Critical Pass- Family Law

Question 1

What age limitations usually exist with regard to marriage?

Answer 1

Most states impose an age limitation, usually 18, before a person may legally marry. Some states allow minors to marry if there is parental consent or judicial approval.

Question 2

What is the marriage limitation regarding consanguinity? What does consanguinity concern?

Answer 2

People who are too closely related are prohibited from marrying each other.

Question 3

What is the presumption of validity regarding the general marriage prohibition on bigamy/polygamy?

Answer 3

No person may marry who has a prior undissolved marriage to another living spouse. Under the presumption of validity, the last of several marriages is presumed valid, which may be rebutted by evidence that the prior marriage(s) issued still persist.

Question 4

How can a bigamous marriage be validated under the Uniform Marriage & Divorce Act (UMDA)?

Answer 4

Under the Uniform Marriage and Divorce Act, a bigamous marriage can be validated upon the removal of the impediment (ie when the prior marriage is terminated).

Question 5

What two types of requirements exist for a valid marriage?

Answer 5

A valid marriage requires both procedural requirements and state-of-mind requirements.

Question 6

What are the two usual procedural requirements for a valid marriage?

Answer 6

Most states require both a license and a solemnization (i.e., ceremony).

Question 7

What requirements must be satisfied after a solemnization with regard to the marriage license?

Answer 7

The solemnization is conducted by an authorized clergy member or judicial officer. License must be completed/signed by the person who solemnized the marriage and filed with the appropriate govt. office. This created a public record of the marriage.

Question 8

What is the state-of-mind requirement for marriage?

Answer 8

Both parties must consent to marriage, meaning they each intended to take on the obligations of marriage.

Question 9

What factors are considered in determining whether parties to a marriage validly consent?

Answer 9

Courts will look at 1) capacity and 2) intent in evaluating consent

Question 10

Common Law Marriage

Answer 10

In a common law marriage, a couple is legally considered married without having registered or performed legal requirements for marriage.

Question 11

What factors establish a common law marriage?

Answer 11

Where recognized, a common law marriage is established by:

1. Consent- exchange of consent between two people
2. cohabitation; and
3. holding out publicly as spouses living together- eg joint bank account, same last name, telling people they are married.

Question 12

If a common law marriage is recognized in one state, must it be recognized in another state that does not have common law marriage?

Answer 12

Recognition — though largely abolished, if a valid common law marriage is formed under one state’s laws, it is regarded as a valid marriage in other states, even those where common law marriage is illegal

Question 13

What is the purpose and effect of a premarital K?

Answer 13

Premarital agreements are Ks that provide for distribution of assets upon divorce or death in a way that varies from what the law would otherwise require

Question 14

What are the requirements for a premarital K to be valid?

Answer 14

Requirements:
Writing — must be in writing to satisfy Statute of Frauds (“SoF”)
Voluntariness — must be entered into voluntarily (i.e., without fraud, duress, overreach)
Full & fair disclosure — both parties must fully and fairly disclose their financial worth

Question 15

What must parties fully and fairly disclose for a premarital K to be valid?

Answer 15

Full and fair disclosure- both parties must fully and fairly disclose their financial wealth.

Question 16

Can a premarital K be amended? If so, what consideration is required?

Answer 16

Amendment — may be revoked or amended by written agreement signed by both parties; amendment is enforceable without consideration

Question 17

What factors determine whether and to what extent a court will enforce a premarital K?

Answer 17

Enforcement — courts strictly scrutinize premarital Ks
Scrutiny focuses on voluntariness and full and fair disclosure requirements, as well as whether terms are unconscionable
Whether parties were represented by legal counsel may be a factor, and is required in some states

Question 18

What right to ownership and control do spouses have with regard to property acquired before and during marriage?

Answer 18

Before and during marriage, each spouse owns and controls their own property, but property acquired during marriage may become owned as tenancy by the entirety

Question 19

What may give rise to a tenancy by the entirety?

Answer 19

Tenancy by the entirety — in many states, where spouses take real property jointly, a tenancy by the entirety is presumptively created

Question 20

What does the obligation of support during marriage encompass?

Answer 20

Support — each spouse has an obligation to support the other, and one spouse may be held liable for another spouse’s purchases

Question 21

How and when can one spouse be held liable for another spouse’s purchases?

Answer 21

I.e., under agency principles, one spouse can be held liable to third parties for purchases made by the other spouse where expressly or impliedly authorized

Necessaries doctrine — one spouse may be held liable to creditors for necessaries purchased by the other spouse

Question 22

When can a spouse be held liable under the necessaries doctrine?

Answer 22

Food, medical care, shelter, clothing etc. One spouse may be held liable to creditor for necessaries purchased by the other.

Question 23

What is an annulment? What is the effect of an annulment?

