Family Law

Question 1

Will a state recognize a common law marriage from another state?

Answer 1

Yes

Question 2

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

Answer 2

(CACH):
Capacity to enter into a marital contract, a present Agreement to be married, Cohabitation, and Holding out a marital relationship.

Question 3

Recognition of marriage

Answer 3

A marriage 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 relationship to the spouses and the marriage.

Question 4

Bigamy

Answer 4

A bigamous marriage is void from the beginning. There are two marriage-saving doctrines for the new spouse: (1) presumption that the most recent marriage is valid, 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 state are no-fault divorce states. Some states recognize fault-based grounds too. Annulment is also recognized for fraud and other reasons.

Question 6

When determining child custody and support, what is the main consideration?

Answer 6

The best interest of the child.

Question 7

A biological parent generally has parenting rights if:

Answer 7

He is involved in the child’s life

Question 8

Factors to look at in custody determinations:

Answer 8

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 9

Custody can be modified only if:

Answer 9

There is a substantial change in circumstances.

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. The court will look at 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. (If the change is a reduction in income, and it was voluntary, some courts will not modify it; some will under a multi-factor test—examine if the party acted in good faith, etc.). This is a heavy burden.

Child support cannot be modified retroactively unless there was fraud or other compelling circumstances.

Question 12

Relocation of parent and child

Answer 12

Generally, a move sought in good faith that will serve the BIOC will ordinarily be approved.

The court will balance the impact on visitation by the noncustodial parent against the benefits of the move to both the children and the custodial parent. There are a few different views: some states place the burden on the relocating parent and some put it on the objecting parent.

Question 13

When does the father have rights?

Answer 13

Generally, biological fathers have rights. However, the state may make the parent exercise his rights within a specific time.

Question 14

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

Answer 14

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 15

Third-party rights re child custody

Answer 15

Custody in the parent is presumed to be in the BIOC. To rebut this, a third 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.

Any third-party visitation or custody statute must give special weight to the parent’s determination of the child’s best interest.

Question 16

Division of property by court in a marital proceeding

Answer 16

In a majority of states, marital property is divided at divorce but separate property remains the property of the owning spouse

Question 17

Marital vs separate property

Answer 17

Marital property is property acquired during the marriage. Separate property includes property acquired before the marriage, an inheritance, or a gift to one party.

Most states don’t count professional degrees earned during the marriage as marital property.

Question 18

Division of property on divorce based on premarital agreement

Answer 18

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. A court will not, however, enforce a premarital agreement regarding child custody or support if it is not in the BIOC.

Question 19

Alimony

Answer 19

Can be permanent, temporary, or granted in a lump sum.

Consider the parties’ financial resources and needs, marital contributions, and marital duration. Some states also look at spousal misconduct, one spouse’s support for the other’s education, or training, etc.

The trial court has substantial discretion in choosing to award alimony.

Question 20

Modification and termination of alimony

Answer 20

Alimony awards may be modified if a court finds there has been a substantial change in circumstances making the prior award unreasonable.

Must be an unanticipated change.

Alimony usually terminates if a spouse dies/gets remarried. In some state, cohabitation will reduce/terminate alimony.

Question 21

Can a court issue a binding order affecting personal rights such as property division or support if it does not have jurisdiction over the defendant spouse?

Answer 21

No, but it may grant a divorce.

Question 22

Which court may dissolve a marriage?

Answer 22

The court does not need jurisdiction over both spouses to terminate a marriage. If the plaintiff spouse is one 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 plaintiff’s marriage.

Question 23

Which court may issue a property division order?

Answer 23

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

Question 24

Child support jurisdiction

Answer 24

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 oblige, the child, or the obliged, and at least one of the parties does not consent to the jurisdiction of another forum.

Question 25

Child custody order jurisdiction

Answer 25

Uniform Child Custody Jurisdiction and Enforcement Act applies.

The home state test: home state has exclusive jurisdiction to modify a custody decree. A home state is a state where the child has lived with a parent or a person acting as a parent for at least 6 consecutive months immediately before the commencement of the child custody proceeding. A home state continues to have exclusive jurisdiction to issue a custody order for 6 months after a child leaves the state, so long as a parent, or person acting as a parent, still lives in the home state.

The significant connections test: if a child has no home state, a state may exercise jurisdiction based on (1) significant connections with the child and at least one parent and (2) the existence of substantial evidence relating to child custody in the forum jurisdiction.

