Review Concepts: Family Law

Front 1

Solutions for Spousal Support Where Premarital Agreement Prohibits Alimony + Dependent Spouse Supported Other

Back 1

(1) Persue quantum meruit recovery in a quasi contract, claiming there was an implied agreement of support.

Elements: (i) benefit conferred; (ii) reasonable expectation of compensation; (iii) beneifits conferred on express or implied request; (iv) unjust enrichment will result without quantum meruit recovery.

(2) Expand the marital property.

(3) Seek reimbursement support - an award for a fixed sum whic is not modifable or terminable, and which is available even if the supporting spouse is not otherwise eligible for spousal support. Reimbursement support is calculated on the basis of the amoutn of the supporting spouse's contribution, rather than the value of the professional degree or license.

Front 2

Degrees and Professional Licenses

Back 2

A majority of courts have ruled that neither earning capacity nor an educational degree upon which that capacity is based in distributable property. A growing minority of jurisdictions are subjecting educational degrees and professional licenses to equitable distribution upon divorce.

Front 3

Full Faith and Credit (Divorce Actions)

Back 3

Courts will give full faith and credit to divorce decrees of the courts of sister states if the sister state had proper jurisdiction and the decree is valid in the sister state. The jurisdictional requirement is satisfied if one of the spouses is domiciled in the state granting divorce.

Front 4

Child Custody (Jurisdiction)

Back 4

Under the UCCJEA/PKPA, a court competent to decide child custody matters has jurisdiction to make a child custody determination, by initial or modification judgment, if it is the child's home state or was within the past six months. A child's home state is the state in which the child lived with a parent or guardian at least six consecutive months prior to commencement of the proceeding.

Front 5

Child Custody (Final Order/Full Faith and Credit)

Back 5

Both PKPA (Parental Kidnapping Prevention Act) and UCCJEA (Uniform Child Custody Jurisdiction Enforcement Act) were enacted to mandate the full faith and credit be given to child custody determinations of another state if the Act's jurisdictional standards are met.

Front 6

Child Custody (Gender)

Back 6

Although some states honor the tender years doctrine, which grants custody to the mother unless she is proven unfit, the doctrine now has unquestionable constitutional validity due to its gender bias.

In most states, preferance cannot be shown to one parent on the basis of gender or financial ability. Instead, courts are likely to give custody to the primary care giver.

Front 7

Child Custody (Primary Care Giver)

Back 7

If after considering all relevant factors, the court is left to decide between two qualified parents, the award will often go to the parent who has been the primary caregiver.

Front 8

Increase in value of separate property by non-owning spouse is....

Back 8

marital property for which the non-owning spouse can claim reimbursement.

Front 9

Presumption re child of a married woman

Back 9

The presumption is that the child of a married woman is the marital child of her husband. Presumpted can be rebutted by clear and convincing evidence, in some states by a preponderenace of the evidence.

Front 10

Uniform Parentage Act of 2000 (amended in 2002)

Back 10

In states that recognize and allow surrogaacy agreements, if the agreement is not approved by the court before conception, it is unenforceable, the gestational mother is the mother of the resulting child, and the gestational mother's husband (if a party to the agreement) is the father.

However, if the agreement has been approved by the coiurt, upon the birth of a child to the gestational mother, the intended parents must file notice of the bith within 300 days after assisted reproduction. The court will then issue an order establishing the intended parents as the legal parents of the child. If parents fail to file, the gestational mother or the appropriate state agency may file notice with the court that the child has been born to a gestational mother within 300 days after assisted production.

Front 11

Void Marriage

Back 11

A void marriage may become a merely voidable marriage after removal of the impediment. If parties remain together, this can be viewed as ratification of the marriage.

Front 12

Common Law Marriage (Visits in another state)

Back 12

Courts are split on whether a common law marriage can be created if domicile state does not recognize common law marriage, but state parties visit does recognize common law marriage.

Some states say marriage is upheld on the basis of short visits. Other say court will not recognize validity of marriage due to the domicile state's policy. Finally, some courts abandon strict domicile analysis, and look to the amount of time spent by the parties in the visiting state.

Front 13

Child Custody Factors

Back 13

(1) Wishes of the parents
(2) Wishes of the child
(3) Interrelationship of the child w/ parents, siblings, and others
(4) Child's adjustment to home, school, and community.
(5) mental and physical health of individuals involved.

Front 14

Preference of a young child in custody decisions.

Back 14

Generally, preferance of the child is give little weight, except when the child is over age 12.