Family Law

Question 1

Full Faith and Credit for Child Support Orders Act

Answer 1

full faith and credit must be given to another court’s child support order if the court had jurisdiction over the matter and the parties, and the parties had reasonable notice and an opportunity to be heard.

The jurisdictional requirement is satisfied if one of the spouses is domiciled in the state granting the divorce.

Question 2

Uniform Interstate Family Support Act (“UIFSA”)

Answer 2

A court of another state may serve as an initiating tribunal to request the court of the original state, which has continuing and exclusive jurisdiction over the support order, to enforce or modify the order issued in the original state.

Question 3

Parental Kidnapping Prevention Act (“PKPA”)

Answer 3

Under this federal act a state may not modify a custody order if one of the parties continues to reside in the issuing state and under that state’s laws, the court continues to have and does not decline jurisdiction.

This act requires states to enforce a custody order of another state, but only if the state entering the custody decree had home state jurisdiction.

Question 4

Constitutional Supremacy Clause

Answer 4

federal law prevails over contrary state law

Question 5

Uniform Child Custody and Jurisdiction Enforcement Act (“UCCJEA”)

Answer 5

Initial Jurisdiction: Under this law a state may exercise jurisdiction if it is the home state of the child at the time the proceedings began or within six months of the proceedings and a parent still resides in the jurisdiction. *see child’s home state card

Continuing Jurisdiction: Under this law the court that made the initial custody determination has continuing, exclusive jurisdiction over the matter until that court determines that: neither the child nor the parents continue to reside in the state, or the child no longer has a significant connection with the state and substantial evidence relating to the child’s care, protection, training, and personal relationships is no longer available in the state.

Question 6

Court’s considerations when establishing or modifying a custody order

Answer 6

(I) the parents’ wishes; (ii) the child’s wishes; (iii) the relationship of the child with each parent (also siblings and others); (iv) the child’s adjustment to home, school, and community; and (v) the mental and physical health of the parties

Child’s wishes - given little weight when young, but usually great weight when over 12.

Many courts feel it is best to keep siblings together.

Question 7

Child support modification

Answer 7

based on substantial change of circumstances affecting the needs of the children or the ability of the parents to pay and cannot be modified retroactively

Question 8

Doctrine of Divisible Divorce

Answer 8

Under this doctrine, an ex parte divorce generally can serve to grant only the divorce. An ex parte divorce decree has no effect on disputes over marital property, unless the property is located in the rendering state. Otheriwse, such disputes can be resolved only by a court having personal jurisdiction over both of the parties (PJ can be established through “minimum contacts” or submission by the party).

Question 9

Child’s home state

Answer 9

A child’s home state is the state in which the child lived with a parent, or a person acting as a parent, for at least six consecutive months before commencement of the proceeding (or the child’s birth state if the child is less than six months old).

Question 10

Child’s home state

Answer 10

A child’s home state is the state in which the child lived with a parent, or a person acting as a parent, for at least six consecutive months before commencement of the proceeding.

Question 11

Are child custody and support agreements binding on the court when in a premarital agreement?

Answer 11

No

Question 12

Validation of subsequent marriage

Answer 12

(1) the strong presumption that the latest marriage is valid, and (2) if the prior marriage is later terminated by divorce, annulment, or death, continued cohabitation validates the second marriage under UMDA and similar statutes.

Question 13

Inability to have children as grounds for divorce

Answer 13

Impotence is not the inability to have children, but if the ability to have children was misrepresented, then the marriage may be annulled based on fraud.

Question 14

Void Marriage Grounds

Answer 14

(1) bigamy, (2) consanguinity, (3) Nonage (some states)

Question 15

Voidable Marriage Grounds

Answer 15

(1) Nonage (most states), (2) Incurable physical impotence, (3) Lack of capacity [mental incompetence, duress, fraud involving the essentials of marriage]

Question 16

Void Marriage Defenses

Answer 16

Impediment does not exist (If impediment has been removed, continued cohabitation results in validation in some states).

Question 17

Voidable Marriage Defenses

Answer 17

(1) impediment does not exist, (2) ratification [that is, continuing in relationship after impediment removed], (3) laches, (4) estoppel, (5) unclean hands [not valid in most states]

Question 18

Types of Spousal Support

Answer 18

(1) Permanent, (2) Rehabilitative, (3) Lump Sum, (4) Reimbursement

Question 19

Factors to consider when awarding alimony

Answer 19

(1) standard of living established during the marriage, (2) duration of the marriage, (3) Age, physical, and emotional conditions of the parties, (4) financial resources of the parties, (5) contribution of each party to the marriage, (6) the time needed for the party seeking support to obtain the training necessary to find appropriate employment, (7) the ability of the payor spouse to meet their needs while paying spousal support, and (8) marital fault (considered in most states for alimony but generally not considered for property division except for the extent it led to a dissipation of assets)

*Court has wide discretion

*Purpose is not to punish but to continue one spouse’s duty to the other arising out of the marriage.

