Family Law

Question 1

Validity of Premarital Agreement

Answer 1

a. Premarital agreements are generally valid devices to resolve disputes between spouses in the event of divorce, as well as a means for estate planning in the event of death.
b. Most states require premarital agreements to be in writing and signed by the parties to it.

Question 2

Challenging the Enforcement of Premarital Agreements

Answer 2

a. In most states, a premarital agreement will be invalidated when there is a court finding of EITHER:
(1) procedural unfairness in the agreement
(2) substantive unfairness in the agreement

Question 3

b. Procedural Unfairness

Answer 3

(1) Factors considered relevant to procedural fairness may include:
(a) the fullness of disclosure of net worth;
(b) the availability of independent counsel or knowing and voluntary waiver of such representation;
1) Most states do not require independent counsel as a precondition to enforcing an agreement against an objecting party, but the assistance, or at least availability, of counsel may be a factor in the assessment of voluntariness.
2) The presence of only one spouse’s attorney at the signing of an agreement drafted by that attorney may further be considered a coercive circumstance for the unrepresented party.
(c) the timing of the presentation of the agreement, giving sufficient time to review before the wedding; and
(d) the relative bargaining power of the parties, and their relative levels of financial or legal knowledge.

Question 4

Adequate Disclosure

Answer 4

(a) In general: there must be fair and reasonable disclosure by both parties concerning each party’s property and financial obligations
(b) Disclosure may not be required if:
1) there has been a voluntary waiver of this disclosure requirement; OR
2) a spouse has knowledge of or access to the other spouses finances .

EXAMPLE: For years before marriage, Nico worked as a bookkeeper in Dre’s catering business and managed the couple’s personal finances. In the documents Dre shared with Nico before signing a prenup, Dre underestimates the value of the business by 25%. Nico will likely not be able to challenge the agreement despite the underestimation because Nico worked for the business and had access to the books.

Question 5

Voluntariness

Answer 5

(a) Lacking voluntariness, a premarital agreement becomes: subject to contract defenses of fraud, misrepresentation or duress

EXAMPLE: A soon-to-be husband presents his soon-to-be wife with a prenuptial agreement when they are on the plane flying down to the Caribbean for their wedding, where several hundred guests will be attending. The marriage was arranged via the internet and the couple has met only once on a weekend in the bride’s home country. She is very poor, unfamiliar with English, and cannot come to America unless the marriage goes forward. The agreement is written in English, and she signs it without reading it. This is a good case for a claim for duress.

(b) In determining whether a party entered a premarital agreement voluntarily, courts consider: the cumulative facts and circumstances
1) For example, to establish that a person’s capacity to freely enter into the premarital agreement had been unduly impaired, it will: not be enough to only show that this party lacked independent legal representation at the time the agreement was executed

Question 6

Substantive Unfairness

Answer 6

In most states, substantive unfairness requires a finding that: the premarital agreements terms are substantively unreasonable

(a) Arguably, this standard is less demanding than an “unconscionability” standard.

Question 7

d. Approach of the UPAA (Uniform Premarital Agreement Act)

Answer 7

NOTE: The UPAA view examines only the circumstances surrounding the execution of the agreement, not its fairness at the time of enforcement. In contrast, some states will evaluate fairness at the time of contract enforcement as well as at formation.

(1) Under the UPAA, a premarital agreement becomes unenforceable if:
(a) there is a lack of voluntariness; OR
(b) the court finds BOTH that:
1) there was a lack of adequate disclosure;
2) the agreement was unconscionable at the time of signing
(2) The “unconscionable” standard is basically the same as under contract law generally.
(a) As in commercial contract situations, the term contemplates: a large disparity in sophistication and resources that results in a one-sided agreement due to inequity in bargaining power.

Question 8

Subject Matter of Premarital Agreements

Answer 8

a. Agreements concerning property division are permissible.
b. Waiver of Alimony
(1) The majority view, and modern trend, permits: waiver of alimony by agreement
(2) However, some states permit: only property division provision and will not enforce a waiver of spousal support
(3) Even where the waiver of alimony is permissible, states tend to more closely scrutinize agreements waiving spousal support upon divorce.
c. Children
(1) In virtually all states, it is invalid as against public policy for a premarital agreement: to abrogate or event limit, the obligation of a parent to support his or her minor children during or after the marriage
(2) Similarly, under the UPAA, a premarital agreement may NOT: adversely affect the rights of children to support
d. Sexual Relations
(1) In most states, provisions dealing with the frequency of sexual relations and child-bearing are not enforceable.

Question 9

Dave Leno, a celebrity talk show host, owns property worth $10 million and has annual earnings of $1 million. Seven days before their wedding, Dave presented for the first time a premarital agreement to his girlfriend, Gale. Although Dave suggested Gale consult with an attorney of her own choice at his expense, Gale declined. Without counsel, she immediately read and signed it, saying, “You know I would do anything for you, Dave.” Gale was and still is unemployed and has a net worth of zero. The agreement waives Gale’s right to any of Dave’s property accumulations during marriage, and waives her right to any alimony claim. When signed, the premarital agreement provided a list of Dave’s assets and income. The list was accurate except that Dave underestimated the value of his antique car collection by about $25,000. After ten years of marriage, Dave files for divorce.

Will the prenuptial agreement be found valid?

Answer 9

ANSWER: likely yes. time is good. doesn’t have an attorney which should be discussed. there is some disparity. the underestimation is alright, 25k is not a lot. biggest issue is her networth of 0, this may be substantively unfair.