Answer 23

Annulment is a judicial declaration that the marriage was invalid due to some impediment at the time of marriage and, therefore, never occurred
A marriage can be annulled if it is void or voidable (a distinction that varies by state)

Question 24

What are grounds for an annulment?

Answer 24

Grounds for annulment — considered voidable unless otherwise noted:
Bigamy or polygamy — marriage is considered void
Consanguinity — marriage is considered void
Non-age — one spouse under statutory age at the time of marriage
Incurable physical impotence — inability to have normal sexual relations
Incapacity to consent

Question 25

How is property divided after a marriage is annulled?

Answer 25

Division of property — most courts attempt to divide property in such a way that puts parties in the position they were in before the marriage commenced

Question 26

If a marriage is annulled, can either spouse still be entitled to spousal support?

Answer 26

Spousal support — many states allow for temporary support during the annulment suit, although fewer states allow for spousal support following an annulment (see card 12)

Question 27

What is a fault vs. no-fault divorce?

Answer 27

Fault vs. no-fault — traditionally, divorce required proof of fault (i.e., permitted only if one party was at fault); while some states retain fault grounds, every state offers a form of “no-fault” divorce, which is what is discussed unless otherwise noted

Question 28

What are potential grounds for divorce?

Answer 28

Grounds for divorce — can be any or all of:
Irretrievably broken (a.k.a. “irreconcilable differences”)
Living separate
Incompatibility

Question 29

Can a spouse raise a defense to divorce to succesfully prevent a court from entering a divorce decree?

Answer 29

Defenses — defenses to divorce exist in some states, but a court will not force a marriage to continue if one party wants a dissolution

Question 30

What is a legal separation? How is it different from a divorce?

Answer 30

Separation — a legal parting that does not terminate the marriage
Not a divorce and does not terminate marriage; parties cannot remarry
Parties seek to have rights regarding property, spousal support, custody, child support, etc. determined in a separation proceeding
Can become an absolute divorce in some states at the request of the parties after a specified period of time

Question 31

Which state’s courts have jurisdiction over an annulment?

Answer 31

Annulment — a state where either party is domiciled has jx to enter an annulment decree
Most states also give jx to the court in the state where the marriage was entered into and recognized

Question 32

What residency requirements must be met for a court to have jurisdiction over a divorce petition?

Answer 32

Some states require a minimum durational residency before the action can be filed; designed to prevent forum shopping

Question 33

When will a divorce granted in one state be recognized in other states?

Answer 33

Full Faith & Credit Clause (“FFCR”) — under the Constitution’s FFCR, a divorce decree obtained in one state is recognized in other states as long as one or both parties was domiciled in the state that granted the decree

Question 34

What jurisdiction does a court have to determine rights to marital property located outside the state?

Answer 34

a court does not have jx to determine rights to property located outside the state or support decrees unless it has jx over both parties

Question 35

What are the two main approaches that a state may use for dividing property upon dissolution of marriage?

Answer 35

Approaches:
Equitable division of marital property — each spouse takes their separate property and the court divides property acquired during marriage on an equitable basis
Most popular approach — assume this approach for MEE purposes unless provided otherwise
Community property — all property acquired during marriage is considered owned 50-50 by each spouse; all property owned prior to marriage or acquired by gift or inheritance is separate property

Question 36

How does property division work under a community property system?

Answer 36

Community property — all property acquired during marriage is considered owned 50-50 by each spouse; all property owned prior to marriage or acquired by gift or inheritance is separate property

Question 37

Can court orders regarding division of marital property be modified?

Answer 37

Modification — property distribution decrees are generally not modifiable in most states

Question 38

What two-step approach do courts take in analyzing and determining property division?

Answer 38

Approach to property division — courts will do the following:
Categorize property — classify property as marital or separate
See Card 10 ­— Categorizing Property
Determine equitable distribution of marital property — distributed between spouses based on relevant factors (see card 11)

Question 39

What types of acquired property are generally considered separate property?

Answer 39

Separate property generally includes property from: 
before marriage
by gift or bequest
separate property proceeds
appreciation b/c of time

Question 40

If a married couple buy a car but pay for the car with money inhereited by wife before the marriage, is the car more likely separate or marital property?

Answer 40

Separate property proceeds — property acquired with separate property proceeds by either spouse

Question 41

If separate property appreciates in value during the marriage, when is the value of the appreciation itself considered separate vs. marital property?

Answer 41

Appreciation b/c of time — appreciation of separate property due to passage of time (as opposed to efforts of either spouse)

Appreciation b/c of effort — appreciation of separate property due to efforts of either spouse is usually marital property

Question 42

What types of property are generally considered to be marital property?

