Family Law

They must be returned

1) Minimum age requirements
2) Not too closely related
3) Must have Legal capacity to consent
4) No same sex
5) No prior undissolved marriage to a living spouse

1) License AND
2) Solemnization (Ceremony - Officiant (judge or clergy); one witness; exchange of promises)

1) Understand their actions AND
2) Voluntarily agree to them

(DOES exist in UTAH, but not most states)
1) Exchange of consent between two people w/ capacity;
2) Cohabitation;
3) Holding out publicly of living together as H & W
NOTE: no minimum time you need to live together.

A contract entered into by two people who plan to marry, which deals with anything the couple chooses to address (but NOT potential custody issues).

The Uniform Premarital Agreement Act

1) must be entered into voluntarily;
2) Must be in writing signed by the party to be charged;
3) Both parties must make a full and fair disclosure of their financial worth; AND
4) Provisions must be fair and reasonable.

1) If they are unconscionable (e.g., party didn't disclose assets, spouse didn't have knowledge of assets).
2) It would leave the poorer spouse in unforeseen and extraordinary hardship.
3) Signed under duress (look to whether parties had independent counsel)

Each spouse has obligation to support the other during marriage.

1) Annulment (based on ground that predates the marriage - generally a capacity problem)
2) Divorce (looks to grounds that arose AFTER the date of the marriage)

1) Void = there is no relationship; it doesn't exist (cannot be waived) (can be collaterally attacked by 3rd party)
2) Voidable = the relationship is valid until the court declares it annulled (can be waived) (can only be attacked by one of the spouses)

1) Bigamy
2) Consanguinity (can't marry ancestors, decedents, siblings (whole or half, linear relatives up or down one generation.

1) Nonage (either party is under age)
2) Incurable physical impotence (has nothing to do with procreation)
3) Lack of Capacity (mental incompetence, Duress, fraud involving essentials of marriage)

1) Any misrepresentation or concealment of info prior to the marriage that goes to an essential aspect of the marriage.
2) Ex: lying about marriage; issues relating to sex/procreation
3) NOTE: lies involving money DO NOT provide grounds for annulment.

1) Void marriages: only to deny the existence of the defect.
2) Voidable marriages: Ratification of marriage

Courts attempt to put parties in the place they were in before the marriage.

1) No Fault
2) Fault based

Requires showing that:
1) marriage is irretrievably broken (irreconcilable differences); AND
2) parties have been living apart for a specified period of time.

To deny the existence of one of these two elements

1) Adultery (proved by opportunity + inclination)
2) Unjustified departure from home for specified time (usually 1 yr) w/ no intent to return;
3) Physical or Mental cruelty
4) Voluntary drug addiction (includes alcohol)
5) Insanity (developed after marriage begins)

1) Collusion: agreement between spouses to simulate grounds for divorce
2) Condonation: (knowledge of misconduct, forgiveness by innocent spouse, resumption of sex)
3) Connivance: similar to entrapment.
4) Recrimination: where party seeking divorce is guilty of misconduct (this defense is no longer recognized)

An action used by a party who wants to leave the marriage in tact but refrain from marital relations and obligations. NOTE: very similar to divorce proceedings; parties may have all rights adjudicated.

1) Community property: all property acquired during marriage is owned 1/2 by each spouse, and all prior property is separate property.
2) Equitable distribution of ALL Property: applies to property owned before and during marriage.
3) Equitable division of marital property: each spouse takes separate property and court divides property acquired during marriage.

1) any item owned prior to marriage
2) any gift or inheritance received during marriage in a spouse's sole name.
3) Any appreciation on items in the first two categories.

1) Everything else acquired during the marriage (Exception: profession license is treated as separate property, BUT party can be required to pay alimony based on spouse's support)

Separate property may become martial property if:
1) it becomes inextricably intertwined with marital property; OR
2) is treated in a way that evidences an intention to make it marital property.

1) Each spouse keeps Separate Property.
2) Marital property is divided at discretion of the judge (all appropriate factors may be considered - age, health, education, earning potential, duration of marriage, custodian of children, etc.)

