Family Law

what do prenups cover

disposition of prop in event of death/divorce; making of will, trust, etc.’; COL governing agreement; alimony provision (but might be held unenforceable)

child custody + support provisions in prenups

NEVER bind courts

prenup reqs for validity

signed writing; voluntarily entered into; full and fair disclosure of assets (or proof of indep knowledge); fair and reasonable provisions; unconscionability

if prenup parties repped by diff counsel . . .

cts more likely to uphold it

COL for prenup

if COL provision, there; if no provision, where executed or most sig rel to parties

reqs for marriage

license; waiting period (some states); ceremony with authorized officiant

legal impediments to marriage

too closely related; undissolved previous marriage (bigamy); incapacity to consent

valid CL marriage

consent to marry; cohabitation; holding themselves out publicly as married

*no license/ceremony required

marriage by estoppel / putative marriage

avail when innocent party who acted in good faith entered into invalid marriage

tenancy by entirety

assumed for spouses in many states; cannot convey/encumber prop without consent of another; become TIC upon dissolution of marriage

marriage obligation to support

each spouse must support othe

doctrine of necessities

makes one spouse liable to third party for other spouse’s purchases for necessary expenses (food, clothing, health insurance)

spousal abuse orders

protects DV victims; protective orders can be granted ex parte (w/o notice) and can last between 1 month and several years depending on JX

alienation of affection claim

third party diverts affection of one spouse so other deprived of marital relationship; req proof of genuine love + affection b/w spouses

*no adultery necessary; can be brought against in-laws, e.g.

criminal conversation

when one spouse has sex with a third person, spouse may have COA against third person; existence of valid marriage + adultery must be proven

right to private rights pertaining to marriage

marry; procreate; contraceptives; live tg; educate children; care/custody/control of children

annulment

backward-looking; declares marriage invalid bc impediment existed at time of marriage that makes it legally void or voidable

void marriage via annulment

bigamy/polygamy; consanguinity (too closely related)

voidable marriage via annulment

non-age; incurable physical incompetence (can’t have sex); lack of capacity; duress; fraud

effect of annulment

marriage set aside as if it did not exist

children of annulled marriages

still treated as martial children

JX for annulment actions

domicile of either party; or place of celebration of marriage

JX for divorce

only one party needs to be domiciled in divorce JX; can happen simultaneously in mult JX and whichever hands down divorce first wins

mediation for divorce

ct may refer to mediation; helps them work through issues like child support, custody, visitation; any agreement reached must be based on decision of PARTIES

no-fault divorce grounds

irretrievably broken (bilateral no-fault); living apart for long enough (bilateral OR unilateral); incompatible (bilteral)

fault divorce grounds

adulter (proven by opp + inclination); willful desertion / abandonment (unjustified departure with no intent to return); physical/mental cruelty; drug addition/habitual drunkenness; insanity

defense to no-fault divorce

deny existence of the ground; claim that reconciliation restarted clock for living separate

defenses for fault-based divorce

collusion (agreement b/w spouses to simulate grounds); connivance (one spouse consented to other’s conduct); condonation (forgiving marital offenses w/ full knowledge of wrongs); recrimination (other party also guilty of misconduct rising to level of grounds for fault divorce)

legal separation

“divorce from bed and board” - doesn’t terminate marriage and parties can maintain rights regarding property, spousal support, custody, and child support

*can be enlarged into divorce

comm prop

prop acquired during marriage split in half for each spouse; all prop brought into marriage or received via gift separate

equitable division of all prop

ct divides all prop owned by either spouse, doesn’t matter whether acquired before or during

equitable division of marital prop

each spouse takes sep prop; court divides property (not necessarily equally) acquired during marriage

two-step process for property division

(1) classification - as marital or separate; (2) division - equitable

what constitutes sep prop

owned before marriage; acquired by gift/inheritance; acquired in exchange for sep prop; income and appreciation of sep property; pain and suffering awards; personal damages; prop acquired after order of legal sep that includes final disposition of prop

what constitutes marital prop

acquired during marriage; earnings; E benefits/pensions/stock options; lost wages; reimbursement; recovery for damages to marital prop

commingling prop

sep prop is inextricably intertwined with marital prop or with sep prop such that it can’t be traced

—> separate BECOMES marital

transmutation

separate BECOMES marital; prop treated in a way that evidences intention for prop to be marital prop (ex., placing sep property in names of both spouses)

improving sep prop with marital funds

prop remains sep but marital estate gets value added

prop acquired before M but paid for after

cts split; majority = should be apportioned to separate v. marital in proportion to contribution of separate v. marital funds

pensions

portion earned during marriage is marital; diff formulas used to determine how much earned during marriage

professional degree/license

NOT distributable marital; some JXs use alimony to compensate supporting spouses to avoid unjust results

equitable division - what does it mean

not necessarily equal; lots of discretion; subject to MANY factors:

• age, ed, background, earning capacities

• duration of marriage

• standard of living

• present incomes

• source of $

• health

• assets, debts, liabilities

• needs

• child custody provs

• alimony

• opp to acquire future income

• contribution to acquisition of marital assets

• contribution as homemaker

• econ fault (dissipated marital prop)

alimony

spousal support; paid to economically dependent spouse; while married, during divorce, or as part of divorce decree

types of alimony

permanent periodic spousal; lump sum; rehabilitative spousal support; reimbursement spousal support

