Family Law

Question 1

What justifies modification of custody determinations?

Answer 1

Custody arrangements should be modified if there is a substantial, material change in circumstances

Question 2

What justifies modification of child support order?

Answer 2

Child support is modifiable based on substantial change in circumstances.

**child support orders will not be modified retroactively unless there is fraud or other compelling circumstances

Question 3

Requirements for validity of pre-up

Answer 3

(1) writing and signed
(2) entered into voluntarily (no fraud, duress, overreaching)
(3) full and fair disclosure of the parties’ assets or proof that the party against whom the agreement is being enforced had independent knowledge of the assets
- under UPAA courts only examine this if agreement unconscionable
- some courts consider whether economic provisions re fair and reasonable

**If a marriage is found to be void, a premarital agreement is
enforceable only to the extent necessary to avoid an inequitable
result.

Question 4

Req. of marriage

Answer 4

(1) License (although failure to meet req. will not invalidate)
(2) ceremony with authorized officiant
(3) no legal impediments to marriage
- can’t be too closely related
- no prior undissolved marriage to a living spouse
(4) capacity to consent
- mental ability (drugs can negate intent, or if there is fraud, duress, coercion, force)

Question 5

CL Marriage

Answer 5

(1) consent to marry (capacity and lack of legal imped)
(2) cohabitation
(3) holding themselves out publicly as spouses

Common law marriage has been abolished in most states. However, if a valid common law marriage is formed in one state, it will generally be regarded as valid even in those states that do not recognize common law marriage.

Question 6

Marriage by estoppel/putative marriage

Answer 6

This is an equitable remedy that some states use to protect
an innocent party who acted in good faith when entering into
an invalid marriage.
In some states, the putative spouse can acquire all of the
rights of a legal spouse.

Question 7

Spousal Obligation to Support

Answer 7

During marriage, each spouse has an obligation to support the other. The doctrine of necessaries can be used to make one spouse liable to third parties for the other spouse’s purchases for necessary expenses, such as food, clothing, and health care. Also, principles of agency may require that one spouse be held liable to a third party for the other spouse’s authorized purchases.

Question 8

Tortious interference with marriage

Answer 8

(1) alienation of affection
(2) criminal conversation
(3) negligent interference with consortium or services

Question 9

Constitutionally protected right to privacy:

(Because privacy is a fundamental right, any regulation of it (other than in the abortion area) is invalid unless it is necessary to protect a compelling government interest.

Answer 9

• The right to marry
• The right to procreate
• The right to use or sell contraceptives
• The right to abortion (within limits)
• The right of related persons to live together
• The right of parents to educate their children outside the
public schools
• The right of parents to decide issues concerning the care,
custody, and control of their children

Question 10

Void Marriage (a nullity. Collateral attacks permitted)

Answer 10

(1) Bigamy or polygamy
(2) Consanguinity

When a question includes a prior marriage that was not successfully ended before the marriage in question, remember that the subsequent spouse has two possible arguments: (1) the strong presumption that the latest marriage is valid, and (2) if the prior marriage is later terminated by divorce, annulment, or death, continued cohabitation validates the second

Question 11

Voidable Marriage (valid until declared null. Can be remedied or ratified by continued habitation after removal of impediment. No collateral attacks, and not subject to attack after death of one of parties)

Answer 11

(1) nonage
(2) Incurable physical impotence
(3) lack of capacity
(4) duress
(5) fraud

Question 12

Jurisdiction over divorce

Answer 12

Divorce itself: wherever state(s) the parties are domiciled

“To establish jurisdiction over a divorce action, one of the parties must be a bona fide resident of the jurisdiction where the action is brought. States may set a minimum duration residency requirement before the action can be filed. The plaintiff’s residence alone may be the basis for the state’s granting a divorce, regardless of whether there is personal jurisdiction over the defendnant”

Property rights and spousal support: court must have personal jurisdiction over both parties.

*in an ex parte divorce (only one party before court), the court can grant divorce but cannot award spousal support or divide out-of-state property. However, there is a limited exception for marital property located within the state in which petitioning for divorce.