Purpose is to assure an adequate income for someone who has become financially dependent. (not automatic and not intended to be punitive). Tend has been to smaller awards w/ shorter duration.

1) Permanent Periodic Payments
2) Lump sum alimony
3) Rehabilitative
4) Reimbursement awards

1) Paid regularly for the lifetime of the recipient.
2) Modifiable upon substantial change in circumstances.
3) Terminates upon death of either spouse OR remarriage of recipient spouse.

1) Helps spouse become self sustaining; Paid regularly for a limited period of time.
2) Modifiable upon substantial change
3) Terminates upon death of either spouse OR remarriage of recipient spouse.

1) Fixed amount; Payable all at once or in a series of payments.
2) Nonmodifiable
3) Survives death or either spouse

1) Meant to repay spouse who supported the other while obtaining a professional degree.
2) payable all at once or in a series of payments.
3) Nonmodifiable
4) Survives death of either spouse.

Duty to support every biological child, whether married or not.

1) If Married Woman = presumption that husband is the father.
2) If Unmarried woman = may require a paternity test (may be filed by mother, child acting through guardian, or by the state) (may be brought any time before child's 18th bday)

1) If parent lives with the child, courts generally don't become involved.
2) If Non custodial parent: each state has guidelines (obligation to pay support usually ends at 18 or emancipation or marriage UNLESS (in some states) child is receiving degree or parents voluntarily agree to extend payments) NOTE: may continue indefinitely for disabled child. ALSO: past due payments are NOT modifiable

YES, if there is a substantial change in the circumstances.

1) Seizure of property of the obligated party.
2) Wage withholding
3) File with IRS/State tax dept to intercept tax refunds.
4) File with state lottery commission
5) Suspension of certain licenses
6) Be found in contempt of court.

1) Provides for direct enforcement of support obligations across state lines.
2) Provides mechanism to prevent conflicting orders = the original forum state has continuing exclusive jxs so long as either parent continues to live in that state.

1) Mediation
2) Separation agreement (court will support these if there's no unconscionability and they are conceptually fair).

1) Legal Custody: right to make major decisions affecting a child's life.
2) Physical Custody: actual possession and control of the child.
3) Joint Custody: can mean either joint legal or joint physical custody, or both.

1) If connected to a Divorce: the same court can make determinations.
2) In Other cases: the Uniform Child Custody Jurisdiction and Enforcement act governs

That a state has jxs to enter initial custody order if:
1) it is the home state of the child currently OR
2) was the home state within the last 6 months AND a parent still lives there.
NOTE: Home state = state in which the child lived with parent for at least 6 consecutive months immediately before the commencement of the proceeding.

A state has jxs to enter or modify a custody order IF no other state has or accepts home state jxs AND
1) the child and at least one parent have significant connections with the state AND
2) substantial evidence concerning the child is available in the state.

The court that made the initial custody determination has exclusive continuing jxs over the matter UNTIL court determines:
1) neither the child nor the parents continue to reside in the state OR
2) the child no longer has significant connections with the state and evidence is no longer available in the state.

If it's an inconvenient forum.

THE BEST INTERESTS OF THE CHILD Rule (this is the universal rule in matters relating to children). Discuss:
1) interests of the parties
2) mental/physical conditions of parents
3) whether parents have new partners
4) Whether history of violence
5) Look to see if parents can get along (in joint situations)
BUT CANNOT consider Gender.

Even with failure to pay child support visitation rights cannot be taken away. Only time they can be taken away is if there's a danger to health/safety of the child.

Generally a parent can relocate if the move is bona fide, not merely an effort to frustrate visitation rights of other parent. (Generally there must be a court hearing to determine the effect this will have on the child)

1) There are many steps that occur prior to this happening.
2) requires a showing that parents are unfit (parents are entitled to full due process and standard is clear and convincing evidence). Grounds are: abuse of child, abandonment, neglect, severe mental illness or drug addiction.

1) must have all necessary consents
2) Need consent of: BOTH biological parents (unnecessary if their rights have been terminated or they cannot be located) (father's consent may not be necessary if not married); consent of adoptee if over 12; anyone who has legal custody.