Family Law

Question 1

MARRIAGE REQUIREMENTS:

Answer 1

A valid marriage requires that:

1. The parties obtain a marriage license;
2. The marriage is solemnized by a ceremony that is conducted by an authorized cleric or judge; AND
3. Both parties consent.

Question 2

Common Law Marriage is valid if the parties:

Answer 2

(1) have the mental capacity to enter into a marriage,
(2) agree that they are married,
(3) cohabit, and
(4) hold themselves out in public as married

*If a couple is common law married in a state that recognizes it, other states will recognize it too

Question 3

A premarital agreement is enforceable if:

Answer 3

(1) it is fair and reasonable,
(2) it is voluntary, and
(3) it is in writing signed by the party to be charged

Clauses relating to child support and custody are unenforceable.

Question 4

To determine whether a premarital agreement is voluntary, courts consider factors such as:

Answer 4

(1) presence of independent legal counsel; (2) length of time between agreement and wedding; (3) ability to understand the agreement; and (4) other reasons for proceeding with the marriage (i.e. pregnancy).

*A party’s insistence on the agreement as a condition to marriage is not duress

Question 5

Premarital Agreement:
Child Custody & Support

Answer 5

NOT binding on a court, and any provision that adversely affects a child’s right to support is unenforceable.

− If an agreement is NOT in the child’s best interests, a court may order a parent to pay an amount reasonable or necessary for the child’s support.

Question 6

ANNULMENT

Question 7

MARITAL ACTION JURISDICTION: Under the majority view, a state where either party is domiciled has jurisdiction to enter an annulment decree. Under the Full Faith and Credit Clause, a divorce validly granted in one state is entitled to full faith and credit in other states if the petitioning party:

Answer 7

Was domiciled in the state the granted the divorce;

AND

Provided adequate notice of the proceeding to the other spouse.

Question 8

DIVORCE:

Answer 8

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

1. A minimum duration of separation; AND/OR
2. Irreconcilable differences.

Question 9

Jurisdiction: Ex Parte Divorce

Answer 9

may be maintained without personal jurisdiction over the absentee spouse ONLY IF plaintiff-spouse is domiciliary of the rendering state.

− Many States have durational residency requirements.

• Divisible Divorce→one spouse can terminate the marriage (ex parte divorce) in one proceeding, and reserve other issues for a later proceeding.

Question 10

PROPERTY DIVISION AT DIVORCE

APPROACHES TO PROPERTY DIVISION AT DIVORCE: 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:

Answer 10

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

Question 11

Division of Property
Equitable Division Approach (most states)

Answer 11

marital assets are divided among the spouses by equitable distribution; separate property is NOT divided.

Question 12

Separate Property includes:

Answer 12

1) Property acquired before marriage;
2) Gifts and bequests (even if during marriage);
3) Property that spouses agreed will be separate
property; and
4) Passive appreciation of assets - an increase in value due to a passage of time.

Question 13

Marital Property:

Answer 13

ALL OTHER property acquired during the marriage, including:

(1) active appreciation – caused by the effort of a spouse; and
(2) future expectancies, even if payment will not be received until after the marriage ends.

Question 14

Accrual of Marital Property:

Answer 14

− Some States→ends upon permanent
separation.
− Other States→ends upon a final divorce
decree.

Question 15

Which court may issue a property division order?

Answer 15

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

Question 16

DISTRIBUTION: Once the court categorizes the property as either separate or marital, the court will then equitably distribute the marital property between both spouses.

General factors include:

Answer 16

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 17

Rights of Unmarried Cohabitants:
Division of Property

Answer 17

The party who has title retains sole ownership of the property UNLESS:

a) Agreement Between Cohabitants (may be express or implied); OR
b) Equitable Remedy Theory

Question 18

Division of Property
Agreements Between Cohabitants:

Answer 18

An agreement for division of property between unmarried cohabitants may be express or implied.

− Express (oral or written) → is enforceable except if based on sexual relations.

− Implied → court may find an implied-in-fact agreement if the parties comingled funds during the relationship.

Question 19

Spousal support is:

Answer 19

the obligation of one party to provide the other with support in the form of income

Termination – Spousal support obligations terminate upon the death of obligor spouse.

Question 20

Factors in Determining the Amount of spousal support

Answer 20

(1) financial resources; (2) time necessary for obtaining a job; (3) standard of living during marriage; (4) duration of marriage; (5) age and physical/emotional condition; and (6) the ability of the spouse paying support.

− A minority of states will also consider marital misconduct or fault.

Question 21

Modification of Spousal Support and Child Support

Answer 21

May be modified if court finds a substantial change in circumstances making prior award unreasonable

• Some courts will NOT permit a modification if the change was anticipated or voluntary. Other courts will permit a modification if the spouse acted in good faith.
• Courts CANNOT retroactively modify support orders.

Question 22

Uniform Interstate Family Support Act (UIFSA) –

Answer 22

Courts MUST give full faith and credit to support orders from other states.

Question 23

Child Support:
Parent’s Legal Obligation

Answer 23

A biological parent is legally obligated to pay child support (whether or not the child was intended or wanted).

Question 24

Paternity – May be established by:

Answer 24

a) Birth certificate;
b) Legal presumption (A child born during marriage is presumed to be the marital child of the husband (may be rebutted)).
c) When unmarried parents voluntarily sign an acknowledgement of paternity;
d) An unmarried biological father’s successful challenge of a presumption;
e) Paternity suit; AND/OR
f) Paternity by estoppel – held himself out as the
father and paid support (assuming parental
responsibilities).

