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Family Law - Coggle Diagram
Family Law
Marriage
Establishing Marriage
Formal marriage: License, solemnization
Common Law Marriage
Minority of states, but can be recognized by state that doesn't use it. Full Faith and Credit Clause of Con.
Requirements are state specific but generally: Consent, cohabitation, holding out as husband and wife, legal capacity.
Limitations on Marriage
Age, not closely related, capacity, consent, fraud, prior marriage still in force.
Putative Spouse: Entered into a ceremonial marriage believing in good faith in was valid. Some states, acquires rights conferred on a legal spouse like inheritance, property rights etc.
Annulment: If validity of marriage is in doubt, a party can seek a judgement declaring it invalid. A void marriage has no legal affect, a voidable marriage is legal until it is annulled. If a party to a voidable marriage dies, the marriage is valid.
Void: Bigamy and incest. Voidable: Underage, impotence, temporary incapacity, mental incompetence.
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Parents and Children
Establishing Parenthood
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Putative Fathers: Statute established time limit on when alleged father can challenge presumed father.
Nonmarital Children
Born to unmarried woman. Same right to support and Gov. benefits as marital children. Same right to inheritance from mother as martial child. May require proof of paternity to inherit from father.
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Adoption
Jurisdiction, consent, and consequences.
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Biological parents must consent to adoption. Unless rights terminated or child has been abandoned. A committed father can veto adoption.
Dissolution of Marriage
Procedure
Most states only have no-fault grounds for dissolution, marriage is irretrievably broken. Some states retain fault grounds like adultery and abandonment.
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Spousal support, child support, and property rights require personal jurisdiction over both parties.
Child Custody
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Home state of the child, where child lived with parent for at least 6 consecutive months prior to start of proceeding. Home state has jurisdiction to grant order and modify it. Even if child moves.
If no state is home state, jurisdiction can fall where child and at least one parent have significant connection beyond physical presence, and; substantial evidence is available in the state regarding child's welfare.
Child's best interests: Wishes of parents and child. Interaction with parents, siblings and others. Childs adjustment to home, school, and community. Mental and physical health of individuals involved.
Child custody awards are always modifiable. Substantial and material change in circumstances that child BI would be best served by modifications.
Relocation. Balancing test between impact on visitation vs. benefits of the move. Generally lenient towards the needs of the parent who has primary custody. Vindictive moving not allowed.
Visitation
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Failure to pay child support does not revoke visitation rights. Absolute denial of visitation is rare.
Sometimes 3rd party visitation is allowed. Grandparents, same sex lovers, siblings. As long as the parent is fit, usually courts defer to their judgement.
Money Issues
Child Support
Use a formula set by statute. Can deviate if special circumstances. Denial of visitation cannot be used as punishment for missing child support.
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Spousal Maintenance
Alimony, ensures an adequate income stream for spouses whose economic dependency has resulted from the marital relationship.
Periodic maintenance. Usually monthly, ends at recipient's death, remarriage, or a court-ordered modification.
Lump sum maintenance: Fixed sum of money, can be paid in installments, not modifiable.
Rehabilitative Maintenance: Awarded for limited period of time to support the receiving of education or training to be employable and self-supporting.
Reimbursement maintenance: Awarded if the recipient spouse made contributions in the marriage to the other spouses education, training, or increased earning capacity.
Standard of Living, length of marriage, age and health, financial resources, contribution of each party to marriage, time needed to obtain education/training, ability of payor spouse to meet their needs while paying support.
Property Division
Classify the Property, value the assets, divide the property.
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Community Property Approach: All marital property is deemed owned one-half by each spouse. Keep separate property and rest is divided.
Equitable Division: All property owned, whether marital or separate is divided between each spouse.
Equitable division of all marital property: Spouses keep separate property and remainder is divided.