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Family Law

I. Getting married
A. Nature of Marriage
 civil status/relationship created by legal union, typically of husband wife, incl. rts, duties, and responsibilities
 Const rts: Marry; intimate relations (due pro); contraception; abortion; family decision; live w/ fam; rel w/ kid.
B. Breach of Promise to Marry
 no cause of action in tort; CL allowed, but abolished
C. Gifts in Contemplation
 Irrevocable if: unconditional intent to make gift at time; delivery to donee; donee accepts
 Revocable if: intent gift subject to condition subsequent of marriage; gift made but for expectation of marriage
D. Premarital Agreements
 Enforceable exc. wrt child support.
 Valid upon marriage; must satisfy K rules; procedurally fair (disclosure of finances); substantive fair (rare)
o Must be voluntary. UPAA doesn’t require atty || some states do
o disclosure must be fair/reasonable; not waived; no opportunity to learn abt. finances
o Sub + Proc unfairness required under UPAA || other states require EITHER
E. Legal Requirements for Marriage
 License + Solemnization; failure of license may not invalidate || (if yes ‘putative spouse’ rts [cf divorce])
F. Informal or CL Marriage
 Intent + Cohabitation + Holding Out + Legal Capacity + Burden of proof on party asserting
G. Legal Impediments to Marriage
 Nonage (<18/<16); Same-sex; Consanguity; Incapacity/Fraud/Non-consent; Consummation (CL); bigamy
H. Annulment
 Challenge to validity: Void OR Voidable (depends on state; esp. non-age)
I. Validity of OOS Marriages
 Comity allows for recognition of OOS marriages – except those against strong pub pol OR to evade st law
J. Rights of Unmarried Parties
 enforce written Ks in most states; torts ok, exc emo distress (loss of consort!); distinguish: CLM; putative; PRs.
II. Legal Effects of Marriage
A. Family Privacy
 Marital home subject to privacy
B. Spousal Property Rights during Marriage
 Sep Prop: title = owner; Comm. Prop: Acq during marriage = marital, spouse’s interest req. consent to xfer
C. Support Obligations
 Duty to support each other (enf. on desertion, divorce); Creditors may enf. for necessities. || abolished debt liab.
D. Tort Liability
 interspousal immunity abolished || intentional tort abolished; loss of consort OK; no vic. liab.
E. Criminal Liability and Domestic Violence
 may get protective order if: injury, rape, fear of injury, imprisonment, abuse of kids
F. Postnuptual Prop Agreements — cf prenups.
III. Parents and Children
A. Establishing Parenthood
 born to wife = pres. husb/wife || couple; rebut: clear/convincing evidence (UPA:dna in paternity procc. + marriage/<300 day divorce + F asserted paternity + 2 yrs
cohab w/hold-out as child) || 2 yr for putative. F, if F.
o If no presumed F, F
may assert F until 18 or death of F

