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Domestic Relations

Barbri Review

QuestionAnswer
Marriage Valid anywhere unless against public policy of state; Only b/w male and female; K requiring capacity
Marriage- Ante nuptial agreement Legitimate K w/marriage serving as consideration as long as there is fairness, disclosure and agreement not contrary to public policy
Marriage- Common law Not valid if entered in WY, but if valid in another state, it is valid in WY
Divorce- Jurisdiction requirements 1. Divorce= 60 days residency, 2. Custody= UCCJA (home state of child, state child 6 mos. preceding filing) , 3. Child support= UIFSA (enforcement action is more likely to see)
Divorce- Jurisdiction Complaint filed by P after residing for 60 days in state; No fault divorce (for purposes of divorce only, not property division/alimony/support/visitation/custody)
Divorce- Ground Aggrieved party and irreconcilable differences (one party refuses to reconcile)
Divorce- Annulment No valid marriage took place due to bigamy, incompetence, fraud, close relatives
Divorce- Uncontested Parties enter into agreement, short hearing before judge
Divorce- Modification Res judicata as to facts at time of entry (property and debt division); New civil action; Ct. with original jurisdiction over divorce maintain continuing jurisdiction; Cannot modify property except mistake and fraud
Property division- Standard Property division that is just and equitable, but not necessarily equal; Ct. can consider fault
Property division- Statutory factors 1. Respective merits of the parties, 2. Condition in which they will be left by divorce, 3. Through whom the property was acquired, 4. Burdens imposed on property for the benefit of parties and children
Property division- Considerations Trial ct has discretion; No hard and fast rules, but must consider factors; Equal division not required; Property division likely to be unequal; Trial ct. is not to be disturbed on appeal absent abuse of discretion
Property division- Marital res (very broad); Property Property brought into marriage by either party is reachable, and Property acquired during marriage
Property division- Marital res (very broad); Retirement funds, stock, civil actions Property of the marriage- 1. Valued as vested at time of divorce, and 2. WY, exempt from execution or attachment, and division must be made upon retirement; Closely held stock; Civil awards (except compensation of future wages)
Property division- Marital res (very broad); Inheritance Properly awarded to person receiving inheritance
Property division- Attorney fees Legitimate property award
Property division- Property settlement agreements Legitimate and incorporated into divorce decree after approval of ct and res judicata as to future modifications
Property division- Modifications Cannot be re-adjudicated or modified like custody, support, or alimony; Exception: Marital debt or res omitted, ambiguity or fraud (WRCP 60)
Alimony Not favored in WY law, but authorized by statute; Use a property settlement instead of alimony
Alimony- Objective Payor spouse has ability to pay and the payee spouse needs it
Alimony- Rehabilitative Period of years; Not required where one spouse stays at home to raise kids and gives up career
Alimony- Modification Ct. has discretion including statutory and equitable revisory powers to revise; Standard- Change of circumstances
Alimony- Termination Common law modified by WY statute so death will not terminate alimony if decree states otherwise; Decree must state alimony terminates upon marriage, if not, only remedy is to petition ct for change of circumstances
Child custody Involved fundamental right
Child custody- Primary consideration Best interest of the children; Spousal and child abuse are contrary to best interest
Child custody- Best interest statutory factors; 1 through 4 1. Quality of relationship each child has with parents, 2. Ability of each parent to care for each child during period of responsibility, 3. Relative competence and fitness of each parent, 4. Each parent's willingness to accept responsibility of parent
Property division- Marital res (very broad); Professional license NOT part of dividable marital property
Child custody- Best interest statutory factors; 5 through 7 5. How parents/child can best maintain and strengthen relationship with each other, 6. How parents/child interact and communicate and how such interaction may be improved, 7. Ability and willingness of each parent to allow other parent to provide care
Child custody- Best interest statutory factors; 8 through 10 8. Geographic distance b/w parents' residences, 9. Current physical and mental ability of each parent to care for each child, 10. Any other factors ct deems necessary and relevant
