Family Law

Question 1

Common Law Marriage

Answer 1

In jurisdictions that recognize common law marriage, the proponent of the marriage must prove that the parties: (1) cohabitated; (2) held themselves out as married; and (3) intended to be married.

Question 2

Marital Action Jurisdiction - Annulment

Answer 2

Jurisdiction over marital actions is vested in state courts. A state where either party is domiciled has jurisdiction to enter into an annulment decree.

Question 3

Establishing Paternity - Man Presumed Father

Answer 3

Under the UPA, a man is presumed to be the father if: (1) he and child’s mother have been married to each other and the child is born during marriage, or within 300 days after marriage is terminated; (2) before the child’s birth, he and the child’s mother attempted to marry and the child is born during the marriage or within 300 days after its termination; or (3) when the child is under the age of majority, he receives child into his home and holds out child as own.

Question 4

Establishing Paternity - Father-Child Relationship

Answer 4

Under the UPA, the father-child relationship is established by: (1) an acknowledge of paternity; (2) adoption of the child; or (3) adjudication of man’s paternity.

Question 5

Establishing Paternity - Equitable Estoppel

Answer 5

Under equitable estoppel, a man who is not the biological father will be estopped from denying paternity if they (1) held themselves out as a father; and (2) paid support.

Question 6

Establishing Paternity - Legitimation

Answer 6

Legitimation is brought by biological father to establishing rights concerning child born out of wedlock. Generally, the father must show that he has: (1) assumed parental responsibilities; and (2) established a substantial parent-child relationship.

Question 7

Premarital Contracts

Answer 7

Most states will enforce a premarital agreement if it is: (1) in writing signed by both parties; (2) executed after full disclosure of the property and financial obligations of both parties; and (3) voluntary. Whether the agreement was entered into voluntarily, the courts will consider: (1) the presence of legal counsel; (2) the length of time between agreement and marriage; (3) the sophistication of parties; and (4) the presence of other pressing reasons to proceed with marriage.

Question 8

Premarital Agreements - UPPA

Answer 8

Under the UPPA, the party against whom enforcement is sought must prove that the agreement was: (1) not voluntary or unconscionable when it was executed; (2) they did not receive or waive fair and reasonable disclosure; and (3) they reasonably could not have had adequate knowledge of the other’s assets and obligations.

Question 9

Child Custody & Support in Premarital Contracts

Answer 9

Courts decide custody based on the best interests of the child, regardless of any premarital agreements. Parents have an absolute obligation to support their children. A premarital agreement cannot adversely affect a child’s right to support and are unenforceable.

Question 10

Child Custody - Best Interests Standard

Answer 10

Generally, courts determine child custody based on the best interests of the child. Courts consider factors such as: (1) needs of child for relationship with both parents; (2) ability and willingness of parents to perform functions as parents; (3) interaction and relationship of child with parents, siblings; (4) child’s adjustment to home, school, and community; (5) mental and physical health; (6) intention of either parent to relocate child; (7) wishes of child’s parents; and (8) the wishes of child.

Question 11

Marital Action Jurisdiction - Divorce

Answer 11

Under the Full Faith and Credit Clause, a divorce granted in one state is entitled to full faith and credit in other states. A divorce is valid and must be recognized by other states if petitioning party: (1) was domiciled in state that granted divorce; and (2) provided adequate notice of the proceeding to other spouse. A state does not have jurisdiction to dive marital property that is located in another state without personal jurisdiction over defendant spouse.

Question 12

Property Division at Divorce - Separate Property

Answer 12

Separate property includes all property acquired by: (1) either spouse before marriage; (2) gift, bequest, devise, or descent; (3) proceeds of the spouse’s separate property; and (4) all passive appreciation of separate property (appreciation in value due to passage of time rather than efforts of either spouse).

Question 13

Property Division at Divorce - Marital Property

Answer 13

Marital property includes all property acquired during marriage (regardless of who holds title) that is not separate property. Active appreciation (appreciation in value due to efforts of either spouse) of separate property is considered marital property.

Question 14

Property Division at Divorce - Distribution

Answer 14

In determining division of property, courts consider the following factors: (1) income, property, and liabilities of each party; (2) duration of marriage; (3) obligations for support arising out of a prior marriage; (4) lifestyle each spouse is accustomed to; and (5) contributions made by each spouse to marital property.

Question 15

Property Division at Divorce - Modification

Answer 15

Generally, courts cannot modify a property division award unless exceptional circumstances exist (eg, fraud)

Question 16

Modification of Child Support

Answer 16

A child support order can only be modified when there is a substantial change in circumstances of either party making prior order unreasonable. Under the UDMA, a modification of child support is allowed only upon showing changed circumstances so substantial and continuing to make the terms unconscionable. Some courts will not permit modification if change in circumstances was anticipated or voluntary, unless can show that change occurred in good faith rather than to punish obligee or deprive child of support.

Question 17

Modification of Child Support - Jurisdiction

Answer 17

Under the UIFSA, a state court does not have jurisdiction to modify an order of child support given by another state if the original state has continuing, exclusive jurisdiction. This rule applies unless the parties, including the child, no longer reside in that state or the parties expressly agree to another state’s jurisdiction. Federal law bars courts from retroactively modifying child support orders and requires states to give full faith and credit to child support awards from other states.

Question 18

Modification of Child Custody

Answer 18

To modify a child custody order, parent must show that (1) circumstances have substantially changed; and (2) modification would be in child’s best interest.

Question 19

Spousal Support - Spouse Eligibility

Answer 19

Under the UDMA, a spouse is eligible for spousal support if the spouse seeking support lacks property sufficient for their reasonable needs and is unable to support themselves though employment or is custodian of a child that makes it inappropriate for them to work.

Question 20

Spousal Support - Amount to Award

Answer 20

General factors the court considers in determining the amount to award includes: (1) financial resources of party seeking maintenance; (2) time necessary for spouse to obtain work; (3) duration of marriage; (4) standard of living established during marriage; (5) age and physical/emotional condition of spouse seeking maintenance; and (6) ability of spouse paying support to meet own needs.

Question 21

Modification of Spousal Support

Answer 21

In most states, a spousal support order can only be modified when there is a substantial change in circumstances of either party making the prior order unreasonable. Under the UDMA, a modification of spousal support is allowed only by showing changed circumstances so substantial and continuing to make the terms unconscionable.