Family Law

Question 1

Common law marriage full faith and credit

Answer 1

If a couple is common-law married in one state that recognizes it, other states will recognize the marriage too.

Question 2

Common law marriage elements

Answer 2

Marriage is a CACH

The proponent of the marriage must show:

1. Capacity to enter into a marital contract,
2. Present Agreement to be married,
3. Cohabitation, AND
4. Holding out a marital relationship.

Question 3

Recognition of marriage

Answer 3

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 4

Bigamy

Answer 4

A bigamous marriage is void from the beginning. A bigamous marriage is void from the beginning. But 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 by divorce will render a subsequent marriage valid.

Question 5

End of marriage

Answer 5

• Virtually all states are no-fault divorce states.
• Some states recognize grounds for fault-based divorce, too.
• Annulment for fraud or other other reasons is also recognized.

Question 6

Child custody and support analysis

Answer 6

When determining child custody and support, the best interest of the child is examined.

A biological parent generally has parenting rights if he is involved in the child’s life.

Question 7

Factors considered in child custody considerations

Answer 7

Controlling analysis is the best interests 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 the parents,
• stability
• domestic violence

Question 8

Child custody modifications

Answer 8

Child custody can be modified only if there is a substantial change in circumstances.

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

Question 9

Child support guidelines

Answer 9

All states employ numerical guidelines and establish a rebuttable presumption taht the award that results from applying the guidelines is correct.

The guidelines must be applied in all cases, regardless of the parents’ marital status.

The court will look at factors like:

• income and earnings of the parents
• the number of children and their ages
• any special needs of the children

Question 10

Child support modification

Answer 10

In order to obtain a modification of a future support obligation, the petitioner 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. examining if the party acted in good faith, among other factors. There is a heavy presumption against a modification for a voluntary reduction in income.

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

Question 11

Relocation of the parent and child

Answer 11

Generally, a move sought in good faith that will serve the child’s best interest will be approved. The court will balance the impact on visitation by the noncustodial parent against the benefits of the move to both the children and the custodial parent.

Some states place the burden on the relocating parent, and some place it on the objecting parent.

Question 12

How do courts treat decisions by fit parents

Answer 12

The decisions of a fit parent must be given some deference, including those regarding medical care.

This right can be limited if a parent’s decision will jeopardize the health or safety of the child.

Question 13

Rights of a biological father

Answer 13

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

Question 14

Rights of a parent when another person wants to adopt the child

Answer 14

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 15

Third party rights

Answer 15

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 statute must give special weight to the parent’s determination of the child’s best interest.

Question 16

Division of property at divorce

Answer 16

A majority of states will divide all marital property at divorce. Separate property remains the property of the owning spouse.

Question 17

Marital property

Answer 17

Property acquired during the marriage

Question 18

Separate property

Answer 18

BIG

• Property from Before the marriage
• Inheritances to one spouse
• Gifts to one spouse

In most states, professional degrees earned during the marriage are counted as separate property.

Question 19

Enforcement of premarital agreements

Answer 19

A court will enforce a premarital agreement so long as it is

• Voluntarily made
• Substantively fair, AND
• Made with a full disclosure of assets and obligations at the time of the marriage.

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

Question 20

Spousal support

Answer 20

(Alimony). Can be permanent, temporary, or granted in lump sum. Almost all states require the court to consider the parties’ financial resources and needs, marital contributions, and 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 determining whether to award spousal support.

Question 21

Modification and termination of alimony

Answer 21

Alimony awards may be modified 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 22

JX for dissolving a marriage

Answer 22

The 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 to one of the parties to the marriage, then that court has jurisdiction to dissolve the marriage.

Question 23

JX for property division orders

Answer 23

Unless a court has jurisdiction over the defendant spouse, it may not issue property division or support orders that bind the defendant spouse.

Question 24

JX for child support orders

Answer 24

The Uniform Interstate Family Support Act (UIFSA) governs child support. This act has been adopted by all states. 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.

Question 25

JX for child custody orders

Answer 25

The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) applies.

Courts can get jurisdiction under three tests:

• Home State test
• Significant Connections test
• Emergency jurisdiction or default jurisdiction

Question 26

Home State Test

Answer 26

The home state has exclusive jurisdiction to modify a custody decree. A home state is a state where a 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 a child leaves the state, so long as a parent, or person acting as a parent, still lives in the home state.

Question 27

Significant Connections test

Answer 27

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

1. Significant connections to the child or at least one parent, and
2. The existence of substantial evidence relating to child custody in the forum state.

Question 28

Emergency jurisdiction

Answer 28

(Default jurisdiction)

If no other state has or exercises jurisdiction, a court can exercise jurisdiction under this test.

Question 29

Constitutional rights in child custody

Answer 29

A fit parent has a fundamental right to the care, custody, and control of his children. State courts must give “special weight” to the fit parent’s decisions on care, custody, and control.

Question 30

What is the weight of a child’s wishes in a child custody consideration?

Answer 30

Most courts will consider the wishes of the child if the court can determine that the child has a sufficient maturity to express a preference. Although age is not the sole factor in determining whether a child should be consulted, it is considered by the court. If children are consulted, the court evaluates the reasons behind the child’s preference.

Answer 31

Common law marriages are valid when the parties:

1. agree that they are married
2. cohabit as married, AND
3. hold themselves out in public as married

Answer 32

The U.S. Supreme Court has held that the right of an unwed father to object to an adoption cannot be denied if the father has demonstrated that he is committed to fulfilling the responsibilities of parenthood.

On the other hand, some jurisdictions have created adoption registries for the purpose of determining the identity and location of putative fathers and providing notice in the event of an adoption. A putative father’s failure to register within a statutorily prescribed period of time constitutes a waiver of his right to notice of the adoption and irrevocably implies his consent to the adoption. However, termination in this fashion typically applies only to cases in which the father and child never developed a relationship.

Answer 33

Under the UCCJEA, a court has subject matter jurisdiction to preside over custody hearings and either enter or modify custody or visitation orders if the state is:

1. the child’s home state (the state in which the child has lived with a parent or guardian for at least six consecutive months prior to the custody proceeding, or since birth, if the child is less than six months old), OR
2. 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.