-going

temporary alimony (pendente lite)

spousal support awarded during the pendency of the dissolution proceedings

permanent periodic maintenance

awarded upon final judgment of dissolution in a set amount payable in increments, such as monthly, usually until the recipient’s death or remarriage or the payor’s death

lump sum alimony

paid as a lump sum after divorce, although payment of the lump sum may be done in installments

rehabilitative alimony

designed to “rehabilitate” the recipient to become self-supporting. Usually is in an amount and duration to provide the recipient spouse with living expenses during education, training, or other aspects of becoming self-supporting as well as the cost of any such education and training

Texas limits on amount of spousal maintenance

Monthly payments may not exceed $5000 or 20% of the supporting spouse’s average monthly gross income, whichever is less

marital tort

a tort committed by one spouse against the other. It is a civil action as between spouses, or against a third party for their interference in the marital relationship.

An alienation of affection suit may be brought up against employer if one of these three circumstances is evident

1. The employer authorized the employee’s acts

2. The employee’s acts were committed within the scope of his employment and in furtherance of the employer’s business; or

3. The employer ratifies the employee’s acts.

Alienation of Affection Elements

1. The couple was married, and genuine love and affection existed between them;

2. This existing love and affection was alienated and destroyed; and

3. The wrongful and malicious acts of the defendant (the person interfering in the marriage) caused the loss and alienation of love and affection.

Criminal Conversation Tort Elements

1. Actual legal marriage between the plaintiff and the allegedly adulterous spouse;

2. Sexual intercourse between the allegedly adulterous spouse and the defendant; and

3. The sexual intercourse occurred before the plaintiff and the allegedly adulterous spouse’s date of separation

Differences between Alienation of Affection claim and Criminal Conversation claim

• Criminal conversation requires proof that spouse had sexual intercourse with the defendant

• State of marriage does not matter in criminal conversation claim

• Defendant can defend themselves in alienation of affection claim by showing they didn’t know the adulterous spouse was married OR that the complaining spouse consented to the affair, but these defenses are not available for criminal conversation.

grandparent visitation

legal right that grandparents in some jurisdictions may have to have court-ordered contact (or visitation) with their grandchildren

Steps for Calculating Child Support

1. Calculate your monthly net resources.

2. Determine how many of your children are eligible for support

3. Determine the percentage of monthly net resources you will owe (using the chart)

4. Apply the percentage to your monthly net resources.

Any delinquent child support greater than the monthly amount ordered accrues interest at a rate of…

6% per year

If unpaid support has accumulated, it’s a debt called an…

arrearage