Family Law

Question 1

Marriage Requirements

Answer 1

A valid marriage requires:

1) consent from both parties;
2) a marriage license; AND
3) a ceremony (solemnized by a judicial officer or church).

Consent – Depends on the jurisdiction.
− Some States → if the parties participate in a ceremony AND sought some benefits of marriage.
− Other States → if parties consented to the obligations of marriage

Question 2

Common Law Marriage

Answer 2

Requires that the spouses:

1) live together for a specified amount of time;
2) be legally able to marry;
3) have a present agreement that they are married; AND
4) hold themselves out as being married.

A valid Common Law Marriage creates rights/obligations identical to a ceremonial marriage.
− Most states will honor a Common Law Marriage validly obtained in another state.

Question 3

Bigamous Marriage

Answer 3

A person CANNOT be married to more than one person at the same time.
− A marriage is NOT valid if entered into when one of the parties is still married (before the dissolution of an earlier marriage).

BUT, a marriage may be saved under: a) Equity Doctrine → creates a strong presumption that the most recent marriage is valid (rebuttable if evidence shows first marriage was not dissolved).
b) UMDA → marriage may be validated upon removal of impediment (i.e. earlier marriage is terminated)

Question 4

Premarital Agreements and Enforceability

Answer 4

Premarital agreements are enforceable unless procured by fraud, duress, or coercion.

Uniform Premarital Agreement Act (UPAA) – Agreement must be:

1) in writing; AND
2) signed by both parties.
* No consideration is required.

NOT Enforceable under UPAA if:

a) Involuntarily (fraud, duress, coercion); OR
b) Unconscionable when executed AND before execution the spouse was: (i) not provided fair disclosure (of property/financial obligations); (ii) did not waive disclosure in writing; or (iii) did not have (or could have) knowledge of such information.

Involuntarily Factors → Courts consider: (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).

Question 5

Child Custody and Support/Premarital Agreements

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

Spousal Support and Premarital Agreements

Answer 6

UPAA → Permitted, but not enforceable if it makes the spouse eligible for public support (welfare).
− Court may order support to the extent necessary to avoid eligibility.

Some States → Invalid as against public policy

Question 7

Eliminating Fundamental Marital Duties & Allocating/Premarital Agreements

Answer 7

Financial Responsibility – Spouses may agree on any matter that is not in violation of (a) public policy, or (b) criminal law.
− May allocate financial responsibilities, but it’s NOT binding on third-parties.
− Agreements that limit spousal support during marriage → generally void as against public policy.

Question 8

Being married and property/support/necessities

Answer 8

Married Women’s Property Acts – Women retain full rights to their property after marriage.

Mutual Support – All states recognize a marital duty of support between spouses.
− But, the Doctrine of Nonintervention DOES NOT allow a court to intervene in an ongoing intact marriage to resolve internal disputes about family support, finances, and expenditures.

Payment for Necessities – A spouse is liable to creditors who have provided necessities (food, clothing,
shelter) to the other spouse.
− Medical Expenses → deemed necessities in some states (a non-debtor spouse may be liable to the extent the debtor spouse is unable to pay)

Question 9

Jurisdiction in Marital / Divorce Actions

Answer 9

State courts have subject matter jurisdiction.

Ex Parte Divorce → 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.

Economic or Child Custody/Support Issues → court MUST have personal jurisdiction over the defendant spouse

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

Question 10

Child Custody & Adoption Matters /Jurisdiction

Answer 10

Court MUST have subject matter jurisdiction to issue or modify a child custody order.
− Personal jurisdiction or physical presence of a party or child is NOT necessary for a court order (but jurisdiction is needed over a defendant spouse to enforce the order).

Uniform Child Custody Jurisdiction & Enforcement Act (UCCJEA) – A court may decide child custody ONLY IF it has:

1) Home State Jurisdiction → (a) child’s home state OR (b) where child lived with a parent for 6+ months immediately before action was filed, child is absent from state, and parent or acting parent is still present in the state.
2) Significant Connection Jurisdiction → (1) no home state, (2) child and at least one parent have a significant connection to the state, AND (3) substantial evidence in the state exists.
3) More Appropriate Forum Jurisdiction → all other courts decline to exercise jurisdiction because this particular court is a more appropriate forum.
4) Emergency Jurisdiction → child is physically present in the state AND child is abandoned or it’s an emergency to protect the child.
5) No Other State Jurisdiction → when no other state has jurisdiction.

PKPA (Parental Kidnapping Prevention Act) – Generally the same as UCCJEA.

Adoption Matters – Same as UCCJEA in most states.

Question 11

Annulment

Answer 11

Invalidates a marriage.
Grounds:
a) Lack of capacity (fraud, duress, mental incapacity);
b) Bigamy;
c) Consanguinity (marriage between close family members); OR
d) Underage at the time of marriage (voidable by the underage spouse).

