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51 Cards in this Set

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When do child support provisions generally cease?
When a child turns 18.
Why would child support provisions not cease?
1. Child is physically or mentally dependent.
2. Child is dependent between ages 18 and 19 in high school and studying to graduate
When must court enter written findings and justifications for a deviation from the child support guidelines?
When deviation > 5%
Requirements of child support order
1. Provide for support to terminate at 18th birthday unless physically/mentally dependent or dependent between 18-19 in high school studying to graduate
2. Provide schedule stating amount of monthly support owed for any remaining children after one or more no longer entitled to receive support.
3. Provide date that reduction or termination of support becomes effective.
What factual determination must the court make when determining whether to award alimony?
1. Whether either party has an actual need for alimony
2. Whether either party has the ability to pay alimony
Can the alimony leave the payor with significantly less net income than the recipient?
No, unless written findings of exceptional circumstances.
Types of alimony:
1. Alimony pendente lite
2. Bridge the gap
3. Rehabilitative
4. Durational
5. Permanent
What is alimony pendente lite?
Money for the suit
What is bridge the gap alimony?
Assists a party with legitimate identifiable short-term needs while making the transition from married to single.
How long can bridge the gap alimony be?
<=2 years
When does bridge the gap alimony terminate?
Death of either party; remarriage of recipient
Can you modify bridge the gap alimony?
No.
What is rehabilitative alimony?
Assists party in obtaining education/training needed to establish capacity for self-support. Need specific/defined rehab plan.
Can you modify rehabilitative alimony?
Yes, if there has been a substantial chance in circumstances, noncompliance with rehab plan, or completion of rehab plan.
What is durational alimony?
Provides party with economic assistance for set period following marriage of short or moderate duration when permanent alimony is inappropriate or following a marriage of long duration if there is no ongoing need for support on a permanent basis.
Can you modify durational alimony?
Yes, if there has been a substantial change in circumstances. Can't modify length of award.
How long can durational alimony be?
<= length of marriage
What is permanent alimony?
Alimony to provide for the needs/necessities of spouse who lacks financial ability to be self-sustaining. May be awarded following marriage of long duration if appropriate, moderate duration if appropriate based on clear and convincing evidence, short duration if written findings of exceptional circumstances. Must find that no other form of alimony is fair/reasonable.
Can you modify permanent alimony?
Yes, if there has been a substantial change in circumstances or the existence of a supportive relationship.
What are the factors in determining amount of alimony?
1. Standard of living during marriage
2. Duration of marriage
3. Age and emotional/physical condition of both parties.
4. Financial resources/source of income of each party, including income available to either through investments of any asset held by that party
5. Earning capacities, educational levels, vocational skills and employability of parties and amount of time needed to obtain education or training
6. Each party's contribution to marriage, including homemaking, childcare, education, and career-building of the other party
7. Responsibilities each will have with regard to minor children they have in common
8. Tax treatment and consequences to each of any alimony award
9. Any factors that will foster equity
How is length of marriage defined?
From date of marriage until date of filing action for dissolution
How long is a short-term marriage?
<7 years
How long is a moderate-term marriage?
>7 years; <17 years
How long is a long-term marriage?
>=17 years
What are marital assets?
1. Assets acquired by either or both spouses during marriage, other than assets acquired through gift, bequest, or descent.
2. Enhancement of/appreciation in value of nonmarital assets as result of efforts of other spouse during marriage or from contribution to/expenditure of marital funds
3. Interspousal gifts during marriage
4. All benefits accrued during marriage in retirement plans, pension plans, profit-sharing plans, etc.
What are the equitable distribution factors?
1. Each spouse's contribution to the marriage
2. Each spouse's contribution to the care and education of the children
3. Services of the homemaker
4. Economic circumstances
5. Duration of marriage
6. Each spouse's career and education sacrifices
7. Desirability of retaining any asset free from claim and hostile interference by the other spouse
What are the factors in determining best interests of the child?
1. Parent's ability to provide stable home environment
2. Child's preference
3. Each parent's willingness to allow time-sharing and encourage an ongoing relationship with the other parent
What must be included in a parenting plan?
1. How the parents will share and be responsible for daily tasks associated with upbringing of the child
2. Time-sharing schedule
3. Delegation of who will be responsible for healthcare, school-related matters, other activities
4. Methods/technologies parents will use to communicate with child
What does shared responsibility mean?
Both have rights over children and must confer regarding major decisions such as health care, religious upbringing and education.
Can time-sharing and parenting plans be modified?
Yes, on showing of substantial, material, and unanticipated change of circumstances affecting child's welfare.
Where is jurisdiction under the UCCJEA?
State with closest connection to child
What is the home state rule?
Court in state can make child custody determination if state is
1. Child's home state
2. Was child's home state in past 6 months and child absent from state but parent/guardian continues to live in state
When does the home state rule not apply?
No other state has home state jurisdiction and:
1. Child and at least one parent/guardian have significant connection with state
2. Substantial evidence available instate concerning child's care/protection/training/relationships
The court that made the initial child custody/visitation determination has exclusive continuing jurisdiction until court determines that...
1. Neither child or parents/guardians continue to reside in state
OR
2. Child no longer has significant connection with state and substantial evidence to child's care/protection/training/relationships no longer available in state
Parens patriae
State has authority to ensure children receive reasonable medical treatment necessary for preservation of life
Are prenups valid?
Yes.
What can't prenups determine?
Spousal support, child support, child custody.
Do prenups fall under Statute of Frauds?
Yes.
Do postnuptial agreements fall under Statute of Frauds?
No, unless subject matter does.
Can you waive alimony in a postnup?
Yes, if consideration. Must be express waiver.
Can you waive child support in a postnup?
No.
What are the factors courts consider to determine voluntariness of prenup/postnup agreements?
1. Time and place of presentation
2. Opportunity to seek counsel
3. Statements made during presentation of agreement
Can prenups/postnups settle property rights?
Yes.
Can courts modify property settlements?
No.
Can courts modify alimony agreements?
Yes.
What makes a prenup/postnup unenforceable?
Agreement was unconscionable, and
1. Wasn't provided fair/reasonable disclosure of property or financial obligations of other party
2. Didn't voluntarily/expressly waive any right to disclosure
3. Didn't have adequate knowledge of property/financial obligations
Who must consent to adoption?
Mother and father
When must father consent to adoption?
1. Minor conceived/born while father married to mother
2. Minor is father's child by adoption
3. Court has determined minor is father's child.
4. Father has filed an affidavit of paternity
5. Father has filed acknowledgement of paternity
What is required for the consent of an unmarried biodad to be necessary for adoption?
1. Developed substantial relationship with child
2. Taken some measure of responsibility for child
3. Demonstrated full commitment to responsibilities of parenthood by providing financial support in accordance with ability, if not prevented by someone with custody. Visited child at least monthly if physically/financially able, maintained regular communication with child/guardian when physically/financially unable to visit.
When can you dissolve a marriage?
1. Irretrievably broken
OR
2. Party adjudicated incompetent for at least 3 years
If there is a minor child or the respondent denies that the marriage is irretrievably broken, court may:
1. Order counseling
2. Continue proceedings for <= 3 months to enable reconciliation
3. Take action in best interest in parties/minor child