Family Law

Question 1

common law marriage: recognition from other states

Answer 1

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

Question 2

to establish a common law marriage

Answer 2

-the proponent must show (mnemonic=CACH): capacity to enter into a marital contract, a present agreement to be married, cohabitation, and holding out a marital relationship.

Question 3

recognition of the 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. 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 (e.g., by divorce) will render a subsequent marriage valid

Question 5

end of the marriage

Answer 5

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

Question 6

determining child custody and support

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

custody determinations in general

Answer 7

-custody is determined by looking at the best interest of the child.
—This typically requires looking at factors such as:
(i) the wishes of the child’s parents, (ii) the child’s primary
caretaker, (iii) the mental and physical health of all individuals, (iv) the interrelationship of the child and parents,
(v) stability, and (vi) whether there is any domestic violence

Question 8

custody modification

Answer 8

-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:
-child support guidelines

Answer 9

-All states employ numerical guidelines and establish a rebuttable presumption that 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: (i) income and (ii) earnings of the parents, (iii) the number of children and their (iv) ages, and (v) any special needs of the children

Question 10

modification of child support

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., examine if the party acted in good faith, among other factors.)
-This is a heavy burden. Child support cannot be modified retroactivelyunless there was fraud or other compelling circumstances

Question 11

relocation of parent and child

Answer 11

-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 (which you should mention if applicable): some states place the burden on the relocating parent and some put it on the objecting parent

Question 12

rights of parents and others:
-deference given to decisions by a fit parent

Answer 12

-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 13

when does the father have rights?

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

Question 16

How the court will divide property in a divorce proceeding:
-division by the court:

Answer 16

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

Question 17

marital vs. separate property (majority approach)

Answer 17

-Marital property is property acquired during the
marriage.
-Separate property includes (mnemonic=BIG)
(i) property acquired Before the marriage,
(ii) an Inheritance, or a Gift to one party.
*Most states don’t count professional degrees earned during the marriage as marital property

Question 18

division based on premarital agreement

Answer 18

-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 19

the three factors the court will look at when considering to grant spousal support (alimony)

Answer 19

-Alimony can be permanent, temporary, or granted in a lump sum.
-Almost all states require the trial court to consider: (i) the parties’ financial resources and needs, (ii) marital contributions, and (iii) 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 20

modification and termination of alimony

Answer 20

-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 21

unless the court has jurisdiction over the defendant spouse, it may not issue a binding order affecting personal rights such as property division or support, but it may grant a divorce.

Question 22

which court may dissolve 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 between at least one of the parties to the marriage, then that court has
jurisdiction to dissolve the plaintiff’s marriage

Question 23

which court may issue a property division order

Answer 23

-unless the court has jurisdiction over the defendant
spouse, it may NOT issue a binding property division or support order

Question 24

child support: the Uniform Interstate Family Support Act

Answer 24

-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

child custody order

Answer 25

The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) applies.
-This is divided into a few tests:

Question 26

the home state test

Answer 26

-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 a child leaves the state, so long as a parent, or person acting as a parent, still lives in the home state

Question 27

the significant connections test

Answer 27

-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 28

emergency jurisdiction or default jurisdiction

Answer 28

-if no other state has or exercises jurisdiction, this
test applies