Family Law Outline (DOC)

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					                               FAMILY LAW OUTLINE

I.    FORMING A MARRIAGE
      a. To marry, parties must satisfy two elements:
             i. They must get a marriage license
            ii. They must solemnize their marriage.
      b. To get a marriage license:
             i. The parties must meet the state age requirements. In Pennsylvania:
                    1. A party may enter into marriage if he is over 18, or
                    2. Between 16 & 18 with parental consent, or
                    3. Under 16 with consent of the court
                        (the court will only grant consent if it is in the party’s best interest.
                        Generally it is in her best interests if she is pregnant or has a child.)
            ii. The parties must be competent – they must have capacity to wed.
           iii. The parties cannot be intoxicated.
           iv. The parties must not be related by the prohibited degree of consanguinity.
      c. To solemnize the marriage, parties may use a government or religious official.

II.   ENDING A MARRIAGE
      a. Void Marriages
             i. If a marriage is void, in the legal sense it never existed. The parties do not
                need to do anything to terminate it. However, the parties may wish to get
                an annulment anyway to create a paper trail and to resolve collateral
                issues.
            ii. Three things “void” a marriage:
                     1. Polygamy (if one spouse was already married)
                     2. Consanguinity
                     3. Incapacity (if one spouse lacked capacity to marry)
                Essentially, these are all things that knock out one or more of the elements
                of what the parties need to secure a marriage license.
      b. Voidable Marriage – Annulment
             i. A voidable marriage is valid unless a spouse wishes to annul it.
            ii. Marriages may be annulled based on:
                     1. Infancy (one spouse <18 and married without parent/court consent)
                     2. Intoxication when married
                     3. If one of the parties is incurably impotent or infertile and the other
                         spouse didn’t know or have reason to know before marriage
                     4. A party forced the other into marriage by fraud, coercion, or duress
           iii. In fact, a voidable marriage may be rendered valid if the spouse with the
                cause of action ratifies the marriage or if either spouse dies.
c. Divorce
       i. Pennsylvania offers unilateral fault-based divorces, unilateral no-fault
          divorces, and bilateral no-fault divorces.
      ii. Grounds for fault:
             1. Desertion: willful and malicious absence from cohabitation,
                 without reasonable cause, for more than one year.
             2. Adultery
                      a. Adultery may be proven by circumstantial evidence that
                          tends to show that the at-fault spouse had both opportunity
                          and inclination to have sexual relations with a third person.
             3. Cruel and Barbarous Treatment
             4. Bigamy –
                      a. Bigamy is a ground for divorce for the first marriage. It
                          automatically voids the second marriage.
             5. Repeated Indignity
                      a. Vulgarities, unmerited reproach, malignant ridicule, or
                          neglect. It must be proven by a continuing course of
                          conduct.
             6. Incarceration > 2 years
             7. Insanity is only a grounds for fault if it existed before the marriage
     iii. Common Law defenses to fault:
             1. Condonation (forgiveness) – requires knowledge of the marital
                 misconduct, forgiveness, and resumption of marital relations. It’s a
                 compete defense to adultery but is rarely a defense to other faults.
             2. Consent
             3. Connivance – like entrapment, one spouse “sets the other up.”
             4. Collusion – parties collude to trick the court into granting divorce
             5. Recrimination – offsetting fault by both spouses (mutual adultery).
             6. Provocation
                      a. At-fault spouse was provoked into acting as he did.
             7. Justification
                      a. At-fault spouse was justified in his actions (e.g., desertion)
     iv. No fault divorces
             1. Bilateral Divorce: If both parties file affidavits that their marriage
                 is irretrievably broken, a divorce will be granted 90 days from
                 commencement of the action.
                      a. This is quicker, cheaper, and avoids “airing dirty laundry.”
             2. Unilateral Divorce: If the parties have lived “separate and apart”
                 for more than 2 years and the marriage is irretrievably broken, the
                 court will grant a unilateral no-fault divorce.
III.   DIVISION OF MARITAL PROPERTY
       a. Definition of Marital Property
               i. All property acquired during marriage. Title is irrelevant.
              ii. All property acquired with marital assets.
             iii. Any increase in value of individually held assets (assets owned by one of
                  the spouses before marriage).
             iv. Businesses and professional practices
              v. It does not include:
                       1. Property acquired by gift (except as between spouses)
                       2. Property acquired through intestacy or will
                       3. Property acquired after final separation
                       4. Awards from causes of action commenced before marriage or after
                          final separation – regardless of when the award is actually received
                       5. Professional licenses
       b. Pennsylvania: Equitable Distribution
               i. Courts will not consider fault when determining equitable distribution.
              ii. They consider the following non-exclusive list of factors:
                       1. Length of marriage
                       2. The age, health, and “station” of the parties
                       3. The assets, income, and employability of the parties
                       4. Either party’s contribution to the other’s education
                       5. Each party’s contribution to the home
                              a. This includes a homemaker’s contribution – raising the
                                  children, maintaining the property, regular upkeep, etc.
                       6. Standard of living established during the marriage
                       7. Whether either party will continue supporting minor children
             iii. Equitable distribution is not taxable to the receiving spouse and is not
                  deductible by the “losing” spouse.
       c. Alimony Pendente Lite
               i. A special kind of alimony paid to a financially dependent spouse for the
                  period beginning with separation and ending with divorce.
              ii. It allows the dependent spouse to continue living in the manner to which
                  he/she has become accustomed and also allows him/her to secure counsel.
             iii. Marital misconduct does not affect Alimony Pendente Lite
       d. Alimony
               i. Spousal support – periodic payments for maintenance of a former spouse.
              ii. Court examines a non-exclusive list of factors.
             iii. Courts will consider marital misconduct when awarding alimony.
             iv. Alimony is taxable to the receiving spouse. It is deductible for the paying
                  spouse.
      e. Modification, Suspension, or Termination of Alimony
              i. Modification
                     1. Either party may petition the court to modify alimony payments
                          based on a change in circumstances. This is fairly open-ended.
                     2. Past-due alimony cannot be modified.
             ii. Termination
                     1. Alimony payments automatically terminate when:
                              a. Either spouse dies.
                              b. The receiving spouse remarries or cohabitates with another.
      f. If either party fails to pay:
              i. The receiving spouse should go to court and get a judgment award.
                 Through it, the receiving spouse may:
                     1. Send it to the non-paying spouse’s employer and get a wage
                          reduction. Wage reductions may not exceed 50% of income.
                     2. Liquidate the non-paying spouse’s assets.
                     3. Have the court take away the non-paying spouse’s driver’s license.
                     4. Have the non-paying spouse locked up for contempt of court!

