Family Law

Question 1

In general, all property acquired during marriage is marital property unless it is acquire through __, __, __, or __.

Answer 1

In general, all property acquired during marriage is marital property unless it is acquire through gift, bequest, devise, or descent.

Question 2

What happens when a gift is given to both parties?

Answer 2

When a gift is given to both parties of a marriage, courts look to the donor’s intent to determine whether they intended both parties to use the gift.

Question 3

Wedding gifts

Answer 3

Unless a particular wedding gift is only appropriate for the use of one spouse, wedding gifts should be classified as marital property. *Look to whether there was an intended joint use

Question 4

Martial property is _____ __ _____ at divorce

Answer 4

Martial property is subject to division at divorce.

Question 4

Marital property is ____ __ ____ by the court

Answer 4

Marital property is subject to equitable distribution by the court.

Question 5

When making a property distribution, does the court to divide the income earned from a joint venture equally?

Answer 5

No. When making the property distribution, the court does not have to divide the stocks equally between the parties.

Question 6

What is the purpose of spousal support?

Answer 6

The purpose of spousal support is to ensure an adequate income stream for the spouse whose economic dependency has resulted, at least in part, from the marital relationship

Question 7

Some states consider _(1)_** when awarding **_(2)\_ ___**. In others, **_(2)\_ ___** is not based on **_(1)\_.

Answer 7

Some states will consider marital fault when awarding alimony. In others, alimony is not based on marital fault.

Question 8

Recent trend for alimony

Answer 8

The recent trend is to award less alimony than in the past because of the number of couples where both parties have valuable skills for the workforce.

Question 9

7 Things Considered by the Court in Determining Support

Answer 9

When determining what type and how much support to award, the court considers:

SAD FRCTA (SAD Federal Rules of Civil Taylor); (1) standard of living (2) age & physical and emotional condition (3) duration of marriage (4) financial resources of each party (5) contribution of each to the marriage (6) time to obtain necessary education (7) ability of payor to meet their own needs.

LONG VERSION:

(i) Standard of living during the marriage;
(ii) Age and physical and emotional conditions of both parties;
(iii) Duration of the marriage;
(iv) Financial Resources of each party (including how marital property was apportioned);
(v) Contribution of each party to the marriage (including homemaking, child care, education, and career building of the other party);
(vi) Time needed to obtain education or training to enable either party to find appropriate employment, where applicable; and
(vii) Ability of the payor spouse to meet his needs while paying spousal support.

Question 10

When is permanent spousal support awarded?

Answer 10

Permanent spousal support is awarded to a spouse who has neither the resources nor the ability to be self-sustaining.

Question 11

When the court calculates how much child support a spouse should pay, the court will look primarily to the ____ ____ of the ___ and the spouse’s ____ ____.

Answer 11

When the court calculates how much child support a spouse should pay, the court will look primarily to the monetary need of the children and his ability to pay.

Most states have adopted specific guidelines to make a child support calculation more uniform.

Question 12

State child support guidelines usually dictate a formula based on what 4 things?

Answer 12

(1) Number of children; (2) their ages; (3) special needs of the children; and (4) the parents’ incomes.

In most states, the court may deviate from the guidelines but must make findings of fact justifying the deviation.

Question 13

Parents may also be ordered to purchase and maintain ____ ____ for their children.

Answer 13

Parents may also be ordered to purchase and maintain medical insurance for their children.

Question 14

In most states, the court may deviate from the guidelines but must make findings of fact justifying the deviation. What may justify a deviation?

Answer 14

A high income.

Question 15

What is needed to establish jurisdiction over a divorce action?

Answer 15

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.

Question 16

Minimum durational residency requirements

Answer 16

States may set a minimum durational residency requirement for divorces, such as 90 days or one year, before the action can be filed.

Question 17

Does a court need personal jurisdiction over a defendant in a divorce?

Answer 17

No. The plaintiff’s residence alone may be the basis for a state’s granting a divorce, regardless of whether there is personal jurisdiction over the defendant.

Question 18

Generally, a court cannot determine ____ ____ ____ or ___ _ ___ unless it has jurisdiction over both parties.

Answer 18

Generally, a court cannot determine out-of-state property rights or rights to support unless it has jurisdiction over both parties.

Question 19

Ex parte divorce

Answer 19

One where only the plaintiff is before the court

Question 20

What may a court do in an ex parte divorce?