*trend is to award less $$ bc more families have two earners

permanent periodic spousal support

indefinite duration; regular interviews; can be increased/decreased/terminated upon proof of subst change of circumtances

lump sum

fixed amt payable all at once or via several payments; duration is specific time period; NO modification (like a contract)

rehab spousal support

periodic payments for limited time to enable spouse to gain skills and become self-supporting; can be modified

reimbursement spous support

awarded to spouse who supported other while other obtained professioanl degree; can be in addition to other types; for specified time period; NO modification

factors considered for alimony

standard of living; duration of marriage; age/physical and emotional condition; financial resources; contribution; time needed for party seeking support to obtain training; ability of payor spouse to meet needs; marital fault

two overall considerations - needs of claimant and ability of other spouse to pay

modification of alimony

can be changed if substantial change in circumstance regarding needs of recipient or means of payor

termination of spousal support

upon remarriage of other spouse or death or EITHER spouse

tax consequences for alimony

not taxable

marital agreements

like pre nup but during marriage; abt prop rights

contract b/w unmarried co-hab

regarding earnings and prop rights; enforceable

determining amt of child support

ref to guidelines, charts to consider incomes + number of children; can deviate from guidelines to cover health + insurance costs

duty to support child ceases upon:

(1) child reaching 18; (2) death of child; (3) emancipating of child; (4) termination of parental rights

original JX for child support

proper where first UIFSA petition filed

JX to enforce

whichever JX issued order

modifying child support

same ct has JX; modifiable based on substantial and continuing change of circumstances affecting needs of child or ability of parent to pay

tax consequences of child support

not taxable

enforcing child support

hold non-paying party in contempt of ct; other sanctions range from forfeiture of licenses, seizure of real estate, attachment of wages, atty fees, etc.

*expansive

initial custody determination JX

ct in child’s home state OR was child’s home state within past 6 months and child is absent from state but guardian continues to live there

when home state JX doesn’t apply

no other state accepts home state JX and child has significant connection with the state; subst ev abt child is avail to state

modification fo custody decree

original ct has continuing and exclusive JX UNLESS - no child/parent continues to live there OR child no longer has significant connection with that state

declining JX for custody

ct can decline if inconvenient forum

types of custody

legal - right to make major decisions affecting child’s life

physical - actual possession and control of child

standard for determining custody

best interest of child! with factors + trial ct discretion

• wishes of parents

• child’s pref (under 8 not considered; over 12 great weight)

• child’s rel with parents, sibs, others involved

• child’s adjustment to home, school, comm

• parties’ mental + physical health

• who has been child’s primary caregiver

• NO consideration of gender/fin ability

parent challenging interference with lawful custody

actions for abduction or enticement

joint custody

factors considered

sole custody

needs to be strong ev that it’s in best interests; if one parent gets sole custody, other parent will ALMOST ALWAYS get visitation rights

custody to non-prent

not only about best interests b/c parents have const right to raise their child; nonparent must show that it will result in harm or parent is unfit

parental visitation

almost always entitled; may be limited if parent engages in conduct that might injure child

*absolute denial is rare - could be more like supervised

non-parental visitation

all states entitle non-parents to visit (like gprents); applied when there are extraordinary circumstances; if parent is fit, their wishes on non-parent visitation must be given SPECIAL WEIGHT

custody changes

only if sub and material change in circum affecting child’s well-being

custody X relocation

notice to other parent req; court hearing to determine if relocation is permitted. factors

• relocation in child’s best interests

• move motivated by benefit to family and not hostility / thwarting rel with other parent

how to enforce custody

contempt proceedings, habeas, suits in equity

standard of review for distinctions b/w non-marital children (born out of wedlock) v. marital children

intermediate scrutiny - substantially related to imp gov interest

presumption of parentage for mother’s husband

presumed to be dad if child born during marriage or within 300 days of termination (even if marriage is void/voidable)

can men disprove parentage and disestablish?

only in some states if they show clear and convincing ev that they’re not bio father; if so, child support eliminated

child is lawful child of unwed father only if

parents married after child’s birth; father holds child out as his bio child; father consents to be named on birth cert; father formally acknowledges paternity; or court order est paternity

unwed father X DPC

protected; have custody rights if can demo parental responsibility (paternity, supervision, education, protection, care, and support of child)

paternity suit

can be brought by mother, child, or state - seeks support; can also be used to allow child to inherit from father

ev of paternity

states diff over standard; blood + tissue sampling is standard; testimonial and other medical ev deemed sufficient in some sttes

citizen of child born abroad to unmarried Am parent

if woman gives birth abroad - child is auto US citizen

if child of unmarried man born abroad - father must take specific steps to est paternity to make his child US citizen

involuntary termination of parental rights

parents have DP rights so grounds for term must be proven by clear + convincing ev

grounds for involuntary termination

infliction of serious phys harm (incl sexual abuse); abandonment; neglect/deprivation (failure to meet min standards of care); failure to support w/o justifiable cause; mental illness so severe as to make incapable of caring for child; parental unfitness

*ultimate purpose is not to remove child permanently

can unmarried father veto adoption

considers dad’s involvement with child (lived with / cared for child, visited frequently, admitted paternity, paid child support; if newborn - manifestation of responsibility)

reqs for new parental rights / adoption

consent of adoptee if over 12/14; home studies; investigation; ct approval

*no payment of $$

venue for adoption

adoptee must be resident of cnty where adoption petition filed

gamete donors

egg / sperm donors not parents of a child conceived through assisted conception; some allow sperm donor to have rights if agreed in writing by donor and woman

posthumous conception

child will be considered child of deceased parent if gamete provider consented in writing that could be used after death; full inheritance rights

genetic surrogacy (traditional surrogacy)

woman who is not intended parent agrees to become preg through assisted reproduction using OWN gametes

gestational surrogacy

woman who is not intended parent agrees to become pregnant through assisted repro using gametes NOT THEIR OWN

validity of surrogacy agreement

in writing; ct approval; home study by child welfare agency unless waived; voluntary; provision for healthcare costs until birth; not limit rights of surrogate to make healthcare decisions; provide reasonable consideration