Family Law

Question 1

Who can get married?

Answer 1

• Both parties minimum age (typically 18)
• Parties not too closely related
• Neither party has prior undissolved marriage with living spouse

Question 2

What are the procedural requirements for a marriage?

Answer 2

• License (usually with a wait period of a day or two)
• Ceremony done by state-approved officiant

Question 3

What are the requirements for common law marriage?

Answer 3

• Intent by two parties with capacity to be married
• Cohabitation
• Hold one another out as spouses

Question 4

What are the requirements for an enforceable premarital contract?

Answer 4

• Voluntary agreement
• In writing and signed by charged party
• Full and fair disclosure of financial worth
• Economic provisions are fair and reasonable

Question 5

What makes a marriage void?

Answer 5

• Bigamy
• Polygamy
• Consanguinity
• Nonage (depending on state law)

Question 6

What makes a marriage voidable?

Answer 6

• Incurable physical impotence
• Mental incompetence
• Lack of assent
• Duress
• Fraud involving the essentials of marriage
• Nonage (some states)

Question 7

What are the requirements for no-fault divorce?

Answer 7

• Irreconcilable differences or incompatibility lead to marriage being irretrievably broken
• The parties have been living apart for a specified time

Question 8

What are some typical fault grounds for divorce?

Answer 8

• Adultery
• Willful desertion
• Extreme cruelty
• Drug addiction/Habitual drunkenness
• Mental illness

Question 9

What are some traditional defenses to fault grounds?

Answer 9

• Collusion (previous agreement to fake grounds for divorce)
• Connivance (willing consent to misconduct)
• Condonation (forgiveness with full knowledge)
• Recrimination (no clean hands)

Question 10

Where is jurisdiction proper for a divorce?

Answer 10

Any state where either party is a bona fide resident of the state. As long as one party is domiciled in the state which grants the divorce, the decree is recognized as valid in all states.

Question 11

What are the approaches to dividing property upon divorce?

Answer 11

• Community Property: All property acquired during marriage is owned one-half by each spouse, and all property brought into marriage or acquired by gift or bequest is separate
• Equitable Division of ALL Property: Equitable division of all property owned by either spouse, whether acquired before or after marriage
• Equitable Division of MARITAL Property (Most Common): Each spouse maintains separate property (same as in community) and marital property is equitably divided

Question 12

What is marital property?

Answer 12

All property acquired by either spouse during the marriage except. . .

• Property acquired through gift, bequest, devise, or descent
• Property acquired in exchange for otherwise separate property
• Income from or appreciation of otherwise separate property, unless either spouse contributed to the increase in value

*NOTE: Separate property may become marital property if it is inextricably mingled to the point that it cannot be traced, or if it is treated in a way which demonstrates an intent for it to become marital property.

Question 13

What factors do courts consider in dividing property?

Answer 13

• Age, health, education, and background of each party
• Duration of marriage, and whether there were prior marriages
• Standard of living during the marriage
• Present income and earning capacities of both parties
• Child custody provisions
• Presence of spousal support
• Contribution to the marriage and change in value of assets
• Whether either party has dissipated marital property

Question 14

What factors do courts consider in awarding spousal support?

Answer 14

• Duration of marriage
• Standard of living during marriage
• Age, condition, and health of parties
• Financial resources of parties
• Contribution to marriage
• Time needed to obtain training or be ready for employment
• Ability of payor spouse to meet needs while paying support
• Marital fault (in some states)

Question 15

What are the types of spousal support?

Answer 15

• Permanent
• Rehabilitative
• Lump Sum
• Reimbursement

Question 16

Which court has initial jurisdiction over a custody case?

Answer 16

Under the UCCJEA,

• The Home State Test is most important. The home state is where the child has lived with a parent for at least six consecutive months immediately prior to the commencement of the proceeding (if child under state months, where child has lived since birth)
• Temporary absences are disregarded for six-month test
• A court also has jurisdiction even if a child has been absent if the state was the child’s home state within the past six months and another parent still lives there
• The Significant Connections Test will apply if the child has no home state. Here, jurisdiction can be based on (1) “significant connections” with the child and at least one parent; and (2) the presence of “substantial evidence” in the jurisdiction
• If no other state exercises or has jurisdiction, Emergency or Default Jurisdiction applies

Question 17

How is child custody determined? What factors are considered?

Answer 17

• The standard is the best interest of the child.
• Factors to consider include. . .
  
  • Wishes of the parents
  • Preferences of the child (especially if over 12)
  • The child’s adjustment to home, school, and community
  • The mental and physical health of all parties

Question 18

When are custody orders modifiable?

Answer 18

Upon a substantial or material change in circumstances.

Question 19

How is visitation determined?

Answer 19

• For parents, strong preference that both parties have reasonable visitation rights
• Custodial parent may not withhold visitation for failure to pay support
• A fit parent’s decision regarding third party visitation is given great deference

Question 20

Which courts have jurisdiction to modify custody orders?

Answer 20

• The Home State has exclusive jurisdiction to modify a custody degree.

Question 21

How is parentage established?

Answer 21

• Any child is the lawful child of their mother
• A child is also the lawful child of their father if the parents were married at or around the child’s birth or the father acknowledges paternity (or a court does)

Question 22

What are the steps for an adoption?

Answer 22

1. Termination of the biological parents’ rights (either via consent or forceful termination)
2. Creation of new legal parent-child relationship

Question 23

What factors are considered in deciding child support payments?

Answer 23

States have numerical guidelines that establish a rebuttable assumption and are applied regardless of parents’ marital status. To modify them, courts will look to. . .

• Income and earnings of parents
• Number of children and ages
• Any special needs of children
• Custody arrangements

Question 24

When will the relocation of a parent and child be approved?

Answer 24

Generally, when the move. . .

• Is sought in good faith
• Will serve the child’s best interest

Note: Visitation impacts will be balanced against the benefits to both the children and the moving parent. States differ in whether they place the burden on the moving parent or the objecting parent

Question 25

Which courts have jurisdiction to modify child support orders?

Answer 25

• The issuing state has exclusive jurisdiction to modify if it remains the residence of at least one of the parties (the obligee, the obligor, or the child); and
• at least one party does not consent to it being moved