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Family Law (Marriage (Establishing Marriage
Procedural Requirements of…
Family Law
Marriage
- Establishing Marriage
- Procedural Requirements of a formal marriage
- Common Law Marriage
- Limitations on Marriage
Procedural Requirements
- license
- solemnization
- ceremony preformed by a licensed professional
Common Law
- only recognized by minority of jx
- Issue still relevant if recognized by another state
- second state recognizes the marriage because of the Full Faith and Credit Clause of the constitution
- Requirements
- consent
- cohabitation
- holding out as husband and wife
- legal capacity
- must be a legal marriage (see limitations)
Limitations on Marriage
- Age- 18
- if under 18 parental consent is required
- some states allow 16 and under if there is court approval
- prohibit under 14
- Not Closely Related
- some states prohibit 1st cousins, other states allow
- Capacity
- mental- must understand that they are getting married
- lack of consent when intoxicated
- Fraud
- Prior marriage still in force
Putative Spouse
- spouse entered into the marriage with good faith and believed the marriage was valid
- later they discover it was not a valid marriage, void or voidable
- some states allow the putative spouse inheritance rights and rights of a legal spouse, think property division, maintenance
- other states allow some sort of equitable remedy
Annulment
- Validity of marriage in question
- Void v. Voidable
Void
- marriage has no legal effect
Voidable
- valid unless aggrieved party seeks an annulment or the marriage is ratified
- If one party of the marriage dies then it is no longer voidable, 3rd party lacks standing to contest the marriage
- under age
- impotence
- Temporary incapacity (intoxication, duress, fraud)
- mental incompetence
Antenuptial Agreements
Marital Contracts
- Antenuptial / premarital agreements
- consideration to enter into contract of marriage, apply statute of frauds
- validity is state specific
- procedural fairness
- was there duress?
- were there undisclosed assets?
- timing of the signing of the contract
- substantively fair terms
- basic contract formation
Divorce
- Child Custody
- Visitation
- Money Issues
- child support
- maintenance
- property division
UCCJEA
- what is the home state of the child?
- child lived there for 6 consecutive months
- home state grants order and has right to modify it
- maintains jx even if child moves
Child Custody
- best interests doctrine
- legal custody
- decision making power
- health/ medical
- education
- physical custody
- where the child resides
- can be sole or joint
Best Interest Doctrine
Factors
- wishes of the parent
- wishes of the child
- not considered unless over the age of 12
- primary caregiver
- friendly parent- wants both parents to have a positive relationship with the child
- location to school, adjustment to home, community
- mental and physical health of individuals involved
Child Custody Awards/ Decrees
- can be modified
requires:
- substantial and material change in circumstances
- cannot be foreseeable
- court will consider how much time has passed since the original order was issued
- look for 4 years later or other language relating to time, usually indicates a modification
Relocation
- courts apply balancing test when modifying child custody decrees as a result of a parent moving
- if the move is vindictive then the court will likely NOT grant custody to the moving parents
- Court is more lenient towards the parent the child usually lives with
Visitation
- granted when there is not shared custody
- will not be granted if it is deemed detrimental to the child
- Very rare that visitation is not granted, wont be granted if the visiting parent could harm the child through some sort of misconduct
- Can still have visitation if behind on child support
Third Party
- States vary wildly
- Apply best interest doctrine
- siblings, grandparents, step parents
Child Support
- state guidelines, VT has the online calculator
- can be modified, same standard as custody
- issues arise with job loss
- court weighs is the loss of income was voluntary
- court factors in the parent's education and potential earning capacity
Maintenance AKA Alimony
- applies to spouses that were financially dependent
- Court weighs duration of marriage
- varies state by state
- types
- Periodic
- Lump sum
- Rehabilitative
- Reimbursement
- factors
- standard of living established
- duration
- age and health
- financial resources
- contribution to marriage by each party
- time- education, find employment
- ability to pay
- Terminates
- upon death
- some state upon remarriage / cohabitation
Property Division
- Classify the assets
- were they premarital
- inheritance
- acquired after separation
- marital property- result of work of both parties in the marriage
- Mixed? separate, co mingled,
- Transmuted property
Issues with Property
- marital residence- when was is purchased? before or after the marriage? Who paid for improvements? Where did those funds come from? Marital or separate?
- Pensions
- acquired during marriage- equitable distribution
- vested or nonvested?
- premarital and post marital contributions not included
- Qualified Domestic Relations Order
3 Different Approaches to Property Division
- Community property
- Equitable Division of all property
- Equitable Division of all MARITAL Property
Equitable Division Factors
- Age, education, mental capacity
- Duration
- standard of living
- present income
- Source of funds
- health
- assets, debt, limitations of parties
- Party's need
- child custody
- Contribution as homemaker
- evidence of dissapation
Only way to terminate a legal marriage
- No fault v. at fault
- Court has jx is one party is domiciled in the jx
- dont worry about Pjx
- in rem action
Analysis Guideline
- Jx
- Original Order or Modification?
- Child Custody
- visitation
- Money Issues
- identify what is going on from the fact pattern
Parents and Children
- Establishing Parenthood
- Non-marital Children
- Termination of Parental Rights
- Adoption
Establishing Parenthood
- child born in marriage is presumed to be the husbands
- some states are okay with DNA evidence
- Putative father
- time limits on if they can establish parenthood in some states
- UNIFORM PARENTAGE ACT
Non-Marital Children
- born out of wedlock
- same right to support and benefits
- establish paternity
- difficult for children born abroad to establish paternity
- May require DNA test
Termination of Parental Rights
- emancipation
- voluntary
- Involuntary
- due process
- notice
- hearing
- extreme cases
- Abandonment
- Neglect
- Abuse
Adoption
- UCCJEA
- State statutes
- biological parent(s) consent
- same legal rights and responsibilities as non-adoptive parents
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