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Family Law - Coggle Diagram

- - - - Initial Custody: home state
        
        Home state = state in which the child lived with a parent for at least 6 consecutive months prior to the commencement of the proceeding
        
        If no home state or home state declines jx:
        
        child and at least one parent have a significant connection with the state other than mere physical presence and
        
        Substantial evidence is available in the state regarding child's welfare
      - Modification
        
        home state retains continuing exclusive jurisdiction
        
        Another state only if:
        
        No child or parent continues to reside in issuing state
        
        Child no longer has a significant connection with issuing state and substantial evidence relating to the matter is no longer available in that state
        
        temporary emergency jurisdiciton
      - Another state: no state has jx under either provision or all states with jx have declined
    - - legal custody: decision-making power
      - physical custody; where child resides
      - joint custody
        
        joint legal: parents share decision-making but child resides with one parent
        
        joint physical: parents share decision making and child divides time between each parent's home
    - - Wishes of Parent
      - Wishes of child
        
        not considered until over age 12
      - Interaction and interrelationship with parents, siblings, and others
      - Child's adjustment to home, school, and community
      - The mental and physical health of individuals involved
      - Who child's primary caregiver is
    - - Always modifiable
        
        standard: substantial and material change in circumstances such that child's best interests would be better served by change in custody
        
        Relocation
        
        balancing test: impact on visitation versus benefits of the move
        
        trend: be lenient to parent with whom child primarily lives
        
        generally no move if motive is vindicitive
    - - natural parent has constitutional right to raise unless
        
        unfit
        
        voluntary relinquishment
        
        abandonment, neglect, abuse
  - - - see above (child custody)
    - - generally granted visitation unless determined to be detrimental to the best interests of the child
      - absolute denial is rare
    - - Troxel: generally, do not override wishes of the parent (best interests standard applies)
        
        judge may not override fit parent's decision to deny a third-party visitation, even if visitation would be in best interests of the child
      - state statutes widely vary
  - - - Types
        
        Lump Sum
        
        fixed amount of money (may be paid in installments); award is not modifiable
        
        Rehabilitative
        
        awarded for a limited period of time to support the recipient in receiving education or training to be employable and self-supporting
        
        Periodic
        
        certain amount of money paid at set intervals
        
        indefinite: obligation ends at recipient's death, remarriage, or court-ordered modification
        
        Reimbursement
        
        awarded if the recipient spouse made contributions in the marriage to the other spouse's education, training, or increased capacity
      - Amount
        
        Court discretion based on factors:
        
        Standard of living established during the marriage
        
        Duration of marriage (often the most critical factor)
        
        Age and health of both parties
        
        Financial resources of both parties
        
        contribution of each party to the marriage
        
        time needed to obtain education or training to enable either party to find appropriate employment, and
        
        ability of payor spouse to meet her needs while paying support
      - Termination
        
        Spouse's death
        
        Spouse's remarriage
        
        Spouse's cohabitation (some states)
      - Modification
        
        substantial and continuing change in circumstances
    - - Classify Property
        
        Separate (BIG)
        
        All property owned before marriage (or acquired after dissolution)
        
        Acquired by gift or inheritance during marriage
        
        Income and appreciation of separate property (market forces)
        
        Personal damages
        
        Pain and suffering awards
        
        Property acquired after an order of legal separation that includes final disposition of property
        
        Marital (ACAST)
        
        Property acquired during the marriage
        
        Earnings
        
        Employment benefits, pensions, and stock options
        
        Lost wages
        
        Reimbursement for medical bills incurred and paid with marital property
        
        Recovery for damages to marital property
        
        Special Issues
        
        Commingling
        
        separate property inextricably intertwined with marital property becomes marital
        
        Transmutation
        
        separate property treated in a way that evidences intention for property to be marital property
        
        Property acquired before but paid for during marriage
        
        apportion between separate and marital estates in proportion to the contribution of separate and marital funds
        
        Pensions
        
        portion of pension earned during marriage is marital property
        
        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
        
        Professional license / degree
        
        no distributable; supporting spouse may be compensated for contribution to acquiring
        
        Improvements of separate property
        
        market forces = remains separate
        
        efforts of either spouse = value added is marital
        
        Professional Practice and goodwill
        
        Enterprise goodwill -- transferable with business
        
        Personal goodwill -- generated solely by reputation and professional expertise of the owner-spouse and not divisble
        
        Professional practice or corporation is subject to disposition as a marital asset
      - Value the assets
      - Divide the Property
        
