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Family Law - Coggle Diagram

- - - - DUE PROCES CONCERNS: 1) notice 2) hearing
      - CONSIDERATIONS: 1) abandonment 2) neglect 3) abuse
  - - - State statutes dictate time limits on when an unmarried father can establish his paternity
      - Time limits are imposed to resolve the issue without subjecting the child to long period of unsettled circumstances
      - Additional presumption under the Uniform Parentage Act: 1) Parents married after the child's birth and the man voluntarily asserted his paternity 2) Parents resided in the same household for the first two years of the child's life and the man openly held out the child as his own.
- - - - issue sill relevant for recognition by another state (a: second state must recognize a valid marriage from another state b: basis: full faith and credit clause of the Constitution)
      - Requirements: state specific
        
        Cohabitation
        
        Holding out as husband and wife
        
        Consent
        
        Legal capacity
      - only a minority of states recognize
    - - Capacity
        
        Mental Capacity: must understand the nature of the marriage contract.
        
        Lack of Consent: incapacitation
      - Not closely related
      - Age: parental consent required if under 18. State may require court approval if under 16 and prohibit marriage under 14
      - Fraud
      - Prior marriage still in force
    - - Solemnization: ceremony performed by an authorized official
      - License
    - - Bigamy
      - Closely related (incest)
    - - Underage
      - Impotence
      - Temporary incapacity (intoxication, duress, fraud)
      - Mental incompetence
- - - - LUMP SUM MAINTENANCE: fixed amount of money, although may be paid in installments. The award is not modifiable.
      - REHABILITATIVE MAINTENANCE: awarded for a limited period of time to support the recipient in receiving education or training to be employable and self-supporting.
      - PERIODIC MAINTENANCE: a certain amount of money paid at set intervals, usually monthly. Obligation ends at the recipient's death, remarriage, or a court-ordered modification.
      - REIMBURSEMENT MAINTENANCE: awarded if the recipient spouse made contributions in the marriage to the other spouse's education, training, or increased earning capacity.
      - The amount of maintenance is based on a variety of factors:
        
        Age and health of both parties
        
        Financial resources of both parties
        
        Duration of marriage (often the most critical factor)
        
        Contribution of each party to the marriage
        
        Time needed to obtain education or training to enable either party to find appropriate employment
        
        Ability of payor spouse to meet her needs while paying support
        
        Standard of living established during the marriage
    - - ASSET VALUATION: not usually tested. Valuation disputes require expert witness to appraise the property. Instead, the examiners will give a dollar amount.
      - PROPERTY DIVISION: States take one of the 3 different approaches to property division
        
        2: EQUITABLE DIVISION OF ALL PROPERTY APPROACH: All property owned, whether marital or separate, is divided between each spouse.
        
        UNDER THE EQUITABLE DIVISION APPROACHES, courts look to factors to decide how to divide. Note that the division does not have to be equal, but equitable. Courts consider many differentfactors.
        
        Duration of marriage
        
        Standard of living enjoyed during marriage
        
        Age, education, and earning capacity
        
        Present income
        
        Source of funds for acquisition of property
        
        Health
        
        Assets, debt, and liabilities of parties
        
        Parties' needs
        
        Child custody
        
        Contribution as a homemaker
        
        Evidence of dissipation
        
        1: COMMUNITY PROPERTY APPROACH: All property acquired during marriage is deemed owned 1/2 by each spouse. Each keeps separate property and the remainder is divided.
        
        3: EQUITABLE DIVISION OF ALL MARITAL PROPERTY APPROACH: Spouses keep separate property that includes property owned prior to the marriage, gifts, or inheritance and the remainder is divided.
        
        The court's order dividing property is a final judgment and is not modifiable. For example, if the parties omitted property from the division, the party would not seek modification of the dissolution degree but would have to follow the civil procedure rule for reopening a judgment.
      - Classify the property
        
        SEPARATE PROPERTY: all property owned before the marriage, property acquired after the dissolution, and property acquired by gift or inheritance during the marriage.
        
        MARITAL PROPERTY: earnings from both parties and appreciation of marital property. Property acquired after the marriage is presumed to be marital property.
        
        MIXED PROPERTY: includes commingled property, transmuted separate property, and improvement of separate property. Commingled property is when separate property becomes marital property because it is inextricably mingled with martial property or with the separate property of the other spouse. If the property can be traced back to its origins, it retains its nature as separate property.
        
        MIXED PROPERTY also includes transmuted property. If separate property is treated in a way that evidences an intention for the property to be marital property, it is transmuted into marital property. Separate property can be improved with marital funds. The property maintains its nature as separate property, but the martial estate is reimbursed for the value added to the separate property.
        
        SPECIFIC PROPERTY INTERESTS that arise include
        
        PENSIONS
        
        Premarital and post-separation increases or contributions are usually not deemed marital property
        
        Vested or nonvested
        
        Subject to equitable distribution if accumulated during the marriage
        
        A QUALIFIED DOMESTIC RELATIONS ORDER (QDRO) recognizes the right of the alternate payee to receive all or a portion of the retirement benefits that would otherwise be payable to the spouse. It's sent to the pension administrator so that the pension payment is paid directly to the spouse who was awarded all or a portion of the pension.
        
        STOCK OPTIONS: presumed to be marital property
        
        MARITAL RESIDENCE
        
        SOURCE OF FUNDS RULE is used to apportion the value of the property between separate and marital efforts and funds
        
        Appreciation in the value of the property is apportioned in the same manner.
        
        If a spouse's labor increases the value of the other spouse's separate property, the increase is marital
        
        Difficulties also arise if a spouse's separate funds are used to make improvements or build equity; then, a gift to the marital estate is presumed but can be rebutted.
        
        Difficulties arise if the house was purchased prior to the marriage but marital funds were used to pay off the mortgage or build equity.
        
        PROFESSIONAL DEGREES AND LICENSES
        
        Most states hold that they are not a property interest subject to equitable distribution.
        
        May be considered in the division of other martial property or in a maintenance or reimbursement award.
        
        PROFESSIONAL PRACTICE AND GOODWILL
        
        Enterprise goodwill: transferable with the business
        
        Personal goodwill: generated solely by the reputation and professional expertise of the owner-spouse and not divisible.
        
        A professional practice or corporation is subject to disposition as a marital asset.