Fraud → exists when:

1) a spouse made a misrepresentation prior to the marriage on an essential and vital part of the marriage (sex, procreation); AND
2) the marriage would not been consented to if the other spouse had been made aware.
* Waived if a spouse continues to cohabitate after discovering the facts underlying the fraud.

Fraud is usually NOT granted for misrepresentations concerning character or financial situation.

Question 12

Divorce

Answer 12

1) Cruel and inhuman treatment
2) Adultery
3) Abandonment for a set amount of time
4) Habitual drunkenness or drug addiction
5) No-fault divorce (irretrievable breakdown of the relationship for a set amount of time)

Question 13

Setting Aside Divorce / Separation Agreements

Answer 13

Divorce Settlement Agreement → may be set aside if:

a) mediator misconduct; OR
b) it’s substantially unfair and the result of fraud, duress, overreaching, or coercive conduct.

Separation Agreement → Invalid if:
a) unconscionable, OR b) was the result of fraud.

Question 14

Division of Property

Answer 14

Equitable Division Approach (most states) → marital assets are divided among the spouses by equitable distribution; separate property is NOT divided.

Separate Property includes:

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 the passage of time.

Marital Property = 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.

Distribution of Marital Property – All marital property is pooled and then divided among the spouses. The court considers various factors to determine distribution amounts.
− Factors → duration of marriage, age of spouses, earning capacity, lifestyle, income, separate property of each spouse.

Accrual of Marital Property:
− Some States → ends upon permanent separation.
− Other States → ends upon a final divorce decree.

Question 15

Professional degree/license; marital economic fault; death and real property; modification of property division
These all considerations/angles regarding division of marital property

Answer 15

Professional Degree / License Most States → NOT marital property, but allowed reimbursement for any support provided to a spouse to obtain the degree/license.
Minority View → IS marital property – value is based on potential future earnings.

Marital & Economic Fault – fault of either party (i.e. adultery) is generally irrelevant in determining distribution of marital property. − BUT, economic misconduct (i.e. dissipation of assets) is considered.

No-Termination Upon Death – A property division award DOES NOT terminate upon the death of the obligor-spouse.
− Obligations may be enforced against the estate.

Modification of a Property Division Award – A property division award can be modified ONLY IF exceptional circumstances exist (i.e. fraud, duress

Question 16

Spousal Support/Determination/Reinstatement

Answer 16

Spousal Support – purpose is to maintain a spouse’s standard of living and limit any unfair economic effects of a divorce.

When Awarded under UMDA – only awarded if the spouse:

1) Lacks sufficient property; AND
2) Is unable to support him/herself through employment or is the custodian of a child with a condition where the spouse cannot seek employment.

Determining the Amount – Relevant factors a court will consider → (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.

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

Reinstatement of a Prior Award
Most Courts → “No-Revival” Approach – no reinstatement of a prior award that was terminated.
Some Courts → “Logic of Annulment” Doctrine – will order reinstatement of a prior alimony award.

Question 17

Child Support

Answer 17

Parent’s Legal Obligation – A biological parent is legally obligated to pay child support (whether or not the child was intended or wanted).

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

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

College / Educational Expenses – 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.

Termination Upon Death
− 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 18

Modification and Enforcement of Child and Spousal Support Orders

Answer 18

Most States → A support order can only be modified when there is a substantial & continuing change in circumstances making the prior order unreasonable.

Uniform Marriage & Divorce Act (UMDA) → A support order can only be modified upon a showing of changed circumstances so substantial and continuing as to make the terms unconscionable.
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.

Uniform Interstate Family Support Act (UIFSA) – Courts MUST give full faith and credit to support orders
from other states. Under UIFSA, a court CANNOT modify a child support order of another state unless:
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.

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

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

Question 19

Best Interest of the Child

Answer 19

Courts determine child custody based on the best interests of the child.
− Gives great discretion to the court.
− Courts will evaluate various factors → the wishes of the parents and mature children; age, financials, the 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.

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 20

Parent vs. Third-Party Custody

Answer 20

A fit legal parent is given preference, and it’s presumed that such custody is in the best interests of the child.
− In some states, this presumption may be rebutted if detrimental to the child.
− The court MUST give great weight to a parent’s determination of what’s best for the child (as parental rights are Constitutionally protected).

A court will only grant custody to a third-party upon a showing of special circumstances → abuse, neglect, abandonment, mentally incompetent, or parent surrendered the child.

Question 21

Joint Custody/Presumption of Parental Fitness and visitation rights

Answer 21

Joint Custody – will be granted only for parents who can cooperate.

Presumption of Parental Fitness – Parents are presumed fit to care for their children.
− May be rebutted by clear and convincing evidence of conduct endangering the child (abuse, neglect, abandonment, mental incompetence).

