Family Law

Question 1

How can a state have jurisdiction over a divorce proceeding?

Answer 1

To establish jurisdiction over a divorce action, one of the parties must be a bona fide resident of the jurisdiction where the action is brought.

Question 2

What is the Full Faith and Credit for Child Support Orders Act? (FFCCSOA)

Answer 2

Under the Full Faith and Credit for Child Support Orders Act (FFCCSOA), full faith and credit must be given to another court’s child support order if: the court had jurisdiction over the matter and parties, and the parties had reasonable notice and an opportunity to be heard.

Question 3

What is the Uniform Child Custody Jurisdiction and Enforcement Act? (UCCJEA)

Answer 3

Under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) the court that made the initial custody determination has continuing exclusive jurisdiction over the matter until the court determines that: (1) neither the child nor the parents continue to reside in the state, or (2) the child no longer has a significant connection with the state and substantial evidence relation to the child’s care, protection, training, and personal relationships are no longer available in the state.

Question 4

What does it mean to remove a child from the jurisdiction?

Answer 4

Removal of a child from the jurisdiction is a substantial and material change of circumstances warranting a modification of the custody order.

Question 5

What does a court need to have over both parties to distribute assets?

Answer 5

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

Question 6

Can a couple split a common law marriage’s property?

Answer 6

Generally, a court may not split a couple’s property unless they were married or had a valid cohabitation agreement.

Question 7

What are the basic requirements to establish a common law marriage?

Answer 7

The basic requirements to establish a CL marriage are the capacity to enter into a marriage, an exchange of consent, cohabitation, and holding out publicly or living together as spouses.

Question 8

How can you tell if there’s a sufficient holding out?

Answer 8

In determining whether there is sufficient holding out, courts look to conduct such as (1) using a common last name, (2) opening a joint bank account, (3) telling others in the community that they consider themselves married.

Question 9

Are contracts between unmarried cohabitants enforced?

Answer 9

Contracts between unmarried cohabitants will be enforced if sexual relations are not the only consideration for the contract.

Question 10

Do you need consent of parents for a child to be adopted?

Answer 10

Generally, a child may not be adopted without consent from both of his biological parents.

Question 11

Are unwed parent’s (dad’s specifically) rights protected?

Answer 11

Unwed parents have a right to raise their own children.

If an unwed father is part of the family unit that includes the child, the relationship between the father and the child is protected by due process, provided that the unwed father has demonstrated a full commitment to the responsibilities of parenthood by participating in the rearing of his child.

Question 12

How can a court determine if the unwed father has a relationship with the child?

Answer 12

The court will consider whether the father shouldered any significant responsibility with respect to the daily supervision, education, and protection of care of the child.

An unwed father who has never attempted to establish a legal or personal relationship with the child has no rights with respect to adoption.

Question 13

Does an involved unwed father have a right to block an adoption?

Answer 13

An involved unwed father has the right to block an adoption unless the unwed father is found to be a fit parent.

When weighing whether an unwed father can veto an adoption courts look at the other factors listed, as well as if the parents lived with each other, and cared for the child and if the father admitted paternity or paid child support.

Question 14

What is marital property?

Answer 14

In general, all property acquired during the marriage is marital property unless it is acquired through gift, bequest, devise, or descent.

Question 15

What happens when someone is given a gift during marriage?

Answer 15

When a gift is given to both parties, courts will look at the donor’s intent to determine whether he intended both parties to use the gift.

Question 16

Are wedding gifts marital property?

Answer 16

Unless a particular wedding gift is only appropriate for the use of one spouse, wedding gifts should be classified as marital property.

Question 17

What is the purpose of spousal support?

Answer 17

The purpose of spousal support is to ensure an adequate income stream for the spouse whose economic dependency has resulted, at least in part, from the marital relationship.

Question 18

What does the court use to determine the type and how much support to award? (7 factors)

Answer 18

When determining what type and how much support to award, the court considers:

(1) the standard of living during the marriage
(2) the duration of the marriage
(3) the age and physical and emotional conditions of both parties
(4) the financial resources of each party (including how marital property was apportioned)
(5) the contribution of each party to the marriage (including homemaking, child care, education, and career-building of the other party)
(6) the time needed to obtain education or training to enable either party to find appropriate employment and
(7) the ability of the payor spouse to meet his needs while paying child support.

Question 19

What is permanent spousal support?

Answer 19

Permanent spousal support is awarded to a spouse who has neither the resources nor the ability to be self-sustaining.

Question 20

What to courts look at when awarding child support?

Answer 20

When awarding child support courts look primarily to the monetary need of the children and the payor spouse’s ability to pay.

Question 21

What do courts use to determine the amount of child support?

Answer 21

State guidelines usually dictate a formula based on the number of children, their ages, any special needs of the children, and the parents’ incomes.

Question 22

Can states set minimum durational residency requirements before proceedings?