Child custody- Case law factors determining custody 1 through 4 1. Relative competence of both parents, 2. Respect for freedom of religion, 3. Moral behavior and lifestyle of parents, 4. Physical, mental, emotional capacity of each party
Child custody- Case law factors determining custody 5 through 8 5. Cultural and educational needs, 6. Relationship of child/parent, 7. Preference of child, 8. Stability of parents
Child custody- Gender No award of custody shall be made solely on basis of gender of parent; Abolished- young children should be with mother
Child custody- Joint custody Allowed by statute, but not defined by decree and disfavored by WYSC
Child custody- Joint custody; Characteristics Both parents confer on major life decisions; Does not mean 50% of time with each parent; Joint legal custody can include primary physical custody with one parent
Child custody- Shared custody Not favored by WYSC; Each parent has children 40% of time or more; A different support formula is used; More easily reopened by ct for modification; Ct must make specific findings of appropriateness of shared custody
Child custody- Split custody Each parent is custodian of one or more child
Child custody- Child preference factors 1. Age of child, 2. Reasons for preference, 3. Relative fitness of preferred/non-preferred parent, 4. Hostility of child to non-preferred, 5. Whether child's preference been tainted by parent, 6. Children can testify in chambers with consent of parti
Child custody- Guardian ad litem May not be fact witness at custody hearing; If parties stipulate, GAL's report may be presented to ct; Required where child not represented by agency by issue of paternity only
Child custody- Guardian ad litem; Uniform child custody jurisdiction act (UCCJA, now UCCJEA 7.01.05) Determines which state has jurisdiction to hear custody issues; No jurisdiction to determine support or other monetary awards
Child custody- Guardian ad litem; Uniform child custody jurisdiction act (UCCJA, now UCCJEA 7.01.05): WY jurisdiction in child custody if, Home state/60 days WY child's home state at commencement of proceeding, or within 6 mos before commencement and child absent from state due to removal and parent lives in WY
Child custody- Guardian ad litem; Uniform child custody jurisdiction act (UCCJA, now UCCJEA 7.01.05): WY jurisdiction in child custody if, Significant connection Parent/child significant connection with WY w/substantial evidence regarding future care, protection, training, and personal relationship
Child custody- Guardian ad litem; Uniform child custody jurisdiction act (UCCJA, now UCCJEA 7.01.05): WY jurisdiction in child custody if, Child in WY Child in WY and abandoned or emergency exists
Child custody- Guardian ad litem; Uniform child custody jurisdiction act (UCCJA, now UCCJEA 7.01.05): WY jurisdiction in child custody if, No other jurisdiction No other state would have jurisdiction or it denied jurisdiction
Child custody- Guardian ad litem; Uniform child custody jurisdiction act (UCCJA, now UCCJEA 7.01.05): WY jurisdiction in child custody if, Continuing subject matter jurisdiction Ct which enters custody order has continuing subject matter jurisdiction to enforce or modify the decree
Child custody- Guardian ad litem; Uniform child custody jurisdiction act (UCCJA, now UCCJEA 7.01.05): WY jurisdiction in child custody if, Court declines exercise jurisdiction A ct with jurisdiction may decline to exercise jurisdiction if it determines WY is inconvenient forum or child was wrongfully taken from another state
Modification of custody- Party seeking modification must show 1. A substantial and material change of circumstances, 2. The change warrants modification of the decree, and 3. The change is in best interest of child
Modification of custody- "Substantial and material" Words of degree requiring judicial discretion
Modification of custody- Change of circumstances; 1 through 4 1. Joint custody situation(not getting along), 2. Bankruptcy, 3. Increase in stability in one parent's life and decrease in other, 4. Health problems
Modification of custody- Change of circumstances; 5 through 7 5. Job advancement or loss, 6. Remarriage possibly along with other circumstances (friction with step-parent/siblings), 7. Proof of repeated, unreasonably failure by custodial parent to allow visitation in violation of decree
Modification of custody- Change of circumstances NOT including 1. Condition which existed when divorce decree entered, 2. Remarriage alone, 3. Geographic relocation alone
Child visitation- Standard Best interest of child
