Family Law

Question 1

When is a premarital agreement enforceable?

Answer 1

A premarital agreement is enforceable if there has been a full disclosure, the agreement is fair/reasonable, and it is voluntary. It must be in writing and signed by the party to be charged.

Question 2

Under the UPAA, what must a party show in order to avoid enforcement of a premarital agreement?

Answer 2

The party against whom enforcement is sought must prove (1) involuntariness or (2) both unconscionability when executed and lack of disclosure/adequate knowledge of the other’s assets and obligations. The modern trend is to enforce unfair agreements so long as there was full disclosure.

(Note: Full disclosure = all income, assets, and liabilities of both parties)

Question 3

For premarital agreements: what does voluntary mean, and what factors will the court consider?

Answer 3

Voluntariness means there was no fraud, duress, or misrepresentation. Courts consider factors such as time-pressure, previous business experience, and the opportunity to be represented by independent counsel.

Question 4

What is equitable distribution and how does it work?

Answer 4

The goal of equitable distribution is a fair distribution of all marital property under all circumstances between the parties. In most states, all property acquired during the marriage is marital property subject to equitable distribution. Appreciation in nonmarital property can also be considered marital when attributable to spousal labor.

Question 5

How do you classify property acquired after separation but before divorce?

Answer 5

In most states, property acquired after separation but before divorce is still considered marital property.

Question 6

What factors does the court consider in determining equitable distribution?

(Hint: Broad)

Answer 6

Some factors the court may consider for equitable distribution include: length of marriage; age, health, and earning potential; needs of both spouses; value of separate property; standard of living; overall economic circumstances.

Question 7

Can a separation agreement be invalidated? If so, under what circumstances?

Answer 7

Yes. Separation agreements may be invalidated (in whole or in part) if the court makes a finding of fraud or unconscionability. This is the case when, at the time it was made, it was so unfair to one party that no reasonable person would have agreed to it.

Question 8

Can a property division award be modified? If so, under what circumstances?

Answer 8

No. The division of marital assets is determined based upon the circumstances at the time of divorce, and it cannot be modified due to any change in circumstances.

Question 9

Can a spousal support award be modified? If so, under what circumstances.

Answer 9

Yes. Spousal support awards can be modified based upon a significant change in a party’s circumstances (such as death, remarriage, or cohabitation) that was not contemplated at the time the award was made.

Question 10

Can a child support award be modified? If so, under what circumstances?

Answer 10

Yes. A child support award can modified upon a showing of a substantial change in circumstances in either the child’s needs or the parent’s financial situation. This includes factors such as: change in job/income (but not if voluntary), remarriage, increased income, or decreased health.

Question 11

Can non-paternity be established after entry of the divorce decree as grounds to modify the child support award?

Answer 11

Traditionally, courts have been loath to modify an established parent-child relationship and will deny admission of evidence of non-paternity or deny motion to disestablish paternity.

Some states, however, will allow erroneously identified fathers to offer proof of non-paternity. In that case, it may be grounds to modify the child support award if it constitutes a substantial change in circumstances.

(Note: Likely NOT a substantial change if father knew of non-paternity when support was originally awarded)

Question 12

What governs jurisdiction over child support modifications, and how does it work?

Answer 12

Modification of child support orders is governed by UIFSA. Under UIFSA, a state court does not have jurisdiction to modify if the original state has continuing, exclusive jurisdiction. This rule applies unless the parties, including the child, no longer reside in that state OR they expressly agree to another state’s jurisdiction.

Question 13

Do state courts have subject matter jurisdiction over domestic relations issues?

Answer 13

Yes. State courts have SMJ over domestic relations issues (e.g., modification of a property settlement). Unlike child support, UIFSA does not apply to divorce related property disputes so those jurisdictional rules do not limit the state’s jurisdiction. The court may exercise personal jurisdiction if that person if voluntarily present in the state and served process while there.

Question 14

Can a child support modification be made retroactively?

Answer 14

No. Modifications of child support may be made while the cause of action is pending, but states cannot retroactively modify child support before the date of service of process.