B. Nature of Parental Rights
 living parents, not incompetent, entitled to custody. Non parents must defer to P’s wishes (<burden if ≈P)
C. Support Rights and Obligations
 Rt/oblig to support <18yo, unless emancipated || may add support of parent
D. Tort and Contract Liability
 kid liable up to age/knowledge/competence; parents liab for acts of kids || prop only || willful prop only || ≤ $
 kids may recover from parents || limits || auto only; Injury to child
E. Termination of Parental Rights
 Emancipation (financial independence + mental maturity OR abandon support by kid); Involuntary; or relinquishment (adopt) (signed + witness/oath + affidavit
revocable period)
F. Involuntary Termination
 No termination without: Notice + Hearing (bio legal only, not foster Ps; F
must assert if req’d)
 Best interest standard (clear and convincing evidence) (no rt to counsel) (i.e. abandonment, neglect, abuse)
G. Adoption
 Minors may be adopted || minor consent > 12; Adults may adopt || consent if married; consent of bio Ps (unl. unfit) || also F
|| UAA req. 192 hour revoc. @ birth
 decree: Creates P-C relationship + Ends all prior P-C rts + Estate rts + Name Chg and Birth Cert.
H. Alternatives to Adoption
 Artificial insemination (UPA says kid of husb. if consent || same sex rts depend on legality); Surrogacy (no mat. rts)
IV. Divorce Proceedings
A. Jurisdiction and Venue
 SMJ – domicile (must have one parent domiciled in st for divorce action; no 3d state if no residence) || + residency in state for period before action
 PJ – PJ over D not required to grant divorce, BUT required to modify decrees. May use Long arm, if available, if suff min. contacts.
B. Procedure
 Separation (may be required, or permitted); Commencement (plead, ie cause); Financial Disclosure; Judgment (default only if no-sho) || + ADR/mediation
C. Grounds
 Fault (desertion, adultery, impotence, cruelty; imprisonment; intox; addiction) and No-Fault (irretrievable breakdown || irrec. diffs || separation first)
D. Defenses
 Fault (collusion, connivance, condonation, recrimination), No-Fault (if sep req’d, no consent req., only one spouse need find breakdown)
V. Divorce Decree
A. Contents of Decree
 Must decide disposition of property, custody and visit, child support, spousal maintenance, atty fees, costs, expenses (where each applicable)
B. Settlement Agreements
 generally valid, merged into decree, and may survive decree in certain respects
Frequently Tested Topics
Parents & Children
Divorce Decree
Divorce Proceeding
Getting Married
Effects of marriage
Family Law

C. Property Division
 Equitable Division preferred over alimony. Look to: economic justice + predictability of results.
 Steps: ID Property + Value + Divide (Marit. prop only [defined as prop during marriage] || all || comm property, inkl. sep prop) (value of sep if input by spouse)
 Non-marital Prop: gifts to pty OR split by agreement + prop before marriage/for exchange of before marriage + after marriage ends (sep || div pro || div decree)
 Mixed prop: commingled (look to facts and character) may become marital property
 Dividing Prop: done based on equity (not equally || equally) considering Contribs (to edu, marit. prop, fam’s quality of life) and Fin Circums (age, skill, prop)
o Debts as assets, unless personal debts (sep prop)
 Classifying assets: House = EqDist? (if pre-marriage, sep, unless gift w/o rebut; if earning of both to payoff, facts); Pensions/retirement = EqDst; Options =
EqDist; Degress ≠ EqDist; Goodwill, if personal ≠ EqDist, if to biz = EqDist; Lottery (Depends on sep/pers purch)
D. Alimony/Spousal Maintenance
 Alimony may be provided to either spouse; Periodic, Rehabilitative or Lump Sum; Policy is to make self suff (UMDA req: lack suff property; can’t support self ||
consider needs, contributions, duration of marriage); Terminates at term, death of either, or upon remarriage/cohabitation.
E. Equitable Reimbursement
 For edu, greater earning potential etc.
F. Child Support and Custody
 Child support is against non-custodial parent
 Custody – If both parents of minor are competent and fit, they are jointly entitle to the custody of the person of the minor. Parents have equal powers, rights, and
duties. If only one parent, entitled to custody. Ct may award to either parent
o Considerations – Presumption in favor of real parents; Equality of Gender (BIoC); Best Interests of Child (wishes of parents; wishes of child; interaction of
parents with child, siblings, etc; child’s adjustment to school, community etc; mental/phys health); Joint Custody (right to phys custody and decisions).
 Visitation – by non custodial, granted unless visitation not in BIoC; may grant to GP/Stepparents/Etc. if in BIoC (in doubt‼)
 Standard for Support mods – substantial and continuing change in circumstances || UMDA only if sub, continuing such that unconscionable
 Standard for Custody mods – Change in circumstances changes BIoC, change custody also BIoC; remarriage/cohab likely hearing; leniency if relo.
 UCCJEA (child custody enf) – no relit of OOS child custody orders. Juris: if kid in state w/in 6mo, parent there, no other state has interest, oos parent has
contacts > presence). Juris continues until no parent lives in state. No mod unless have initial juris. Conduct may waive. Enforcement of child sup sim (UIFSA)
G. Effects of Final Divorce Decree
 may remarry as if never married
H. Recognition of Foreign Divorce Decree