Answer 20

In an ex parte divorce, the court can grant the divorce, but cannot award spousal support or divide out-of-state property. There is a limited exception for marital property located within the state.

Question 21

Is both spouses consent required for a divorce?

Answer 21

No. Most states now offer “no-fault” divorces that provide for the dissolution of a marriage without regard to marital fault, generally upon a showing that the marriage is irretrievably broken and that the parties have been living separate and apart for a specified period of time. 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 judgment if the other spouse believes the marriage cannot be saved and is not interested in continuing the marriage.

Question 22

Is property titled in one spouse’s name subject to division?

Answer 22

As a general rule, the courts have the authority to order an equitable distribution of all marital property, no matter how title is held.

All assets acquired during marriage are deemed marital property, unless acquired through gift, bequest, devise, or descent.

Question 23

What happens if property is acquired before the marriage, but paid for after marriage with marital funds?

Answer 23

If property is acquired before the marriage, but paid for after marriage with marital funds, most courts will apportion the property between separate and marital interests in proportion to the contribution of separate and marital funds used to pay for the property

Question 24

When is a premarital agreement enforceable?

Answer 24

A valid premarital agreement must be in writing, voluntary, signed by the party to be charged, and based on full and fair disclosure of each party’s financial worth. Entry into the marriage is sufficient consideration for a premarital agreement.

Even if the agreement is enforceable as a whole, the court must still consider each individual provision to ensure that it is fair and does not violate public policy

Question 25

When will a court enforce a premarital property agreement?

Answer 25

For a court to enforce a premarital property agreement, the agreement must contain fair and reasonable economic provisions for the claiming spouse.

*Looks at the time the agreement is formed.

Question 26

Is telling someone you won’t marry them unless they sign a prenup duress?

Answer 26

No, if there is sufficient time to choose.

Question 27

When will a child support waiver be enforced?

Answer 27

The purpose of spousal support is to ensure an adequate income stream for persons whose economic dependency has resulted, at least in part, from the marital relationship.

It is against public policy to enforce a waiver of spousal support if to do so would leave a spouse dependent on the state.

Question 28

Are courts bound by child custody provisions in premarital agreements?

Answer 28

No. A court is not bound by child custody provisions in premarital agreements. Instead, the court will determine issues of child custody and child support based on the best interests of the children.

Question 29

When one parent requests sole custody, and the other requests joint, what factors does a court use to consider whether joint custody is appropriate?

Answer 29

The court must consider whether joint custody is appropriate, based on factors such as: (1) fitness of both parents; (2) whether the parents agree on joint custody; (3) parents’ ability to communicate and cooperate concerning the well-being of the children; (4) children’s preference (depending on their age); (5) level of involvement of each parent in the children’s lives; (6) geographic proximity of the parents’ homes; and (7) the effect a joint custody award would have on the children’s psychological development.

In addition, courts often award custody to the parent who has been the primary caregiver.

Question 30

Does a child support provision in a premarital agreement bind a court?

Answer 30

No. Parents have an equal duty to support their children that they cannot contract away. The award of support to one party for the benefit of the children is generally based on monetary need and ability to pay.

Question 31

“May the State B court award X a share of Y’s property?”

Answer 31

A court must have personal jurisdiction over both parties to distribute assets.

Generally, a court may not split a couple’s property unless they were married or had a valid cohabitation agreement. Also, if a marriage was valid where entered, it will be recognized in other states as well.

*Basically–even if a state does not recognize CL marriage, if valid in the original state, it is valid in the subsequent.

Question 32

A court must have ____ ____ over ___ ___ to distribute assets.

Answer 32

A court must have personal jurisdiction over both parties to distribute assets.

Question 33

Did the parties enter into a common law marriage?

Answer 33

The basic requirements to establish a common law marriage are (1) capacity to enter into a marriage, (2) an exchange of consent, (3) cohabitation, and (4) a holding out publicly of living together as spouses.

Question 34

What determines “sufficient holding out” for purposes of a common law marriage?

Answer 34

In determining whether there was a sufficient holding out, courts look to conduct such as using a common last name, opening a joint bank account, and telling others in the community that they consider themselves married.

Question 35

A few factors considered in making an equitable distribution

Answer 35

In making the equitable distribution, the court would consider factors such as:

(1) earning capacity of each party,
(2) duration of the marriage,
(3) standard of living during the marriage,
(4) source of money used to purchase marital property,
(5) each party’s health,
(6) custody of the minor child,
(7) each party’s contribution to the marriage, etc.