Answer 22

Yes, states may set minimum durational residency requirements, like 90 days or 1 year before a proceeding can be brought.

Question 23

Can a court determine out-of-state property rights?

Answer 23

Generally, a court cannot determine out-of-state property rights or rights to support unless it has jurisdiction over both parties.

Question 24

In an ex-parte divorce, the court cannot…?

Answer 24

In an ex-parte divorce (where only the P is before the court) the court cannot award spousal support or divide out-of-state property.

There is a limited exception for marital property located within the state.

Question 25

What is a no-fault divorce?

Answer 25

Most states now offer “no-fault” divorces that provide for the dissolution of marriage without regard to marital fault, generally upon a showing that (1) the marriage is irretrievably broken and (2) that the parties have been living separate and apart for a specific period of time.

Question 26

How do courts distribute property?

Answer 26

Courts have the authority to order an equitable distribution of all marital property, no matter how title is held.

Question 27

What about property acquired before the marriage but paid for afterwards?

Answer 27

If property is acquired before the marriage but paid for after marriage with marital funds, most courts will apportion the property between separate and marital interests in proportion to the contribution of separate and marital funds used to pay for the property.

Question 28

What is the two-step process of adoption?

Answer 28

1. The biological parent’s rights must be terminated, and
2. A new parent-child relationship must be created between the child and the adoptive parent.

• Generally, the consent of the child’s biological parents is required for adoption.

Question 29

In deciding whether to a award custody to a third party in a dispute between the third party and the biological parent…

Answer 29

• In deciding whether to award custody to a third party in a dispute between the third party and the biological parent, the decision does not turn on the child’s best interests alone.
• Courts must give great weight to the interests of the natural parent.
• The prevailing view is that the natural parent has a right to raise her child and, absent voluntary relinquishment, the parent is entitled to custody unless it is shown that the parent is unfit.
• Only under special circumstances will custody be awarded to a third party.

Question 30

How does a court determine the appropriateness of a third party’s visitation rights?

Answer 30

• The Supreme Court has held that as long as a parent is fit, that parent’s determination as to the appropriateness of third-party visitation must be given “special weight.”
• A judge may not override a fit parent’s decision regarding third-party visitation merely because she feels a better decision could be made or visitation would be in the BIOC.

Question 31

Can premarital agreements get rid of child support?

Answer 31

No, parents have an equal duty to support their children that they cannot contract away.

Question 32

What factors will the court use to determine if joint custody of the children is appropriate?

Answer 32

Courts look at:

• the fitness of both parents,
• whether the parents agree on joint custody,
• the parents’ ability to communicate and cooperate concerning the well-being of the children,
• the children’s preference (depending on their age)
• the level of involvement of each parent in the children’s lives,
• the geographic proximity of the parents’ homes, and
• the effect a joint custody award would have on the children’s psychological development.

In addition, courts often award custody to the parent who has been the children’s primary caregiver.

Question 33

What gives the premarital agreement consideration?

Answer 33

Entry into marriage is sufficient consideration for a premarital agreement.

Question 34

Is a court bound by child custody provisions in premarital agreements?

Answer 34

No, a court is not bound by child custody provisions in premarital agreements.

Question 35

What does a premarital agreement need to be valid?

Answer 35

A valid premarital agreement must be

(1) in writing,
(2) voluntary,
(3) signed by the party to be charged, and
(4) based on full and fair disclosure of each party’s financial worth.

Question 36

Will courts enforce every provision of a valid premarital agreement?

Answer 36

Even if the agreement is enforceable as a whole, the court must still consider each individual provision to ensure that it is fair and does not violate public policy.

Question 37

When are waivers of spousal support not enforced?

Answer 37

It is against public policy to enforce a waiver of spousal support if to do so would leave a spouse dependent on the state.

Question 38

For a court to enforce a premarital property agreement

Answer 38

For a court to enforce a premarital property agreement, the agreement must contain fair and reasonable economic provisions for the claiming spouse.

Question 39

Unconscionability for the premarital agreement is determined at

Answer 39

Unconscionability for the premarital agreement is determined at the time the agreement was formed.

Question 40

Awarding custody to a third-party in a dispute between a biological parent and the third-party

Answer 40

In a custody dispute between a parent and a non-parent the decision does not turn on the child’s best interest alone; the court must give great way to the interests of the natural parent. The natural parent has a right to raise their child an absent voluntary relinquishment the natural parent is entitled to custody unless it is shown that the parent is unfit. Only under special circumstances is custody awarded to a third-party. - common example: a parent leaves a young child with a third-party for years and later wants to regain custody

Question 41

Third-party visitation rights

Answer 41

As long as a parent is fit, that parents determination as to the appropriateness of third-party visitation must be given special weight. A judge may not override a fit parents decision regarding third-party visitation merely because they feel a better decision could be made or visitation would be in the best interest of the child.