Child support: also needs to have personal j over D to be entitled ot full faith adn credit

Question 13

No fault divorce

Answer 13

(1) marriage is irretrievably broken
(2) parties have lived apart for specified and continuous period of time
(3) both parties agree incompatible and can no longer be married

The fact that one spouse thinks the marriage should be saved and does not agree that it has broken down is generally insufficient to prevent a divorce if the other spouse believes the marriage cannot be saved and is not interested in contnuing the marriage. So, even if other spouse doesn’t consent, cannot prevent the divorce.

Question 14

Fault divorce

Answer 14

(1) Adultery
(2) willful desertion
(3) cruelty
(4) drug addiction/habitual drunkenness
(5) insanity

Question 15

Defenses to Fault Divorce

Answer 15

(1) Collusion
(2) Connivance
(3) Condonation
(4) Recrimination

Question 16

Property Distribution: equitable division of marital property (majority test)

Answer 16

**non-modifiable!

(1) classification: determine what is marital and what is separate property
(2) division: make an equitable division of marital property no matter how titled

Question 17

Separate Property

Answer 17

Property owned before marriage

• Property acquired by gift or inheritance
• Property acquired in exchange for separate property
• Income and appreciation of separate property (but see
Improvement of Separate Property, at 6.4.2, infra)
• Pain and suffering awards
• Personal damages (for example, future medical expenses
or future lost wages)
• Property acquired after an order of legal separation that
includes a final disposition of property

Question 18

Marital Property

Answer 18

Marital property is property acquired during the marriage, unless through gift, bequest, devise, or descent.

Some examples are:
• Earnings
• Employment Benefits, Pensions, and Stock Options
The majority rule is that employment benefits, stock
options, and pension rights (see below) earned during
marriage are marital property even if they will not be exercised
or vested until after the divorce.
• Lost Wages
Many states hold that if a cause of action for lost wages
due to personal injury accrues between the date of marriage
and final separation, then the proceeds from the settlement
or award are marital assets subject to distribution.
• Reimbursement for medical bills incurred and paid with
marital property
• Recovery for Damages to Marital Property

Question 19

Specific Property–> Marital Property

Answer 19

(1) commingling
(2) transmutation (property treated in a way that evidences an intention for property to be marital)
(3) Improvement of separate property (grants non-owning spouse reimbursement for value added)
(4) property acquired before marriage but paid for after (generally apportioned between separate and marital estates in proportion to contribution of sep adn m funds to property)
(5) pensions
(6) professional license degree (NOT marital property, but some courts will comp with alimony to offset expenses of spouse who supported throughout education)

Question 20

Equitable Division

Answer 20

The age, education, background, and earning capabilities
of both parties
• The duration of the marriage, and whether there were
any prior marriages
• The standard of living during the marriage
• The present incomes of both parties, their vocational
skills, and employability
• The source of the money used to purchase the property
• The health of the parties
• The assets, debts, and liabilities of the parties
• The needs of the parties
• The child custody provisions
• Whether the distribution is in addition to, or in lieu of,
alimony
• Each party’s opportunity to acquire future income and
assets
• Each party’s contribution to the acquisition or enhancement
of the existing marital assets
• Each party’s contribution as a homemaker to the family
unit
• Economic fault (that is, whether either party has dissipated
marital property)
Note: Marital fault is generally not a consideration, but some states it is

Question 21

Alimony

Answer 21

Purpose: the purpose of spousal support is to ensure an adequate income stream for a spouse whose economic dependency resulted from the marital relationship.

(1) Permanent Periodic Spousal Support (awarded to spouse with neither resources nor ability to be self-sustaining)
(2) Lump Sum (can’t be modified–like contract)
(3) Rehabilitative Spousal Support
(4) Reimbursement Spousal Support (can’t be modified–like contract. Can be awarded with other types of alimony)

Question 22

Factors for alimony

Answer 22

• The standard of living established during the marriage
• The duration of the marriage
• The age and physical and emotional condition of the parties
• The financial resources of the parties
• The contribution of each party to the marriage
• The time needed for the party seeking support to obtain the training necessary to find appropriate employment
• The ability of the payor spouse to meet their needs while paying spousal support
• Marital fault (considered in most states for alimony but generally not considered for property division)
More broadly, the two primary considerations are the needs of the claimant and the ability of the other spouse to pay.