Child visitation- Child/spousal abuse Contrary to best interest of child
Child visitation- Factors determining whether visitation award fair 1. Character of parties, 2. Residence, 3. Employment and stability of parties, 4. Potential for flight, 5. Likelihood of non-present party being maligned, and 6. Ability to obey ct orders
Child visitation- Denial of visitation Repeated, unreasonable failure by custodial parent to allow visitation to other parent in violation of order may be evidence of change of circumstances
Child visitation- Grandparents May bring visitation action if ct. finds visitation is in best interest of child and rights of child's parent are not substantially impaired
Child visitation- Primary caregivers not parents Who have taken care of child for 6 or more mos of the last 18 can petition ct for visitation
Child visitation- Modification; Party seeking must show 1. A substantial and material change of circumstances, and 2. The change in the best interest of the child
Child visitation- Modification; Judicial discretion Degree requiring judicial discretion is "substantial and material"
Child support- Jurisdiction In personman jurisdiction required
Child support- Child's property Child support is child's property; Parent cannot contract away a child's right to support
Child support- Statutory presumption Statutes provide statutory presumptive child support amount based on both parents' income and number of children
Child support- Income 1. Any form of payment/money/in-kind regardless of source (gross), 2. Cannot use federal tax return to compute net income for child support, 3. Includes only individual's income, 4. Business expenses/taxes/health ins./ct order child support (net income
Child support- Deviation Parties or ct can deviate from these amounts, but in doing so, ct shall consider 13 factors
Child support- Deviation; Factors: 1 through 5 1. Age of child, 2. Cost of necessary child day care, 3. Any special health care and educational needs of child, 4. Responsibility of either parent for support of other children, 5. Value of services contributed by either parent
Child support- Deviation; Factors: 6 through 9 6. Any pregnancy related expenses if parents were never married or if were divorced prior to birth, 7. Cost of transportation to and from visitation, 8. Ability of parent to furnish health insurance, 9. Amount of time child spends with each parent
Child support- Deviation; Factors: 10 through 11 10. Any other ncessary expenses for benefit of child, 11. Whether either parent is voluntarily unemployed or underemployed (close look to willingness)
Child support- Deviation; Factors: 12 through 13 12. Whether either parent violation any provision of divorce decree, including visitation, and 13. Other relevant factors as determined by ct.
Child support- Financial affidavit Must be filed with ct and served on other party showing income- W-2 forms, etc. and provides figures to determine child support
Child support- Abatement Abates by 1/2 daily support obligation for each day non-custodial parent has physical custody of child more than 14 consecutive days
Child support- Abatement; To receive Non-custodial parent must apply to clerk
Child support- Abatement; To receive: Shared custody If each parent keeps children for more than 40% of year AND each contributes substantially to expenses of child in addition to child support
Child support- Joint presumptive support obligation Determined by statutory formula
Child support- Medical support In any action to establish or modify child support obligation, ct orders one or both parents to provide medical support
Child support- Cessation of child support When parents marry or remarry each other, child dies, child becomes legally emancipated, child attains age of majority
Child support- Income withholding order Ct. enter immediate income withholding order w/modification, initial support entry goes to obligor employer; Any periodic payment on date due is judgment by operation of law; Priority over any other legal process against same income/continuing garnishme
Child support- UIFSA Two aspects- 1. Jurisdiction, and 2. Interstate process
Child support- UIFSA; Continuing exclusive jurisdiction Allows states to uniformly determine which state has continuing exclusive jurisdiction (child support issues)
Child support- UIFSA; Process After person files petition under UIFSA in one state, initiating state forwards 3 copies of petition to appropriate tribunal in responding state
Child support- UIFSA; Responding state Can then issue, enforce, or modify support order, determine parentage, order income withholding, determine arrearages, etc.