Question 10

1. Formal Marriage

Answer 10

Most states require a formal marriage.

b. A formal marriage entails BOTH: license and solemnization by state-authorized officials
c. Formal marriages are: presumptive valid, and so a party challenging the marriage has the burden of providing its invalidity.
d. Where there has been a failure to comply with formalities, most states will: forgive the mistake, and the marriage will be presumptively valid as long as the parties were eligible to marry and were in good faith intending to enter a marriage

Question 11

Informal or Common Law Marriage

Answer 11

Most states today do not recognize common law marriages.

b. The doctrine is still relevant nationwide because: most states will recognize a common law marriage performed validly in another state, unless the circumstances violate an important state public policy.
c. There are generally four requirements for common law marriages.
(1) Capacity to Marry
(a) none of the restrictions to the validity of a marriage may exist (e.g. being closely related or there being a prior existing marriage)
(b) If the marriage is not valid upon formation, but the impediment is later removed: the common law marriage may be recognized as valid if all its requirements are met.
(2) Present Intent to Be Married
(a) intent must be present marriage, not intent for a future marriage
(3) Cohabitation
(a) means that the parties must live together on an ongoing basis and consummate the relationship
(4) Holding Out as a Married Couple
(a) the parties must present themselves as a married couple and not merely as partners
d. Burden of Proof
(1) The burden of proving a common law marriage is on: the party asserting it must prove this by clear and convincing evidence.

Question 12

Ten years ago, Smith and Jones began living together in State A, which permits common-law marriage. One year later, they invited 50 friends and relatives to a “ceremony of commitment” at which they publicly vowed to “treat each other as an equal owner of all worldly goods acquired during our life together” and to “forsake all others” until “death do us part.” Smith and Jones did not obtain a marriage license. After the ceremony, they consistently referred to each other as “my companion.” They also opened a joint bank account and rented a house as “Smith and Jones.”
Did Smith and Jones enter into a valid common-law marriage?

Answer 12

ANSWER: no. they lack the intent to be married and do not hold themselves out to be married.

Question 13

Same-Sex Marriage

Answer 13

1. In June 2015, the United States Supreme Court announced that governmental bans on same-sex marriage are unconstitutional under the U.S. Constitution. Specifically, the Court held that such bans violate the substantive due process doctrine and the fundamental right to marriage. This ruling impacts every state with a statutory or constitutional ban on same-sex marriage. All states must now recognize the same-sex marriages legally performed in other states, assuming that such marriages are otherwise in accord with the laws of the state where the marriage occurred. Most significantly, all states must now allow same-sex couples to get married and accord such couples the same rights and obligations otherwise accorded people who marry

Question 14

Legal Impediments to Marriage

Answer 14

Nonage

a. Majority Rule
(1) If either party is a minor under the age of 14: marriage is prohibited.
(2) If either party is a minor between the ages of 14 and 18: a marriage license will not issue without the consent of a parent or guardian.
b. In a minority of states, courts have adopted certain exceptions.
(1) In some states, a minor between the ages of 14 and 16 will also need: to obtain court approval.
(2) Some states make allowances: for a minor that is pregnant

Question 15

Consanguinity and Affinity

Answer 15

Majority Rule:

(1) Consanguinity: A marriage license generally will not be issued for marriages between blood relatives (whether of the whole blood or half blood) who are:
(a) ancestor and descendant
(b) brother and sister;
(c) uncle neice or aunt and nephew
b. Affinity: In a small minority of states, the prohibition against marriage is extended to these same relationships when the parties are relatives by marriage.
c. Marriages between first cousins: there is a split among the jurisdictions regarding validity of marriage.

Question 16

Lack of Consent Due to Mental Incapacity or Fraud

Answer 16

a. Mental Incapacity
(1) the inability of of a party to consent due to the marriage due to mental incapacity or infirmity will render the marriage invalid

EXAMPLE: Someone in their 80s who has Alzheimer’s, which is an impairment of their brain function, may have a disability which renders them incapable of entering into a marriage.

b. Fraud
(1) A finding of fraud means that there was a: lack of true consent to the marriage
(2) A majority of states use the tort definition of fraud: the misrepresentation or failure to disclosure must be intended to induce the other party to enter the marriage AND it must be material
(3) Instead of the materiality requirement, some states have a more demanding element, requiring that: the fraud go to the essence of the marriage
(a) Essence of marriage includes: sexual relations and the ability and desire to have children

NOTE: False representations about one’s character, social standing, or fortune do not constitute fraud sufficient to annul a marriage.

Question 17

After a five-year relationship, Mary represented to Joe that they “needed” to get married because she was pregnant, and that she was excited to begin her lifelong dream of having a family. Feeling like he was ready to become a father, Joe was excited and agreed to a marriage before a justice of the peace at the end of the week. A month later, Mary revealed that she was not pregnant, that she had lied to him, and in fact that she had no intention of bearing children with Joe.
Does Joe have grounds for an annulment?

Answer 17

ANSWER: yes this is totally fraud.

Question 18

Physically Incapable

Answer 18

The ability to consummate the marriage is a common law requirement for marriage.

Question 19

5. Prior Marriage Still in Force

Answer 19

a. A person who has already been married is incapable of entering into another valid marriage unless: the former spouse has died or the prior marriage has been judicially terminated
b. Presumption: the party’s latest marriage is valid and any earlier marriage was dissolved
c. A subsequent marriage that is initially invalid because one of the parties had a prior marriage in force will become valid upon removal of the impediment of the prior marriage by death or dissolution.
(1) The following requirements typically must be met for this to occur:
(a) they continue to live together as a married couple after the impediment had been removed
(b) the parties entered the subsequent marriage in good faith

Question 20

E. Annulment

Answer 20

If the validity of a marriage is questioned: a party and in some instances a third party, may seek a judgment declaring the invalidity of the marriage

2. Grounds
   a. Void Marriage: no legal effect and cannot be recognized
   b. Voidable Marriage
   (1) A voidable marriage is: valid until the aggrieved party obtains an annulment
   (2) Ratification
   (a) if a voidable marriage is confirmed or ratified by the aggrieved party, or if one of the parties to the marriage dies, the validity of the marriage may not be questioned or attacked by any person.
   (3) Voidable marriages include marriages that have been attempted but were not successful based on:
   (a) non-age
   (b) impotence of spouse
   (c) temporary lack of capacity (drunkenness)
   (d) mental incompetence

EXAMPLE: Britney and Kevin become extremely intoxicated and get married in Las Vegas. When they wake up, they agree that they are in love and want to stay married. They live together and have several children and then break up. Since they became sober and affirmed the marriage by agreement and cohabitation, neither can challenge the validity of the marriage that was arguably voidable at creation but has been validated by the later behavior of the parties.

