Family Law

Question 1

Ceremonial Marriage requires

Answer 1

License, Capacity, and Solemnization (ceremony)

Question 2

Common-law marriage requires

Answer 2

ACH
Agreement they are married, cohabitation, and holding themselves out as married.

Question 3

Marriages are void for what three things?

Answer 3

Prior existing marriages, Incest, and mental incapacity at the time of marriage

Question 4

Marriages are voidable for?

Answer 4

Age, impotence, intoxication, fraud, duress, or lack of intent

* General capacity defenses and impotence.

Question 5

Are children of an anulled marriage considered marital children?

Answer 5

Yes

Question 6

Putative marriage doctrine allows what?

Answer 6

A party of a ceremonial marriage who believed in good faith that the marriage is valid to use a state’s divorce provisions if the marriage is later found to be void

* “spouse” in good faith enters into a marriage, but the other party is already married. In such cases, they may be entitled to divorce and related benefits.

Question 7

What are the seven grounds for at fault divorce?

Answer 7

Adultery, cruelty, desertion, habitual drunkenness, bigamy, imprisonment, institutionalization for insanity

* most (all?) states allow for divorce without fault, but fault may impact rewards eligibility and amount (some states).

Question 8

What defenses are available to at fault divorce?

Answer 8

Many: recrimination, unclean hands, connivance, condonation, collusion, provocation, insanity, consent, justification, religion

* essentially, the other party was guilty of something

Question 9

Non-marital property includes?

Answer 9

Property acquired before the marriage, property excluded by the parties’ valid agreement, property acquired by gift or inheritance, and awards or settlements for causes of action accruing before the marriage (some states reward based on type of injury. Ex: loss of consortium v. personal injury/suffering.

Question 10

What types of alimony (spousal maintenance) are there?

Answer 10

Lump sum, permanent (long marriage), limited duration (short marriage), rehabilitative (improve earning capacity), reimbursement (rarely granted).

* the appropriate reward generally depends on the length of the marriage, though courts determine what is in the best interests of both parties (fact intensive).

Question 11

Can visitation rights be denied for nonpayment of child support?

Answer 11

No

Parents have a protected right to the custody of their children.

Question 12

Can nonmarital children inherit from their father’s estate?

Answer 12

Yes, if paternity was proven prior to the father’s death, the father adopted the child, the father holds himself out as the father

Question 13

A husband can be estopped from denying his obligation to pay child support for his wife’s non-biological child when?

Answer 13

There is a representation that he would provide, the wife relied on this representation, and the wife would suffer economic detriment if he did not.

* detrimental reliance.

Question 14

Courts have personal jurisdiction over out-of-state parents for child support by?

Answer 14

The long-arm provision of the Uniform Interstate Family Support Act (UIFSA).

Question 15

What does a child receive under the income-shares model?

Answer 15

The same proportion of parental income as if the parties continued to live together.

* the financial needs of the child are determined, and the parents pay their proportional income.

Question 16

When can child support be modified?

Answer 16

There is a substantial change in circumstances.

* loss of employment (involuntary not voluntary), change in needs of the child, etc.

Question 17

When can child support be terminated?

Answer 17

Emancipation, child marries?, or death. The child reaches age of majority.

Question 18

What courts have jurisdiction to modify child support?

Answer 18

The court that rendered the order if that court has continuing jurisdiction, otherwise a state where there is a significant connection.
1. Initial court, or where there is a significant connection/relationship to the child.

Question 19

Under the Uniform Child Custody Jurisdiction and Enforcement Act, what courts have jurisdiction to enter, modify custody or visitation orders?

Answer 19

(1) Home state first → significant connection→ default jurisdiction.

First, address whether the court is the home state, if none exists, then analyze whether the court has a “significant connection” and can assert authority (jx).

Home state: (1) child resided 6 months or since birth or (2) was child’s h.s. in past 6 months, and a parent lives there.

* note also: courts have exclusive continuing jurisdiction under UCCJEA until: (1) both parties no longer reside in the state or (2) the child no longer has a significant connection to the state, and any s.e. connected to child’s condition is no longer available in state.

Question 20

What is the standard for determining child custody?

Answer 20

In making custody determinations, courts determine what would be in the Best interests of the child (BIOC).

* courts look at a totality of factors, including the child’s preference to make this determination. Remember that parental custody is presumed to be in BIOC unless compelling evidence rebuts this (unfit/unsafe).
* be wary of grandparents asserting BIOC→ they must overcome the presumption.

Question 21

When does an unwed biological father have a right to contact with his child?

Answer 21

This right is presumed, provided that he demonstrates a commitment to the responsibilities of parenthood.

* Deadbeat dads who have exhibited no interests are sometimes estopped from asserting this interest.

Question 22

When can a parents religious beliefs be overriden by a court for medical care?

Answer 22

When necessary to prevent serious harm to the child.
* what about non-religious beliefs?

Question 23

What can a separation agreement define?

Answer 23

Property divsion, spousal support, child support, custody, and visitation.

* can only void SA if unconscionable or fraudulent.

Question 24

Premarital agreements are enforceable if?

Answer 24

There is full disclosure of finances, the agreement is fair and reasonable, and the agreement is voluntary. (also in writing and signed by party to be charged)

* the developing trend is to enforce the P.A. even if not “fair” provided→full and fair disclosure.

*additional factors to be considered: (time pressure, presence of attorney, duress, undue influence, etc).

* these are contracts, so can always challenge lack of capacity, etc.

Question 25

Are provisions of a premarital agreement preventing modification of child support enforceable?

Answer 25

No. Such premarital agreements are disallowed, as this contradicts each parent’s responsibility to care for the child. Note the standard is different for separation agreements (not sure why?)

Question 26

Are provisions of a premarital agreements preventing modification of property rights and spousal support enforceable?

Answer 26

Yes. These concern the spouse, not the child. More relaxed standards. Adults can form contracts, etc.

Question 27

Under the Adoption and Safe Families Act, when can a state move to terminate parental rights? (ASFA)

Answer 27

When the child has been outside of the home and not with a relative for 15 of the past 22 months and reunification attempts have been provided.

* this seems like an incomplete thought

Question 28

What courts have jurisdiction for divorce and alimony?

Answer 28

Ones with personal and subject matter jx

Question 29

Explain the conflict of laws rules relating to premarital agreements

Answer 29

When determining the validity of a premarital agreement, states apply the law of either the state where the agreement was executed (1) or had the most significant relationship with the parties(2).