Family Law

Question 1

How do states across the board recognize comon law marriage?

Answer 1

If a couple is common law married in a state that recognizes it, other states will recognize the marriage too.

Question 2

How do you establish common law marriage?

Answer 2

to establish a common law marriage, the proponent must show:
1. capacity to enter into a marital contract,
2. a present agreement to be married, cohabitation,
3. and holding out a marital relationship.

CACH

Question 3

How is marriage recognized?

Answer 3

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

What is the legal value of a bigamous marriage?

Answer 4

A bigamous marriage is void from the beginning.

Question 5

What are the two marriage saving doctrines for a spouse in a bigamous relationship?

Answer 5

(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 6

Why will most states grant divorce?

Answer 6

Virtually all states are no-fault divorce states.

Some states recognize fault-based grounds too.

Question 7

Why is annulment recognized?

Answer 7

Annulment is also recognized for fraud and other reasons.

Question 8

What is the primary factor in how custody is determined?

Answer 8

Custody is determined by looking at the best interest of the child.

Question 9

What are the factors for determining if custody is in the best interest of the child?

Answer 9

• This typically requires looking at factors such as the wishes of the child’s parents, the child’s primary caretaker
• the mental and physical health of all individuals, the interrelationship of the child and parents stability
• and whether there is any domestic violence.

Question 10

When can custody be modified?

Answer 10

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 11

What are child support guidelines?

Answer 11

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.

Question 12

What are the factors for child support guidelines?

Answer 12

The court will look at factors like income and earnings of the parents, the number of children and their ages, and any special needs of the children.

Question 13

How does one obtain modification of child support?

Answer 13

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.

Question 14

Is child support modified retroactively or substantially?

Answer 14

Child support cannot be modified retroactively unless there was fraud or other compelling circumstances.

Question 15

How will a court deal with relocation of a parent and child?

Answer 15

• 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 16

How much weight are decisions by a fit parent given?

Answer 16

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 17

When does the father have rights?

Answer 17

Generally, biological fathers have rights.

However,thes tate may make the parent exercise his rights within a specific time (e.g., two years).

Question 18

What are the rights of a parent when another person wants to adopt a child?

Answer 18

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 19

What must a third party who wants custody prove?

Answer 19

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 20

How will courts divide property at a divorce proceeding?

Answer 20

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

Question 21

What is martital property?

Answer 21

Marital property is property acquired during the
marriage.

Question 22

What is separate property?

Answer 22

Separate property includes (mnemonic=BIG) property acquired before the marriage, an inheritance, or a gift to one party.

Most states don’t count professional degrees earned during the marriage as marital property.

Question 23

Will a court enforce property division based on a premarital agreement?

Answer 23

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.

Question 24

Will a court enforce a premarital agreement regarding child custody or support?

Answer 24

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 25

What are the three ways that alimony can be granted?

Answer 25

1. permanent
2. temporary
3. granted in lump sum

Question 26

What factors do courts look at when examining alimony?

Answer 26

Almost all states require the trial court to consider the parties’ financial resources and needs, marital contributions, and 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 27

Can alimony awards be modified?

Answer 27

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.

Question 28

What happens to alimony if a spouse dies or gets remarried?

Answer 28

Alimony usually terminates if a spouse dies or gets remarried.

In some states, cohabitation will reduce or terminate alimony.

Question 29

Which court may dissolve a marriage?

Answer 29

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 30

Which court can issue a property division order upon divorce?

Answer 30

Unless the court has jurisdiction over the defendant spouse, it may not issue a binding property division or support order.

Question 31

What governs child support?

Answer 31

The Uniform Interstate Family Support Act (UIFSA) governs child support.

This Act has been adopted by all states.

Question 32

The Uniform Interstate Family Support Act (UIFSA)

Answer 32

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 33

What governs child custody?

Answer 33

The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) applies.

Question 34

What are the three tests under the The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA)?

Answer 34

1. home test
2. significant connections test
3. emergency jx or default jx

Question 35

What is the home state test?

Answer 35

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 36

What is the significant connections test?

Answer 36

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 37

What is the emergency jx test?

Answer 37

if no other state has or exercises jx, this test applies