Question 23

Modification of Spousal Support

Answer 23

Periodic spousal support may be modified if there is a substantial change in circumstances regarding the needs of the recipient spouse or the ability of the payor spouse to pay.

Question 24

Tax consequences of spousal support

Answer 24

Under current law, spousal support is not a taxable event.

For divorce or separation instruments executed before 2019, spousal support payments are deductible by the payor and are income to the recipient unless the instrument is modified to follow the current rule.

Question 25

Separation Agreements

Answer 25

(1) voluntary
(2) full and fair disclosure by both parties
(3) consideration (found in the mutual promises of parties)

*can waive alimony or property div. in these contracts, but court not bound by parties’ contract re children

Question 26

Modification of sep. agreements

Answer 26

If the divorce decree states that the separation agreement is merged into the decree, or if the specific provisions of the agreement are repeated in the decree, the whole agreement assumes the status of a court judgment, is enforceable as such (that is, subject to contempt), and can be modified by the court.

If the agreement is not merged in this way, it retains its separate character as a contract and is enforceable as such.

Child support and custody provisions can always be modified if it is in the best interest of the child.

Question 27

Support and Visitation

Answer 27

The child support obligation is independent of the noncustodial parent’s visitation rights. Visitation cannot be withheld because of failure to pay child support.

Question 28

Duration of Child Support

Answer 28

• The child reaching the age of majority (usually 18)
• Death of child
• Emancipation of child

Emancipation is the removal of the disabilities of minority. After emancipation, the child is considered an adult. Most states consider married minors to be emancipated.

• Termination of parental rights

Child support may be indefinite for a severely disabled child.

Some courts require child support payments up to a certain level of education (for example, until the child graduates high school even if the child is over 18).

Courts will enforce agreements to pay for college, but will not extend child support into college, and some have held that statutes requiring a parent to pay for college are unconstitutional.

Question 29

Child Support Orders: OJ

Answer 29

9.3.1 Original Jurisdiction

Original jurisdiction to enter a child support order is proper where the first petition under UIFSA is filed.

Another state can exercise jurisdiction only if:

• The second petition is filed before the time to answer the first has expired
• The petitioner objected to jurisdiction in the first action
• The second state is the child’s home state (see discussion

of home state under Child Custody, infra)

Question 30

Child Support Orders: jurisdiction to enforce

Answer 30

The court that initially issued the order has jurisdiction to enforce, and UIFSA helps parties enforce orders in other states.

Another state can enforce a child support order in two ways:

a. Direct enforcement

Direct enforcement allows the obligee to mail the order to the obligor’s out-of-state employer, automatically triggering withholding unless there is a timely objection.

b. Registration

UIFSA also provides for registration of a support order with another state. The issuing state sends the order to the state where the obligor resides. It is registered and filed as a foreign judgment, and then the order is subject to the same enforcement procedures as if the order had been issued in that state.

Question 31

Child Support Order: Modification

Answer 31

Standard: if substantial and continuing change of circumstances affecting need of child or ability of parent to pay.

Jurisdiction to modify: court that issues controlling award has continuing and exclusive jurisdiction to modify. The role of the court in another state is only to enforce the original order, unless

(1) no party resides in the issuing state; OR
(2) the parties consent to jurisdiction elsewhere.

Question 32

Child Custody: Initial Determination

Answer 32

A court has jurisdiction to initially enter or modify a child custody or visitation order if the state:

(1) is child’s home state (state in which the child lived with a parent (or a person acting as a parent) for at least six consecutive months immediately before the commencement of the proceeding (or the state where the child has lived since birth if the child is younger than six months old), disregarding temporary absences; OR
(2) was the child’s home state within the past six months and (a) child is absent from state, (b) BUT parent or guardian continues to live in the state.

Question 33

Child Custody: Initial Determination (but when home state rule doesn’t apply)

Answer 33

A court has jurisdiction to enter or modify a child custody or visitation order if no other state has or accepts home state jurisdiction and:

• The child and at least one parent (or person acting as a parent) have a significant connection with the state, AND
• Substantial evidence concerning the child is available in the state

*In addition, a court has jurisdiction to enter or modify a child custody or visitation order if no other state has jurisdiction under another test or if another state with jurisdiction defers.

