Family Law

Question 1

LOW

BIGAMOUS MARRIAGE

Answer 1

NO state recognizes the validity of a bigamous marriage (being married to more than one person at the same time). However, there are two marriage saving doctrines that apply to bigamous marriages:

1. Under the Uniform Marriage and Divorce Act (UDMA), an invalid marriage (e.g., a bigamous marriage) may be validated upon the removal of the impediment (e.g., an earlier marriage). The marriage becomes valid as of the date that the impediment is removed.
2. Under the presumption of validity, the last of several marriages will be presumed to be valid. This presumption may only be rebutted with strong evidence that the prior marriage still persists.

Question 2

MED

*COMMON LAW MARRIAGE (3)

Answer 2

Most states have abolished common law marriage. In jurisdictions that recognize common law marriage, the proponent of the marriage must prove that the parties:

1. Cohabitated (i.e., lived together) for the statutory period;
2. Held themselves out as married; AND
3. Intended to be married.

Question 3

HIGH

**PREMARITAL CONTRACTS (3.4)

Answer 3

Most states will enforce a premarital agreement as a valid contract if it is:

1. In writing and signed by both parties;
2. Executed after full disclosure of the property and financial obligations of both parties; AND
3. Voluntary - courts will consider the following factors to determine whether an agreement was voluntary:
   
   1. The presence of independent legal counsel;
   2. The length of time between the agreement and the marriage;
   3. The sophistication of the parties; AND
   4. The presence of other pressing reasons to proceed with the marriage (e.g., a pregnancy).

b) Under the Uniform Premarital Agreement Act (UPAA), the party against whom enforcement is sought must prove that the agreement was:
(1) NOT voluntary; OR
(2) Unconscionable when it was executed AND

that he or she did not receive or waive fair and reasonable disclosure AND did not have, or reasonably could not have had, an adequate knowledge of the other’s assets and obligations.

Question 4

HIGH

**CHILD CUSTODY IN PREMARITAL CONTRACTS

Answer 4

Most courts decide custody according to the best interests of the child at the time of the custody hearing, regardless of any premarital agreements.

Question 5

HIGH

**CHILD SUPPORT IN PREMARITAL CONTRACTS

Answer 5

Parents have an absolute obligation to support their children. A premarital contract CANNOT adversely affect a child’s right to support under any circumstance. Such agreements are NOT binding on the court and are unenforceable.

Question 6

LOW

DIVORCE

Answer 6

Every state has adopted a form of no-fault divorce. Common grounds for a no-fault divorce are:

1. A minimum duration of separation (usually 6 months to 1 year); AND/OR
2. Irreconcilable differences.

NOTE. Some states require both a separation and irreconcilable differences, while others only require one or the other

Question 7

HIGH

**ANNULMENT JURISDICTION

Answer 7

Under the majority view, a state where either party is domiciled has jurisdiction to enter an annulment decree.

Ex parte annulments (an annulment action where only one party is appearing before the court) are allowed in the state where either party is domiciled.

Question 8

HIGH

**DIVORCE JURISDICTION

Answer 8

Under the Full Faith and Credit Clause, a divorce validly granted in one state is entitled to full faith and credit in other states.

Generally, a divorce is valid and must be recognized by other states if the petitioning party:

1. Was domiciled in the state that granted the divorce; AND
2. Provided adequate notice of the proceeding to the other spouse.

Question 9

HIGH

**PROPERTY DIVISION AT DIVORCE

Answer 9

At divorce, courts divide marital property between spouses pursuant to state law. Some states follow the community property approach; however, most states have adopted the equitable distribution approach for division of property at divorce.

The analysis is relatively similar under both approaches:

1. Categorize the property as separate or marital; THEN
2. Determine an equitable distribution of the marital property between the spouses.

Question 10

HIGH

**CATEGORIZATION OF PROPERTY AS SEPARATE OR MARITAL (4)

Answer 10

Generally, marital property includes all property acquired during the marriage that is not separate property. Separate property includes:

1. All property acquired by either spouse before the marriage;
2. All property acquired by a spouse during marriage by gift, bequest, devise, or descent;
3. All property either spouse acquires with the proceeds of the spouse’s separate property; AND
4. All passive appreciation of separate property.