EDS Mum (earning capacity; duration; standard of living; source of money used for marital property)

Question 36

When may a valid cohabitation contract form?

Answer 36

Contracts between unmarried cohabitants will be enforced if sexual relations are not the only consideration for the contract. Proof of such a contract often is a problem.

Question 37

What happens to an unwed father’s parental rights when he has made an effort to be involved in his child’s upbringing?

Answer 37

Generally, a child may not be adopted without consent from both of his biological parents. However, whether consent must be obtained from an unwed father depends on how involved the father was with the child. An involved unwed father has a right to block an adoption unless the unwed father is found to be an unfit parent.

Question 38

Involved, unwed fathers.

Answer 38

Unwed parents have the right to raise their own children. If an unwed father is part of the “family unit” that includes the child, the relationship between the father and child is protected by due process, provided the unwed father has demonstrated a full commitment to parenthood by participating in the rearing of his child.

Factors considered with respect to father’s involvement include: (i) whether the parents lived together (or whether father visited regularly); (ii) whether father admitted paternity; (iii) whether father paid child support; and (iv) whether father had any responsibility for supervision, education, protection, or care of child.

Question 39

Uninvolved, unwed fathers

Answer 39

An unwed father who has never attempted to establish a legal or personal relationship with the child has no rights with respect to an adoption.

Question 40

The child of a married woman is presumed to be ___ ___ ___ ___ ___ ___.

Answer 40

The child of a married woman is presumed to be the marital child of her husband.

Question 41

When must a state extend full faith and credit to the ex parte divorce of a sister state court?

Answer 41

Courts give full faith and credit to divorce decrees of the courts of a sister state if the sister state had proper jurisdiction and the decree is valid in the sister state.

The jurisdictional requirement is satisfied if one of the spouses is domiciled in the state granting the divorce.

There is a rebuttable presumption that the state granting the divorce is the bona fide domicile of the plaintiff.

Question 42

When does a state court exercising jurisdiction over an ex parte divorce have the right to order division of marital property?

Answer 42

An ex parte divorce decree has no effect on disputes over marital property, unless the property is located in the rendering state.

Such disputes can be resolved only by a court having personal jurisdiction over both of the parties

Question 43

When may a court exercising jurisdiction over an ex parte divorce resolve custody matters?

Answer 43

Under the Uniform Child Custody Jurisdiction and Enforcement Act, a state may exercise jurisdiction if it is the home state of the child at the time the proceedings began or within six months of the proceedings; and a parent still resides in the jurisdiction.

Question 44

A child’s home state is the state in which the child _________, or _________ , for at least _______ _____ _____ before commencement of the proceeding

Answer 44

A child’s home state is the state in which the child lived with a parent, or a person acting as a parent, for at least six consecutive months before commencement of the proceeding

Question 45

The federal Parental Kidnapping Prevention Act requires states to ___________, but only if the state _______ had ________

Answer 45

The federal Parental Kidnapping Prevention Act requires states to enforce a custody order of another state, but only if the state entering the custody decree had home state jurisdiction

Question 46

The standard applied in awarding custody is _________

Answer 46

The standard applied in awarding custody is the best interests of the child.

Question 47

Factors considered in determining custody

Answer 47

(i) the wishes of the parents;
(ii) the wishes of the child;
(iii) the interrelationship of the child with his parents, siblings, and others;
(iv) the child’s adjustment to home, school, and community; and
(v) the mental and physical health of all individuals involved

Many courts grant custody to the primary caregiver.

Question 48

When must State B enforce a State A child support order?

Answer 48

Under the Full Faith and Credit for Child Support Orders Act, full faith and credit must be given to another court’s child support order if the court had jurisdiction over the matter and the parties, and the parties had reasonable notice and an opportunity to be heard

Question 49

When may a State B court enforce a State A order without personal jurisdiction?

Answer 49

Under UIFSA, a court of State B may serve as an initiating tribunal to request the court of State A (which has continuing and exclusive jurisdiction over the support order) to enforce or modify the order issued in State A

Question 49

Under the Federal Parental Kidnapping Prevention Act, a state may not modify a custody order if what two things are true?