Question 21

3. Effects of Annulment

Answer 21

a. An annulled marriage is typically declared invalid from the date of its inception and legally eradicates the marriage.
b. Can sometimes obtain divorce-like remedies including:
(1) property division
(2) spousal support/alimony
c. Equitable relief on the theories of:
(1) unjust enrichment
(2) constructive trust
d. Putative Spouses
(1) Many states recognize a “putative spouse” doctrine, under which a putative spouse is granted divorce-like remedies at the dissolution of the relationship even if the marriage is void because of a flaw in the marriage formation process. The doctrine provides an alternative when no marriage has been validly created.
(2) To qualify as a putative spouse:
(a) there must be a ceremonial marriage; and
(b) at least one spouse must have a good faith belief in the validity of the marriage.

Question 22

Fred and Ern had a ceremonial marriage in their church. When they married, Ern was 15 years old, but told Fred 18. Ern did not get parental consent to marry. On Ern’s 21st birthday, Fred discovered Ern’s real age.
Is their marriage void? Is it voidable by Fred? By Ern?

Answer 22

ANSWER:

Question 23

Validity of Out-of-State Marriages

Answer 23

1. Principles of Comity
   a. A marriage which satisfies the requirements of the state where contracted: will everywhere be recognized as valid, unless it violates the strong public policy of another state which had the most significant relationship to the spouses and the marriage at the time of the marriage.
   b. EXCEPTION
   (1) States differ as to what constitutes a “strong” enough public policy.
   (a) First Cousins
   1) States generally recognize marriages of first cousins married in a state where such marriages are legal.
   (b) Common-Law Marriages
   1) Have typically been recognized in states that prohibit them for residents, unless evasion of state law is suspected.

Question 24

Evasion of State Law

Answer 24

(1) Most states do not recognize marriages entered into by their own residents if these residents:
(a) leave their home state to contract a marriage that would not be valid if contracted within that state
(b) continue to reside in their home state

EXAMPLE: Bo and Cris are first cousins who both reside in State A, which does not allow first cousins to marry. To avoid this prohibition, they traveled to another state that does not prohibit the marriage of first cousins, and in that other state they obtained a marriage license and got married. They then immediately returned to State A, where they have been telling people they are married and otherwise holding themselves out as married. Because they have purposefully evaded State A’s law against first cousins marrying, their marriage will not be recognized.

Question 25

Rights of Unmarried Partners

Answer 25

Unmarried cohabitants generally have no legally recognized “status” unless they meet the requirements for common law marriage or putative spouses.

Question 26

Express and Implied Contracts

Answer 26

Most states recognize express and implied contracts between cohabitation persons by which they agree to support each other (pay “alimony”) or share property: so long as there is consideration to support the contract other than the furnishing of sexual services, because that would constitute an illegal contract

Question 27

Spousal Property Rights During Marriage

Answer 27

Title Rules

a. Separate Property States
(1) most states are so called “separate property” states
(2) When one spouse has title to a property, that spouse is the sole legal owner, and: the other spouse cannot prevent the title-holding spouse from conveying the property to a third party

EXAMPLE: If H has a pre-marital stock account in his sole name, he is the sole owner during the marriage and can dispose of the account without telling W or over her objections, because his name is on the asset and it is his.

Question 28

Support Obligations During Marriage

Answer 28

Duty of Both Spouses

a. The duty of support is generally not enforceable by a spouse directly during the marriage because the court has a policy of non-intervention.

EXAMPLE: Mrs. McGuire constantly asked her husband for a heater in her car and for indoor plumbing. He could afford these things but refused to provide them. The court ruled that because they remained married, there was no reason to interfere in their affairs.

(1) Creditors may enforce the duty of support.

EXAMPLE: Mrs. McGuire could hire a plumber to put in indoor plumbing, and then Mr. McGuire would be accountable to pay the plumber.

Question 29

Liability for Debts and Necessaries Contracted for by Needy Spouse

Answer 29

Necessity refers to: the3 standard of living which the family can afford

b. The majority of states recognize a doctrine of necessaries whereby a spouse’s liability for obligations incurred by the other spouse arises in three primary situations:
(1) agency theory
(2) forcing the issue;
(3) medical expenses

EXAMPLE: Jody becomes ill and is admitted to the hospital and receives medical treatment. Jody later receives a hospital bill of $10,000, for which they have no insurance or money to pay the bill. Assuming Jordan, the spouse, has the money, they can be held liable to the hospital because the medical bills were a necessity for Jody, who is unable to pay.

c. Some states impose primary liability on the spouse who directly incurred the debt or liability, and secondary liability on the other spouse.

Question 30

Establishing Parenthood

Answer 30

Presumption of Marital Legitimacy/Paternity

a. children born to conceived by a while she is married are the children of the woman and her spouse
(1) This presumption may only be rebutted: on facts proving by clear and convincing evidence that the mother spouse was not the parent
(a) There are varying state laws on whether and when evidence of parentage will be allowed to rebut the presumption.
1) most allow DNA evidence to challenge the paternity within a few years of the child’s birth.

EXAMPLE: If the child is born and the husband suspects that he is not the father, he can challenge paternity within two years of the birth of the child.

b. Doctrine of Estoppel
(1) Applied Against the Mother’s Husband: when mother’s husband learns he is not the biological father but nevertheless continues to support and hold out the child as his own, he is estopped from denying paternity.
(2) Applied Against the Mother: similarly, the mother may be estopped from seeking child support from a different man after she allowed another man to believe he was the father and accept child support from him .

Question 31

Actions Brought by a Putative Parent

Answer 31

States may provide the other parent more protection.

