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Family Law, image, Analysis
Jurisdiction over each issue
Original…
Family Law
Marriage
Temm 295-297
Establishing marriage
Common law
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Requirements are state specific:
- Consent
- Cohabitation
- Holding out as husband & wife
- Legal capacity
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Antenuptial agreements (i.e., "pre-nups") = K
- Consideration = entry into marriage
- SoF applies
- Std of K formation, procedural fairness (voluntary or under duress; full financial disclosure); substantively fair
Annulment = may seek judgment declaring marriage invalid if validity in doubt (many contexts, probate to divorce)
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Voidable = valid unless aggrieved party obtains annulment or ratifies marriage; if one party dies, validity cannot be attacked (3rd party lacks standing to challenge)
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Temporary incapacity (intoxication, duress, fraud)
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Putative spouse = entered into marriage w/ good faith belief in validity; later discovers void/voidable; in some jurisdictions, acquires rights of legal spouse (inheritance, property rights, right to maintenance) OR equitable remedies
Unmarried partners = no legally recognized status unless common law marriage or putative; most states recognize express or implied Ks if consideration other than sexual relationship; equitable remedies (quantum meruit)
Divorce
Temm 298-304
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Money issues
Maintenance (formerly alimony) = ensures adequate income for spouses economically dependent d/t marital relationship
Property division
- Classify property
- Value the assets
- Divide the property
Child support = determined by state guidelines (income; child's age; # children); modifiable; income loss an issue
Child custody
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Best interest of child
- Wishes of parent & child
- Interaction/interrelationship w/ parent, siblings, others
- Adjustment to home, school, community
- Mental/physical health all involved
Modifiable = if substantial & material change in circumstances such that child's best interests better served by change in custody; relocation (balancing test)
Procedure
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Fault grounds (some states, i.e., adultery & desertion)
Jurisdiction = one party domiciled there; PJ not required (in rem action); spousal, child support, property rights require PJ over both parties; court can grant divorce but not decide other issues;
Child custody jurisdiction = Uniform Child Custody Jurisdiction & Enforcement Act (UCCJEA); focus is home state of child (where lived with a parent 6 consecutive months b/f proceeding; can grant original order & modify
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Analysis
- Jurisdiction over each issue
- Original order or modification?
- Child custody
- Visitation
- Money issues
- Child support
- Maintenance
- Property divsion
