Family Law

Question 1

Requirements for ceremonial marriage

Answer 1

1) License (age restriction, waiting period, premarital medical testing, expiration date)
2) solemnization

Question 2

Requirements for common law marriage

Answer 2

1) Agree they are married
2) cohabit as married
3) hold themselves out in public as married

Question 3

how to satisfy legal capacity requirement for common law marriage?

Answer 3

1) be old enough
2) not too closely related

Question 4

A valid marriage, including a common-law marriage, can be terminated only by

Answer 4

1) annulment
2) divorce
3) death

Question 5

annulment > void marriage available reasons

Answer 5

1) prior existing marriage
2) incest
3) mental incapacity

Question 6

annulment > voidable marriage available reasons

Answer 6

1) age
2) impotence
3) intoxication
4) fraud misrepresentation, duress, coercion, force
5) lack of intent

Question 7

putative marriage doctrine: definition

Answer 7

The purpose of the doctrine is to protect a party who is unaware of an impediment to the marriage that makes it either void or voidable. Under the doctrine, a party who participated in a ceremonial marriage and believes in good faith that the marriage is valid may use a state’s divorce provisions even if the marriage is later found void due to an impediment.

Invoked to provide equitable relief like maintenance and property distribution

Question 8

grounds for divorce

Answer 8

1) no fault
2) fault - (adultery, cruelty, desertion, habitual drunkenness, bigamy, imprisonment, indignity, and mental disorder)

Question 9

Defenses to fault based divorce

Answer 9

1) Recrimination and unclean hands
2) connivance
3) condonation
4) collusion
5) provocation
6) insanity
7) consent
8) justification
9) religion

Question 10

two methods of distributing assets in the USA

Answer 10

1) community property
2) equitable division

Question 11

exceptions to marital property

Answer 11

i) Property acquired before the marriage or property acquired in exchange for property acquired before the marriage;

ii) Property excluded by the parties’ valid agreement entered into before, during, or after the marriage;

iii) Property acquired by gift or inheritance, or property acquired in exchange for such property, except when it is between spouses;

iv) Property a party has sold, granted, conveyed, or otherwise disposed of in good faith and for value before the date of final separation;

v) Property to the extent that it has been mortgaged or otherwise encumbered in good faith for value before the date of final separation; and

vi) Any award or settlement payment received for any cause of action or claim that accrued before the marriage, regardless of when the payment was received.

Question 12

factors in the distribution of marital property

Answer 12

) Length of the marriage;

ii) Prior marriages;

iii) Age, health, earnings, earning potential, liabilities, and needs of both spouses;

iv) Contributions to education;

v) Needs for future acquisitions;

vi) Income, medical needs, retirement of both spouses;

vii) Contributions to increases in marital property, including homemaking and child-rearing services;

viii) Value of separate property;

ix) Reduction in valuation in marital property by one spouse;

x) Standard of living;

xi) Economic circumstances of each spouse at the time of divorce; and

xii) Custodianship of any minor children.

Question 13

treatment of specific types of marital property: professional licenses

Answer 13

Not a distributable property interest

Question 14

treatment of specific types of marital property: retirement or pension benefits

Answer 14

considered marital property

Question 15

treatment of specific types of marital property: personal-injury claim proceeds

Answer 15

states differ

Question 16

treatment of specific types of marital property: goodwill

Answer 16

sometimes marital property

Question 17

treatment of specific types of marital property: accumulated sick and vacation days

Answer 17

states differ

Question 18

treatment of specific types of marital property: future interest

Answer 18

not distributable

Question 19

treatment of specific types of marital property: social security

Answer 19

not distributable

Question 20

treatment of specific types of marital property: stock options

Answer 20

marital property

Question 21

define: spousal support

Answer 21

the obligation of one party to provide the other with support in the form of income. It is awarded in a divorce if one spouse cannot provide for his own needs with employment. Alimony payments can be made for a definite or indefinite period of time. Unlike property settlements, alimony obligations cannot be discharged in bankruptcy.

Question 22

factors determining spousal support

Answer 22

1) financial resources
2) standard of living
3) time to find employment, training
4) length of marriage
5) contributions to the marriage
6) age and health
7) marital misconduct

Question 23

types of spousal support

Answer 23

1) lump sum
2) permanent
3) limited duration
4) rehabilitative
5) reimbursement
6) palimony

Question 24

modification of support standard

Answer 24

significant and continuing change in circumstances

Question 25

factors likely to change spousal support

Answer 25

1) death
2) remarriage
3) cohabitation
4) retirement

Question 26

divisible divorce doctrine

Answer 26

a court may have sufficient jurisdiction to grant a divorce but lack such jurisdiction with respect to other divorce-related matters, such as property division, alimony, and child support.

A court with subject-matter jurisdiction over the divorce action as well as personal jurisdiction over one spouse can grant a divorce, but it cannot determine property division, alimony, or child-support issues without personal jurisdiction over the other spouse

Question 27

Child’s right to support: how to prove paternity

Answer 27

1) blood test
2) other evidence like prior statements re: paternity, acknowledgment
3) marital presumption
4) estoppel

Question 28

personal jx over out of state parent – how?

Answer 28

long arm provision of Uniform Interstate Family Support Act (Adopted by every state)

i) Personal service on the defendant parent;

ii) Consent of the defendant parent, such as by entering an appearance in the action;

iii) Past residency with the child in the state;

iv) Past residency in the state and the provision of prenatal expenses or support for the child;

v) Residency of the child in the state as a result of acts or directives of the parent defendant;

vi) The parent defendant engaged in sexual intercourse in the state, and the child may have been conceived by that act;

vii) The parent defendant asserted parentage in the putative father registry maintained by the state; or

viii) Any other basis consistent with federal and state constitutions for the exercise of personal jurisdiction.

