Family

Question 1

Common law marriage

Answer 1

“CACH”

• capacity to marry
• agreement (present/current)
• cohabitation
• Holding out as married

RECOGNITION & TERMINATION

• if valid in state where contracted, other states will recognize unless strong public policy reason (incest/polygamy)
• cannot terminate informally! Need divorce/annulment by court

Question 2

Custody -determination

Answer 2

DETERMINATION

• always based on best interests of the child
• premarital agreement generally not enforceable re custody
• modification by court on substantial change to circs (generally unforeseen)

Question 3

Child Custody - modification

Answer 3

• Court can modify if there is a substantial change to the circumstances
• generally needs to have been unforeseen at the time of original order

Question 4

Child Custody - Jurisdiction

Answer 4

Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA)

1. “Home State” has exclusive jurisdiction to modify custody decree:

• place where child has lived for at least 6 months immediately prior to child custody proceeding
• place where child formerly lived for at least 6 months, but is now absent and parent still lives there

2. If no home state, then the state with (a) significant connection to the child and at least one parent; and (b) substantial evidence relating to child custody

Question 5

Relocation of parent and child

Answer 5

Generally a move sought in good faith and in the child’s best interests will be approved.

Court considers impact on vistation by non-custodial parent vs benefit to children and custodial parent.

Some states place burden on relocating parent and some on challenger.

Question 6

Rights of parents v others

Answer 6

1. Fathers - bio fathers generally have rights, but some states require them to exercise them (ie be involved) in first 2 years.
2. Opposing 3P adoption - involved parent who demonstrates “full commitment to the responsibilities of parenthood” can prevent 3P from adopting and is entitled to notice
3. 3P vying for custody (eg grandparent) - custody w fit parent presumed to be in best interests so court gives “special weight” to parent’s determination of child’s best interests.

Question 7

Property Division on Divorce

Answer 7

Majority approach

• marital property is subject to equitable division
• separate property is not subject to division - “BIG” - prop acquired Before; Inheritance; GIft
• premarital agreement - court will generally enforce if substantively fair, based on full disclosure, and voluntary (no coersion, undue influence

Question 8

Spousal support (alimony)

Answer 8

GRANT

• JX - court must have SMJ (residency period) and PJ over both spouses
• Can be temporary, permanent, lump sum
• Factors:
  
  • Duration of marriage
  • financial resources (assets, earning capacity)
  • standard of living
  • age and health
  • contribution to marriage (putting someone through school)
  • needs

MODIFICATION

• Can be varied if substantial change in circumstances
• voluntary change (underemployed eg) may not be accepted by court.

Question 9

Child support

Answer 9

GRANT

• parents have an obligation to financially support children to majority (or longer if incapable)
• can’t contract out - unenforceable
• Uniform Interstate Family Support Act (UIFSA) -
  
  • all 50 states;
  • PJ over non-resident parent to establish or enforce child support;
  • state originally issued has exclusive Jx to mdify IF (a)either spouse or child remain resident there and (b) at least one party does not consent to another state’s Jx.
• Calculated on state formula based on income of parents, ages of kids and needs of kids

MODIFICATION

• court can modify if substantial change in circumstances
• never retrospective
• voluntary reduction in income not enough to change; court may look to good faith

Question 10

Which court (Jx)

Answer 10

1. dissolve a marriage - court does not need PJ over D spouse if P domiciled in forum or other long term connection (don’t need both)
2. property division - court must have PJ over D spouse
3. support order - court must have PJ over D spouse
4. Child custody - UCCJEA (“Home state”, if none, significant connections)
5. Child Support - UIFSA (ct issueing order retains exlc Jx if at least one of child, obligee, obligor is resident and at least one refuses Jx of another court.

Question 11

Divorce

Answer 11

1. Can be limited (live apart only)
2. Separation Agmt - contract enforceable so long as not unconscionable
3. Jx - Full Faith and Credit if at least one party resident in the state
4. Ex parte - can issue divorce decree, but can’t divide property or award custody or support unless both subject to PJ
5. Fault - most states allow no-fault

Question 12

Prenuptial/Premarital Agreement

Answer 12

Enforceable if:

• based on full disclosure
• fair and reasonable
• voluntary
• Under Uniform Premarital Agrement Act (UPAA), challenger to enforcement must show (1) involuntary or (2) unconscionable when signed bc lack of full disclosure

Which law - law of the state with the most significant relationship governs