Family Law

Question 1

Common Law Marriage Req’s

Answer 1

CACH
Capacity to enter into a marital K; Agreement to be married (present); Cohabitation; & Holding out a marital relationship

Question 2

Recognition of Common Law Marriages

Answer 2

If a couple is common law married in a state that recognizes it, other states will recognize the marriage too.

Question 3

Exception to recognition of marriage?

Answer 3

A marriage valid under the law of a 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 relationship to the spouses and the marriage

Question 4

Bigamy

Answer 4

A bigamous marriage is VOID from the start. BUT can be saved by: (1)a there is a presumption that the most recent marriage is the valid one; and (2) removal of the impediment (e.g., by divorce) will render a subsequent marriage valid.

Question 5

End of marriage

Answer 5

Virtually all-states are no-fault divorce states. Some states recognize fault-based grounds too. Annulment is also recognized for frauds and other reasons.

Question 6

When determine child custody and support, what is examined?

Answer 6

Generally, custody of the child is determined by BIOC (best interests of the child)

Question 7

What factors to look at for BIOC?

Answer 7

E.g., wishes of the child’s parents, the child’s primary caretaker, the mental and physical health of all individuals, the interrelationship of the child and parents, stability and whether there is any domestic violence.

Question 8

When does a biological parent get parental rights?

Answer 8

If the biological parent is involved in the child’s life

Question 9

Custody modifications

Answer 9

custody can be modified ONLY if there is a SUBSTANTIAL CHANGE of circumstances. Generally, the change must be unforeseen at the time of the initial judgment

Question 10

Child Support guidelines

Answer 10

All states employ numerical guidelines and establish a rebuttable presumption that the award that results from applying the guidelines is correct. The guidelines must be applied in all cases, regardless of the parents’ marital status.
Analyze factors like income and earnings of the parents, the number of children and their ages, and any special needs of the children.

Question 11

Modification of child support

Answer 11

in order to obtain a modification of a future support obligation, the petitioner must show a SUBSTANTIAL CHANGE in circumstances making the prior order UNREASONABLE. (e.g., voluntary reduction in income is unreasonable; some apply multi-factor test including good faith)

NOTE: Heavy burden

Question 12

Retroactive modification of child support

Answer 12

CANNOT be modified retroactively UNLESS fraud or other compelling circumstances.

Question 13

Relocation of parent and child

Answer 13

Generally, a move sought in GOOD FAITH that will serve the child’s best interest will ordinarily be approved.

Question 14

Relocation’s impact on visitation?

Answer 14

The court will balance the impact on visitation by the noncustodial parent against the benefits of the move to both the children & the custodial parents.

Different views: some states place the burden on the relocation parent & some put the burden on the objecting parent.

Question 15

Rights of parents and other

Answer 15

Decisions by a FIT parent must be given some deference (including decisions regarding medical care BUT can be limited if parents’ decision jeopardizes the health or safety of the child)

Question 16

When does the father have rights?

Answer 16

Generally, biological fathers have rights if involved in the child’s life. The state may make the parent exercises his rights within a specific time (e.g. two years)

Question 17

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

Answer 17

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

Question 18

Third-party rights

Answer 18

Custody in the parent is presumed to be in BIOC.

To rebut: 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 third-party visitation or custody statute MUST give special weight to the parent’s determination of the child’s best interest.

Question 19

Property division by court

Answer 19

marital property is divided at divorce but separate property remains the property of the owning spouse.

Question 20

Marital property

Answer 20

Marital property is property acquired during the marriage.

Question 21

Separate property

Answer 21

BIG
Separate property includes: property acquired BEFORE the marriage; an INHERITANCE; or a GIFT to one party.

Note: most states do not count professional degrees earned during the marriage as marital property.

Question 22

Division based on premarital agreement

Answer 22

a court will enforce a premarital agreement so long as it is VOLUNTARILY made, SUBSTANTIVELY FAIR, and if FULL DISCLOSURE of assets and obligations was made.

Question 23

Child custody or support based on premarital agreement

Answer 23

Court will NOT enforce a preamarital agreement regarding either of these IF it is not BIOC

Question 24

What 3 factors will a court look at when considering to grant spousal support?

Answer 24

Alimony requires a viewing of these three factors: (1) financial resources and needs; (2) marital contributions; and (3) marital duration.

Some states look to spousal misconduct, one spouse’s support for the other’s education OR training.

Court has SUBSTANTIAL DISCRETION in choosing to award alimony.

Question 25

Alimony

Answer 25

4 types: Permanent Periodic support(can be modified w/ substantial change of circumstances); lump sum support (no modifications); rehabilitative support (can be modified w/ substantial change of circumstances); reimbursement support (no modification)

Question 26

Modification and termination of alimony

Answer 26

alimony awards may be modified (depending on the type of alimony) if a court finds there has been a SUBSTANTIAL change in circumstances making the prior award unreasonable.

MUST be unanticipated change.

alimony usually terminates if a spouse dies or gets remarried AND in some states cohabitation will reduce or terminate alimony.

Question 27

When can a court issue a binding order affecting personal rights such as property division or support? What can it grant regardless?

Answer 27

Only when it has jurisdiction over the defendant spouse.

A divorce.

Question 28

which court may dissolve a marriage

Answer 28

the court does not need jurisdiction over both spouses to terminate a marraiage

IF the plaintiff spouse is domiciled in the forum state or if the state has some other equivalent long-term connection between at least one of the parties to the marriage, THEN that court has jurisdiction to dissolve the marriage.

Question 29

Which court may issue a property division order

Answer 29

unless the court has jurisdiction over the defendant spouse, it may not issue a binding property division or support order.

Question 30

Child Support

Answer 30

the Uniform Interstate Family Support Act governs child support. This act has been adopted by all states.

Once an order is registered, it may be enforced by any state.

The state that ORIGINALLY ISSUED a child support order has continuing EXCLUSIVE JURISDICTION TO MODIFY that order if the state remains the residence of the obligee, the child, or the obligor, and at least one of the parties does not consent to the jurisdiction of another forum.

Question 31

Child custody order

Answer 31

Uniform Child Custody Jurisdictionn and Enforcement Act. Few tests:
(1) home state test; (2) significant connections test; (3) emergency jurisdiction OR default jurisdiction

Question 32

home state test

Answer 32

under the Uniform Child Custody Jurisdiction and Enforcement act + home state test, the “home state” has exclusive jurisdiction to modify a custody decree.

Home state = a state where the child has lived with a parent or a persona acting as a parent for at least 6 CONSECUTIVE months immediately BEFORE the commencement of the child custody proceedings.

A home state continues to have exclusive jurisdiction to issue a custom yorder for six months after a child leaves the state, so long as a parent, or person acting as a parent, still lives in the home state.

Question 33

Significant Connections test

Answer 33

If a child has no home state, a state may exercises jurisdiction based on (1) significant connections with the child and at least 1 parents; and (2) the existence of substantial evidence” relating to child custody in the forum jurisdiction.

Question 34

Emergency Jurisdiction

Answer 34

If no other state has or exercises jurisdiction, this test applies.