Family Law

Question 1

Define: Common-Law Marriage

Answer 1

To establish a common law marriage, the proponent must show:

1. Capacity to enter into a marital contract;
2. A present agreement to be married;
3. Cohabitation; AND
4. Holding out a marital relationship

Question 2

True or False: A marriage is valid only under the law of the state in which the partners reside

Answer 2

False.

A marriage valid under the law of the place in which it was contracted will be valid elsewhere unless it violates a strong public policy of the state that has the most significant relationship to the spouses and the marriage.

Question 3

What can save a bigamous marriage?

Answer 3

There are two marriage-saving doctrines for the new spouse:

1. There is a presumption that the most recent marriage is valid; AND
2. Removal of the impediment (e.g., by divorce) will render a subsequent marriage valid

Question 4

How is child custody determined?

Answer 4

By looking at the best interest of the child.

This typically requires looking at factors such as the wishes of the child’s parents, the child’s primary caretaker, the mental and physical health of all individuals, the interrelationship of the child and parents, stability, and whether there is any domestic violence.

Question 5

When can child custody be modified?

Answer 5

Only if there is a substantial change in circumstances.

Generally, this change must be unforeseen at the time of the initial judgment.

Question 6

How can a parent modify child support?

Answer 6

They must show a substantial change in circumstances making the prior order unreasonable.

If the change is a reduction in income, and it was voluntary, some courts will not modify it; some will under a multi-factor test–e.g., examine if the party acted in good faith, among other factors.) This is a heavy burden

Child support cannot be modified retroactively unless there was fraud or other compelling circumstances.

Question 7

Can one parent relocate with the child?

Answer 7

Generally, a move sought in good faith that will serve the child’s best interest will ordinarily be approved.

The court will balance the impact on visitation by the noncustodial parent against the benefits of the move to both the child(ren) and the custodial parent.

There are a few different views: some states place the burden on the relocating parent and some put it on the objecting parent (***mention if applicable***)

Question 8

When should one parent’s decisions be given deference over the other’s?

Answer 8

Decisions by a fit parent must be given some deference.

This includes decisions regarding medical care (but parental rights can be limited if a parent’s decision will jeopardize the health or safety of the child).

Question 9

When does the father have rights?

Answer 9

Generally, biological fathers have rights. However, the state may make the parent exercise his rights within a specific time (e.g., two years).

Question 10

What are the rights of a parent when another person wants to adopt a child?

Answer 10

An involved parent who demonstrates a full commitment to the responsibilities of parenthood will likely be able to successfully oppose an adoption petition by another and is entitled to notice of such proceedings.

Question 11

When does a third party have rights in a parent-child relationship?

Answer 11

Custody in the parent is presumed to be in the best interest of the child. To rebut this, a third party who wants custody must prove that the parent is unfit or that granting custody to the parent would be highly detrimental to the child. Thus, any third-party visitation or custody statute must give special weight to the parent’s determination of the child’s best interest.

Question 12

What are the three ways a court can divide property in a divorce proceeding?

Answer 12

1. Division by court
2. Marital vs. separate property (majority approach)
3. Division based on premarital agreement

Question 13

Define: Division by Court

Answer 13

In a majority of states, marital property is divided at divorce but separate property remains the property of the owning spouse.

Question 14

Define: Marital vs. Separate Property

Answer 14

Marital property is property acquired during the marriage.

Separate property includes:

1. Property acquired before the marriage;
2. An inheritance; OR
3. A gift to one party

Most states don’t count professional degrees earned during the marriage as marital property.

Question 15

Define: Division Based on Premarital Agreement

Answer 15

A court will enforce a premarital agreement so long as it is voluntarily made, substantively fair, and if full disclosure of assets and obligations was made.

A court will not, however, enforce a premarital agreement regarding child custody or support if it is not in the best interest of the child.

Question 16

What are the three factors courts consider when considering to grant spousal support?

Answer 16

1. The parties’ financial resources and needs;
2. Marital contributions; AND
3. Marital duration

Some states also look at spousal misconduct, one spouse’s support for the other’s education or training, etc.

The trial court has substantial discretion in choosing to award alimony.

Question 17

When can an alimony award be modified?

Answer 17

If a court finds there has been a substantial change in circumstances making the prior award unreasonable. This must be an unanticipated change.

Alimony usually terminates if a spouse dies or gets remarried. In some states, cohabitation will reduce or terminate alimony.

Question 18

True or False: A court must have jurisdiction over the defendant spouse in order to issue orders regarding property division or support

Answer 18

True.

But it may grant a divorce even if it doesn’t have jurisdiction.

Question 19

Which court can dissolve a marriage?

Answer 19

A court does not need jurisdiction over both spouses to terminate a marriage. If the plaintiff spouse is domiciled in the forum state or if the state has some other equivalent long-term connection between at least one of the parties to the marriage, then that court has jurisdiction to dissolve the plaintiff’s marriage.

Question 20

Which court can issue a property division order?

Answer 20

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

Question 21

Which court may modify child support?

Answer 21

Once an order is registered, it may be enforced by any state.

The state that originally issued a child support order 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 of another forum.

Governed by the Uniform Interstate Family Support Act (UIFSA)

Question 22

Which state can issue a child custody order?

Answer 22

The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) applies a few tests:

1. The Home State Test
2. The Significant Connections Test
3. Emergency jurisdiction or default jurisdiction

Question 23

Define: The Home State Test

Answer 23

The “home state” has exclusive jurisdiction to modify a custody decree.

A “home state” is a state where the child has lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of the child custody proceeding.

A home state continues to have exclusive jurisdiction to issue a custody order for six months after the child leaves the state, so long as a parent, or person acting as a parent, still lives in the home state.

Question 24

Define: The Significant Connections Test

Answer 24

If a child has no home state, a state may exercise jurisdiction based on:

1. Significant connections with the child and at least one parent; AND
2. The existence of substantial evidence relating to child custody in the forum jurisdiction.

Question 25

Define: Emergency Jurisdiction or Default Jurisdiction

Answer 25

If no other state has or exercises jurisdiction, this test applies.