(1) Many states have enacted statutes that give an unmarried parent no more than two years to establish parentage when the alleged child has a presumed parent, deeming a two-year period sufficient to resolve the issue without subjecting the child to a long period of possibly unsettled circumstances.
b. The Uniform Parentage Act (“UPA”) provides presumptions of parentage.
(1) The couple marries each other before the child’s birth whether or not the marriage could be declared invalid;
(2) After the child’s birth, the other parent automatically, voluntarily asserts parentage, such as by agreeing to be named as the other parent on the birth certificate; or
(3) For the first two years of the child’s life, the other parent resided in the same household with the child and openly held out the child as their own.

Question 32

3. Child Support Actions Brought by or for Child

Answer 32

a. most states allow paternity actions to be brought at any time prior to the child turning 18
b. many states require the paternity actions before the putative father dies

Question 33

Burden of Proof

Answer 33

Shifts, depending on the way in which parentage is being established.

(1) DNA tests: preponderance of the evidence
(2) Marital presumption:clear and convincing evidence

Question 34

Acknowledgment or Legitimation

Answer 34

Federal law provides that: a valid, unrescinded, unchallenged acknowledgement of parentage is to be treated as equivalent to a judicial determination of paentage

Question 35

Rights of Non-Marital Children

Answer 35

a. non material children are constitutionally guaranteed equal rights to support as marital children

Question 36

Child is born to Kaya, a married woman, and Fred, her boyfriend. After Child’s birth, Kaya and her legal husband, Bo, separated for three months, during which period Kaya and Child lived with Boyfriend Fred. During this period, Fred supported them and held out Child to the neighbors as his son. After this period, Wife resumed living with Husband Bo, who then held Child out as his son and supported Child. Although Fred no longer supported Child, he communicated with Child approximately twice a year. When Child was four years old, Boyfriend Fred filed a petition claiming paternity of Child under the law of State X, which provides that “a proceeding brought by an individual, other than the child, to adjudicate the parentage of a child having a presumed father must be commenced not later than two years after the birth of the child.” The court dismissed Fred’s petition, holding that the two-year statute of limitations barred his action.
Did the court violate Fred’s substantive due process rights under the U.S. Constitution by dismissing his paternity petition?

Answer 36

ANSWER: No. this is a marital presumption. fred couild establish the right but only if Bo gives it up.

Question 37

Custody and Control of Children

Answer 37

If both parents are living, competent, and have not been found to be unfit, they are entitled to custody of the minor and to direct his education and medical care.

b. For a non-parent to seek custody or visitation rights over a child with living parent(s): significant deference must be given o a legal parent’s objection to visitation
(1) A requirement of a finding of parental unfitness or harm to the child to override a parent’s decision likely would satisfy the Constitution’s demands.

EXAMPLE: Grandmother has raised her grandson for the past three years. Since Mother and Father have been unable to care for him, Grandmother has standing to sue in this situation but must overcome the preference for parent’s choice about access to children.

Question 38

C. Support Rights and Obligations

Answer 38

Parental Obligation to Support Child

a. As a general rule: a parent’s obligation to support a child is terminated when the child reaches the age of majority (18 in most states)
b. Some states require parents to continue to support a child beyond the age of majority where: the child is incapable of self support by reason of mental or physical disability, or is attending high school
c. Post-Secondary Education Support
(1) states are split, but courts will enforce a contract between parent and child

Question 39

2. Emancipation

Answer 39

A minor child who is legally “emancipated” need not be supported by the parent.

b. Key Components
(1) financially independent
(2) maturity
(3) married
(4) children that have children
(5) ability to support themselves

EXAMPLE: 17-year-old daughter moves in with her boyfriend, quits school, and starts working full-time at a grocery store to support herself. She would be considered emancipated.

Question 40

Obligation to Support Parent

Answer 40

Some states impose a statutory duty on adults: to support their parents or other close relatives who are in danger of becoming public charges

Question 41

D. Adoption

Answer 41

Who May Be Adopted

a. usually, the object of adoption is a minor
b. In many states, an adult may adopt another adult, typically for estate planning purposes.
2. Legal parent must consent to the adoption.
3. Standard for Adoption
a. a court will decide whether to grant a petition for adoption based on a determination off the child’s best interest
b. Racial Matching
(1) May be a consideration, but should not be the sole determining factor.

Question 42

Effect of Decree of Adoption

Answer 42

a. biological family no longer family, adoptive family is now family.

Question 43

Equitable Adoption or Parenthood by Estoppel

Answer 43

a. Under equitable adoption: you assume the relationship of parent and child absent a formal adoption.
b. Two Different Approaches
(1) Contract Theory
(a) Some courts require proof of a contract between the natural parents and the putative parent when the child is a minor who cannot contract.
(2) Behavior/Equitable Theory
(a) Other courts look at whether the putative parent led the child to believe she was legally a member of the family and apply an estoppel theory where the child has performed services for the putative parent.
(b) Limited to inheritance claims.

Question 44

Jurisdiction and Venue

Answer 44

in family law, we have subject matter jurisdiction, which concerns the marriage itself, and personal jurisdiction, which concerns the parties in the marriage

[Consult outline material for further reference.]

Question 45

B. Fault-Based Grounds for Divorce

Answer 45

1. Desertion
   a. A spouse may obtain a divorce when the other spouse:
   (1) abandons marital cohabitation
   (2) without reasonable cause
   (3) intent to desert; and
   (4) willfully persist for a continuous an set period.
   b. Voluntary or consensual separation negates the requisite intent.
   c. Constructive desertion:

EXAMPLE: Domestic violence is a reasonable cause for departure and does not qualify for desertion. Can argue constructive desertion by violent partner who remains.

Question 46

2. Adultery

Answer 46

Proof

(1) circumstantial rather than direct evidence is usually permissible since there is secrecy
(2) Legal standard: opportunity and inclination

EXAMPLE: Spouse hires a detective who watches the other spouse, and the detective videotapes the other spouse entering a hotel with an intimate stranger and then leaving the next morning. This is evidence of opportunity and inclination.