*Although the factors listed above are considered ultimately the dependant spouse’s needs and the payor spouse’s ability to pay tend to guide decisions about spousal support. Lifestyle may be considered but the purpose of support is to ensure the dependent spouse has an adequate income stream to meet their needs.

*Self-induced reduction in income by the payor spouse is NOT sufficient to have spousal support reduced.

Question 20

Home State Jurisdiction

Answer 20

(1) child’s home state, or (2) was the child’s home state within the past six months and the child is absent, but a parent or person acting as a parent (guardian) continues to live in the state.

Question 21

Permanent Spousal Support

Answer 21

Paid regularly for the lifetime of the recipient, modifiable upon substantial change in circumstances, terminates upon the death of either spouse or the remarriage of the recipient spouse

Question 22

Rehabilitative Spousal Support

Answer 22

paid regularly for a limited period of time, modifiable upon substantial change in circumstances, terminates upon the death of either spouse or remarriage of the recipient spouse

Question 23

Lump Sum Spousal Support

Answer 23

Payable all at once or in a series of payments, nonmodifiable, survives the death of either spouse

Question 24

Reimbursement Spousal Support

Answer 24

Payable all at once or in a series of payments, nonmodifiable, survives the death of either spouse

Question 25

Termination of Child Support

Answer 25

Duty of support usually terminates upon emancipation of child by age or marriage, or by termination of parental rights.

Question 26

Amount of child support awarded

Answer 26

Based on monetary need and ability to pay, but the court generally must follow statutory guidelines based on the number of children, their ages and special needs, and the parents’ incomes

Question 27

Settlement Agreement

Answer 27

An agreement entered into during the marriage, before the issuance of the divorce decree, in which the parties may resolve economic issues.

Governed by general contract principles and most states require full and fair disclosure by both parties, fair and entered into voluntarily without undue influence.

May be set aside when a spouse’s fraud, duress, or coercive behavior results in an unfair agreement.

Representation by an independent counsel lessens the chances of the agreement being overturned.

Question 28

Is a license or degree considered “marital property” subject to division?

Answer 28

No, even when attainment was made possible through the support of the other spouse. Might be subject to reimbursement alimony in some states.

It has none of the usual attributes of property in that it cannot be purchased, transferred, or inherited.

Question 29

Can a state grant divorce when it lacks jurisdiction over one spouse?

Answer 29

Yes as long as one of the parties is a bona fide resident of the jurisdiction where the action is brought.

Question 30

Bona fide resident

Answer 30

States may set a minimum durational residency requirement - usually 30-90 days.

Evidence of bona fide residence - duration of residency and other ties to the jurisdiction such as job, intent not to return to previous residence, lease or purchase of residence

Question 31

Can a court divide marital property if it does not have jurisdiction over both spouses or property?

Answer 31

Generally, a court cannot determine out-of-state property rights or rights to support unless it has jurisdiction over both parties. There is a limited exception if the property is located in the state where the action is filed.

Question 32

Can a divorce be granted even if one spouse does not consent and thinks the marriage can be saved?

Answer 32

Yes

Question 33

Can courts order an equitable distribution of marital property even if the title of the property is only in one spouse’s name?

Answer 33

Yes

Question 34

Marital property

Answer 34

all property acquired during the marriage unless acquired through gift, bequest, devise, or descent.

Question 35

What if the property is acquired before the marriage but paid for after the marriage?

Answer 35

If property is acquired before the marriage, but paid for after marriage with marital funds, most courts will apportion the property between separate and marital interests in proportion to the contribution of separate and marital funds used to pay for the property.

Question 36

Can a Court split a couple’s property?

Answer 36

Generally not unless they were married or had a valid cohabitation agreement.

Question 37

Will a marriage be recognized in other states?

Answer 37

Yes if it was valid where it was entered.

Question 38

Common Law Marriage Requirements

Answer 38

(1) capacity, (2) exchange of consent, (3) cohabitation, (4) holding out publicly of living together as spouses

Question 39

For sufficient holding out (for common law marriage), what do courts look at?

Answer 39

common last name, opening a joint bank account, telling others in the community they consider themselves married, “spousal” benefits, joint tax returns

Question 40

Equitable distribution of property considers factors such as:

Answer 40

earning capacity of each party, duration of marriage, standard of living during marriage, source of money used to purchase martial assets, parties’ health and needs, custody of minor children, each party’s contribution to the marriage.

Question 41

Factor’s considered for unwed father’s involvement

Answer 41

(1) whether the parents lived together (or wether father visited regularly, (2) whether father admitted paternity, (3) whether father paid child support, and (4) whether father had any responsibility for supervision, education, protection, or care of the child

Question 42

Can an unwed father block the adoption of his child if he is not actively involved with the child or is found to be an unfit parent?

Answer 42

No