IV.   ISSUES RELATED TO CHILDREN
      a. Paternity
              i. When a man and woman are married and their marriage is intact, the man
                 is presumed to be the child’s father.
             ii. If their marriage isn’t intact, the man can overcome the presumption of
                 paternity by demonstrating either:
                      1. A “lack of access” or
                      2. Lack of physical ability
            iii. He may only use blood tests to prove that he’s not the father after proving
                 either a lack of access of lack of physical ability.
            iv. However: he may not deny paternity if he’s held the child out as his own.
      b. Child Support
              i. Statutory guidelines determine the amount of support. Generally, it’s
                 proportional to each parent’s household income. So if Dad makes 75% of
                 the household income, he’s responsible for 75% of the support.
             ii. May be modified based on change in circumstances; terminates when the
                 latter of when the children are 18 years old or until the children graduate
                 from high school. If the children are mentally or physically incapable of
                 caring for themselves, the duty to support may extend well into adulthood.
            iii. Under the FFCCSOA, child support orders get FF&C in all 50 states.
            iv. It is a federal crime to be >$5,000 behind on your child support.
             v. Child support is neither taxable nor deductible.
V.    CUSTODIAL ISSUES
      a. Understand the differences between legal and physical custody.
      b. Issues re: visitation and custody are determined by examining the best interests of
         the child.
              i. Location
             ii. History of violence or abuse
            iii. History of mental illness
            iv. Preference
             v. Association with siblings
            vi. Parent’s intent to remove the child to another state
      c. A court initially has jurisdiction to enter a visitation or custody order if:
              i. It is the child’s home state. A state is the child’s home state if the child
                 lived there for at least six consecutive months immediately before the
                 commencement of the proceeding, disregarding temporary absences.
             ii. It was the child’s home state in the past six months, the child is now
                 absent from the state, and a parent or person standing in loco parentis still
                 lives in the state.
            iii. No other state has or accepts home state jurisdiction and the child and at
                 least one parent have a substantial connection to the state, and substantial
                 evidence concerning the child is available in that state.
      d. The court that makes the initial court order has exclusive jurisdiction over the
         matter until the court determines that:
              i. Neither the child nor parents continue to reside in the state, or
             ii. The child no longer has a significant connection with the state and
                 substantial evidence relating to the matter is no longer available in the
                 state.
      e. Non-Parent Visitation
              i. Grandparents have standing to request visitation if the child lived with
                 them for at least 12 months. However, courts will not overturn a custodial
                 parent’s wishes that the child shouldn’t have contact with its grandparents.

VI.   ADOPTION
      a. If adoptee is over 12, you need the adoptee’s consent.
      b. You need the child’s parents’ consent unless they have relinquished (or the state
         has terminated) their parental rights.
      c. If one spouse is adopting a child, he needs the consent of the other spouse.

				
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