Family Law

Question 1

Premarital agreements

Answer 1

A valid premarital agreement must be (1) in writing, (2) voluntary, (3) signed by the party to be charged, and (4) based on full and fair disclosure of each party’s financial worth. It cannot be the product of fraud or duress. Entry into the marriage is sufficient consideration.

Question 2

Enforcement of prenups

Answer 2

For a court to enforce a premarital agreement, the agreement must contain fair and reasonable economic provisions for the claiming spouse. A court is not bound by child custody or support provisions in premarital agreements unless it is in the best interest of the child.

Question 3

Spousal support

Answer 3

Spousal support ensures 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. Spousal support terminates upon the remarriage or cohabitation of the recipient spouse.

Question 4

Child support

Answer 4

Parents have an equal duty to support their children. The award of support to one party for the benefit of the children is generally based on monetary need and ability to pay.

Question 5

Child custody factors

Answer 5

The court considers various factors such as the fitness of the parents, whether the parents agree on joint custody, the parent’s ability to communicate and cooperate, the children’s preference (depending on their age), parental involvement in the children’s lives, the geographical proximity of the parents to the children, and effect a joint or sole judgment would have on the children’s psychological development. Courts often award custody to the parent who has been the primary caregiver.

Question 6

Divorce court’s jurisdiction

Answer 6

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 sufficient jurisdiction to terminate the marriage.

Question 7

Jurisdiction to issue property division

Answer 7

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

Question 8

Child custody and support jurisdiction

Answer 8

If a parent wants to acquire jurisdiction over a nonresident parent for child support or custody, then he must show that the state has jurisdiction over the nonresident parent (minimum contacts).

Question 9

UIFSA

Answer 9

The UIFSA governs child support. Once a child support order is registered, it may be enforced by any state. The state that originally issued the child support order has exclusive jurisdiction to modify the order if the state remains the residence of the obligee, child, or obligor, and at least one party does not consent to the use of another forum.

Question 10

UCCJEA

Answer 10

The UCCJEA governs child custody orders. Under the home state test, the home state is where the child continuously lived for 6 months prior to the custody action. The home state continues to have exclusive jurisdiction for 6 months after the child leaves the state if one parent still lives in the state. Under the significant connections test, a state may exercise jurisdiction based on the significant connections with the child and at least one parent, and the existence of substantial evidence relating to child custody in the forum.

Question 11

Medical consent

Answer 11

Generally, parental consent is required before medical treatment can be administered to a minor. Some states have laws enabling minors to give valid consent to abortions, obtain birth control, or treatment for STDs. A court may not override a parent’s authority unless withholding such treatment would cause irremediable injury to the child.

Question 12

Constitutional right to privacy

Answer 12

Parents have a constitutional right to privacy to determine issues regarding the care, custody, and control of their children. Parents are given the responsibility to make decisions on their child’s behalf. A court may not override a parent’s authority because they would have decided otherwise.

Question 13

Modification of spousal support

Answer 13

Spousal support can be modified based on a substantial and material change in the circumstances affecting the needs of the recipient spouse or the ability to pay of the obligor spouse.

Question 14

Modification of child support

Answer 14

Child support is always modifiable based on a substantial change in circumstances affecting the needs of the children or the ability of the parents to pay. Courts will consider various factors, including unemployment.

Question 15

Retroactive moficiation

Answer 15

Child support payments cannot be retroactively modified.

Question 16

Full faith and credit

Answer 16

Generally, for full faith and credit to be granted to a judgment, there must have been (1) proper jurisdiction for the judgment, (2) there was a final judgment on the merits.

Question 17

FFAC for Child Support Act

Answer 17

Generally, child support orders are not final because they are modifiable. However, full faith and credit may be given to another court’s child support order if (1) the court had jurisdiction over the matter and the parties, and (2) the parties had reasonable notice and an opportunity to be heard.

Question 18

Doctrine of divisible divorce

Answer 18

Under the doctrine of divisible divorce, an ex parte divorce can serve to grant only a divorce. It cannot devise any property rights or support, which must be decided by a court with jurisdiction over both spouses.

Question 19

Marital property

Answer 19

Marital property is property acquired during the marriage. The court divides marital property on an equitable, not necessarily equal, basis.

Question 20

Separate property

Answer 20

Separate property includes property acquired before the marriage, from an inheritance, or as a gift to one party. An increase in separate property remains separate property if the increase is not due to the contribution of marital funds or the labor of both spouses.

Question 21

Property distribution factors

Answer 21

The present income of the spouses, their vocational skills, employability, earning capacities, opportunities to acquire future income, and each party’s contribution as a homemaker to the family.

Question 22

Marital fault

Answer 22

Most states do not consider marital fault as a factor in the division of property. However, courts do consider a spouse’s dissipation of marital assets.

Question 23

Modification of child custody

Answer 23

Custody orders may be modified based on a substantial change in circumstances affecting the child’s well-being. The party seeking the modification bears the burden of proof. A court will consider a child’s wishes (depending on age).

Question 24

Child custody standard

Answer 24

The standard to be applied in custody determinations is the best interests of the child.

Question 25

Relocation

Answer 25

Courts allow relocation if it is in the child’s best interests, is motivated by a benefit to the family, and is not intended to deprive the noncustodial parent of visitation.

Question 26

Common law marriage

Answer 26

A common law marriage is where a couple (1) exchanges consent, (2) cohabit, and (3) hold themselves out as living together as husband and wife.

Question 27

Biological paternal rights

Answer 27

An unwed father of a non marital child has the right to raise his own child. The relationship between the father and child will be protected if the father has been actively involved in the child’s life to date. Such factors are whether the father admitted paternity, lived with the mother and cared for the child (or frequently visited), and paid child support will be decided in determining whether the father has exercised his parental rights.