Question 15

For child support orders: Who has the burden of showing a substantial change? Is a decrease in income a substantial change?

Answer 15

The parent requesting modification has the burden of showing a substantial change in circumstances such as a significant decrease in income. However, when a parent voluntarily changes employment, reduction in income alone is not sufficient proof of substantial change. The courts will consider earning capacity and other factors (good faith, promotion opportunities, etc).

Question 16

When does a court have jurisdiction to grant a divorce?

Answer 16

A court hearing a family-related dispute must generally have both subject matter jurisdiction and personal jurisdiction. Most states have residency requirements to establish subject matter jurisdiction (e.g. 6 months). The court will have personal jurisdiction over anyone personally filing for divorce in that state.

Question 17

What governs jurisdiction of child custody disputes?

Answer 17

The UCCJEA has been adopted by most states and aims to prevent jurisdictional disputes over child custody matters. In an initial custody determination, the court has SMJ to enter custody orders if the state is the child’s home state (child has lived with parent/guardian there for at least 6 months prior). A court can decline jurisdiction if the party has wrongfully removed a child from another state.

Question 18

What is the doctrine of divisible divorce?

Answer 18

Under the doctrine of divisible divorce, a court may have sufficient jurisdiction to grant a divorce, but lack such jurisdiction over other divorce-related matters (e.g., property division) because of a lack of personal jurisdiction over the other spouse. The other spouse must have minimum contacts for the court to exercise PJ.

Question 19

What are the fault grounds for divorce?

Answer 19

Fault grounds for divorce include adultery, cruelty, desertion, habitual drunkenness, bigamy, imprisonment, indignity, and mental disorder.

Cruelty requires P to show a harmful course of conduct that makes continued cohabitation unsafe or improper. The conduct must be serious and typically cannot be based on a single isolated incident. Only some jurisdictions permit cruelty-based divorce for emotional abuse.

Question 20

What is physical custody, and what standard governs custody determinations? What are some factors the court will consider?

Answer 20

Physical custody is the right to have the child reside with the parent and provide for routine daily care and control of the child. The standard for determining child custody is the BEST INTERESTS AND WELFARE OF THE CHILD.

Courts will consider who the primary caretaker was during marriage. Also, the presence of domestic violence will be considered, and some jurisdictions have a rebuttable presumption in favor of the nonabusive parent.

Question 21

Under the UCCJEA, what are the two bases of jurisdiction to award child custody?

Answer 21

1. A court has home state jurisdiction if the state is (i) the child’s home state and has been the home state for a period of six months; or (ii) was the home state in the past six months (child is absent but a parent still lives there).
2. If NO state is the home state, significant connection jurisdiction applies – (i) the child and at least one parent have a significant connection with the state and (ii) there is substantial evidence in that state concerning the child’s care, protection, training, and relationships.

Note: If for some reason neither of these apply, a court with appropriate connections will have default jurisdiction (as a fallback).

Question 22

Just so it is burned into your memory, what is the standard for determining child custody again? Can the child express a preference?

Answer 22

BEST INTERESTS OF THE CHILD

Most courts will consider the wishes of the child if the child is of sufficient maturity to express a preference (age is not the sole factor here). If the child is consulted, the court will evaluate the reasons behind the preference.

Question 23

What is the primary fundamental right to remember in family law?

Answer 23

Fit parents have a fundamental right to the care, custody, and control of their children, and state courts must give special weight to a fit parent’s decisions on these matters.

Note: Any statute that abrogates this right (e.g., by giving grandparents custody when there is still a fit parent) is likely unconstitutional.

Question 24

Will State B recognize a common law marriage valid entered into in State A?

Answer 24

In general, marriages are valid where they took place (conflict of laws rule) and are recognized in all other states unless it violates a strong public policy of the other state (e.g., bigamy, incest).

Question 25

What are the requirements to form a valid common law marriage?

Answer 25

Common law marriages are valid when the parties: (i) agree they are married; (ii) cohabit as married; and (iii) hold themselves out to the public as married.

