Family

Question 1

What is Common-Law Marriage?

Answer 1

• cohabit
• have the capacity to marry
• hold themselves out as married
  -form a present agreement they are married
  -gains all legal benefits of marriage

Question 2

When can a marriage be annulled?

Answer 2

Fraud.

False statements about wealth or social status arent sufficient

Question 3

Is a bigamous marriage valid?

Answer 3

No. Bigamous marriages are void.

Question 4

Marriage -Saving Doctrines

Answer 4

• the latest marriage is the valid marriage and terminated the previous marriage
• a marriage that was impeded when the impediment is removed

Question 5

What is a pre-marital agreement?

Answer 5

-binding contract that address property distribution, alimony, custody, and child support
- the contract must meet the minimal legal requirements for each element it controls

Question 6

When are pre-marital agreements unenforceable?

Answer 6

• involuntary
• unfair or unconscionable
• signed without adequate disclosure
• some courts evaluate at the time of signing and some at time of divorce, meaning that significant changes in lifestyle during the marriage may render a pre-marital agreement unfair
• favors unenforcement

Question 7

Uniform Premarital Agreement Act

Answer 7

• agreement is unconscionable at time of signing
• challenging party did not receive or waive disclosure of the other partys finances
• challenging party had no other way of knowing financial status
• favors enforcement
• an agreement unconscionable if it is the product of oppression, unfair surprise, asset concealment, or other actions inconsistent with fair dealing

Question 8

Constitutional Rights of Parents

Answer 8

• extends to unwed fathers if he has demonstrated a willingness to take on the responsibilities of parenthood
• law presumes that a womans husband is the father, restricting the biological father’s rights
• court’s may weigh the value of the fatherhood vs the sanctity of an intact marriage

Question 9

Doctrine of Parentage by Estoppel

Answer 9

• some one who is not the biological father
• acts like the father
• induces reliance on that relationship
• if termination of the relationship is not in the child’s best interest the nonparent may be estopped from denying parentage

Question 10

Legal vs Biological parentage

Answer 10

Legal parentage grants rights to the upbringing of the child. A legal parent could be married to the mother or has taken on the roll of father to the child. A biological parent must take step to demonstrate parentage to gain legal rights to the child of a woman married to another man.

Question 11

Separation Agreement

Answer 11

The parties to a divorce may enter a separation agreement to address property division, alimony, custody, and child support. Separation Agreements may be set aside for unfairness or unconscionability. An agreement isn’t unfair or unconscionable merely because one party made a bad bargain or expresses second thoughts. If only 1 party has a lawyer, that party has a fiduciary duty to deal in good faith. An agreement may be unconscionable if a party hid significant assets through fraud or misrepresentation.

Question 12

Mediator Duties

Answer 12

• ethical duty to ensure all parties understand the process
• be impartial and free from conflicts
  if the mediator violates these duties the mediation may be set aside by the courts

Question 13

What factors will a court consider when calculating alimony?

Answer 13

• needs of the party
• ability to pay
• earning potential
• capacity for self-support
• contributions to the marriage
• separate assets
• duration of the marriage
• possibly marital misconduct although that is being phased out
• how long will the requesting spouse to take to return to the pre-divorce level

Question 14

Rehabilitative Alimony

Answer 14

Helps the recipient become self-supportive by redeveloping a prior vocation or preparing for a new one. Court’s will consider disparity in earning potential, sacrificed earning potential, or marital misconduct.

Question 15

Reimbursement Alimony

Answer 15

Compensation for forgone income or past losses.

Question 16

Permanent Alimony

Answer 16

Most appropriate for long term marriages where 1 spouse is unlikely to ever become self-supporting.