*If paternity is established, that person is responsible for child support obligations.

Question 25

Child Support Guidelines
Federal law requires States to set guidelines that:

Answer 25

1) take into account all earnings and income of the non-custodial parent; AND
2) are based on specific descriptive and numeric criteria.

Question 26

Child Support:
College / Educational Expenses

Answer 26

Some states require support for college/continuing education.
− But, a child may lose the right to payments if the child does not follow the obligor-parent’s reasonable instructions.

Question 27

Jurisdiction to Modify Child Support Order

Answer 27

According to the UIFSA, once an order is registered, it may be enforced by any state

*Issuing court 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 or another forum

Question 28

What factors will a court consider in determining the best interests and welfare of the child?

Answer 28

Ability to financially support the child, relationships with family members, general familial stability, child’s preference (if sufficiently mature), and who is the primary caretaker

Question 29

Child Support Modifications

Answer 29

In order to obtain a modification for a future support obligation, petitioner must show a substantial change in circumstances making the prior order unreasonable

*most courts will not modify due to voluntary reduction in income

*Will never modify retroactively

Question 30

UIFSA
An Issuing State has continuing, exclusive jurisdiction over an order if:

Answer 30

a) the State is still the residence of one party; OR
b) all parties consent in a record or in open court.

Question 31

Under UIFSA, a court CANNOT modify a child support order of another state unless:

Answer 31

1) The court has jurisdiction to issue an order; AND
2) Either:
a) all parties do not reside in the issuing state (obligor, obligee, child), or
b) each party has consented in writing to jurisdiction in another state.

Question 32

Child support:
Termination Upon Death

Answer 32

− Most States→Child support obligations terminate upon death, but the deceased’s estate remains liable for past due payments.
− Some States→Obligation DOES NOT terminate. Allows access to the deceased’s estate to fulfill future payments.

Question 33

Child Custody
UCCJEA

Answer 33

Uniform Child Custody Jurisdiction and Enforcement Act

Question 34

Jurisdiction Child Custody (and visitation) & Adoption:
A court has subject matter jurisdiction under the UCCJEA when:

Answer 34

(i) it is the child’s home state and has been the home state for a period of six months; or
(ii) was the child’s home state in the past six months and the child is absent from the state, but one of the parents (or guardians) continues to live in the state.

Question 35

Significant Connection Jurisdiction (UCCJEA):

Answer 35

When there is no home-state jurisdiction, the UCCJEA permits a court to enter or modify an order if

(i) the child and at least one parent have a significant connection with the state, and
(ii) there is substantial evidence in the state concerning the child’s care, protection, training and personal relationships.

Question 36

What is the standard for determining child custody?

Answer 36

The best interest and welfare of the child

Question 37

Child Custody & Visitation

Best interests of the child factors include:

Answer 37

the wishes of the parents and mature children;

age, financials, health of each parent;

new partners in each parent’s life;

effect custody will have on a child’s relationship with extended family;

history of domestic violence;

stability of home and school environment;

and any other relevant factor.

Question 38

Child Custody and Visitation:

Factor’s Courts can’t consider:

Answer 38

A court CANNOT award/deprive custody based on a parent’s lifestyle, values, or religious beliefs.
− BUT, it may take into account if such behavior or conduct endangers the child.
− A parent’s sexual behavior (by itself) CANNOT be used to deny custody.

Question 39

Legal parents are:

Answer 39

presumptively entitled to custody of their children 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

Question 40

Custody Modifications

Answer 40

Custody can be modified only if there is a substantial change in circumstances

Question 41

Modification of Custody Order:

The court that had jurisdiction over the original order usually retains continuous and exclusive jurisdiction to make modifications.

UCCJEA Exceptions:

Answer 41

A court may modify an order from another State if:

1) It had jurisdiction to issue an initial order; AND
2) Either:
a) the Issuing State determines it no longer has jurisdiction;
b) the Issuing State determines that the Current State is more appropriate; or
c) the court determines that all parties do not reside in the Issuing State.

Question 42

Rights of Parents and Others

Answer 42

• Decisions by fit parent must be given some deference
• Generally, biological fathers have rights (use em or lose em)
• Involved parent who demonstrates full commitment to responsibilities of parenthood will likely be able to oppose an adoption petition successfully
• Custody in the parent is presumed to be in the best interest of the child
• Third party who wants custody must prove parent is unfit or that granting custody to parent would be highly detrimental to child

Question 43

Adoption:
Effect on Biological Parent’s Rights:

Answer 43

Severs the biological parent’s legal rights and responsibilities for the child.

− Some States→Inheritance rights of the child are NOT terminated if adopted by a blood relative.

Question 44

Consent to Adoption

Answer 44

BOTH parents’ consent is generally required.

− Non-Marital Child → Father’s consent is only required when he assumed parental responsibilities (i.e. interaction with mother during pregnancy, paid for expenses, willingness/ability to assume custody and care of child).

− Consent of a parent is NOT required when the parent→(a) has surrendered the child to an adoption agency; (b) is incompetent due to mental illness; (c) abandoned the child; OR (d) permanently neglected the child.

– Consent for adoption CANNOT be withdrawn after the adoption decree is entered.
− BUT, consent may be withdrawn prior to the adoption decree if in the best interests of the child.

Question 45

The right of an unwed father to object to an adoption:

Answer 45

cannot be denied if the father has demonstrated that he is committed to fulfilling the responsibilities of parenthood

Question 46

States are permitted under their police powers to:

Answer 46

require vaccinations and refuse admission to public school for students who fail to receive required vaccinations