Family Law

Question 1

Common Law Marriage

Answer 1

Most states have abolished common law marriage. In jurisdictions that recognize common law marriage, the proponent of the marriage must prove that the parties:

(1) Cohabitated for the statutory period
(2) Held themselves out as married
(3) Intended to be married

Question 2

Pre marital contract

Answer 2

Most states will enforce a premarital agreement as valid contract if it is:

(1) in writing and signed by both parties
(2) Executed after full disclosure of the property and financial obligations of both parties AND
(3) Voluntary

Question 3

what factors will the courts consider in determining whether an agreement was voluntary

Answer 3

(a) the presence of independent legal counsel
(b) The length of time between the agreement of the marriage
(c) The sophistication of the parties; AND
(4) The presence of other pressing reasons to proceed with the marriage (e.g a pregnancy)

Question 4

Child custody in premarital contracts

Answer 4

Most courts decide custody according to the best interests of the child at the time f the custody hearing, regardless of any premarital agreements

Question 5

child support in premarital contracts

Answer 5

Parents have an absolute obligation to support their children. A premarital contract CANNOT adversely affect a child’s right to support under any circumstance. such agreements are not binding on the court and are unenforceable

Question 6

Divorce

Answer 6

Traditionally, divorce was only permitted if one party was determined to be at fault.

Today, most states have completely abolished fault as a ground for divorce; however, every state has adopted a form of no fault divorce. Common grounds for a no fault divorce are:

(1) A minimum duration of separation (usually 6 months to 1 year); AND/OR
(2) Irreconcilable differences
(3) Some sates require more separation and irreconcilable differences while others may require one or the other

Question 7

Marital action jurisdiction - Annulment

Answer 7

Under the majority view, a state where either party is domiciled has jurisdiction to enter an annulment decree. Ex party annulments are allowed in the state where either party is domiciled.

Question 8

Marital action jurisdiction - Divorce

Answer 8

Under the full faith and credit clause, a divorce granted in one state is entitled to full faith and credit in other states. Generally a divorce is valid and must be recognized by other states if the petitioning party:

(1) was domiciled in the state that granted the divorce (regardless of whether tat court had personal jurisdiction over the other spouse) AND
(2) Provided adequate notice of the proceeding to the other spouse

Question 9

Marital action jurisdiction - Divisible Divorce

Answer 9

Under the concept of divisible divorce, a distinction is made between the marriage and the marital property. A state does not have jurisdiction to divide marital property that is located in another state in the absence of personal jurisdiction over the defendant property.

Question 10

Property division at Divorce - equitable distribution approach

Answer 10

The analysis is relatively similar under both approaches:

(1) Categorizes the property as separate or marital; Then
(2) Determine an equitable distribution of the marital property between the spouses.

Question 11

Separate Property

Answer 11

(a) All Property acquired by either suppose BEFORE marriage
(b) All property acquired by a spouse during marriage by gift, bequest, devise, or descent
(c) All property either spouses acquires with the proceeds of the spouse’s separate property; And
(d) all passive appreciation of separate property

Question 12

Marital property

Answer 12

Marital property generally includes all property acquired during the marriage (regardless of who holds title) that is not separate property

Question 13

professional Degrees and licenses

Answer 13

In almost every state, professional degrees and licenses are considered separate property not subject to distribution at divorce. However, reimbursement may be available for support provided by a spouse that contributed to the other spouses degree or license

Question 14

general factors taken into account by the court when determining the equitable distribution of marital property at divorce

Answer 14

(1) The income, property, and liabilities of each party
(2) The duration of the marriage
(3) The obligations for support arising out of a prior marriage
(4) The lifestyle each spouse is accustomed to
(5) The contributions made by each spouse towards the accumulation of marital property (including contributions as a homemaker)

Question 15

when is a spouse eligible for spousal support

Answer 15

A spouse is eligible for spousal support if the spouse seeking support:

(1) Lacks property sufficient for his or her reasonable needs and is unable to support himself through appropriation of gainful employment ; OR
(2) is the custodian of a child such that it would be inappropriate for him to work

Question 16

General factors the court will take into account when determining the appropriate amount to award for spousal support