Question 17

Modification of Alimony

Answer 17

• unanticipated or permanent changes in either partys’ circumstances that render previous award unreasonable
• recipient spouses remarriage

Question 18

General Principle for distributing marital assets

Answer 18

-parties are free to do it themselves
-equitable distribution
-equitable does not mean equal
-most states will on divide marital property and not individual property
-judged at the time of the divorce
-courts may not touch a final property-distribution decision

Question 19

marital property

Answer 19

• property acquired by either spouse during the marriage regardless of title
• increased value of separate property that the non-owning spouse contributed to
• any property acquired right up until the divorce

Question 20

separate property

Answer 20

• property that a spouse owned prior to marriage
• gifts from third parties
• inheritance
• individual licenses or professional degrees

Question 21

Factors considered when separating marital property

Answer 21

• party’s contributions during marriage
• homemaking
• childrearing
  -employment
• extent each party support the others career or education
• duration of marriage
• respective economic conditions at the time of divorce

Question 22

Legal Custody

Answer 22

• Right to make important decisions about the child such as medical care and education
• may issue joint legal custody

Question 23

Physical Custody

Answer 23

physical responsibility for the child including daily care and supervision

Question 24

Best Interest of the Child

Answer 24

• who had caretaking role
• ability to care for the child
• ability to provide social and domestic stability
• history of violence or substance abuse
• child’s preference

Question 25

Non-parental custody

Answer 25

Parents have a constitutional liberty interest in custody. Other parties must show that the parent is unfit to have custody of the child.

Question 26

Modifying a Custody award

Answer 26

• courts may modify
• requires a showing of substantial change in the custody’s circumstances
• relocation usually requires a showing that the relocation is in the child’s best interests and a reasonable reason for the move
• good faith reasoning for the move

Question 27

Uniform Child Custody Act

Answer 27

Contains the Rules and regulations for the handling of custody disputes of children.

Question 28

Home-State Rule

Answer 28

initial custody determinations have priority in the child’s home state, where the child has lived for 6 months with at least 1 parent

Question 29

Recent-Home-State Rule

Answer 29

If the child lived in the state within the last 6 months, 1 parent still lives in that state, but the child no longer lives there

Question 30

Significant Connections and Substantial Evidence

Answer 30

If a child has no home state or a recent home state, the state may exercise jurisdiction if it has at least 1 parent living there and the child has significant connection with the state. There must also exist substantial evidence that the childs care, protection, training, and personal relationships exist there.

Question 31

Modification Jurisdiction

Answer 31

The state that originally set custody has jurisdiction over any modifications until the child and childs parent no longer reside in the state or that the issuing state finds that neither the child or the parents have significant connections in the state.

Question 32

Uniform Interstate Family Support Act

Answer 32

allows jurisdiction in support cases over someone who engaged in sexual intercourse within the state that caused a child to be conceived

Question 33

Unmarried Father’s support obligation

Answer 33

marital status does not impact child support obligations

Question 34

child support payment levels

Answer 34

federal law requires each state to establish presumptive, numerical child-support amounts based on obligors income

Question 35

child support waivers

Answer 35

child support is for the child, the parents may not waive it

Question 36

retroactive vs prospective modification

Answer 36

the earliest you can modify child support is the date the other party was notified that the opposing party had petitioned for one

Question 37

May you request a modification in child support?

Answer 37

Yes, but the courts may deny modifications if the moving party caused the reduction in wages. If the party can show that it was a good faith reduction it may be excused.

Question 38

Uniform Interstate Family Support Act

Answer 38

Allows parties to register that order in another state’s court. once registered, that order is enforceable in that state. further, you may register in another state and forward to another state. original state laws still hold

Question 39

adoption

Answer 39

To carry out an adoption, a court first must terminate any existing parental rights. The court then confers all parental rights on the adoptive parents.

Question 40

consent

Answer 40

If both biological parents have parental rights, then both parents must consent to an adoption unless they’ve abandoned the child, voluntarily surrendered their parental rights, or had their parental rights terminated by the state for unfitness. The parental-consent requirement includes a constitutional element, because a fit parent has a substantive-due-process right to participate in a child’s care and upbringing.