Question 34

May a non-issuing state modify a custody order?

Answer 34

Under the federal Parental Kidnapping Prevention Act, a state may not modify a custody order if

(1) one of the parties continues to reside in the issuing state and,
(2) under that state’s laws, the court (a) continues to have and (b) does not decline jurisdiction

Question 35

Child Custody: Modification

Answer 35

Standard: substantial and material change in circumstances affecting the child’s well-being.

Jurisdiction: The issuing court has continuing exclusive jurisdiction.

Another state can only exercise jurisdiction if:

(1) No child or parent (or persons acting as parents) continues to reside in the issuing state, or
(2) The child no longer has a significant connection with the issuing state and substantial evidence relating to the matter is no longer available in that state.

Only the issuing state can decide if this second test is met.

Question 36

Modifying an initial custody determination

Answer 36

Under the Uniform Child Custody and Jurisdiction Enforcement Act, the court that made the initial custody determination has continuing, exclusive jurisdiction over the matter until THAT court determines that:

(1) neither the child nor the parents continue to reside in the issuing state, OR
(2) the child no longer has a significant connection with the state AND
(3) substantial evidence relating to the child’s care, protection, training, and personal relationships is not longer available in the issuing state.

Question 37

Child Custody: Declining Jurisdiction

Answer 37

A court that has jurisdiction under one of the above tests may decline to exercise its jurisdiction if it determines that it is an inconvenient forum under the circumstances and that a court in another state is a more appropriate forum.

Additionally, a court may decline to exercise jurisdiction if the party seeking to invoke the court’s jurisdiction has engaged in unjustifiable conduct (for example, a parent wrongfully took the child from another state)!!!! (remember exam hypo. although, that just weighed against the judge granting the mother’s request for full custody)

Question 38

Child Custody and Visitation: Standards

Answer 38

Best interest of the child. Court considers (with great discretion):

(1) wishes of parents
(2) child’s preferences (children over age 12 preferences usually given great weight, under 8 pref. not usually considered)
(3) child’s relationships with parents, siblings, etc.
(4) child’s adjustment to home, school, community
(5) parties’ mental and physical health
(6) who has been child’s primary caregiver.

Question 39

Child Custody: Factors Court considers for joint

Answer 39

• The fitness of both parents
• Whether the parents agree on joint custody
• The parents’ ability to communicate and cooperate concerning

the child’s well-being

• The child’s preference
• The level of involvement of both parents in the child’s life
• The geographical proximity of the two homes
• The similarity or dissimilarity of the homes
• The effect of the award on the child’s psychological development
• The parents’

Question 40

Sole Custody

Answer 40

Sole custody can be awarded to one parent if there is:

(1) strong evidence that demonstrates it is in the best interest of the child.

**If the court awards sole custody, the other parent will almost always be entitled to reasonable visitation with the child. It’s very hard to deny a parent any visitation unless some type of harm to the child will result.

Question 41

Custody to non-parent

Answer 41

In disputes between parents and third parties, the decision does not rest solely on the child’s best interest. A natural parent has a constitutional right to raise their child. Absent voluntary relinquishment, the parent is entitled to custody unless the nonparent can show that it will result in harm to the child or that the parent is unfit. However, based on special circumstances (such as abandonment, neglect, or abuse), a court may find that the biological parent has lost the right to rear the child, and the nonparent should get custody.

Question 42

Non-parent visitation

Answer 42

• Typically, a nonparent may seek visitation if it is in the best interest of the child, and the determinative factor is often the prior relationship between the child and the third party.
• United States Supreme Court has stated that if a parent is fit, their wishes on nonparent visitation are constitutionally protected and must be given “special weight.” A judge may not override a fit parent’s decision regarding third-party visitation merely because it would be in the best interest of the child

Question 43

Child Custody Modification

Question 44

Child Custody: Enforcement

Answer 44

UCCJEA: out-of-state decrees will be enforced if a certified copy has been filed with the clerk of court; this won’t remove the original state’s continuing exclusive jurisdiction, but it will allow enforcement of the order in the state

Parental Kidnapping Prevention Act (“PKPA”): full faith and credit must be given to another state’s custody or visitation determination if the Act’s jurisdictional requirements are met

• jurisdiction the same under the PKPA as the UCCJEA, except that emergency jurisdiction is not temp under the PKPA.