Question 47

Impotence

Answer 47

a. Impotence is the inability of one party to perform the act of sexual intercourse.

Question 48

Cruelty

Answer 48

a. most commonly cruetly, is a pattern of physical abuse which causes physical injury. can be one act or many.
b. Indignities (mental cruelty): course of conduct that makes life unbearable or intolerable

Question 49

Felony Conviction

Answer 49

a. in some states a period of incarceration more than one year is grounds for divorce

Question 50

No-Fault Divorce

Answer 50

Requires Proof of Two Aspects

a. State of Mind of the Parties
(1) marriage is irretrievably broke / irreconcilable differences
(a) no reasonable prospect of reconciliation
b. Separation for a Definitive Period of Time
(1) may be shortened if parties agree to the divorce
2. In some states, proof of serious mental disorder resulting in the defendant’s confinement in a mental institution may also be sufficient grounds for a no-fault divorce.

Question 51

Defenses

Answer 51

Fault-Based Divorce Actions

a. Collusion
(1) Collusion is an agreement between the spouses, express or implied, whereby:
b. Connivance
(1) Connivance is conduct by the plaintiff:
c. Condonation
(1) Where one spouse:
(2) Condonation is conditional if made contingent on the erring spouse not resuming the misconduct.
(a) A conditional condonation does not preclude:
d. Recrimination
(1) Where both spouses are:
(2) States began to treat recrimination as an affirmative defense, rather than a complete bar to divorce.
(a) In many states today, if both spouses allege and prove fault grounds, the court may grant a divorce to each.

Question 52

Defenses

Answer 52

Fault-Based Divorce Actions

a. Collusion
(1) Collusion is an agreement between the spouses, express or implied, whereby: one of them wrongfully asserts that the other has committed a breach of material duty in order to obtain a divorce
b. Connivance
(1) Connivance is conduct by the plaintiff: facilitating the commission of a marital wrong, usually adultery, by the defendant
c. Condonation
(1) Where one spouse: knowing forgiveness of the other’s marital wrong, by words or conduct, so marriage continues, such forgiveness may bar an action founded upon a marital wrong
(2) Condonation is conditional if made contingent on the erring spouse not resuming the misconduct.
(a) A conditional condonation does not preclude: the injured spouse from raising the initial misconduct as a ground for divorce where the conditions imposed on forgiveness have been violated.
d. Recrimination
(1) Where both spouses are: guilty of fault grounds, the court would deny a divorce to either on the ground of recrimination
(2) States began to treat recrimination as an affirmative defense, rather than a complete bar to divorce.
(a) In many states today, if both spouses allege and prove fault grounds, the court may grant a divorce to each.

No-Fault Divorce Actions

a. there no defense, a court can only mandate a separation period.

Question 53

Four things on divorce

Answer 53

1) property division; 2) spousal support; 3) child support; and 4) child custody

also think of 1) privatization of welfare and 2) best interest of the child

Question 54

Property Division

Answer 54

The majority of states today follow:an “equitable distribution” scheme to divide spousal property upon divorce

b. Separate property states: Have largely adopted the community property regime at divorce, but not during marriage of at death
c. Community property states: shift to equitable distribution, so there is no mandate of 50/50 division
2. Rules are based on an understanding that marriage is a partnership where both partners contribute labor and effort to their shared life, so both should share in the product of that labor.
3. Property classification is primarily based on timing.
a. property owned before the marriage, acquired after dissolution of the marriage, or acquired by gift or inheritance to one spouse during the marriage, is that spouse’s separate property
b. in contrast, property acquired during the marriage is presumed to be community (or marital) property.
c. In a majority of states, separate property, once identified, is generally not divisible and remains the property of the owner spouse. Marital property is divisible between the spouses.

Question 55

Steps in Judicial Division of Property: a. STEP ONE:

Answer 55

STEP ONE: Identify the divisible property.

(1) Dual Classification
(a) Marital property is: jointly owned and jointly acquired through the labor of the parties
(b) Separate property is: owned only by the person who holds title
(2) Title does not control the nature of the property; it depends on the timing of the acquisition.
(3) States have adopted a presumption of marital property.
(a) as long as the property is coming into the marriage during the marriage, it is considered marital property. Burden is on the party trying to prove that the property is separate.

EXAMPLE: Was the retirement account funded during the marriage? If yes, it is presumed marital property to which both spouses have a claim. Wages earned during marriage are jointly owned because they are considered jointly earned by the spouses.

(4) Increased Value of Separate Property
(a) Typically depends on the reason for the increase in value.
1) Passive appreciation: separate property
2) Labor during marriage: marital property to which both parties have a claim

EXAMPLE: Wande owned a painting before marriage that was worth $1M. Parties are married for 10 years and then divorce. Painting is now worth $3M. Original $1M is Wande’s separate property, but what about the $2M increase? If the painting’s value simply increased upon the death of the painter or for other reasons unrelated to the efforts of the Spouse, then Wande experiences a windfall; the increased value is deemed Wande’s separate property. But if the increase in value resulted from efforts of the Spouse—restoration of the painting, concerted marketing of the painting, etc.—then the increase in value would become marital property.

3) If increase is due to both labor and luck: some courts will look at the primary factor for the increase; others will attempt to divide the increase accordingly
(5) Separate Property
(a) Marital property generally does not include property:
1) acquired by gift or inheritance;
2) excluded by valid agreement of the parties;
3) Acquired prior to marriage or post-separation.
a) The date signifying the end of the joint acquisition period may vary.
i) Date of separation;
ii) Date divorce is filed;
iii) Date of the hearing;
iv) Date of decree of divorce.
(6) Mixed Character, Commingled, or Transmuted Property

EXAMPLE: Riley owns $100K bank account before marriage. Riley takes the property during the marriage and puts it into a joint bank account on which both parties have their name. At the end of the marriage, there was $150K in the joint bank account.

