Family Law

Question 1

Common Law Marriage Requirements

YOU MUST BE A “CACH”

Answer 1

To establish a common law marriage, the proponent must show (CACH):

1. Capacity to enter into a marital contract,
2. Agreement to be married,
3. Cohabitation, and
4. Holding out a marital relationship

Question 2

Requirements to Marry (non common law)

- Procedural & State of Mind Requirements

Answer 2

Procedural

1. License
2. Solemnization

License must be signed by person who solemnized the marriage and filed with the appropriate govt office (this creates a public record)

State of Mind

1. Capacity
2. Intent

Question 3

Premarital Agreements (distribution of assets)

“WVFF - What Vould Frank Fear”

Answer 3

Enforced as long as:

1. In Writing (to satisfy the SoF)
2. Voluntarily made,
3. full and fair disclosure of assets and obligations was made.

Note: Child custody or Support not binding (esp if it is not in the best interest of the child).

• Def: Agreement that provides for distribution of assets.
• Marriage is considered sufficient consideration.
• Governed by Uniform Premarital Agreement Act (adopted by most states)
• amendments enforceable it written, signed by both (no consideration needed)

Question 4

Recognition of Common Law Marriage in another state

Answer 4

A marriage that is valid under the law of the place in which it was contracted will be valid elsewhere UNLESS it violates a strong public policy of the state that has the most significant interest in the spouses and marriage.

Question 5

Annulment

Answer 5

Def: Judicial declaration that marriage invalid due to some impediment at time of marriage.

Grounds for annulment =

• Bigamy or polygamy (void)
• Consanguity (void)
• Non-age: one spouse under statutory age at time of marriage
• Incurable physical impotense (cannot have sex)
• Incapacity to consent (mentally or fraud/duress)

Question 6

Bigamy

Answer 6

Bigamy = married to someone else. Results in a void marriage (i.e. no state recognizes the validity of a bigamous marriage)

Bigamy can be remedied by the 2 marriage saving doctrines:

1. Presumption of Validity: The last of several marriages will be presumed to be valid. Presumption may be rebutted with strong evidence that prior marriage still exists.
2. Removal of the impediment by death or divorce of prior spouse ( see Uniform marriage and Divorce Act). The marriage becomes valid as of the date the impediment is removed.

Question 7

Divorce

Answer 7

Terminates the marriage.

Grounds for Divorce:

• Irretrievably broken (irreconcilable differences) - most common
  
  • Living Seperate (as evidence of the above)
  • Incompatibility (as evidence of the above)

Defenses: Court will not force a marriage to continue if one party wants dissolution.

Question 8

Seperation v. Divorce

Answer 8

Mere seperation does not end a marriage (but there can be a seperation proceeding)

Seperation can become a divorce in some states after a specified period of time.

Question 9

Child Custody & Support -

Rights of a parent when another person wants to adopt a child

Answer 9

An involved parent who demonstrates a “full commitment to the responsibilities of parenthood” will likely be able to successfully oppose an adoption petition by another and is entitled to notice of such proceedings.

Question 10

Child Custody

Third-Party Rights for Custody

Answer 10

Custody in the parent is presumed to be in the best interest of the child.

• To rebut this, a 3rd party who wants custody must prove:
  
  • that the parent is unfit or
  • that granting custody to the parent would be highly detrimental to the child.

Thus, any 3rd party visitation or custody statute must give special weight to the parent’s determination of the child’s best interest.

Question 11

Jurisdiction over Annulment

Answer 11

Jx over marriage actions is vested in state courts.

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 12

Jurisdiction over Divorce

Answer 12

Jx over marriage actions is vested in state courts.

1. Residency Requirement: one or both parties must be domiciled in the jx where the action is brought. (some state require minimum duration residency before the action can be filed to prevent forum shopping).
2. Full Faith & Credit Clause under the Constitution: 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 divorce.

Question 13

Jx over Annulment/Divorce

Marriage v. Marital Property

Answer 13

There is a difference!

A state does NOT have jx to divide marital property located in another state unless​

• the state has PJ over the defendant spouse.

