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Family Law (Bar Prep) Cheat Sheet by

Help with family law for the UBE

Marriage -- legal union of 2 indivi­duals

Requir­ements
Procedural
License, solemn­ization
 
State of mind
Factors of Consent (capacity, intent)
Limita­tions
age, consan­gui­nity, capacity, and bigamy­/po­lygamy
Except­ions: removal of impediment or presum­ption of validity
Common Law Marriage requir­ements
Consent
 
Cohabi­tation
 
Holding out publicly as spouses living together
Premarital Agreements
writing
 
volunt­ariness
 
Fair & Full Disclosure of financial worth
Amendment
May be revoke­d/a­mended by written agreement signed by both parties
Support Obligation
each spouse has obliga­tions to support the other and one spouse may be held liable for another spouse's purchases
Necess­aries Doctrine
one spouse may be held liable to CRs for Necess­aries purchased by the other spouse

Termin­ation of Marriage

Annulment
Divorce
judicial declar­ation that the marriage was invalid due to some impediment at the time of marriage and, therefore, never occurred
divorce decree terminates the marriage relati­onship
Grounds (voida­ble): non-age, incurable physical impotence or incapacity to consent (mental incapa­city, fraud or duress)
Grounds: irretr­ievably broken­/Ir­rec­onc­ilable differ­ences, living separate and apart for a given time, or incomp­ati­bility
Grounds (Void): Bigamy­/Po­lygamy, consan­guinity
Defenses: may exist in some states, but courts will not force a marriage to continue
JX: state where either party is domiciled
JX: residency req't/Full Faith & Credit Cl.
 
Division of Property
when property is divided upon marriage dissol­ution (2 approa­ches)
(1) Equitable Division of Marital Property
(2) Community Property
each spouse takes their sep property and the court divides property acquired during marriage on equitable basis
all property acquired during marriage split 50/50; all property owned prior to marria­ge/­acq­uired by gift or inherit. is sep property
Property Division Process
3 steps
(1) Categorize Property
Separate v. Marital
(2) Determine Equitable distri­bution of property
Factors: duration of marriage; std of living during marriage; Income, educat­ion­/vo­cat­ional skills, employ­ability of each party; assets, debts & liabil­ities; Needs of parties; Health of parties, etc.
 

Support

Spousal
Child
can be awarded if a spouse's separate property is insuff­icient for maintence (Discr­etion, Purpose, Terms)
BOTH parents have an absolute duty to support child
Factors: financial resources of each party, std of living during marriage, ability of spouse paying support to meet own needs, time necessary for party seeking support to obtain employment or contri­bution to marriage
Guidelines are state based & each state has formula to determine amount
 
last until child reaches age of maj. or emanci­pated
 
custodial parents cannot deny visita­tions rights based on a parent's failure to make child support payments
Modifi­cation: substa­ntial material and unanti­cipated change (not self-i­nduced)
Mod: substa­ntial change that affects the needs of child OR ability of parent to pay

Custody

Types of Custody
Legal
right to make major decisions affecting child's life
Physical
possession and control of child
Joint
child splits time between each parent's house, and/or Parents share decision making, but child lives with one parent
Custody Factors
Courts consider Child's best interests; Parent's wishes, child's wishes, C's adjustment to home/s­cho­ol/­com­munity; abilit­y/w­ill­ingness of each parent to provide for c's needs; and intera­cti­on/­rel­ati­onships with parents, siblings and others
Visitation
when one parent is granted sole physical custody, the other parent is entitled to visitation
Exception
V rights might be denied if court determines it endangers child's wellbeing
Nonparents
May be given VRs if: NP has substa­ntial relati­onship with child; NP visitation is in C's best interests; and Fit parent does not object
Modifi­cation
requires parent to show a substa­ntial, material change in circum­stances (Best interest of child std)
 

Adoption

adoption terminates the legal relati­onship between biological parents and their child, and establ­ishes a new legal relati­onship between parent & child
Process
consent of both bio parents generally req'd (sometimes consent of adoptee is req'd if over 12/14)
 
cannot withdraw consent AFTER adoption, but can withdraw if court determines it is in the adoptee's best interests
Altern­atives
law has not provided uniformity on rights of parties involved
Donors
one who produces sperm/egg used for reprod­uction generally does not have parental rights in a conceived child (Unless agreed to in writing by donor & parent(s))
Surrogacy
where a woman agrees to bear a child conceived through assisted reprod­uction for the intended parents
 
Agreement- surrogate, S's husband (if married), and intended parents enter into a written agreement in which surrogate relinq­uishes her rights­/duties as a parent

Unmarried CoHabi­tants

ks between unmarried cohabi­tants
ks between unmarried cohabi­tants to share property or engage in other forms of economic sharing are VALID, unless sexual services are the sole consid­eration
implied k
courts may allow unmarried cohabi­tants to seek a remedy based on an implie­d-i­n-fact k theory
division of property
when unm. coH breakup, cts may grant an equitable distri­bution of property based on Rehabi­lit­ative alimony or one of the following (resulting trust, constr­uctive trust, quantum meriut)

Nonmarital Children -- born to unmarried woman

Discri­min­ation
almost all discri­min­ation based on nonmarital child status is uncons­tit­utional
Establ­ishing Paternity
suit may be brought to establish a NMC's biological parent
 
Admissible Evid--­blo­od/­gen­etics test, prior statements by deceased family regarding pat, Med. Testimony or Admiss­ion­s/a­ckn­owl­edg­ments by alleged parent
       
 

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