(a) A court may handle this in several ways.
1) If separate property can be traced: treat as part separate and part marital property
2) If tracing is not possible: separate property can transform into marital property
3) treated as a gift intended as such, so it would be marital property

Question 56

STEP TWO:

Answer 56

Value it.

Question 57

STEP THREE:

Answer 57

Divide it.

(1) division is based on what is fair under the circumstances, not necessarily 50/50.
(2) Factors that may generally be considered in determining what division would be “equitable” center on two concepts.
(a) financial status or need of the parties
1) income, earning capacity, separate wealth, inheritance, etc.
(b) contribution
1) financial, non-financial including at home parent, care giving parent, acquisition or property, dissipation of assets

Question 58

On the day that Kelly and Jackie married, Kelly owned a home worth $100,000, with no mortgage. Jackie moved into the home. When Kelly announced a separation from Jackie ten years later, Jackie in anger smashed the new $5,000 television the couple had just bought for the family room. Upon divorce, Kelly was 45 years old, and a stockbroker with very high annual earnings. Jackie was unemployed and looking for work, having been fired from a low-paying job as a technician at a nuclear power plant. Other than the house, now valued at $250,000, the parties own two cars and have $50,000 in cash buried in the backyard.
How will a court divide the parties’ property upon divorce? Based on what considerations?

Answer 58

ANSWER: TV is marital property. separate property is 100k value of the house. increase of 150k of the house may be marital, but it depends on why it increased. cash in back yard likely marital property. cars likely marital property.

TV smashed like goes to other party who did not smash

Question 59

Marital Residence

Answer 59

a. Sometimes partly separate property and partly marital property.
(1) Joint income used to pay down a mortgage.
b. Court must disaggregate the pieces.

Question 60

The home in which a married couple lived was purchased by Spouse before the marriage for $300,000 with a down payment of $30,000, and title remains in Spouse’s name. Although Spouse remains solely liable on the mortgage, the couple shared the responsibility for making mortgage payments out of their mutual earnings since the date of the marriage, by which time Spouse had paid down $10,000 of the mortgage principal. The house has appreciated $100,000 from the date of the marriage, and the mortgage principal has declined by $50,000 due to their joint payments.Upon their divorce, is the home a marital asset? How will its value be divided between the couple?

Answer 60

ANSWER:` the value of the home after is a marital asset perhaps. could look in 3 ways. transform over time. reimbursement of payments. reimbursements of marital home.

Question 61

Pensions and Other Retirement Accounts

Answer 61

a. Pension and retirement benefits accumulated by either spouse during the marriage are subject to equitable distribution, whether the accounts are vested or unvested.
(1) Vested: the employee ha a definitive and presently existing legal right to the asset
(2) Unvested: some contingency must occur, such as working for the employer a certain number of years before legal entitlement attaches
b. There are two types of plans.
(1) Defined Contribution Plan

EXAMPLE: Spouse has a retirement account where her employer matches the contributions of the employee. Although the employee contributions are vested immediately, the employer requires five years of employment before the employee is entitled to the funds from the employer match. Spouse files for divorce in year 3. 3/5 marital property, 2/5 separate property.

Question 62

(2) Defined Benefit Plan

Answer 62

(a) A retirement account for which:

EXAMPLE: Casey worked for Employer for five years prior to getting married. Casey has been married for five years when separation and divorce require distribution of the marital share in their 401(k) plan. The marital share in the present value of the account is 50%, and 50% belongs to Casey alone. Assuming an equal division of the marital share, Casey’s total share of the value of the account at divorce is 75%. Any post-separation contributions Casey makes in the future are hers alone.

Question 63

3. Stock Options

Answer 63

Stock options granted to either spouse during the marriage: whether vested or non-vested and whether or not their value is ascertainable, are presumed to be marital property

b. If stock options are earned as employment compensation, their status as marital or non-marital property depends on: when acquired and whether the work for which the options are compensation was performed during the marriage
c. A vested employee stock option is acquired when granted, but an unvested employee stock option may require more complex analysis.
(1) Most states apply a “time rule” formula to determine when unvested employee stock options are acquired. Unvested employee stock options granted for future employment services are generally acquired over time as the stock options vest, and the question is whether the spouses were living together as a marital unit at the time of acquisition.

Question 64

Professional Degrees and Licenses

Answer 64

a) Most states have held that a professional degree or license: is not a property interest subject to equitable distribution
b) Even if a degree is not considered divisible marital property: it may be considered in the division of other marital property, as well in alimony or reimbursement award for a spouse who contributed to the support of the family while the degree-earning spouse was in school or training

Question 65

Personal Injury Claims

Answer 65

a. Replacement Theory/Analytic Approach
(1) Lost Wages
(a) To the extent the damages replace lost wages that would have been earned during marriage or medical expenses that were incurred during marriage, those damages are marital property.
(2) Future Wages or Expenses
(a) To the extent the damages replace future wages or future medical expenses, those damages are the separate property of the injured spouse.

Question 66

Lottery Winnings

Answer 66

a. Lottery winnings of a spouse may be marital or separate property, depending on the usual principles, such as the date of acquisition and whether community/marital earnings were used to purchase the ticket.
b. Presumably, lottery winnings during the marriage are marital property.

Question 67

Division of Debts

Answer 67

Debts are generally characterized using the same principles that govern the characterization of assets, such that debts incurred during marriage are marital debts, while those incurred before or after are separate debts of the spouse who incurred them.

b. Debts will generally be divided according to the same equitable principles considered in property division.