Question 45

Parentage

Answer 45

• Mother’s husband is presumed to be the father of a child if the child is born during the marriage or within 300 days of the marriage’s termination. This is true even if the marriage is void or voidable.
• Rebutting presumption of parentage requires clear and convincing evidence.

Question 46

Termination of Parental Rights

Answer 46

Because the right to raise one’s children is a fundamental constitutional right, parents must have due process before their rights can be terminated involuntarily.

(1) right to counsel
(2) termination only by clear and convincing evidence.

• Infliction of serious physical harm on the child, including

sexual abuse

• Abandonment
• Neglect or deprivation (failure to meet minimum standards

of care)

• Failure to provide support without justifiable cause
• Mental illness or retardation so severe as to make the

parent incapable of caring for the child

• Parental unfitness (conduct by the parent that seriously

harms the child physically or psychologically)

Question 47

Adoption and Unwed Fathers

Answer 47

For Due Process to attach:

Unwed fathers are protected by the Due Process Clause and can have rights to custody (or other parentage related rights, like needing consent before adoption) if they demonstrate parental responsibility.

• Court will consider whether acknowledged parentage, took responsibility with respect to daily education, supervision, protection, or care of the child.

For Adoption Veto:

Unwed fathers cannot merely block adoption–to have due process rights, they must (1) be involved and (2) be wiling to assuming custody of the child [if a newborn]. If they are involved, they can block adoption unless they’re found found to be an unfit parent.

• Court will consider factors above, in addition to whether they’ve attempted to establish a legal or personal rel. with the child, whether the parents lived together and cared for the child, whether unwed father visited regularly, whether admitted paternity or paid child support, paid birth-related expenses, showed overall commitment to child.

Question 48

Adoption

Answer 48

(1) Termination of natural parents’ rights (consent to have child adopted)

• consent isn’t necessary is rights already terminated
• court can waive consent if being unreasonably held against BIOC

(2) Consent of unmarried fathers
* depends on if father has manifested parental responsibility. If so, notice required
(3) Creation of new parental rights

• Consent of adoptee (12/14 gets to consent)
• Home studies, investigation, court approval
• Payment of money is NOT ALLOWED other than medical costs of mother rel. to pregnancy.

Question 49

Gifts and marital property

Answer 49

Court looks to donor’s intent when a gift is given to both parties, and wedding gifts are classified as marital property

Question 50

Child Support factors

Answer 50

1. Child support generally based on (1) child’s needs, and (2) obligor’s ability to pay.
2. Most states have guidelines that dictate a formula based on number of children, ages, special needs, and parents’ income
3. Court may deviate from guidelines, but must make finding of fact justifying deviation
4. Ex: Because of Harry’s high income, may increase support

Question 51

Enforceability of Pre-marital agreements

Answer 51

Courts either apply

(1) law of state where agreement made; OR
(2) state with most significant relationship to parties and the transaction

Question 52

Parentage of unwed fathers

Answer 52

Under most state statutes, every child is the lawful child of his mother. The child is the lawful child of an unwed father only if:

• The parents married after the child’s birth
• The father holds the child out as his biological child
• The father consents to be named on the birth certificate
• The father formally acknowledges paternity or
• There is a court order establishing paternity

[some of these factors will be considered in determining whether to allow unwed fathers to contest adoption]

Question 53

Pre-marital agreements

Answer 53

1. Must be in writing
2. signed by party to be charged
3. voluntary when made
4. based on full and fair disclosure of each party’s financial worth

**courts are not bound by agreements on child support or custody: they will do what is in the best interest of the child

**courts will only enforce economic provisions if they are fair and reasonable. Courts will not enforce unconscionable provisions–unconscionability is determined at time of agreement.

**courts will not enforce alimony agreements if it makes wife charge of the state