Question 14

Child Custody Jurisdiction

3 Tests

Answer 14

Under the UCCJEA, a state may exercise jurisdiction if the state:

1. it is the home state of the child at the time of the proceedings began, or
   
   • Home state = state in which the child lived with a parent, or a person acting as a parent, for at least 6 consecutive months before commencement of the proceeding.
2. If no home state, a state may exercise jx based on:
   
   1. The significant connections with the child and at least one parents & existence of substantial evidence relation to child custody in forum jx
3. If none of the above: Emergency or Default Jx

Question 15

Spousal Support

Purpose
Terms
Factors

Answer 15

• Purpose: To ensure an adequate income stream for a spouse whose economic dependency resulted from the marital relationship.
• Terms: Short-Term or Permanent, Lump-Sum or Periodic
• Factors:
  
  • Financial Resources of each party
  • Standard of living established during marriage (lifestyle)
  • Time necessary for party seeking support to obtain employment (including edu. & training)
  • Contribution of each party to marriage (child care, career support, home care)
  • Ability of the spouse paying support to meet their own needs

Marital Fault = Not a relevant Factor!

Question 16

Property Division upon Marriage Dissolution

2 approaches & general analysis

Answer 16

Courts will divide pursuant to state law -

1. Community Property Approach
2. Equitable Distribution Approach (majority)
   
   • analysis: 2 Elements
   1. 1) Categorize the property as seperate or marital and THEN,
   2. 2) Determine equitable distribution.

Question 17

Seperate v. Marital Property

Answer 17

Seperate Property - Includes all property:

1. Acquired by either spouse before marriage
2. Acquired during marriage by gift, bequest, devise, descent;
3. Either spouse acquires with proceeds of spouse’s seperate property; and
4. All passive appreciation of any of the sep. prop

Marital Property - includes all property acquired by marriage that is not seperate property + Comingled property

Question 18

Equitable Distribution Factors

COLDIP

Answer 18

After categorization, Courts will equitably distribute Marital Property between the spouses.

Courts have significant discretion

Factors include:

1. Income, Education, Property, Assets liabilities of each party
2. Duration of Marriage
3. Obligations for support from a past marriage
4. Lifestyle
5. Contributions during marriage

Note: Marital “fault” (adultery) not a factor considered by most states.

Question 19

Child Support

Guidelines & Formula
Duration
Jurisdiction
[paternity]

Answer 19

Both Parents have an absolute duty to support their children.

• Guidelines & Formula -
  
  • Each state has guidelines to determine amount of child support owed (rebuttable presumption that they are proper)
  • Fornula: # of Children, Age, Healthcare needs, special needs, parents income
  • Decisions of Fit Parent given deference
• Duration - last until child reaches age of majority
• Independent from Visitation Rights
• Jurisdiction: Full faith & Credit it given to child support orders issued in other staes as long as the issuing state had proper jx and parties had reasonable notice & opportunity to be heard
  
  • Issuing court has continuing exclusive jx to modify the order if child or one party resides in state (or otherwise consents)
• Establishing Paternity for non-martial child for the purpose of obtaining support
  
  • Blood/Genetic tests, medical testimony on sterility or time of birth & sex, admissions by alleged father

Question 20

Child Custody

Types
Factors

Answer 20

Types: Legal, Joint, Physical

Factors: Court focuses on the best interests of the child, also looking at:

• Parent’s wishes
• Child’s wishes (given more weight if older, less if younger)
• Ability and Willingness of each parent to provide for child’s needs
• Interaction / Interrelationship of child with parents, siblings, and others who affect them
• Child’s adjustment to home, school and community
• Decisions of fit parent must be given some deference.

Question 21

Child Custody

Visitation Rights

Answer 21

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

• Exception: If visitation would endanger child’s wellbeing
• Non-Parents: May be given visitation rights if:
  
  • Non-parent has a substantial relationship with the child;
  • Non-parent visitation is in the child’s best interest; and
  • A fit parent does not object

Question 22

Modifications of Support & Custody Decrees

Answer 22

The Decree is generally only modificable upon a showing of a Significant Change in Circumstances

Support Order: Self-induced changes will not justify modification

Custody Order - Change must be in child’s best interests

Question 23

Adoption

Answer 23

• Consent of both biological parents generally required
  
  • Unwed father’s consent may not be necessary if he has not assumed parental responsibility.
    
    • 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
    • Father’s involvement includes: parents living together/visting regularly, admission of paternity, child support payments, any responsibility for child care
• After adoption, biological parent cannot withdraw consent