Question 68

Types of Alimony

Answer 68

Periodic Alimony

(1) A periodic alimony order requires: a certain amount of money to be paid at set intervals, usually monthly
(2) The obligation will generally continue until: the receipiant dies, remarries or it is modified
b. Lump Sum Alimony
(1) Lump-sum alimony is distinguished from the normal alimony award in that it is: for a fixed amount rather than a periodic obligation.
(2) An award of lump-sum alimony is a final order which may not be modified, even if the lump sum is payable in installments.
c. Rehabilitative Alimony
(1) Rehabilitative alimony may be awarded to a spouse for a limited period of time, until: the recipient spouse can become self-supporting by entering the work force

Question 69

Grounds

Answer 69

Alimony is generally based on: economic need and, in some circumstances may be used to achieve fairness even if the claimant is not clearly in need

b. Under the UMDA (§ 308), an alimony order may be made only if the court finds that the spouse who is seeking alimony:
(1) lacks sufficient property to provide for their reasonable needs
(2) Either:
(a) is unable to support themselves through appropriate employment
(b) is the custodian of a child whose condition or circumstances make it appropriate that the custodian not be required to seek employment outside the home

Question 70

3. Factors

Answer 70

Rules governing the factors to be considered in making an award of spousal maintenance vary from state to state, but they generally require the trial court to consider:

(1) the parties respective financial resources and needs
(2) the contributions each has made to the marital relationship, whether financially or by providing care within the home
(3) the duration of the marriage
b. Some state statutes require or allow consideration of spousal misconduct, whereas others exclude it.
c. Some specifically require the court to consider one spouse’s support for: the other’s education or training, and may mandate reimbursement for such contributions.

NOTE: The modern trend is to limit alimony grants to encourage spouses to become self-supporting in a reasonable time period. Alimony awards are based on economic need and fairness.

Question 71

Modification or Termination of Alimony

Answer 71

a. Modification
(1) Under the UMDA, modification of spousal support is allowed: if there is a substantial and continuing change of circumstances making the prior order “unconscionable”
(2) Most jurisdictions are not as stringent as the UMDA, but may place a heavy burden on the party requesting the modification, such as: requiring a substantial change in circumstances rendering the original award unreasonable and unfair.
(3) Courts consider the cause for the change in circumstances.

EXAMPLE: If a spouse responsible for alimony gets fired, they will be regarded differently than one who voluntarily quits.

b. Termination
(1) Spousal maintenance generally terminates:
(a) after a specified term;
(b) on death of either spouse; or
(c) automatically or remarriage or cohabitation

NOTE: Under the UPAA, if the premarital agreement modifies or eliminates spousal support so as to cause one party to the agreement to require public assistance, the court may require the other party to pay sufficient support to avoid that result.

Question 72

D. Child Support and Custody

Answer 72

Child Support

a. Both parents owe support.
(1) the parent who has custody is presumed to provide support
(2) a child support order is generally entered only against the non-custodial parent
b. Child support orders are issued after consideration of the state’s child support guidelines, if any. These guidelines are generally a mathematical formula based on the income of the parents.
(1) There is a rebuttable presumption that: the amount of child support if computed consistent with the guidelines, is the property amount of support to be ordered
(2) If courts choose to deviate from the guidelines: they must give a written explanation for doing so.
c. States have disagreed on whether a college education is a “necessity.”

Question 73

Child Custody

Answer 73

While both parents of a minor are living and are competent and fit, they are: jointly entitled to the custody of the minor. The parents have equal power, rights and duties concerning the minor.

b. Standard for determining custody and the parenting time allocation between the parties is the best interest of the child.
(1) maintain an established and stable bond with the child
(2) The court will compare the bonds between the parents and child.
(a) look at the care giving history between parent and child, such that one parent’s history of serving as the “primary caretaker” of the child is an important factor and may result in assigning primary custody to the parent.
c. The best interest of the child is determined by examination of all relevant factors, including the following:
(1) The wishes of the child’s parent or parents as to custody;
(2) the wishes of the child as to custodian (usually 12 years and above)
(3) the interaction and interrelationship of the child with parent or parents, siblings, and any other person who may significantly affect the children’s best interest
(4) the child’s adjustment to home, school and community.
(5) the mental and physical health of all individuals involved.

NOTE: The desires of a child of sufficient age and understanding are considered, but are not controlling.

Question 74

Joint Custody

Answer 74

a. There are two aspects to custody:
(1) the right to physical custody; and
(2) legal custody, relation the important decisions for the child, health, religion and education.
b. Joint custody generally refers to: shared physical custody and sharing decision making. sharing either or both aspects qualifies as joint custody
c. A typical joint custody structure is where: one parent has primary physical custody, the other has significant periods of physical custody and both parents share decision making

Question 75

Marital Fault

Answer 75

a. The fact that a parent was guilty of misconduct in connection with the divorce action will be relevant only insofar as the parent’s moral fitness affects the child’s welfare.
b. This rule applies even to a parent who has engaged in domestic violence.

Question 76

5. The Friendly Parent

Answer 76

a. some courts will consider whether a parent is willing to cooperate and facilitate the child’s relationship with the other parent.

Question 77

Finley and Kai, who have two school-aged children, recently separated when Kai moved out of the family home. Kai’s employment requires extensive travel during the week, but not on the weekends. However, family members who live nearby have agreed to help Kai care for the children when they are together. Finley has a flexible job that allows time at home after school and into the evenings. Finley and Kai fight a lot, and now cannot reach an agreement even about what activities the children should participate in outside school. They do agree the children should live with the custodial parent during the week and with the other parent every other weekend, but they each seek to be designated the custodial parent.

How should the court allocate custody of the children?

Answer 77

ANSWER: best interest of the child.

Question 78

E. Visitation

Answer 78

1. By Non-Custodial Parent
   a. The non-custodial parent will generally be granted: reasonable visitation rights, unless finds visitation is detrimental to best interest of the child
2. By Third Persons
   a. significant deference must be given to legal parent’s wishes and objections to visitation

Question 79

Modification of Orders

Answer 79

Child Support

a. Modifications of child support orders may be made only when: there is a showing of a substantial and continuing change of circumstances making the prior order unreasonable
(1) Court will look for changes in good and bad faith.
(2) Federal law prohibits a court from retroactively modifying a child support obligation. Under state law, courts will not allow a modification of the obligation of child support payments in arrears unless the hardship is severe.