Answer 42

Marital property — generally includes all property acquired during marriage that is not separate property, regardless of who holds title. Includes 1) appreciation bc of effort 2) pensions and 3) professional license or degree.

Question 43

What is comingled property? How can it arise and what is the effect?

Answer 43

Commingled property — separate property that is inextricably mingled with marital property or separate property of the other spouse can become marital property

Question 44

What are some of the main factors courts consider in equitably distributing marital property upon divorce?

Answer 44

Factors — courts look at all relevant factors concerning how marital property was accumulated and each party’s needs going forward, including:
Income, educational/vocational skills, employability of each party;
Duration of the marriage;
Standard of living during the marriage;
Assets, debts, and liabilities of the parties;
Obligations for support arising out of a prior marriage;
Contributions made by each spouse towards accumulation of marital property (including contributions to the home/household);
Needs of the parties;
Provisions for custody of minor children;
Whether distribution is in lieu of alimony/spousal support; and
Health of the parties

Question 45

If a divorce was caused by one spouse’s infidelity, to what extent will this factor into the equitable division of marital property?

Answer 45

Fault as a factor — marital fault of either spouse (e.g., infidelity) is not a relevant factor

Question 46

When might a court award spousal support?

Answer 46

Spousal support (a.k.a. “maintenance” or “alimony”) can be awarded if a spouse’s separate property is insufficient for maintenance

Question 47

What are some of the most relevant factors a court considers in determining the amount of spousal support?

Answer 47

Factors — relevant factors in determining spousal support include:
Financial resources of each party
Standard of living established during the marriage
Time necessary for party seeking support to obtain employment (including education and training)
Contribution of each party to the marriage, including childcare, career support of the other spouse, contributions to the home, etc.
Ability of the spouse paying support to meet their own needs

Question 48

If husband was unfaithful to wife, which directly led to their divorce, can husband still be eligble for spousal support?

Answer 48

Marital fault — marital fault (e.g., infidelity) is not a relevant factor in most states

Question 49

Under what view or through what lens does a court determine a spouse’s needs for spousal support purposes?

Answer 49

Discretion — courts have significant discretion in determining whether and to what extent to award spousal support; needs are determined under the totality of the circumstances

Question 50

Can spousal support be awarded as a single payment, or must it be awarded as a monthly payment?

Answer 50

Terms — can be awarded short-term or indefinitely, and as a lump sum or periodic payments

Question 51

What absolute duty to all parents have with regard to children?

Answer 51

Both parents have an absolute duty to support their children

Question 52

What is used in each state to determine the proper amount of child support owed?

Answer 52

Guidelines & formulas — each state has guidelines to determine the proper amount of child support owed
Guidelines are usually based on a formula that considers number of children, their ages, healthcare needs, any special needs, and parents’ incomes

Question 53

What is the usual duration of child support payment obligations?

Answer 53

Duration — child support obligations generally last until the child reaches the age of majority or is otherwise emancipated

Question 54

If a parent fails to make spousal support payments, can that parent’s visitation rights be denied?

Answer 54

Independent from visitation rights — custodial parents cannot deny visitation rights based on a parent’s failure to make child support payments

Question 55

If a court in Ohio orders child support payments from a parent, who moves to Iowa, is the Ohio court’s order still enforceable?

Answer 55

Jurisdiction — full faith and credit is given to child support orders issued in other states as long as the issuing court had proper jx and the parties had reasonable notice and an opportunity to be heard

Question 56

A court in Utah orders child support payments from Parent 1, who later moves to Ohio. Parent 2 later moves from Utah to Idaho. In what circumstances will the Utah court still have jx over the

Answer 56

The issuing court has continuing exclusive jx to modify the order if the child or one of the parties resides in-state (unless parties have moved out of state but consent to the issuing court’s ongoing jx)

Question 57

What is the difference between legal custody and physical custody?

Answer 57

Legal custody — right to make major decisions affecting the child’s life
Physical custody — possession and control of the child

Question 58

What does joint custody mean?

Answer 58

Joint custody — can be either or both of:
Parents share decision-making but child lives with one parent
Child divides time between each parent’s home

Question 59

What do courts focus on in making child custody determinations?

Answer 59

the child’s best interests

Question 60

What factors would a court consider in determining child custody?

Answer 60

Custody factors — in determining custody, courts focus on the child’s best interests, looking at multiple factors, including:
Parents’ wishes;
Child’s wishes (given more weight if child is older, but significantly less weight for young children, i.e., under age eight);
Ability and willingness of each parent to provide for child’s needs;
Interaction and interrelationship of child with parents, siblings, and others who affect the child’s best interests; and
Child’s adjustment to home, school, and community

Question 61

If one parent has sole custody, is the other parent entitled to visitation rights?

Answer 61

when one parent is granted sole physical custody, the other parent is entitled to visitation

Question 62

For what grounds may a court deny visitation rights to a parent who does not have custody?