        Equitable division: Court discretion based on factors
        
        standard of living during marriage
        
        present incomes of both parties
        
        duration of the marriage
        
        source of the money used to purchase the property
        
        age, education, background, and earning capabilities of both parties
        
        health of the parties
        
        assets, debts, and liabilities of the parties
        
        needs of the parties
        
        child custody provisions
        
        alimony: in addition to or in lieu of
        
        each party's opportunity to acquire future income and assets
        
        each party's contribution to the acquisition or enhancement of the existing marital assets
        
        each party's contribution as a homemaker
        
        economic fault (dissipation)
        
        final judgment: not modifiable
    - - state guidelines (charts)
        
        majority: income shares model
        
        Rebutted by showing that variation is in order
      - Modification
        
        substantial and continuing change in circumstances
        
        Voluntary reduction in income
        
        court will impute income to the parent
      - Termination
        
        Age of majority (usually 18)
        
        Death of child
        
        Emancipation of Child
        
        Termination of parental rights
      - Jurisdiction
        
        Uniform Interstate Family Support Act
        
        Jurisdiction to Enforce
        
        Mechanisms
        
        Judgment against noncomplying party
        
        order to pay attorney's fees
        
        Contempt
        
        wage withholding
        
        attachment of wages
        
        Seizure of real estate
        
        Another state:
        
        Direct
        
        allows obligee to mail the order to out of state employer
        
        Registration
        
        Issuing state sends order to state where obligor resides; registered and filed as foreign judgment
        
        Issuing state has jurisdiction to enforce
        
        Jurisdiction to Modify
        
        issuing court has continuing and exclusive jurisdiction to modify
        
        Original Jurisdiction
        
        Where first petition under UIFSA is filed
  - - - Grounds
        
        marriage is irretrievably broken
        
        parties live separate and apart for continuous period of time
      - Defenses
        
        Denial of grounds
    - - Grounds
        
        Adultery
        
        opportunity + inclination
        
        Desertion
        
        Extreme Cruelty
        
        Voluntary drug addiction
        
        Habitual drunkenness
        
        Insanity
      - Defenses
        
        Denial of Grounds
        
        Collusion
        
        Connivance
        
        Condonation
        
        Recrimination
    - - In Rem Action: Divorce/dissolution is in rem action. PJ over defendant spouse is not required
      - Spousal support, child support, property rights/division: require personal jurisdiction over both parties
- - - - Bigamy
      - Closely related (incest)
    - - Underage
      - Impotence
      - Temporary incapacity (intoxication, duress, fraud)
      - Mental incompetence
  - - - Full and fair disclosure
        
        consider if both parties have legal representation
      - Fair and reasonable
        
        If agreement as a whole enforceable, consider whether each provision is fair and reasonable
        
        Waiver of Spousal support
        
        against public policy to enforce if spouse became economically dependent from marriage and spouse would be dependent on the state
      - Voluntarily entered
      - In writing and signed
  - - - Only minority of states recognize
      - Requirements
        
        (3) Holding out as husband and wife
        
        (4) Cohabitation
        
        (2) Legal Capacity
        
        (1) Consent - agreement to marry
      - Recognition by another state
        
        Full faith and credit
        
        second state must recognize valid marriage from another state
    - - Age
        
        parental consent required if under 18; state may require court approval if under 16 and prohibit marriage under 14
      - Not closely related
      - Capacity
        
        Mental capacity: must understand nature of the marriage contract
        
        Lack of consent: intoxication
      - Fraud
        
        in the essentials
        
        reason for marriage
        
        ability to bear children
        
        willingness to have sex
      - Bigamy
        
        prior marriage still in force
    - - Marriage License
      - Solemnization
        
        ceremony performed by an authorized official
    - - putative spouse: one who entered into a ceremonial marriage and had a good faith belief in the validity of the marriage (marriage void or voidable)
      - Some States: putative spouse acquires the rights conferred on a legal spouse, including inheritance, property rights, and right to maintenance
      - Other states: putative spouse has equitable remedies
    - - most states recongize express and implied Ks between unmarried cohabitants as long as sexual relationship is not the only consideration
- - - - Age of majority set by statute
      - Financial independence and maturity are considerations
      - Minor who marries before the age of majority
    - - Due Process concerns
        
        Notice
        
        Hearing
      - Considerations
        
        Abandonment
        
        Neglect
        
        Abuse
  - - - birth to mother
      - adjudication
      - adoption
    - - Marital Presumption: child born and conceived by a woman while she is married is presumed to be child of husband
        
        Rebuttable by clear and convincing evidence
        
        Many states allow DNA evidence within a few years of the child's birth
      - Putative Fathers: allleged father when child has presumed father
        
        Time limits are imposed to resolve issue without subjecting the child to a long period of unsettled circumstances
        
        Additional Presumptions under UPA
        
        Parents married after the child's birth and the man voluntarily asserted his paternity
        
        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
        
        State statutes dictate time limits on when unmarried father can establish paternity
  - - - Consent
        
        biological parents must consent to adoption by adopting parents
        
        committed father (unwed) entitled to due process if he chooses to protest adoption
        
        must have asserted parental responsibility
    - - new parents have all the legal rights and responsibilities with child as biological parents
    - - Each state's statutes govern