Question 26

What is the putative father doctrine? What is a putative father registry?

Answer 26

The right of an unmarried father to object to an adoption may only be denied if the father does not demonstrate a commitment to the responsibilities of parenthood.

In other words: An unmarried father has a right to object to an adoption if he has demonstrated a commitment to the responsibilities of parenthood.

Some states have a putative father registry to provide notice of adoption proceedings, and failure to register will constitute a waiver of notice to the adoption and implies consent to the adoption. However, this typically only applies if the father and child never developed a relationship.

Question 27

Will a court grant a petition for spousal support while the couple is still married?

Answer 27

No. Spousal support is the obligation of one party to provide for the other with support in the form of income. It it awarded in a divorce if one spouse cannot provide for their own needs with employment. This obligation is limited by the doctrine of nonintervention, which disallows judicial intervention in an intact family. Courts will use this docrine to deny a support petition when the couple is living together.

Question 28

Is the fundamental right to care, custody, and control subject to any limitations?

Answer 28

Yes. A parent’s power is limited if their decisions will jeopardize the health and safety of the child (whether or not intentional) or have the potential for significant social burdens. The States are permitted through their police powers to pass health and safety regulations (e.g., mandatory school vaccinations), and such statutes are not subject to a constitutional challenge based on a violation of parental rights.

Question 29

Who is presumed to have custody in a case against a third party? How is this presumption overcome?

Answer 29

Legal parents are presumptively entitled to custody in cases against third parties unless it can be established that the legal parent is unfit or that awarding custody to the legal parent would be detrimental to the child.

Some courts have employed the terms “parent by estoppel” and “de facto parent” to get around the presumption and grant custody to a third party (e.g., an aunt).

Question 30

Is inherited property separate property or marital property for purposes of property division?

Answer 30

Inherited property is the separate property of the spouse who inherited it.

Question 31

Is a parent’s sexual conduct (e.g., adultery) a factor when determining child custody?

Answer 31

A parent’s sexual conduct is a factor in determining custody only if it has a negative impact on the child. Otherwise, it will not be sufficient grounds to deny that parent custody.

Question 32

What factors will the court consider for “best interests of the child?”

Answer 32

In determining the best interests and welfare of the child, the court will consider a number of factors, including ability to financially support the child, relationships with family members, general familial stability, who is the primary caretaker, and the child’s preference (if sufficiently mature).

Question 33

When will a court enforce a separation agreement?

Answer 33

Generally, the court will enforce a separation agreement unless it is unconscionable or based on fraud. The parties must have entered into the agreement voluntarily. Courts consider factors such as time-pressure, the parties’ previous business experience, and the opportunity to be represented by independent counsel.

Question 34

Does fault-based divorce (e.g., adultery) affect property distribution?

Answer 34

No. In most states, the fact that a divorce is granted on a fault ground (such as adultery) is not a factor in the distribution of property.

Question 35

Does marital misconduct affect spousal support awards?

Answer 35

Yes. Marital misconduct may be taken into account in many states in determining spousal support. The weight it is given is dependent on the jurisdiction. Some courts consider it a factor and others give it a preclusive effect. Ultimately, it is unlikely to have any impact unless the court considers it a significant factor.

Question 36

Is a professional license or degree a distributable property interest?

Answer 36

No. The majority of jurisdictions do not treat a professional license or degree as a distributable property interest. As a result, the other spouse has no property interest in the license or degree, and cannot obtain a cash award for such an interest.

Question 37

What are the different types of spousal support?

Answer 37

Spousal support awards may be lump sum, permanent, limited duration, rehabilitative, or reimbursement.

Question 38

What is reimbursement spousal support?

Answer 38

Reimbursement spousal support reimburses the spouse for their actual contribition toward the other spouse’s educational and related living expenses.

Question 39

What is permanent spousal support?

Answer 39

Permanent spousal support is typically awarded only when the marriage was one of long duration. It typically refers to a marriage of 15 years or more.