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Nitro Family Law

QuestionAnswer
Can you ban co-habitation and marriage of interracial couples? No, under Loving v. virginia you can't
Can a statute use race as a qualification for marriage or what have you? No, Any Statute that uses race as a classification for its applicability must pass strict scrutiny.
Is marriage a fundamental right? Yes, it is. Anything that directly and substantially limits a person's ability to marry must pass strict scrutiny.
Does age affect whether marriage is a fundamental right? Yes, minor marriage really isn't a fundamental right. It's only when you hit 18 that you really have full protection. Courts say this is because kids are vulnerable, make poor decisions, and parents have a role in the care of the kids.
What level of review do you use for limitations for the rights of inmates to marry? Rational Basis Review, though the standard is arguably intermediate scrutiny
What is the marital presumption? The idea that you presume the child of a marriage is the child of the father.
Does a biological father have a right to attempt to overturn the marital presumption? Nope
What are the two main questions you'll ask for this course in determining if it violates the constitution? Whether it violates substantive Due Process or whether it violates the equal protection clause
Are states required to uphold marriages performed in other states? No, although they generally do unless they violate some strong public policy.
Can states ban polygamy? Yes, it passes strict scrutiny in that states have a compelling stat interest. So long as the law is narrowly tailored it's fine.
Can the practice of polygamy be enough in and of itself to prove someone is a bad parent? No, though it can be a factor among many
Can procreation be a requirement for marriage? No, a lack of procreation is also not grounds for divorce.
What is DOMA It states that the Federal Government does not recognize gay marriage. Many states have implemented their own version of this.
What is the difference between a chromosonal state and a anatomy state? A chromosonal state will look at someone's chromosones in determining their sex. An anatomy state will only look at what their genitals look like.
What types of marriage are void? Polygamy, bigamy, incest. They are also subject to collatoral attack by a third party
What types of marriage are voidable? Under age, fraud, duress. They are not subject to collateral attack (except perhaps in the case of a parent challenging an underage marriage
What is a putative spouse? It's a case where one or both parties thought they were married even though they weren't. Quasi marital property is divided and support can be awarded
What is the doctrine of marital privacy? The idea that courts won't get involved in the minutia of the couple's lives.
Can parties contract out of marital obligations during marriage like support? No. You can't change the incidents of marriage, though you can contract about them for divorce
Can states deny men or woman benefits allowed to the other sex? No, if doing so would violate privilages and immunities of the citizens.
What is the requirement for finacial disclosure of premarital agreements? Under common law they must be full and fair, however under the UPAA a waiver or independent knowledge will work as well.
What standard of conscionability is required for a PMA to pass a courts examination? Under Edwardson it must be fair, reasonable, just, and equitable. Under Simone the court will ask whether it "shocks the conscious." Under the UPAA there is no unconscionable defense
Is caring for a sick child an acceptable reason for the state to deny unemployment compensation if she get's fired? No. You can only deny unemployment benefits if the employee engages in misconduct.
Can states enforce nepotism regulations at for their state employees? No, because the right to marry is not substantially infringed, and it serves legitimate governmetn interests and is rationally related to that aim.
Under what ammendments are people's use of contraceptives protected? The 14th
Under what ammendment is the right of homosexuals to have sex with eachother protected? The 14th.
Can you get an ex parte protection order for domestic violance? Yes, though they can only last a very limited period of time and there must be another hearing within 5 days.
What is battered woman syndrome and what does it do? It asks whether there was a history of the woman having violance perpetuated against her. If there was this can be brought up to the jury in hopes of establishing that her actions were objectively reasonable for self-defense
Can a party who had a had a protection from abuse order placed on someone have that order removed? Yes and no, they can't remove it by themselves, they would need to petition the court to have the order removed and it's up to the court to decide.
Does a protection order create a property interst? Nope. Furthermore you can't sue the police if they don't enforce it either.
Can grandmothers get protection orders from her daughter's husband? Yes, provided the statutue is sufficiently expansive enough to allow this.
What is the doctrine of necissities? The idea that because a woman has no personhood in marriage the husband is obliged to provide for her needs. Teh hospital tried to use this to oblige the husband to pay for the wife's medical costs.
Does a spouse have a legal duty to seek medical care for a helpless or incapacitated adult spouse in need of medical care? Yes.
What were the traditional requirements of divorce? There had to be fault (cruelty, adultery, desertion, incurable impotence, conviction, habititual drukenness) and the moving party must be innocent.
Under a fault-divorce scheme, does reconcilliation cure all previous causes for divorce? Yes, so you better not reconcilliate if you want to later divorce the guy/gal.
Can courts force parties to engage in certain religious practice for a divorce, such as getting a jewish divorce as well? No. This violates the free exercise clause
Are residency requirements acceptable for divroce Yes.
When it comes to child custody, what is the all important standard? Best Interest of the Child (BIC).
What does the law presume that seperating couples will share with regard to the custody of the child? Medical decisions, Religious decisions, and schooling decisions. There is also a presumption that both parties will share physical custody of the children.
What is the difference between legal custody and physical custody? Legal custody pertains to the ability to make decisions for the child, whereas physical custody refers to the day to day caring for the child.
