What is the purpose of spousal support?
To provide adequate monetary income to a spouse, who as the result of the marital relationship, is economically dependent and unable (unwilling doesn't count) to provide for themselves.
What factors are considered when awarding spousal support?
(1) duration of marriage
(2) standard of living during the marriage
(3) ability to pay
(4) contribution to the marriage and child care
(5) age
(6) physical condition
(7) education level
(8) ability to earn $$$
(9) emotional condition
What is marital property?
Property acquired and during a marriage that will in most cases be divided "equitably" upon divorce.
What are the 4 primary exceptions to the general rule that property obtained during the marriage is "marital property."
Received via . . .
(1) Descent
(2) Devise (leaving property someone by terms of a will
(3) Bequest
(4) Gift
How do courts evaluate gifts as marital property (or not)?
The court looks to the intent of the gift, whether it was intended for one spouse or both.
What are the 2 primary factors considered when determining the amount of child support to be paid?
(1) the needs of the child / children
(2) the spouse's ability to pay
Many states have formulas that calculate the amount of child support. What are the input factors for these formulas / calculations?
(1) Age of children
(2) number of children
(3) any special needs of the children
(4) parent's income
May courts deviate from the statutory guidelines?
Yes, but only with adequate justification.
May state modify a divorce decree issued by another state?
Generally no. States cannot modify a divorce decree issued by another state when any of the parties continue to live in the state that issued the divorce decree.
What is the exception? When may a state modify a divorce decree issued by another state?
A state that issues a divorce decree has exclusive jurisdiction over that decree unless or until both parents and the child no longer reside in that state.
Domicile standard is used.
Can a state enforce a child support order that was issued by another state?
Yes, under the full faith and credit clause.
Note: the parties still must be given notice and the chance to be heard in court.
What standard is applied when determining whether permanent spousal support should be awarded?
Permanent is awarded when a spouse does not have the resources to support themselves AND they lack the ability to be self sustaining in the future.
When does a state have jurisdiction over a divorce?
When either party is a resident (domicile standard) of that state.
Does a state need to have personal jurisdiction over the spouse who is being sued for divorce?
No. What matters is that one of the spouses is a resident of the state.
When does a court have jurisdiction over property division?
The court must be in the state where the property is located.
What are the elements needed for a valid no-fault divorce?
(1) one spouse believes the marriage is irretrievably broken
(2) parties have been separated for the state-specific statutory period.
If one spouse believes a marriage can be fixed, is this enough to prevent or at least delay a divorce?
Nope.
In property division, what happens to property that was purchased by one spouse before the marriage, but both parties helped make payments during the marriage?
The division will be apportioned in accordance with contributions that were made by the individual and the couple (via martial income during the marriage).
How do courts have jurisdiction over property divisions? (2 ways)
(1) personal jurisdiction over both parties
Or
(2) general jurisdiction over its residents.
What 2 legal status lead to a court having the ability to divide a couple's assets?
(1) Valid / Legal Marriage
(2) Valid / Legal Cohabitation agreement
Requirements of a valid common law marriage?
(1) both people have the capacity to consent to a marriage
(2) both people actually gave consent
(3) the couple held themselves out publicly as married
(4) the couple cohabitated
What are typical indicators that are looked at when determining if a couple held themselves out as married?
(1) whether they told people they were married
(2) whether they had joint accounts (bank, gym, country club, etc.)
(3) whether they used the same last name
Can a child be adopted without the consent of an unmarried biological father?
Generally no. Adoption requires consent from BOTH parents.
When does an unmarried biological father NOT have the right to block an adoption?
When . . .
(1) the father was not substantially connected to or involved with the child's life.
OR
(2) A court determines the father is "unfit" to be a parent.
What factors used to consider a father's involvement with a child?
(1) whether the parents cohabitated
(2) amount of $$$ paid by the father for the benefit of the child
(3) whether the father was involved with protection, education, emotional support, financial support, supervision, etc., of the child
(4) whether the father admitted that he was the father
What are the required elements of a valid premarital agreement?
(1) the agreement was in writing (SOF)
(2) the spouses had adequate time to consider and opportunity to consult with others
(3) entry into the agreement was volitional
(4) the agreement was based on full disclosure of asset
Premarital agreements can be void / unenforceable due to unconscionability. At what point in time is unconscionability determined?
At the time the agreement was formed.
Can a premarital agreement validly waive a spouse's right to spousal support?
Yes, if the agreement is otherwise valid / volitional.
In what circumstance may spousal support still be awarded when it was validly waived?
In no situation will courts enforce a waiver of spousal support if the result would be leave the spouse dependent on public assistance / the state.
What factors are considered when determining whether joint custody should be awarded?
(1) whether the parents agree to a certain joint custody arrangement
(2) fitness of the parents
(3) effect of joint custody on the child
(4) how much involvement each parent has with the child prior to divorce / separation
(5) whether the child / children prefer one parent over the other (matters more with older kids)
(6) whether the parents are capable of working together to the benefit of the child in a joint custody situation
How will a court decide child custody when premarital agreement defines it?
The court will do whatever it determines is in the best interest of the child / children.
No deference is given to the premarital agreement with respect to child custody.
Which parent is most often award custody of a child?
The one who was the primary caregiver.
May a premarital agreement waive the obligation to pay child support?
No.
What are the 2 required steps that must be take for a valid / legal adoption?
(1) one way or another, the biological parents' parental rights are terminated
(2) New parent/child relationship is established. In most cases consent of the child's biological parents is required.
What factors considered in deciding whether to award custody to a biological parent or a 3rd party?
First, great weight is given to the biological parents. Only if they are found to be unfit will custody be awarded to a 3rd party.
Second, courts always must consider what is in the best interest of the child.
Will a court override a parent's decision to deny visitation to a 3rd party?
Not likely. Special weight is given to a fit parent's decision to deny visitation.
Even if the 3rd party cared for the child for years, the courts will likely not override the fit parent.
When does a court have jurisdiction over a custody dispute?
(1) the court is in the home state of the child
OR
(2) the state was formerly where the child lived, less than 6 months have passed, and one parent still lives in the state
In what state is a child at home for the purposes of court jurisdiction?
The state where at least one parent (or caregiver) resides and where the child has resided for at least 6 months.
Must a sister state enforce a custody agreement?
Yes, because of the full faith and credit clause and the "Federal Parental Kidnapping Prevention Act." Enforcement is required.
What law is applied to determine the legitimacy of a child?
The law of the state in which the mother is domiciled at the point in time when the child is born.