Parental Visitation Rights – Parents not granted custody are entitled to reasonable visitation rights.
− UNLESS the court finds (after a hearing) that visitation would seriously endanger the child’s physical, mental, moral, or emotional health. Visitation rights may be modified by the court if it serves the best interests of the child.
Payment of child support is independent from the right to visitation – interference with visitation DOES NOT suspend the obligation to pay child support

Question 22

Third Party Visitation Rights

Answer 22

A court MUST give great weight to parent’s choice of what is best for the child.

− Parental rights are Constitutionally protected. Some States permit visitation to third-parties who have a substantial relationship with the child (a de-facto parent) when in the best interests of the child. BUT, the third-party must: (1) overcome a presumption that the parent is acting in the best interests of the child; AND (2) show that a denial of visitation poses a risk of harm to the child.

Question 23

Relocation of custodial parent

Answer 23

A court will permit a custodial parent to relocate with the child if:

1) made in good faith; AND
2) it’s in the best interests of the child.

*The court will balance the effect on visitation vs. the benefits of relocation.

Question 24

Modification of a Child Custody Order

Answer 24

Allowed ONLY IF there is a substantial change in circumstances.
− Custody determinations CANNOT be retroactively modified.

The court that had jurisdiction over the original order usually retains continuous and exclusive jurisdiction to make modifications. − But see exceptions below under PKPA and UCCJEA.

PKPA → A court may modify an order from another State if:

1) it had jurisdiction to make an initial determination; AND
2) the issuing State (a) no longer has jurisdiction, or (b) declined to exercise it.

UCCJEA → 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 25

Division of Property and Unmarried Cohabitants

Answer 25

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 (3 types).
i. Resulting Trust – title in one party’s name, but another party gave money to acquire the property with intent to have ownership.
ii. Constructive Trust – one party obtained title through wrongful conduct.
iii. Quantum Meruit – one party is unjustly enriched by the services provided by another.
* Either party may bring an action to partition jointly held property.

An agreement for the 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 26

Putative Spouse Doctrine

Answer 26

Protects the financial and property interests of a person who:

1) Entered into a void/voidable marriage; AND
2) Believed in good faith (objective standard) that the marriage was valid.

*A putative spouse is entitled to the same marital property rights as a legal spouse

Question 27

Paternity

Answer 27

May be established by:

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 28

Unmarried Biological Father’s Rights

Answer 28

Protected under the Due Process Clause only if: 1) Father assumed parental responsibilities; AND 2) Established a substantial parent-child relationship.

Entitled to notice of adoption if: a) his right is protected under the Due Process Clause; OR b) He acted consistent with the State’s guidelines for the putative father registry.

Question 29

Right to Control a Child’s Upbringing

Answer 29

Is a fundamental right, and the govt. generally CANNOT interfere.

Exceptions – The govt. MAY LIMIT parental rights & decisions when it:

a) jeopardizes the health or safety of the child (e.g. lifesaving medical treatment is needed); OR
b) has a potential for a significant social burden (e.g. spread of a preventable contagious illness).

Education → A parent may provide religious education or deny education because of religious beliefs.
− But, ALL children must attend school at least through the 8th grade.

Medical Care → Parental consent is required before medical care is performed on a minor, except in an emergency or where prescribed by statute.
− Some states DO NOT honor a parent’s refusal of child medical treatment based on religious beliefs. Courts consider whether strong facts in favor of treatment exist, and weigh the risks/benefits of the treatment.

Vaccination Mandate → Is within the State’s police power. Requiring vaccinations as a condition for school admission does not violate the Constitution.

Question 30

Tort Immunity/Loss of Consortium Claims

Answer 30

Common Law → Spouses could not sue each other, and parent-child suits were not allowed.
Modern View → Intrafamily immunity is abolished.

Loss of Consortium Clams – Intended to compensate a spouse for loss of the other spouse’s companionship, sexual relations, and affection.
− Only available to married couples.

Question 31

Adoption

Answer 31

Adoption – 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.

Consent to Adoption – 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.

Jurisdiction – Same as a child custody determination under UCCJEA.

Visitation for Biological Parents
Most States → Biological parents lose visitation rights after adoption.
Some States → Permitted if in the best interests of the child.

Question 32

Alternatives to Adoption

Answer 32

Artificial Insemination – Is the introduction of sperm into a female’s uterus for achieving pregnancy by means
other than sexual intercourse.

In Vitro Fertilization – Fertilization by combining egg and sperm in a laboratory, and then transferring it into the female’s uterus.

The husband is presumed to be the legal father of the child if:

1) he consented in writing; AND
2) a medical doctor performed the procedure.
* A sperm donor’s rights are severed (unless the donor is also the husband).

Surrogacy Arrangements – When a woman agrees to carry a pregnancy for another person/couple who will become the child’s parents.

− States that Allow Surrogacy Agreements → Courts will only enforce the agreement under certain conditions, such as prior court approval of the surrogacy agreement.

− Some States → Surrogacy is NOT allowed, and the agreement is void as against public policy