Family

Question 1

elements for common law marriage

Answer 1

capacity

present agreement

cohabitation

holding out

Question 2

will a marriage in one state (including common law) be valid in another

Answer 2

yes unless violates strong public policy

Question 3

what is putative marriage

Answer 3

when innocent party participatd in ceremonial marriage and believes in good faith that marriage is valid but later discover there was an impediment

can get spousal support / property

Question 4

fault based divorces

Answer 4

adultery
cruelty (physical abuse)
desertion

Question 5

code of conduct for mediator

Answer 5

impartial and disclose conflicts of interest
clearly explain process
no coercion or improper influence

Question 6

community property

Answer 6

only 9 states

requires equal division of marital property

Question 7

equitable distribution of marital property (majority rule)

Answer 7

requires fair distribution

takes into consideration all circumstances

Question 8

what is marital property

Answer 8

all property or assets acquired during marriage by any means other than gift, descent, devise

separate property can become marital if marital funds/efforts used to increase value

Question 9

what kind of property is retirement/pension

Answer 9

if spouse works during marriage and creates benefits paid out after divorce – MP

Question 10

what kind of property is professional license or degree

Answer 10

SP

but spouse can seek reimbursement for contribution to education and living expenses

Question 11

what kind of property is personal injury claim

Answer 11

some states: if cause of action accrued during marriage – MP

OR

some states: compensatory and consortium are SP, lost wages / expenses are MP

Question 12

factors for spousal support

Answer 12

financial resources of both
standard of living
time it will take for spouse to find job
length of marriage
contributions to marriage
age and health
misconduct (only some states)

Question 13

types of support

Answer 13

permanent
limited duration
rehab (till spouse gets job/education)
reimbursement (for financial sacrifice)

Question 14

when can spousal support be modified

Answer 14

party seeking modification shows significant and continuing change in circumstances

NOT voluntary reduction in income

Question 15

ways to find PJ over out of state parent for child support or paternity action

Answer 15

• personally served within state or consents
• lived with child in state in the past
• had sex in the state

Question 16

guidelines for amount of child support

Answer 16

best interests
age
special needs
assets of both parties
standard of living

Question 17

when can child support be modified

Answer 17

substantial change in circumstance regarding kids needs or parents finances

voluntary reduction in income in good faith may reduce amount

Question 18

who has JDX over modifying child support

Answer 18

state that issued has continuing jdx unless

both parents and child no longer live there or
consent

Question 19

hierarchy of jdx for uniform child custody jdx and enforcement act dictating who decides custody

Answer 19

home state
if no home state, significant connection jdx

Question 20

what is home state jdx

Answer 20

child has lived there for 6 months or since birth or

was child’s home state in past 6 months, child no longer lives there but one parent still does

Question 21

what is significant connection jdx

Answer 21

• no other state has home state jdx
• child and at least one parent have significant connection and
• substantial evidence concerning child is there

Question 22

things court considers for best interest of child standard

Answer 22

primary caretaker
child’s preference if kid is mature

Question 23

what if third party wants custody

Answer 23

legal parents are presumptively entitled to custody unless unfit or detrimental

if natural parent has had little contact or child has lived with 3rd party for long time, court can use parent by estoppel or de facto parent to rebut presumption

Question 24

when does unwed father have due process right to contact with child

Answer 24

when shows commitment to responsibilities of parenthood

Question 25

when does third party have right to visitation

Answer 25

basically just when in loco parentis

parent’s wish is given special consideration

Question 26

how to modify custody order

Answer 26

show substantial change in circumstance

Question 27

what if custodial parent wants to relocate

Answer 27

must show legit and reasonable purpose

factors
-best interest
-relationship of non relocating parent with kid
-age and needs
-child’s preference
-quality of life

Question 28

when is pre nap enforceable in common law

Answer 28

i. full disclosure
ii. fair and reasonable
iii. voluntarily entered into

Question 29

when is pre nap UNENFORCEABLE under uniform premarital agreement act

Answer 29

must show one of following
- involuntariness (fraud, duress, coercion) or
- unconscionability when executed AND lack of reasonable knowledge/disclosure of assets

Question 30

what do courts consider for if pre nap is voluntary (common law)

Answer 30

no fraud, duress, coercion

consider time pressure and opportunity to have independent counsel

party insisting on pre nap is not enough

Question 31

what is meant by fair and reasonable or unconscionable for pre nups

Answer 31

procedural: look at duress, undue influence, misconduct by mediator, whether party had lawyer

substantive: fairness of terms at time of execution

probably fair as long as there was disclosure

Question 32

how to invalidate separation agreement or property settlement agreement

Answer 32

unconscionability or fraud

Question 33

conflict of laws for premarital agreements

Answer 33

either state in which it was executed or state with most significant relationship

Question 34

what does not violate parental rights

Answer 34

vaccines and refusing admission to school without

Question 35

a fit parent has a right to what

Answer 35

care custody and control of children

Question 36

do married spouses have to pay spousal support for each other

Answer 36

common law - yes for necessities

but courts will not interfere with an intact family, so not going to help unless file for divorce