Question 29

models for calculating child support

Answer 29

Income shares: child should receive the same proportion of parental income as if the parties continued to live together.

Percentage of income: the minimum amount of child support by using a percentage of the supporting (i.e., noncustodial) parent’s net income, determined by the number of children supported.

Nelson formula: similar to income shares, plus six considerations like SOLA, # of dependents

Question 30

Considerations for calc of child support

Answer 30

i) Ages of the children;

ii) Unusual needs and unusual obligations (e.g., special education);

iii) Support obligations of the parties;

iv) Assets of the parties;

v) Medical expenses outside of insurance coverage;

vi) Standard of living;

vii) Duration of marriage, for spousal support or alimony pendente lite; and

viii) Best interests of the child.

Question 31

modifications to child support standard

Answer 31

substantial change in circumstances regarding the child’s needs or the parents’ financial situation, and that change is expected to be continuing, rather than temporary.

Question 32

termination of support

Answer 32

1) reaches age of majority
2) emancipated (this is fact specific)

Question 33

enforcement of child support / spousal support awards

Answer 33

1) civil contempt
2) criminal contempt
3) other sanctions (tax refunds, credit bureau reporting, etc)

Only the issuing state may modify the original support order; the other state’s responsibility is simply to enforce the order (Uniform Interstate Family Support Act)

Question 34

legal custody vs. physical custody

Answer 34

Legal custody is the right of a parent to make major decisions, as contrasted with everyday decisions, regarding the minor child. Typically, areas of health, education, and religion are encompassed.

Physical custody is the right to have the child reside with a parent or guardian and the obligation to provide for routine daily care and control of the child. As with legal custody, physical custody may be shared by both parents under a joint custody arrangement.

Question 35

joint custody

Answer 35

Under a typical joint legal custody arrangement, neither parent has a superior right to make major decisions; instead, joint custody arrangements typically spell out a procedure for resolving conflicts. Joint legal custody is the outcome in the majority of cases. In fact, many jurisdictions have a statutory presumption in its favor.

Question 36

Uniform child custody jx and Enforcement Act

Answer 36

home state jurisdiction > significant connection jx > appropriate connection > exclusive continuing jx

Question 37

when can courts decline jx (UCCJEA)

Answer 37

i) Whether domestic violence has occurred and is likely to continue in the future, and which state could best protect the parties and the child;

ii) The length of time the child has resided outside of the jurisdiction;

iii) The distance between the competing jurisdictions;

iv) The parties’ relative financial circumstances;

v) Any agreement of the parties regarding which state should assume jurisdiction;

vi) The nature and location of the evidence required to resolve the pending litigation, including the child’s testimony;

vii) The ability of each state’s court to decide the issue expeditiously and the procedures necessary to present the evidence; and

viii) The familiarity of each state’s court with the facts and issues in the pending litigation.

Question 38

UCCJEA: enforcement of another state’s orders

Answer 38

requires registration, process is similar to jhabeas corpus – petition will be awarded immediately physical possession of the child if respondent appears in person

Question 39

parental kidnapping prevention act prohibits

Answer 39

prohibits a parent from taking a child outside the United States and obstructing the other parent’s physical custody of the child.

Question 40

standard for determining child custody

Answer 40

best interest and welfare of the child – many courts consider who the primary caretaker was and other factors like child’s preference, siblings, etc.

Question 41

what factors will courts consider when considering relocation?

Answer 41

i) The nature, quality, and involvement with the child of the parent who is not seeking relocation;

ii) The age and needs of the child and the impact that the proposed relocation will have on that development, including any special needs of the child;

iii) The ability to preserve the relationship with the nonrelocating parent and the child through visitation arrangements;

iv) The child’s preference, if the child is of sufficient maturity;

v) Whether the parent seeking relocation has any history of promoting or preventing parenting time with the nonrelocating parent;

vi) Whether the relocation will enhance the quality of life of the child and the parent seeking relocation;

vii) The reasons each parent has in requesting or opposing the relocation; and

viii) Any other factors that affect the best interests of the child.

Question 42

Parental consent for medical procedures

Answer 42

required but court can intervene if religious beliefs prevent care for child

Question 43

parents’ rights to raise child

Answer 43

pretty broad but states can make parents get vaccines

Question 44

marital agreements: list types

Answer 44

1) premarital agreement
2) separation agreement
3) property-settlement agreement

Question 45

requirements for enforceable premarital agreement

Answer 45

1) there has been full disclosure
2) agreement is fair and reasonable
3) it is voluntary
4) in writing and signed

Question 46

contracts between unmarried person invalid if

Answer 46

if the only consideration is sexual relations

Question 47

property division between unmarried cohabitants

Answer 47

When there is no express contract, courts will generally provide for equitable distribution of property based on a resulting trust, constructive trust, or quantum meruit theory to avoid unjust enrichment.

Question 48

adoption: define

Answer 48

Adoption is a statutory legal action in which the previous parent-child relationship is terminated and a new parent-child relationship is established.

Question 49

how to terminate rights of biological parents

Answer 49

1) voluntary termination
2) involuntary termination (neglect, etc)

Question 50

legal effect of adoption

Answer 50

the adoptive parents have all of the rights and responsibilities that the biological parents would have had (e.g., support, custody, visitation, and inheritance), and the adopted child has all of the rights and responsibilities that a biological child would have had (e.g., intestate rights in the adoptive parents’ estate).

Question 51

typical example of relief obtained by protective order in DV cases

Answer 51

the defendant not abuse the petitioner and have no contact with her.

Question 52

rights and obligations of children

Answer 52

1) right to consent to medical care
2) liability for torts and criminal acts
3) emancipation
4) other limits of parent authority – laws are in place to prevent children from harm, a parent’s authority is not absolute.