Family Law

Question 1

Extent to which a state must extend full faith and credit to the ex parte divorce decree of a sister state court

Answer 1

courts will give full faith and credit to divorce decrees of the courts of sister states if the sister state had proper jurisdiction and the decree is valid in the sister state. The jurisdictional requirement will be satisfied if one of the spouses is domiciled in the state granting the divorce (e.g., in an ex parte divorce). There is a rebuttable presumption that the state granting the divorce is the bona fide domicile of the plaintiff

Question 2

the right of a court exercising jurisdiction over an ex parte divorce to order the division of marital property which is located either in the state exercising jurisdiction or in a sister state.

Answer 2

Under the doctrine of divisible divorce, an ex parte divorce generally can serve to grant only the divorce. An ex parte divorce decree has no effect on disputes over marital property, unless the property is located within the rendering state. Otherwise, such disputes can be resolved only by a court having personal jurisdiction over both of the parties.

Question 3

the right of a court exercising jurisdiction over an ex parte divorce to resolve custody matters

Answer 3

Under the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”), a state may exercise jurisdiction if it is the home state of the child at the time the proceedings began or within six months of the proceedings and a parent still resides in the jurisdiction. A child’s home state is the state in which the child lived with a parent (or a person acting as a parent) for at least six consecutive months prior to commencement of the proceeding

Question 4

whether a custody order of a court exercising jurisdiction in an ex parte divorce is entitled to full faith and credit when the facts of the case suggest that a parent has wrongfully taken the children from another state.

Answer 4

The federal Parental Kidnapping Prevention Act (“PKPA”) requires states to enforce a custody order of another state, but only if the state entering the custody decree had home state jurisdic- tion. The jurisdictional standards are substantially similar to those in the UCCJEA

Question 5

Factors to be considered in determining to whom custody should be awarded:

Answer 5

The standard to be applied in awarding custody is the best interests of the child. Generally, the factors to be considered in making this determination include: the wishes of the parents; the wishes of the child; the interrelationship of the child with his parents, siblings, and others; the child’s adjustment to home, school, and community; and the mental and physical health of all individuals involved.

Question 6

whether a state may grant a divorce when it lacks jurisdiction over one spouse

Answer 6

To establish jurisdiction over a divorce action, one of the parties must be a bona fide resident of the jurisdiction where the action is brought. States may set a minimum durational residency requirement, such as 90 days or one year, before the action can be filed. The plaintiff’s residence alone may
be the basis for a state’s granting a divorce, regardless of whether there is personal jurisdiction over the defendant

Question 7

whether a court may divide marital property if it does not have jurisdiction
over both spouses or property.

Answer 7

Generally, a court cannot determine out-of-state property rights or rights to support unless it has jurisdiction over both parties. Thus, in an ex parte divorce (i.e., one where only the plaintiff is before the court), the court can grant the divorce, but cannot award spousal support or divide out-of-state property. There is a limited exception for marital property located within the state.

Question 8

whether both spouses’ consent is required for a divorce to be granted

Answer 8

Most states now offer “no-fault” divorces that provide for the dissolution of a marriage without regard to marital fault, generally upon a showing that the marriage is irretrievably broken and that the parties have been living separate and apart for a specified period of time. The fact that one spouse thinks the marriage should be saved and does not agree that it has broken down is generally insufficient to prevent a divorce judgment if the other spouse believes the marriage cannot be saved and is not interested in continuing the marriage.

Question 9

whether property titled in one spouse’s name is subject to division at divorce

Answer 9

As a general rule, the courts have the authority to order an equitable distribution of all marital property, no matter how title is held. All assets acquired during marriage are deemed marital property, unless acquired through gift, bequest, devise, or descent. If property is acquired before the marriage, but paid for after marriage with marital funds, most courts will apportion the property between separate and marital interests in proportion to the contribution of separate and marital funds used to pay for the property.

Question 10

Limitations on who may marry

Answer 10

(1) minimum age
(2) not be too closely related
(3) have capacity to consent
(4) not have a prior undissolved marriage to a prior spouse

Question 11

Marriage state of mind

Answer 11

understand their actions and voluntarily agree

under the influence of alcohol or drugs may lack mental capacity

Question 12

Common law marriage

Answer 12

(1) exchange of consents between 2 people with capacity
(2) cohabitation
(3) holding out publicly of living together as spouses

Question 13

Premarital Ks enforcement by courts

Answer 13

(1) agreement entered into voluntarily
(2) K must be in writing & signed by the party to be charged
(3) bother parties make full and fair disclosure of their financial worth; and
(4) economic provisions must be fair and reasonable

Question 14

Distributing assets

Answer 14

A court must have personal jurisdiction over both parties to distribute assets

Question 15

Requirements of a common law marriage

Answer 15

(1) capacity to enter into a marriage,
(2) an exchange of consent, cohabitation, and
(3) a holding out publicly of living together as spouses

Question 16

Requirements of a common law marriage

Answer 16

(1) capacity to enter into a marriage,
(2) an exchange of consent,
(3) cohabitation, and
(4) a holding out publicly of living together as spouses
- common last name,
- opening a joint bank account, and
- telling others in the community that they consider themselves married.

Question 17

In making the equitable distribution, the court would consider factors such as:

Answer 17

earning capacity of each party,
duration of the marriage,
standard of living during the marriage,
source of the money used to purchase marital property,
each party’s health,
custody of the minor child,
each party’s contribution to the marriage, etc.

Question 18

Ks between unmarried cohabitants

Answer 18

will be enforced if sexual relations are not the only consideration for the contract.

Question 19

an unwed father’s parental rights when he has made an effort to be involved in his child’s upbringing

Answer 19

Generally, a child may not be adopted without consent from both of his biological parents. However, whether consent must be obtained from an unwed father depends on how involved the father was with the child. Unwed parents have the right to raise their own children. If an unwed father is part of the “family unit” that includes the child, the relationship between the father and child is protected by due process, provided the unwed father has demonstrated a full commitment to the responsibilities of parenthood by participating in the rearing of his child. The court will consider whether the father shouldered any significant responsibility with respect to the daily supervision, education, protection, or care of the child. An unwed father who has never attempted to establish a legal or personal relationship with the child has no rights with respect to an adoption. An involved unwed father, on the other hand, has a right to block an adoption unless the unwed father is found to be an unfit parent. When weighing whether an unmarried father may veto an adoption, the court will consider not only the factors listed above, but also whether the parents lived with each other and cared for the child (or if not, whether the unwed father visited regularly) and whether the unwed father admitted paternity or paid child support.