Family Law

Question 1

Common Law Marriage

Answer 1

to establish a common law marriage the proponent must show capacity to enter into a martial contract, present agreement to be married, cohabitation, and hold out a marital relationship.

Question 2

Recognition of Marriage

Answer 2

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 3

Bigamy:

Answer 3

A bigamous marriage is void from the beginning.

But there are two marriage-saving doctrines for the new spouse: (1) there is a 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 4

End of Marriage

Answer 4

Virtually all states are no-fault divorce states. Some states recognize fault-based
grounds too. Annulment is also recognized for fraud and other reasons.

Question 5

Custody Determinations

Answer 5

custody is determined by looking at the best interest of the child.

This typically requires looking at factors such as

1. the wishes of the child’s parents,

2, the child’s primary caretaker,

3. the mental and physical health of all individuals,
4. the interrelationship of the child and parents,
5. stability, and
6. whether there is any domestic violence.

Question 6

Custody Modifications

Answer 6

Custody can be modified only if there is a substantial change in circumstances.
Generally, this change must be unforeseen at the time of the initial judgment.

Question 7

Child support guidelines:

Answer 7

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.

Question 8

Factors for Child Support

Answer 8

1. like income and earnings of the parents, 2. the number of children and their ages, and
2. any special needs of the children.

Question 9

Modification of Child Support

Answer 9

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—e.g., examine if the party acted in good faith, among other factors.)
• This is a heavy burden.
• Child support cannot be modified retroactively unless there was fraud or other compelling circumstances.

Question 10

Relocation

Answer 10

Generally, a move sought in good faith that will serve the child’s best interest 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 child(ren) and the custodial parent.

There are a few different views (which you should mention if applicable): some states place the burden on the relocating
parent and some put it on the objecting parent.

Question 11

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

Answer 11

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 12

Third Party Rights (Custody)

Answer 12

Custody in the parent is presumed to be in the best interest of the child. 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.

Question 13

Division of property by court:

Answer 13

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

Question 14

Marital Property:

Answer 14

property acquired during the marriage.

Question 15

Separate Property (mnemonic=BIG)

Answer 15

1. property acquired before the marriage,
2. an inheritance, or
3. a gift to one party.

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

Question 16

Division of Property based on premarital agreements

Answer 16

A court will enforce a premarital agreement so long as

1. it is voluntarily made,

2, substantively fair, and

3, 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 best
interest of the child.

Question 17

Duration and Extent of Alimony

Answer 17

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

Question 18

Factors for Alimony

Answer 18

1. the parties’ financial resources and needs,

2, marital contributions, and

3, 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 19

Purpose of Alimony

Answer 19

to maintain a spouse’s standard of living and limit and unfair economic effects of divorce.

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.

-This must be an
unanticipated change.

-Alimony usually terminates if a spouse dies or gets remarried. In some states,
cohabitation will reduce or terminate alimony.

Question 21

Which court may dissolve a marriage:

Answer 21

The court does not need jurisdiction over both spouses to terminate a marriage. If the plaintiff spouse is 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 22

Which court may issue a property division order:

Answer 22

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

Question 23

Child Support Jurisdiciton

Answer 23

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

Question 24

Child Custody and Jurisdiction - Home State Test

Answer 24

The “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 six 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
six months after a child leaves the state, so long as a parent, or person acting as a parent, still lives in the home state.

Question 25

Child Custody and Jurisdiction - The Significant Connections Test

Answer 25

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.

Question 26

Child Custody and Jurisdiction - Emergency jurisdiction or default jurisdiction

Answer 26

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