Emergency jurisdiction or default jurisdiction: if no other state has or exercises jurisdiction, this test applies.

Question 26

What happens to gifts made in contemplation of marriage if the marriage fails to take place?

Answer 26

They are null. These are gifts conditioned on the subsequent marriage (engagement rings).

Consider the type of property, conditions attached, and donor intent.

Question 27

Requirements for validity of premarital agreements

Answer 27

In writing and signed
Entered into voluntarily (no fraud/duress/overreaching)
Full disclosure of assets OR proof that party had independent knowledge

Question 28

Marriage requirements

Answer 28

(1) license
(2) ceremony with authorized officiant
(3) no legal impediments to marriage—not too closely related/married to someone else
(4) capacity to consent—mental capacity and age of majority

Question 29

Marriage by estoppel/putative marriage

Answer 29

Equitable remedy that may be given by some courts to the innocent party who acted in good faith when entering an invalid marriage.

In some states, the putative spouse can acquire all of the rights of a legal spouse.

Question 30

Is title dispositive in the equitable division of property?

Answer 30

No

Generally, if spouses take title to real estate in their joint names, a tenancy by the entireties is presumed and therefore one spouse cannot convey or encumber the property without the consent of the other spouse.

Question 31

Doctrine of necessaries

Answer 31

Can be used to make one spouse liable to third parties for the other spouse’s purchases for necessary expenses, such as food, clothing, and health care.

Question 32

Tortious interference with marriage

Answer 32

Alienation of affection: (1) genuine love and affection between validly married spouses; (2) love and affection was alienated and destroyed; (3) defendant’s acts caused the loss of love and affection. Adultery NOT required. Proof of damage required and highly subjective.

Criminal conversation: (1) marriage of the spouses; (2) adultery between the defendant and the spouse during the marriage; (3) proof of damages.

Question 33

Annulment

Answer 33

Declaration that a marriage is invalid—available for defective marriages that are legally void or voidable

Question 34

Void marriage

Answer 34

Fail to meet essential requirements, so invalid

Can be attacked by one of the parties or collaterally by a third party

May be remedied by continuous habitation after removal or impediment

Question 35

Voidable marriage

Answer 35

Event or condition affecting adequacy of consent to marriage contract
Treated as valid until annulled
Can be attacked only by or on behalf of a party to the marriage and in some cases only by the party who is sought to be protected
Marriage can be ratified by continued cohabitation after removal of infirmity

Question 36

Legal separation effect

Answer 36

Parties are still married but can seek to have their rights regarding property, spousal support, child custody, and child support decided.

Question 37

Are property distribution decrees modifiable?

Answer 37

No

Question 38

Two-step process in property division:

Answer 38

(1) classification—determine what is marital and what is separate
(2) division—make an equitable division of the marital estate no matter how the property is titled. Equitable division does not necessarily mean equal.

Question 39

Commingling

Answer 39

Separate property can become marital if the property is inextricably intertwined

Court will attempt to trace property

Question 40

Transmutation of separate property

Answer 40

Separate property can become marital based on the intent of the p[arties.

Question 41

Improvement of separate property

Answer 41

When separate property is improved by the use of marital funds or the efforts of either spouse, courts in most jurisdictions will grant the marital estate or non-owning spouse reimbursement for the value added.

BUT if neither spouse ever visited the property and the property had increased in value because an interstate exit was planned nearby, the increase in value would remain separate because the increase was due to market factors, not the contribution of either spouse.

Question 42

Property acquired before marriage but paid for after marriage

Answer 42

Majority: property should be apportioned between separate and marital estates in proportion to the contribution of separate and marital funds to pay for the property.

Question 43

Pensions

Answer 43

Are considered to be marital property subject to division even if the non-working spouse did not contribute.

Question 44

Professional license or degree

Answer 44

NOT considered to be marital property subject to division.

To avoid unfairness, some jurisdictions consider it when awarding alimony.

Question 45

Tax consequences of property division upon divorce

Answer 45

Property division is not a taxable event.