Do courts traditionally prefer biological or adoptive parents over other parties in custody disputes Yes, generally, although this general rule is being eroded.
In a custody battle between the parents, what standard is applied? Best Interest of the Child
IN a Custody battle between a parent and the state, what standard is applied? Unfitness
Under the Uniform marriage and divorce act what factors go into determining the best interest of the child? Which of parent/child, relationship b/w child and parent, child's adjustment to home, school, and community, mental and physical health of all involved.
Under the UMDA does marital fault affect whether that parent can get custody? No, unless that conduct harms the child.
Are the wishes of the child controlling in custody cases? Nope
Can a court base its decision soley upon the determination of a mental health official in a custody case? Nope
What sort of factors will a court look to in determing who is the primary caretaker? BAsically how much at home time the parent spends taking care of the kid, stuff like making meals, doing clothing, setting up medical care, etc.
What is the standard for whether a modification should be entered by the court for custody under the UMDA? There should be a presumpiton against modification unless there is a serious danger to the child's physical, mental, moral, or emotional health.
Under the common law, what is the standard for whether a modification of custody would be appropriate? A substantial change of circumstances from the date of the last custody order. The burden of proof is on the moving party.
When a parent seeks to relocate to a place that would hinder the ability of the timeshareing parent to spend time with the kid, what standard is applied? The party that's moving away must have a good faith reason for moving, then the burden wish shift to the party that isn't moving away to show that the other parent shouldn't move.
Under the UMDA, is there an presumption of an entitlement to visitation? Yes, so long as the parent is fit.
If another party is seeking visitation rights, must the court give some sort of preferance to the fit parent? Yes. The fit parent must be given some sort of preference in visitation decisions.
In the case where one mother is a psycological mother, but not the biological mother, while the other is both, who will prevail in a custody battle? The bio mom will prevail unless the best interest of the child requires he go with the psy mom, or there would be harm in awarding custody to the bio mom.
May courts award steparents visitation rights? Yes, but only where extraordinary circumstances exist.
What is the putative father registry? A registry that fathers who aren't on the birth cirtificiate must put their names on to ensure that they have visitation rights. It will force them to have support obligations as well.
Under VC v. MJB what factors does the court look at in determining whether someone has a parent-like relationship with the kid? Whether the biological parent consented to and fostered the relationship, the child lived with petitioner, the petitioner supported child without expectation of financial compensation, and the parental role was for a sufficiently long time.
Under teh UCCJEA is there a home-state preference for child visitation/custody battles? Yes.
Under teh Uniform Child Custody Jurisdiction Act, may teh judge communicate with a judge from another state to determine which state has jurisdiction? Yes, and the parties can't take part in the discussion.
What is title regime for divorce say? That the property goes to whoever it is titled.
What does the pure equitable property regime for divorce say? That all marital property is subject to division, and the title is irrelivent
What does the modified equitable and community property property regime say? That community property is split 50/50 whereas the rest of the marital property is equitably split.
What is seperate property for puproses of divorce? Property that was acquired prior to the marriage or acquired through inheritance or through a 3rd party gift, the property was exchanged for other seperate property, or the property is the result of passive income from seperate property.
When can you turn seperate property into marital property? Commingling, interspousal gifts (including rings), and increases in value, if the increase in value is the result of marital labor.
Which property scheme does the UMDA support? Both Equitable division and community.
Is property division at divorse a taxable event? No.
What is the source of funds rule? The divorce rule saying that property is considered seperate or marital based on what the source of funds that were used to invest in it. A piece of property can be partly seperate and partly marital.
What determines whether there was a substantial contribution to the property for purposes of marital vs. individual property? Direct or indirect economic contributions, contributions to the stability and harmony of hte marital relationship, contribution to the education or training of the spouse accumulating the assets, among other things
Can degrees be marital property? Yes, in some states, but most deem it personal property.
If a degree can be marital property in your state, what standard is used to determine whether it is? You look at the sacrifices the party that wasn't getting the degree endured, and then look at the lenght of the marriage.
What are the situations where alimony might be paid out? Need, Rehabilitation (getting back into the workforce), status, and reimbursement.
What is the requirement for getting a change in alimony or child suppport? A Material change in circumstances in either the party paying the support or the party getting support.
Can parties contract around the normal rules for alimony? Yes, and provided the contract doesn't violated some other requirement for contract, it would override the common law rules for alimony.
Why are the child support guidelines federally mandated? There needs to be some sort of uniformity. The feds only give the states money if they meet the fed guidelines.
If a father or mother doesn't pay child support, can the other parent refuse access to the kids in visistation? No, visitation is independent from child support.
Can a court vary from the child support guidelines? Yes, but only with a written justification.
Can there be such a thing as "too much" money for a kid in child support? Yes, if you're hitting something like 2.5-3 grand a month for a baby, that's probably too much, child supports notwithstanding.
A divorce court enforces a child support agreement before the kid reaches majority, what court enforces a child support agreement after majority? A normal court that deals in contract disputes.
Do you need personal jurisdiction for a divorce? No, though you still need procedural Due Process (notice and an opportunity to be heard.)
Created by: Nitrousoxide