Question 11

HIGH

**EQUITABLE DISTRIBUTION OF MARITAL PROPERTY (5)

Answer 11

Once the court categorizes the property as either separate or marital, the court will then equitably distribute the marital property between both spouses. Courts are afforded significant discretion in determining the equitable distribution of martial property at divorce. General factors include:

1. The income, property, and liabilities of each party;
2. The duration of the marriage;
3. The obligations for support arising out of a prior marriage;
4. The lifestyle each spouse is accustomed to; AND
5. The contributions made by each spouse toward the accumulation of marital property.

Question 12

LOW

SPOUSAL SUPPORT ELIGIBILITY (UDMA)

Answer 12

Under the UDMA, a spouse is eligible for spousal support if the spouse seeking support:

1. Lacks property sufficient for his or her reasonable needs and is unable to support himself through appropriate gainful employment; OR
2. Is the custodian of a child such that it would be inappropriate for him to work.

Question 13

LOW

MODIFICATION OF SPOUSAL SUPPORT

Answer 13

In most states, a spousal support order can only be modified when there is a substantial change in circumstances of either party making the prior order unreasonable.

Under the UDMA, a modification of spousal support is allowed only upon a showing of changed circumstances so substantial and continuing to make the terms unconscionable.

Some courts will NOT permit a modification of spousal support if the change in circumstances was anticipated or voluntary.

Question 14

LOW

CHILD SUPPORT (3)

Answer 14

Parents have an absolute obligation to support their children. Federal law requires every state to provide guidelines to determine the proper amount of child support owed by a non-custodial parent.

These guidelines must:

1. Consider the income of the non-custodial parent;
2. Provide for the child’s healthcare needs; AND
3. Be based on specifically descriptive numeric criteria.

Question 15

MED

*MODIFICATION OF CHILD SUPPORT

Answer 15

In most states, a child support order can only be modified when there is a substantial change in circumstances of either party making the prior order unreasonable.

Under the UDMA, a modification of child support is allowed only upon a showing of changed circumstances so substantial and continuing to make the terms unconscionable.

Some courts will NOT permit a modification of child support if the change in circumstances was anticipated or voluntary.

Question 16

HIGH

**CHILD CUSTODY (8)

Answer 16

Generally, courts determine child custody based on the best interests of the child. Courts consider multiple factors to determine what custody order will serve the child’s best interests. General factors include:

1. The needs of the child for a meaningful relationship with both parents;
2. The ability and willingness of the parents to actively perform their functions as mother and father for the child’s needs;
3. The interaction and interrelationship of the child with parents, siblings, and any other person who may affect the child’s best interests;
4. The child’s adjustment to the child’s home, school, and community;
5. The mental and physical health of all involved individuals;
6. The intention of either parent to relocate the principal residence of the child;
7. The wishes of the child’s parents as to custody; AND
8. The wishes of the child as to the child’s custodian.

Question 17

MED

*MODIFICATION OF CHILD CUSTODY

Answer 17

In order to modify a child custody order, the parent must show that:

1. Circumstances have substantially changed; AND
2. The modification would be in the child’s best interests.

Question 18

LOW

UNMARRIED COHABITANTS EXPRESS CONTRACTS FOR ECONOMIC SHARING

Answer 18

In most states, an express agreement (written or oral) between unmarried cohabitants to share property or otherwise engage in forms of economic sharing is enforceable, so long as the economic sharing is NOT intended as payment for sexual services. However, some states refuse to recognize such contracts between unmarried cohabitants as against public policy.

Question 19

LOW

UNMARRIED COHABITANTS IMPLIED-IN-FACT CONTRACTS FOR ECONOMIC SHARING

Answer 19

Some states allow unmarried cohabitants to seek a remedy for economic sharing based on an implied-in-fact contract theory. An implied-in- fact contract is formed by the conduct of the parties rather than express statements (e.g., commingling funds).