Question 80

Child Custody

Answer 80

a. Change of Circumstances Requirement
(1) The prevailing view is that a court may modify a custody order: upon proof of a material and substantial change in circumstances such that a change in custody will be conducive to best interest of the child
(2) Most states require that the change in circumstances be unforeseen.
(3) Even if there is a substantial change in circumstances, a court may not modify a custody order unless: the change will serve the child’s best interest
b. Most states disfavor, either by statute or case law, modification when sought shortly after a custody decree has been entered.
(1) Under the UMDA, if a modification petition is filed within two years of the original decree, a modification hearing is only authorized if the evidence suggests there is reason to believe that the child’s present environment may seriously endanger his physical, mental, moral, or emotional health.
(2) Some states follow this rule, while some states impose a waiting period of six months or a year before a parent may bring a request for modification.
3. The burden of proving change in circumstances as well as the child’s best interest is upon the party seeking modification of the custody order.
a. Status quo is heavily favored.

Question 81

4. Relocation

Answer 81

Many courts balance: impact on visitation against the benefits of the move to both the children and the custodial parent.

(1) overall trend is toward leniency for the wishes and needs of the parent with whom the child has been primarily living
b. Some states are favorably disposed to allowing the custodial parent to relocate with the child.
c. Others will permit the custodial parent to relocate unless the evidence shows that the move will be detrimental to the child.

Question 82

Uniform Interstate Family Support Act

Answer 82

This uniform law addresses issues of interstate enforcement of spousal maintenance (alimony) and child support orders. The Uniform Interstate Family Support Act (“UIFSA”) has been adopted in all 50 states.

a. governs jurisdictional issues where more than one state is involved in a family support action

Question 83

2. Jurisdiction

Answer 83

Initial Personal Jurisdiction Over Defendant

(1) In a proceeding to establish, enforce, or modify a support order, a State X court may exercise personal jurisdiction over a nonresident if:
(a) the person is personally served in state X;
(b) the person submits to jurisdiction by consent, by entering a general appearance, or by filing a responsive document having the effect of waiving any contest to personal jurisdiction;
(c) the person resided with the child in State X;
(d) the person resided in the state and provided prenatal expenses or support for the child;
(e) the child resides in the state as a result of the acts or directives of the person;
(f) the person engaged in sexual intercourse in State X, and the child may have been conceived by that act;
(g) the individual asserted parentity by filing with the paternity registry of the other state
(h) there is any other basis consistent with the federal and state constitutions for the exercise of personal jurisdiction.

Question 84

Continuing, Exclusive Jurisdiction

Answer 84

(1) Once a state has issued a child support order consistent with the jurisdiction requirements of the UIFSA, that state’s court has continuing, exclusive jurisdiction over the order so long as:
(a) the child or any party still resides in the issuing state; and
(b) all of the parties do not consent to change jurisdiction to a new state.
(2) The state with continuing exclusive jurisdiction over the order is the only state that can modify the order, unless continuing exclusive jurisdiction is lost.
(3) If the issuing state enters an order requiring a person residing in another state to pay child support, the issuing state can register the support order in the other state, and then the laws of the other state can be used to enforce payment of the order. The other state cannot modify the order, but can use its laws to enforce the order.
c. EXAM TIP: If presented with a child support modification issue involving more than one state:
(1) The first step is to: determine which court issued the original support order
(2) If all the parties now reside in a different state: the issuing state no longer has continuing exclusive jursidiction unless the parties retain and consent
(3) If not, the next step is to: determine which state has jurisdiction to modify the court order
(4) If the parties and the child all reside in the same state: that state has continuing, exclusive jurisdiction to modify the order
(5) Otherwise, the party seeking modification must register the order: in the state with jurisdiction over the respondent (i.e. generally where the respondent resides) and seek modification and enforcement there

Question 85

Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA)

Answer 85

1. The UCCJEA has been adopted in some form by nearly all states. The UCCJEA attempts to avoid relitigation of custody decisions of other states, facilitate the enforcement of foreign custody decisions, and deter abductions of children undertaken to obtain custody awards.
2. The UCCJEA permits a state to adjudicate matters related to children without having personal jurisdiction over the respondent spouse.
3. Initial Child-Custody Jurisdiction
   a. Under the UCCJEA, a State court can adjudicate over matters impacting the child if it has jurisdiction over the child.
   b. There are four ways in which a State court can establish its jurisdiction over the child; the first mentioned below is prioritized over the other three options.
   (1) Is State X the ‘home state’?
   (a) Test: Has the child lived in State X since birth or at least lived in State X for the last 6 months?
   (b) If State X is the home state under this test, the State X court has jurisdiction over the child.
   (2) If State X is not the ‘home state’ and no other state is the ‘home state,’ then does State X have significant connections to the child?
   (a) Considerations include whether the child has lived in State X for a long time and whether the child has many relatives in State X.
   (b) If a court determines State X has such significant connections, then a State X court has jurisdiction over the child.
   (3) If no state qualifies as a ‘home state’ and State X lacks significant connections to the child, is State X nevertheless the most appropriate forum for this matter?
   (a) If so, then State X has jurisdiction over the child.
   (4) Finally, is State X the default jurisdiction?
   (a) If no other state is the ‘home state’ and no other state even wants jurisdiction over the matter, then by default State X will have jurisdiction over the child.
4. Exclusive, Continuing Jurisdiction
   a. Once a state has made a valid child-custody determination under the UCCJEA, that state has exclusive jurisdiction over the determination.
   b. Such jurisdiction continues until:
   (1) a court of the state determines that neither the child nor the child and one parent have a significant connection with the state, and substantial evidence is no longer available in the state regarding the child’s welfare; or
   (2) a court determines the child, the child’s parents, and any person acting as a parent moved out of the state.
5. Two Reasons a State Can Decline to Exercise Jurisdiction
   a. State is an inconvenient forum.
   (1) Family would be better served elsewhere.
   (2) Length of time child resided outside of the State.
   (3) Location and nature of evidence.
   (4) Another state court is more familiar with the case.
   b. Party engaged in unjustifiable conduct in order to secure jurisdiction in the State.