Answer 62

Exception — visitation rights may be denied if court determines it would endanger the child’s wellbeing

Question 63

When may a court give non-parents visitation rights?

Answer 63

Non-parents — may be given visitation rights if:
The non-parent has a substantial relationship with the child;
Non-parent visitation is in the child’s best interests; and
A fit parent does not object

Question 64

What must be shown for a court to modify a spousal support order?

Answer 64

Spousal support — changing a support award requires a substantial, material, and unanticipated change in either party’s circumstances

Question 65

If a parent who owes spousal support voluntarily changes to a lower paying job, will this justify a court lowering that parent’s spousal support obligations?

Answer 65

Self-induced changes — generally will not justify modifying a support order (e.g., party cannot voluntarily take a lower-paying job and get reduced support obligations)

Question 66

When are child support orders modifiable?

Answer 66

child support orders are modifiable based on a substantial change in circumstances that affects either:
The needs of the children, or
The ability of the parent to pay

Question 67

What must a parent show for a court to modify a child custody order?

Answer 67

Child custody — modification of a child custody order requires the parent to show a substantial, material change in circumstances
Courts will not change a custody order unless the change is in the child’s best interests

Question 68

If an unmarried couple who live together contractually agree to share property, is the K valid?

Answer 68

Ks between unmarried cohabitants — Ks between unmarried cohabitants to share property or engage in other forms of economic sharing are valid

Question 69

What circumstances might cause a court to allow an umarried cohabitant to seek support from her partner?

Answer 69

Implied Ks — courts may allow unmarried cohabitants to seek a remedy based on an implied-in-fact K theory (i.e., K formed by parties’ conduct)
Court may construe an arrangement as a joint venture, constructive trust, or partnership

Question 70

Under what theories might a court grant an equitable distribution of property where unmarried cohabitants break up?

Answer 70

Division of property — where unmarried cohabitants break up, courts may grant an equitable distribution of property based on rehabilitative alimony or one of the following theories:
Resulting trust — party makes claim to property in another’s name
Party seeking resulting trust must have paid money to acquire the property with intent to retain an ownership interest
Constructive trust — imposed to prevent a party from being unjustly enriched by obtaining title through wrongful conduct
Quantum meruit — recovery in quasi-K for valuable services

Question 71

Does a mother who has custody of her non-marital child have rights to receive child support payments?

Answer 71

Discrimination — distinctions based on non-marital child status are almost always unconstitutional (see Constitutional Law card 36)
Note — if you see any exam question where a child is denied benefits or rights (e.g., child support, govt. benefits, inheritance) due to their non-marital child status, it is likely invalid

Question 72

Can a person be ordered to take a blood or genetic test for purposes of determining paternity?

Answer 72

Admissible evidence — in paternity actions, evidence may include:
Blood or genetic tests, which parties may be required to take

Question 73

If paternity is established through a paternity suit, what arises?

Answer 73

Once paternity is established, a duty of support attaches

Question 74

What legal relationships are affected when an adoption occurs?

Answer 74

An adoption terminates the legal relationship between biological parents and their child (if not already terminated) and establishes a new legal relationship between parent and child

Question 75

If an unmarried mother wants to allow the adoption of her child, must the father consent?

Answer 75

Unwed father’s consent may not be necessary if he has not assumed parental responsibility
But an unwed father considered fit to be a parent has a constitutional right to have an opportunity to develop a quality relationship with his infant child

Question 76

In what situations might an adoptee be required to consent to his adoption?

Answer 76

Consent of adoptee — may be required for prospective adoptees over a certain age (usually 12 or 14)

Question 77

To what extent can a mother be compensated when putting her child up for adoption?

Answer 77

Payment prohibited — most states prohibit adopting parents from paying money to biological parents beyond pregnancy-related medical expenses
I.e., it is illegal to buy and sell children

Question 78

Do sperm or egg donors generally have parental rights over a conceived child?

Answer 78

Donors — one who produces sperm or an egg used for reproduction generally does not have parental rights in a conceived child
Mother’s husband is generally presumed to be the father of a child born from artificial insemination
Most states extinguish parental rights of sperm or egg donors
Exception — donors may have parental rights if agreed to in writing by donor and parent(s)

Question 79

What is a surrogacy? Is a surrogacy agreement treated as a valid K?

Answer 79

Surrogacy (a.k.a. “gestational agreement”) — where a woman agrees to bear a child conceived through assisted reproduction (i.e., using intended parents’ eggs or sperm or both) for the intended parents
Agreement — surrogate, surrogate’s husband (if she is married), and intended parents enter into a written agreement in which surrogate relinquishes her rights and duties as a parent
Most states allow surrogacy in some form and treat the agreement as a K