Child support- Obligor in arrears He or she can lose driver's license, hunting or fishing license, or professional license until back support is paid
Modification of support- 20% rule or material change; Substantial and material change of circumstances includes 1. Commencement of POWER, medical benefits under Title 19, food stamps, SSI, or welfare of any kind, 2. Income adjustment, 3. Health problems, 4. Job advancement or loss, 5. Remarraige
Modification of support- 20% rule or material change; No change in circumstances for 1. Inflation, 2. Failure to pay child support, 3. Voluntary assumption of obligations
Modification of support- 20% rule or material change; Offsets Parents cannot offset child support with other obligations
Modification of support- 20% rule or material change; Financial institution Must agree to provide DFS with information about each non-custodial parent with an account
Modification of support- 20% rule or material change; Petitioning ct Any party may petition ct to review child support order if order was entered more than 6 mos prior to petition and support amount would change by 20% or more per month
Modification of support- 20% rule or material change; Originally deviated If parties originally deviated from presumptive child support, for modification, they must show 20% change and substantial change in circumstances to justify modification; Every 3 years, upon parent request, ct shall review and if appropriate adjust
Minors Age of majority in WY is 18
Minors- Emancipation statute 17 years old; Allows them to- 1. Enter into binding K, 2. Sue and be sued, 3. Buy or sell real property, 4. Establish a residence, and 5. Be liable under criminal laws of state
Parental rights- Women Women who gives birth to child is deemed mother
Parental rights- Determining paternity is statutory Unknown and common law; Strict construction
Parental rights- Definitions Acknowledged father: Signed affidavit; Adjudicated father: Ct. with jurisdiction has found; Alleged father: Alleges self to be father
Parental rights- Established by 1. Unrebutted presumption, 2. Acknowledged, 3. Adjudication, 4. Adoption
Parental rights- Presumption of paternity; Presumption of paternity arises if: 1 through 4 1. Child born while parents married or within 300 days of marriage termination, 2. Before birth, attempted marriage or birth w/in 300 days after, 3. After birth, marriage or attempted marriage
Parental rights- Presumption of paternity; Presumption of paternity arises if: 5 through 6 4. Presumed father receives child into home, lives w/mothers, and holds child out as own in first 2 years, 5. Man acknowledge paternity with consent of mother by signing an affidavit of paternity
Parental rights- Presumption of paternity; Rebutted Presumption is rebutted by contrary adjudication
Parental rights- Termination of parental rights by statute; Parent/child relationship may be terminated if one of following facts established by clear and convincing evidence: 1 through 3 1. No provision for parental support and communication for one year, 2. Child abandoned, w/o identity for 3 mos and no parent can be found, 3. Child abuse or neglect and family cannot be or refuses rehabilitation and child's well being jeopardized
Parental rights- Termination of parental rights by statute; Parent/child relationship may be terminated if one of following facts established by clear and convincing evidence: 4 through 6 4. Parent incarcerated due to felony and unfit to have custody/control, 5. Child has been in foster care for 15 mos and parent unfit to have custody, or 6. Child abandoned at less than one year old for 6 mos.
Parental rights- Termination of parental rights by adoption without consent; Parental rights terminated by adoption w/o consent if putative father unknown or not registered, and non-consenting parents has: 1 through 3 1. Been given notice of hearing and have failed to appear or answer, 2. Been judicially deprived of parental rights, 3. Willfully abandoned or deserted the child,
Parental rights- Termination of parental rights by adoption without consent; Parental rights terminated by adoption w/o consent if putative father unknown or not registered, and non-consenting parents has: 4 4. Willfully failed to contribute to support child for one year immediately prior to filing petition, and failed to bring support obligations current w/in 60 days after service,
Parental rights- Termination of parental rights by adoption without consent; Parental rights terminated by adoption w/o consent if putative father unknown or not registered, and non-consenting parents has: 5 through 6 5. Willfully permitted child to be maintained by public or private institution or gov't for more than 1 year without contributing to support, 6. Failed to show interest within 30 days after receiving notice of birth of child,
Parental rights- Termination of parental rights by adoption without consent; Parental rights terminated by adoption w/o consent if putative father unknown or not registered, and non-consenting parents has: 7 through 8 7. Been convicted of cruelty, abuse, neglect, or mistreatment of child, 8. If child born as result of rape or incest, father convicted of same, or
Parental rights- Termination of parental rights by adoption without consent; Parental rights terminated by adoption w/o consent if putative father unknown or not registered, and non-consenting parents has: 9 9. Willfully failed to pay 70% ct ordered support for at least 2 years and failed to bring support obligations 100% current within 60 days after service of petition to adopt
Parental rights- Termination of parental rights due to parental wrongdoing; If parent convicted of following, may be ground for terminating w/o efforts to reunify if- 1. Murder of another child of parent, or aiding/abetting/attempting/conspiracy to do same, 2. Commission of felony assault which results in serious bodily injury to another child of parent
Parental rights- Adoption Strictly statutory
Parental rights- Adoption; Process Irrevocable written consent and relinquishment of custody and consent to adopt must be filed with adoption petition and must be signed by biological parent (or mother alone if father unknown) after birth of child
Parental rights- Adoption; Affidavit Petitioner must also file with petition an affidavit setting forth any psychiatric disorder, convicted felonies, misdemeanors of parents within last 5 years, and parole status of parents
Parental rights- Adoption; Not revocable Not revocable unless consent obtained by fraud or duress
Parental rights- Adoption; Guardianship: Ct may appoint guardian for child if- 1. Child is in needs of Guardian, and 2. Child's parents have consented to appointment or Ct has found parents are unfit to act as parents
Created by: dmoore147