Answer 16

(1) the financial resources of the party seeking maintenance;
(2) the time necessary for the spouse seeking support to obtain an appropriate job (includes time needed for education or training);
(3) The duration of the marriage;
(4) the standard of living established during the marriage;
(5) The age and physical/emotional condition of the spouse seeking maintenance;
(6) The age and physical/emotional condition of the spouse seeking maintenance;
(6) The ability of the spouse paying support to meet her own needs while meeting those of the spouse seeking support

Question 17

Modification of Spousal support

Answer 17

in most states a spousal support can only be modified where there is a substantial change in circumstances of either party making the prior order unreasonable
- some courts will not permit a modification of spousal support if the change in circumstances was anticipated and voluntary

Question 18

child support

Answer 18

Parents have an absolute obligation to support their children. Federal law requires every state to provide guidelines to determine the proper amount of child support owed by a non-custodial parent. These guidelines must:

(1) consider the income of the non-custodial parents
(2) provide for the child’s healthcare needs; AND
(3) be based on a specifically descriptive numeric criteria

Question 19

Child support - duration

Answer 19

Child supports obligations generally last until the child reaches the age of majority or is otherwise emancipated

Question 20

Child support - education expenses

Answer 20

Some states require support for the child continuing education. In some states a child may lose their support if the child fails to follow the obligor parent’s reasonable instructions

Question 21

Modification of child support

Answer 21

in most states child support can only be modified where there is a substantial change in circumstances of either party making the prior order unreasonable

• some courts will not permit a modification of child support if the change in circumstances was anticipated and voluntary
• The state that originally issues the child support order has continuing exclusive jurisdiction to modify the order so long as the state remains the residence of the obligee, child or obligor

Question 22

Modification of child support - Federal Law

Answer 22

Federal Law:

(1) Bars courts from retroactively modifying child support orders; AND
(2) Requires state to give full faith and credit to child support awards from other states

Question 23

Child custody - Best interests standard

Answer 23

Courts determine custody based on the best interests of a child.
General factors include:
1) the needs of the child for a meaningful relationship with both parents
2) The ability and willingness of the parents to actively perform their functions as mother and father for the child’s needs
3) The interaction and interrelationship of the child with parents, siblings, and any other person who may affect the child’s best interests
4) The child’s adjustment to the child’s home, school, and community
5) The mental and physical health of all involved individuals
6) The intention of either parent to relocate the principal residence of the child;
7) wishes of the child’s parents as to custody AND
8) The wishes of the child as to the child’s custodian

Question 24

Modification of child custody

Answer 24

In order to modify child custody order, the parent must show that:

1) Circumstances have substantially changed; AND
2) The modification would be in the child’s best interest

Question 25

Establishing paternity

Answer 25

Under the Uniform parentage Act, the father child relationship is established between a man and a child by:
(1) An effective acknowledgment of paternity by the man UNLESS the acknowledgment has been rescinded or successfully challenged.
(2) A valid adoption of the child by man; Or
(30 An adjudication of the man’s paternity

Question 26

Adoption

Answer 26

Adoption is a statutory procedure that terminates the rights of the biological parents and establishes the rights of the adoptive parents. In most states, the biological parents loose the right to visit the child after the adoption. However some states will permit visitation If it is in the best interests of the child

Question 27

Under the UPA, a man is presumed to be the father of the child if

Answer 27

• he and the child’s mother are or have been married to each other and the child is born during the marriage or 300 days after the marriage is terminated
• Before the child’s birth, he and the child’s mother attempted to Marry in apparent compliance with the law and the child is born during the invalid marriage or 300 days after
• while the child is under the age of majority, he receives the child into his home and openly holds out the child as his own.

a presumption of paternity under UPA may only be rebutted by clear and convincing evidence

Question 28

establishing paternity - Equitable estoppel

Answer 28

Under equitable estoppel, a man who is not the biological father will be estopped from denying paternity if:

1) he has held himself out as the father; AND
2) Paid support

Question 29

Legitimation by petition

Answer 29

Legitimation is a legal action brought by a biological father to establish his rights concerning his child born out of wedlock.
To establish his rights, the father may file a petition seeking to legitimate his child.
generally, the father must show that he has:
1) Assumed parental responsibilities; AND
2) Established a substantial parent child relationship

Question 30

Legitimation by Marriage

Answer 30

The marriage of the mother and biological father renders the non marital child legitimate so long as the father recognizes the child as his child. Upon valid legitimation (By petition or marriage) the father stands in the same position as any other parent regarding parental and custodial rights with respect to the child.