Family Law

Question 1

What is the purpose of spousal support?

Answer 1

To provide adequate monetary income to a spouse, who as the result of the marital relationship, is economically dependent and unable (unwilling doesn’t count) to provide for themselves.

Question 2

What factors are considered when awarding spousal support?

Answer 2

(1) duration of marriage

(2) standard of living during the marriage

(3) ability to pay

(4) contribution to the marriage and child care

(5) age

(6) physical condition

(7) education level

(8) ability to earn $$$

(9) emotional condition

Question 3

What is marital property?

Answer 3

Property acquired and during a marriage that will in most cases be divided “equitably” upon divorce.

Question 4

What are the 4 primary exceptions to the general rule that property obtained during the marriage is “marital property.”

Answer 4

Received via . . .

(1) Descent

(2) Devise (leaving property someone by terms of a will

(3) Bequest

(4) Gift

Question 5

How do courts evaluate gifts as marital property (or not)?

Answer 5

The court looks to the intent of the gift, whether it was intended for one spouse or both.

Question 6

What are the 2 primary factors considered when determining the amount of child support to be paid?

Answer 6

(1) the needs of the child / children

(2) the spouse’s ability to pay

Question 7

Many states have formulas that calculate the amount of child support. What are the input factors for these formulas / calculations?

Answer 7

(1) Age of children

(2) number of children

(3) any special needs of the children

(4) parent’s income

Question 8

May courts deviate from the statutory guidelines for child support?

Answer 8

Yes, but only with adequate justification.

Question 9

May state modify a divorce decree issued by another state?

Answer 9

Generally no. States cannot modify a divorce decree issued by another state when any of the parties continue to live in the state that issued the divorce decree.

Question 10

What is the exception? When may a state modify a divorce decree issued by another state?

Answer 10

A state that issues a divorce decree has exclusive jurisdiction over that decree unless or until both parents and the child no longer reside in that state.

Domicile standard is used.

Question 11

Can a state enforce a child support order that was issued by another state?

Answer 11

Yes, under the full faith and credit clause.

Note: the parties still must be given notice and the chance to be heard in court.

Question 12

What standard is applied when determining whether permanent spousal support should be awarded?

Answer 12

Permanent is awarded when a spouse does not have the resources to support themselves AND they lack the ability to be self sustaining in the future.

Question 13

When does a state have jurisdiction over a divorce?

Answer 13

When either party is a resident (domicile standard) of that state.

Question 14

Does a state need to have personal jurisdiction over the spouse who is being sued for divorce?

Answer 14

No. What matters is that one of the spouses is a resident of the state.

Question 15

When does a court have jurisdiction over property division?

Answer 15

The court must be in the state where the property is located.

Question 16

What are the elements needed for a valid no-fault divorce?

Answer 16

(1) one spouse believes the marriage is irretrievably broken

(2) parties have been separated for the state-specific statutory period.

Question 17

If one spouse believes a marriage can be fixed, is this enough to prevent or at least delay a divorce?

Answer 17

Nope.

Question 18

In property division, what happens to property that was purchased by one spouse before the marriage, but both parties helped make payments during the marriage?

Answer 18

The division will be apportioned in accordance with contributions that were made by the individual and the couple (via martial income during the marriage).

Question 19

How do courts have jurisdiction over property divisions? (2 ways)

Answer 19

(1) personal jurisdiction over both parties

Or

(2) general jurisdiction over its residents.

Question 20

What 2 legal status lead to a court having the ability to divide a couple’s assets?

Answer 20

(1) Valid / Legal Marriage

(2) Valid / Legal Cohabitation agreement

Question 21

Requirements of a valid common law marriage?

Answer 21

(1) both people have the capacity to consent to a marriage

(2) both people actually gave consent

(3) the couple held themselves out publicly as married

(4) the couple cohabitated

Question 22

What are typical indicators that are looked at when determining if a couple held themselves out as married?

Answer 22

(1) whether they told people they were married

(2) whether they had joint accounts (bank, gym, country club, etc.)

(3) whether they used the same last name

Question 23

Can a child be adopted without the consent of an unmarried biological father?

Answer 23

Generally no. Adoption requires consent from BOTH parents.

Question 24

When does an unmarried biological father NOT have the right to block an adoption?

Answer 24

When . . .

(1) the father was not substantially connected to or involved with the child’s life.

OR

(2) A court determines the father is “unfit” to be a parent.

Question 25

What factors used to consider a father’s involvement with a child?

Answer 25

(1) whether the parents cohabitated

(2) amount of $$$ paid by the father for the benefit of the child

(3) whether the father was involved with protection, education, emotional support, financial support, supervision, etc., of the child

(4) whether the father admitted that he was the father

Question 26

What are the required elements of a valid premarital agreement?

Answer 26

(1) the agreement was in writing (SOF)

(2) the spouses had adequate time to consider and opportunity to consult with others

(3) entry into the agreement was volitional

(4) the agreement was based on full disclosure of asset

Question 27

Premarital agreements can be void / unenforceable due to unconscionability. At what point in time is unconscionability determined?

Answer 27

At the time the agreement was formed.

Question 28

Can a premarital agreement validly waive a spouse’s right to spousal support?

Answer 28

Yes, if the agreement is otherwise valid / volitional.

Question 29

In what circumstance may spousal support still be awarded when it was validly waived?

Answer 29

In no situation will courts enforce a waiver of spousal support if the result would be leave the spouse dependent on public assistance / the state.

Question 30

What factors are considered when determining whether joint custody should be awarded?

Answer 30

(1) whether the parents agree to a certain joint custody arrangement

(2) fitness of the parents

(3) effect of joint custody on the child

(4) how much involvement each parent has with the child prior to divorce / separation

(5) whether the child / children prefer one parent over the other (matters more with older kids)

(6) whether the parents are capable of working together to the benefit of the child in a joint custody situation

Question 31

How will a court decide child custody when premarital agreement defines it?

Answer 31

The court will do whatever it determines is in the best interest of the child / children.

No deference is given to the premarital agreement with respect to child custody.

Question 32

Which parent is most often award custody of a child?

Answer 32

The one who was the primary caregiver.

Question 33

May a premarital agreement waive the obligation to pay child support?

Answer 33

No.

Question 34

What are the 2 required steps that must be take for a valid / legal adoption?

Answer 34

(1) one way or another, the biological parents’ parental rights are terminated

(2) New parent/child relationship is established. In most cases consent of the child’s biological parents is required.

Question 35

What factors considered in deciding whether to award custody to a biological parent or a 3rd party?

Answer 35

First, great weight is given to the biological parents. Only if they are found to be unfit will custody be awarded to a 3rd party.

Second, courts always must consider what is in the best interest of the child.

Question 36

Will a court override a parent’s decision to deny visitation to a 3rd party?

Answer 36

Not likely. Special weight is given to a fit parent’s decision to deny visitation.

Even if the 3rd party cared for the child for years, the courts will likely not override the fit parent.

Question 37

When does a court have jurisdiction over a custody dispute?

Answer 37

(1) the court is in the home state of the child

OR

(2) the state was formerly where the child lived, less than 6 months have passed, and one parent still lives in the state

Question 38

In what state is a child at home for the purposes of court jurisdiction?

Answer 38

The state where at least one parent (or caregiver) resides and where the child has resided for at least 6 months.

Question 39

Must a sister state enforce a custody agreement?

Answer 39

Yes, because of the full faith and credit clause and the “Federal Parental Kidnapping Prevention Act.” Enforcement is required.

Question 40

What law is applied to determine the legitimacy of a child?

Answer 40

The law of the state in which the mother is domiciled at the point in time when the child is born.