Question 20

LOW

ESTABLISHING PATERNITY BETWEEN MAN AND CHILD

Answer 20

Under the Uniform Parentage Act (UPA), the father-child relationship is established between a man and a child by:

1. An effective acknowledgement of paternity by the man UNLESS the acknowledgement has been rescinded or successfully challenged;
2. A valid adoption of the child by the man; OR
3. An adjudication of the man’s paternity.

Question 21

LOW

PARENTAGE PRESUMPTION UNDER THE UPA

Answer 21

Under the Uniform Parentage Act (UPA), a man is presumed to be the father of the child if:

1. He and the child’s mother are or have been married to each other and the child is born during the marriage, or within 300 days after the marriage is terminated;
2. Before the child’s birth, he and the child’s mother attempted to marry each in apparent compliance with law, although the attempted marriage is or could be declared invalid, and the child is born during the invalid marriage or within 300 days after its termination; OR
3. While the child is under the age of majority, he receives the child into his home and openly holds out the child as his own.

NOTE. A presumption of paternity under the UPA may only be rebutted by clear and convincing evidence. Generally, there is a very high burden on challenging paternity because society favors the family relationship. Some courts even have the authority to exclude valid evidence that would rebut the presumption if
rebutting the presumption would be contrary to the child’s best interests.

Question 22

LOW

EQUITABLE ESTOPPEL OF PARENTAGE DENIAL

Answer 22

Under equitable estoppel, a man who is not the biological father will be estopped from denying paternity if:

1. He has held himself out as the father; AND
2. Paid support.

Question 23

LOW

LEGITIMATION BY PETITION

Answer 23

Legitimation is a legal action brought by a biological father to establish his rights concerning his child born out of wedlock. To establish his rights, the father may file a petition seeking to legitimate his child. Generally, the father must show that he has:

1. Assumed parental responsibilities; AND
2. Established a substantial parent-child relationship.

Question 24

LOW

LEGITIMATION BY MARRIAGE

Answer 24

The marriage of the mother and biological father renders the nonmarital child legitimate so long as the father recognizes the child as his child.

Upon valid legitimation, the father stands in the same position as any other parent regarding parental and custodial rights with respect to the child.

Question 25

LOW

PARENTAL RIGHT TO DIRECT CHILD’S UPBRINGING

Answer 25

Parents have a fundamental right to direct their child’s upbringing, which includes a right to control their child’s religious education. Generally, courts will not interfere with parental decisions regarding their child’s upbringing and education UNLESS the child’s wellbeing is endangered.

Question 26

LOW

ADOPTION

Answer 26

Adoption is a statutory procedure that terminates the rights of the biological parents and establishes the rights of the adoptive parents. In most states, the biological parents lose the right to visit their child after the adoption. However, some states will permit visitation if it is in the child’s best interests.

Question 27

MED

*PARENTAL CONSENT IN ADOPTION

Answer 27

Generally, the consent of BOTH parents is required to place a child up for adoption. However, if the child is born out of wedlock, consent of the father is only required when he has assumed parental responsibility. Moreover, an unwed father who knew of his child’s pending birth is NOT entitled to notice of the adoption if he did not take steps to establish a parent-child relationship with the child.

Question 28

LOW

ADOPTION CONSENT CHALLENGES

Answer 28

A biological parent may challenge the validity of his/her consent to an adoption on the ground that his/her consent:

1. Was procured by fraud or duress; OR
2. Failed to comply with statutory formalities.
   
   1. Some states require two witnesses to consent to an adoption. Most states declare pre-birth adoptions invalid (e.g., a mother cannot give consent for an adoption until 72 hours after birth in some states).

Question 29

LOW

REVOCATION OF CONSENT TO ADOPTION (3)

Answer 29

Generally, there are three different statutory approaches to a biological parent’s revocation of valid consent to an adoption:

1. Consent is revocable until the final adoption decree is entered with the court;
2. Consent is revocable at the court’s discretion up to a specified amount of time so long as the revocation is in the child’s best interests; OR
3. Absent fraud or duress, consent is NOT revocable.