Answer 49

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

Question 50

Supremacy clause

Answer 50

Under the Constitution’s Supremacy Clause, a federal law prevails over a state’s.

Question 51

When does the court who made the initial custody order have continuing, exclusive jurisdiction? (other courts shouldn’t modify the order themselves)

Answer 51

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:

neither the child nor the parents continue to reside in the state, or the child no longer has a significant connection with the state; and

substantial evidence relating to the child’s care, protection, training, and personal relationships is no longer available in the state

Question 52

Does removal of a child warrant modification?

Answer 52

Removal of a child from the jurisdiction is a substantial, material change of circumstances warranting modification of the custody order.

Question 53

When is a child support order modifiable?

Answer 53

If there is a substantial change of circumstances.

Question 54

What is a divorce settlement agreement?

Answer 54

A settlement agreement is an agreement entered into during the marriage, before the issuance of the divorce decree, in which the parties may resolve economic issues. They are governed by general contract principles.

Question 55

What are most states’ requirements for settlement agreements?

Answer 55

Most states require full and fair disclosure by both parties and that the agreement be fair and entered into voluntarily without undue influence.

Question 56

When may a settlement agreement be set aside?

Answer 56

An agreement may be set aside when a spouse’s fraud, duress, overreaching, or coercive behavior results in an unfair agreement. Representation by independent counsel lessens the chances of the agreement being overturned.

Question 57

_____ _____ is generally not a factor in the division of property, although some courts will consider it to the extent it led to a dissipation of assets

Answer 57

Marital fault is generally not a factor in the division of property, although some courts will consider it to the extent it led to a dissipation of assets.

Question 58

Is a professional license distributable property?

Answer 58

Most jurisdictions have ruled that neither a spouse’s earning capacity nor the professional license or degree on which it is based is distributable.

A license or degree has none of the usual attributes of property—it cannot be purchased, transferred, or inherited.

Question 59

Minority rule for professional licenses

Answer 59

In the growing minority of states that hold that a license is subject to equitable distribution, a court may award a percentage of its value to the other spouse, usually in the form of additional marital property or as alimony

Question 60

A license or degree is not classified as marital property even when its attainment was made possible through the _______ of the other spouse.

Answer 60

Support.

To avoid unfair results, some jurisdictions have compensated supporting spouses for their contribution by: (1) employing the theory of unjust enrichment, (2) making a supporting spouse’s contribution a factor on which alimony may be based, and (3) awarding reimbursement alimony

Question 61

Permanent periodic alimony

Answer 61

Permanent periodic alimony is paid regularly to provide for a spouse who has neither the resources nor the ability to be self-sustaining.

Question 62

Permanent alimony is usually granted only in the case of ____ _____ ____

Answer 62

A long-term marriage.

Question 63

Rehabilitative alimony

Answer 63

Rehabilitative alimony consists of periodic payments for a limited period of time to enable a spouse to gain the skills or education necessary to become self-supporting.

Question 64

Reimbursement alimony

Answer 64

Reimbursement alimony awards a fixed sum to a spouse who supported the other spouse while the latter obtained degree or license. Only recognized in some state.

Question 65

Paternity of a child born from artificial insemination by donor sperm during a legal marriage

Answer 65

Under the Uniform Parentage Act, the spouse of the woman who bears a child through assisted reproduction is the child’s legal parent, unless within two years after learning of the child’s birth he commences an action in which it is determined that he did not consent to the assisted reproduction

Question 66

In a custody dispute between a parent and a nonparent, courts give great weight to the interests of the _(1)_. Custody does not turn on the _____ ____ ____ alone.

The prevailing view is that a _(1)_ has the right to custody over a ___, absent ______ _______, unless it is shown that the _(1)\_ is unfit

Answer 66

In a custody dispute between a parent and a nonparent, courts give great weight to the interests of the parent. Custody does not turn on the child’s best interests alone.

The prevailing view is that a parent has the right to custody over a nonparent, absent voluntary relinquishment, unless it is shown that the parent is unfit.

Question 67

Standards of evidence for rebutting the presumption of a husband’s paternity

Answer 67

The presumption of a husband’s paternity can be rebutted by a preponderance of the evidence in some states and by clear and convincing evidence in others.

Question 68

What happens when a child has been left with a third party to rear?

Answer 68

Many states have ruled that when a child has been left with a third party to rear, the biological parent has lost the right to rear the child, and the best interests test should apply.