family law

Question 1

who may marry

Answer 1

1. both parties must be of minimum change (sometimes can avoid with judicial or parental approval)
2. not too closely related
3. capacity to consent
4. can’t be married to another living human

Question 2

procedural requirements for marriage

Answer 2

1. license

2. solemnization

Question 3

requirements for common law marriage

Answer 3

1. an exchange of consents between two people w/ capacity
2. cohabitation (no specified time required)
3. holding out publicly as spouses

Question 4

requirements for enforceable premarital contract

Answer 4

1. entered voluntarily
2. contract must be in writing and signed by party to be charged
3. both parties must make a full and fair disclosure of their financial worth
4. the economic provisions must be fair and reasonable

Question 5

grounds for annulment of marriage

Answer 5

1. bigamy or polygamy = void
2. consanguinity = void
3. age = void or voidable depending on state law
4. incurable physical impotence = voidable
5. mental incompetence = voidable
6. lack of assent = voidable
7. duress = voidable
8. fraud involving essentials of marriage = voidable

Question 6

requirements for no fault divorce

Answer 6

1. marriage is irretrievably broken

2. parties have been living apart for specified time

Question 7

typical fault grounds for divorce

Answer 7

1. adultery
2. willful desertion for a specified time
3. extreme physical or mental cruelty
4. drug addiction or habitual drunkenness
5. mental illness

Question 8

traditional defenses to fault grounds

Answer 8

1. collusion = an agreement between the spouses to simulate grounds for divorce or to forgo raising defense
2. connivance = willing consent by one spouse to the other’s misconduct
3. condonation = forgiveness of marital offenses with full knowledge of their commission
4. recrimination = party seeking the divorce is also guilty of misconduct for which the divorce may be granted

Question 9

where is an action for divorce proper

Answer 9

1. jurisdiction is proper in a state if a party is a bona fide resident of the state
2. venue is in the county in which the spouses usually reside
3. as long as one of the parties was domiciled in the state that granted the divorce, the decree is recognized as valid in all other states
4. provision of the decree relating to the property rights, spousal support, child support, etc are give full faith and credit only if court had personal jurisdiction over the defendant

Question 10

approaches to dividing property upon divorce

Answer 10

1. community property = all property acquired during the marriage is deemed owned 1/2 by each spouse, all property brought into the marriage or acquired by gift or bequest is separate property
2. equitable division of all property owned by either spouse, whether acquired before of after marriage
3. equitable division of marital property = most popular

Question 11

marital property

Answer 11

marital property is all property acquired by either spouse during the marriage
-separate property may become marital property if is is inextricably mingled to the extent that it can no longer be traced or is treated in a way that evidences an intention for the property to be marital property

Question 12

marital property exceptions

Answer 12

1. property acquired through gift, bequest, devise or descent
2. property acquired in exchange for property that a spouse owned before the marriage or acquired through gif, bequest, devise or descent
3. the income from or appreciation of property that a spouse owned before the marriage or acquired through gift, bequest, devise or descent, unless either spouse contributed to the property’s increase in value

Question 13

factors a court might consider in dividing property

Answer 13

1. age, education, background, and earning capacities of both parties
2. duration of the marriage, and whether there were any prior marriages
3. standard of living during the marriage
4. present incomes of both parties, and their vocational skills and employability
5. source of the money used to purchase the property
6. health of the parties
7. assets, dets, and liabilities of the parties
8. needs of the parties
9. child custody provisions
10. whether the distribution is in addition to, or in lieu of, spousal support
11. each party’s opportunity to acquire future income and assets
12. each party’s contribution to the acquisition of or enhancement of the value of the existing marital assets
13. each party’s contribution as a homemaker to the family unit
14. whether either party has dissipated marital property

Question 14

factors a court might consider in awarding spousal support

Answer 14

1. duration of marriage and standard of living established during the marriage
2. age and physical emotional condition of the parties
3. the financial resources of the parties
4. contribution of each party to the marriage
5. time needed for the party seeking support to obtain the training necessary to find appropriate employment
6. ability of the payor spouse to meet his needs while paying spousal support
7. marital fault (only in some states)

Question 15

types of spousal support

Answer 15

1. permanent periodic = paid regularly to support a spouse who has neither the resources nor the ability to be self-sustaining
2. rehabilitative = periodic payments for a limited time to enable a spouse to gain skills to become self-supporting
3. lump sum = nonmodifiable, fixed amount payable either all at once or in series of payments
4. reimbursement = awarded to a spouse who supported the other while they obtained a professional license or degree

Question 16

what court has jurisdiction to hear a custody case

Answer 16

1. divorce courts are authorized to make custody awards
2. state statutes determine which other state courts have jurisdiction to hear child custody cases
3. as between two states the Uniform Child Custody Jurisdiction and Enforcement Act controls

Question 17

Uniform Child Custody Jurisdiction and Enforcement Act

Answer 17

• the most important jurisdictional testis what state is the child’s “home state”
• a child’s home state is the state in which the child lived with a parent for at least 6 consecutive months immediately before the commencement of the proceeding
• temorary absences are disregarded for 6mo test
• a court has jurisdiction to initially enter or to modify a child custody or visitation order if the state
  1. was child’s home state OR
  2. child’s home state with past 6mo and the child absent from the home state but the parent continues to live in that state

Question 18

how will custody be determined

Answer 18

1. standard to be applied in awarding custody is the best interest of the child
2. factors considered include;
   - wishes of parents
   - child preference (especially if over age 12)
   - child’s adjustment to home/school/community
   - mental and physical health of all the parties
3. custody orders are always modifiable if there is a substantial change in circumstance

Question 19

how will visitation be determined

Answer 19

1. it is a strong public policy of the law to promote the relationship between the child and both parents by ensuring both parents have reasonable visitation rights- absolute denial rare
2. a custodial parent may not withhold visitation from a noncustodial because failure to pay support
3. courts presume that a fit parent’s decision regarding 3rd party visitation is in the child’s best interest and this decision must be given deference
4. removal of the child from the jurisdiction may be considered a violation of the visitation provisions of the custody order

Question 20

how is parentage established

Answer 20

1. most statutes provide that any child is the lawful child of his mother
2. statues often provide that a child is the lawful child of the father if;
   - parents were married at the time of child’s birth
   - parents were married after the child’s birth
   - father holds child out as biological
   - father has acknowledged paternity (may need writing/oath)
   - judicial decree establishing paternity
3. a paternity suit may be brought by the child’s mother,. child, or by state agencies if the child is receiving support from the state

Question 21

steps of adoption

Answer 21

1. first step is termination of biological parent’s rights
   - consent of the child’s biological parents generally required
   - consent if not required if parental rights are terminated in another proceeding
   - consent may be waived if the court determines that it is being unreasonably withheld against best interest of the child
   - consent of the father of a nonmarital child may not be required if he ha not established a relationship with the child
2. creation of a new legal parent-child relationship