Question 46

Factors to consider in making equitable divisions of marital property

Answer 46

• Age, education, background, and earning capabilities of both parties;
• Duration of the marriage, and if there were any prior marriages;
• Standard of living during the marriage;
• Present income of both parties and their employability;
• Source of money used to purchase property;
• Health of the parties;
• Assets, debts, and liabilities of the parties;
• Needs of the parties;
• Provisions for the custody of minor children;
• Whether the distribution is in lieu of or in addition to alimony;
• Each party’s opportunity to acquire future income and assets;
• Each party’s contribution to the acquisition of, or enhancement of the existing marital assets;
• Each party’s contribution as a homemaker to the family unit; and
• Whether each party has dissipated marital property (economic fault).

Some courts look to marital fault.

Question 47

Permanent periodic support

Answer 47

Duration: indefinite

Modification: can be increased, decreased, or terminated upon proof of substantial change of circumstances

Question 48

Lump sum support

Answer 48

Duration: for specified time period, can be payable in installments or lump sum

Modification: non—treated like a contract right; binding on payor’s estate

Question 49

Rehabilitative support

Answer 49

Duration: for specified time period, unless modified by court

Modification: can be increased, decreased, or terminated upon proof of substantial change of circumstances

Note: designed to restore disadvantaged spouse’s earning capacity to the point that he/she is no longer economically disadvantaged relative to the other spouse.

Question 50

Reimbursement support

Answer 50

Duration: for the specified period of time; can be payable in installments or lump sum

Modification: non-modifiable—treated as contract right and can be awarded even if the supporting spouse is not otherwise eligible for spousal support.

Question 51

Factors to consider in awarding alimony:

Answer 51

• Standard of living during the marriage;
• Duration of the marriage
• Age and physical/emotional conditions of both parties;
• Financial resources of each party;
• Contribution of each party to the marriage;
• Time needed to obtain education/training to enable a spouse to find employment;
• Ability of the pay or spouse to meet his needs and pay support; and
• In some jurisdictions, marital fault.

Question 52

Two primary considerations when awarding alimony:

Answer 52

Need of the claimant spouse and ability of the other spouse to pay.

Question 53

Duration of child support

Answer 53

Generally, age of majority OR

• death of child
• emancipation of child
• termination of parental rights
• sometimes allowed past 18 if agreed for education/child is disabled

Question 54

When will contracts between unmarried cohabitants be enforced?

Answer 54

When sexual relations are not the only consideration for the contract.

Question 55

Can a child be adopted without consent from both biological parents?

Answer 55

Generally, no.

Whether the consent of the unwed father is needed depends on his involvement with the child. If he demonstrates commitment to parenthood by participating in child rearing, relationship between the father and child is protected by due process.

Factors considered with respect to father’s involvement include: (1) whether the parents lived together or the father visited regularly (2) whether the father admitted paternity; (3) whether the father paid child support and (4) whether the father had any responsibility for supervision, education, protection, or care of child.

Question 56

No-fault divorce

Answer 56

allows for dissolution of marriage without regard to marital fault (they may still be at fault, it just doesn’t have to be proven)

• Irreconcilable differences
• Living separate and apart for a specified period
• Incompatibility

Question 57

Fault-based divorce

Answer 57

• Adultery (circumstantial evidence of opportunity and inclination)
• Desertion for a specified time (unjustifiable departure with no intent to return)
• Cruelty (physical or mental)
• Habitual drunkenness or abuse of drugs commencing after marriage
• Insanity

Question 58

Defenses to no-fault divorce

Answer 58

Traditional defenses are generally unavailable, but one spouse can claim reconciliation to restart the time clock for living separate and apart.

Question 59

Defenses to a fault-based divorce

Answer 59

• Collusion: parties agreed to simulate grounds for divorce
• Connivance: plaintiff willingly consented to the other spouse’s misconduct
• Condonation: plaintiff forgave marital offense with full knowledge of it
• Recrimination: plaintiff is also guilty of marital fault

Question 60

To be enforced by a court, a premarital agreement for spousal property division must:

Answer 60

contain fair and reasonable economic provisions for the claiming spouse.

Look to: time passed since signing the agreement, unconscionability, etc.

Question 61

The purpose of spousal support is to…

Answer 61

ensure an adequate income stream for persons whose economic dependency has resulted from the marital relationship.

Question 62

When is it against public policy to enforce a waiver of spousal support?

Answer 62

When it would leave a spouse dependent on the state.

Question 63

Will a court enforce a child support provision in a premarital agreement?

Answer 63

No—parents have an equal duty to support their children and that duty cannot be contracted away.