Family Law

Question 1

Bigamous marriage

Answer 1

No state recognizes. two marriage saving doctrines: (1) removal of impediment; UDMA allows an invalid marriage to be validated upon the removal of the impediment; (2) presumption of validity; under this, the last of several marriages will be presumed valid

Question 2

Incestuous marriage

Answer 2

Void. Under UDMA, can’t marry: (1) ancestors or descendants; (2) siblings; or (3) uncles, aunts, nieces, or nephews

Question 3

Marriage requirements

Answer 3

(1) marriage license; (2) solemnization; (3) consent

Question 4

Common law marriage

Answer 4

(1) cohabitated; (2) held themselves out as married and (3) intended to be married

Question 5

Premarital contracts valid if

Answer 5

(1) in writing and signed by both parties; (2) executed after full disclosure of the property and financial obligations of both parties; AND (3) voluntary

Question 6

factors to consider re voluntary nature of premarital contract

Answer 6

(1) presence of independent legal counsel; (2) length of time between the agreement and the marriage; (3) sophistication of the parties; and (4) the presence of other pressing reasons to proceed with the marriage

Question 7

Child custody and premarital contracts

Answer 7

Most courts decide custody according to the best interests of the child at the time of the custody hearing, regardless of premarital agreements

Question 8

Child support and premarital contracts

Answer 8

Parents have absolute obligation to support their children.

Question 9

Spousal support in premarital contracts

Answer 9

In some jx, premarital agreements that limit a spouse’s support after the marriage ends are void against public policy.

Under Uniform Premarital Agreement Act, modification or elimination of spousal support is permitted so long as such provisions do not make the former spouse eligible for public support

Question 10

Annulment

Answer 10

common grounds: (1) lack of capacity to consent at the time of marriage; (2) lack of capacity to physically consummate the marriage; (3) underage minors and (4) marriages prohibited by law (bigamy, incest, etc.)

Question 11

Divorce

Answer 11

Some states still have fault, but every state has adopted a form of no-fault divorce. Common grounds are: (1) a minimum duration of separation and/or (2) irreconcilable differences

Question 12

Marital action jurisdiction generally

Answer 12

vested solely in the state courts (federal courts fo not have subject matter jx over domestic relation matters).

Question 13

Annulment jurisdiction

Answer 13

A state where either party is domiciled has jurisdiction to enter an annulment decree.

Ex parte annulments are allowed in the state where either party is domiciled

Question 14

Divorce jurisdiction

Answer 14

Under FF&C, a divorce validly granted in one state is entitled to full faith and credit in other states.

Generally, a divorce is valid and must be recognized by other states if the petitioning party: (1) was domiciled in the state that granted the divorce AND (2) provided adequate notice of the proceeding to the other spouse.

Question 15

Divisible divorce

Answer 15

Under this concept, a distinction is made between the marriage and the marital property. A state does NOT have jurisdiction to divide marital property that is located in another state without PJ over other spouse

Question 16

Separate property

Answer 16

(1) all property acquired by either spouse before the marriage; (2) all property acquired by a spouse during marriage by gift, bequest, devise, or descent; (3) all property either spouse acquires with the proceeds of the spouse’s separate property; and (4) all passive appreciation of separate property

BIG: before, inheritance, gifts

Question 17

Marital property

Answer 17

All property acquired during the marriage (regardless of who holds title). Active appreciation of separate property is usually categorized as marital property

Question 18

Professional degrees and licenses as property

Answer 18

In almost every state, these are separate property and not subject to distribution at divorce.

Question 19

Equitable distribution factors

Answer 19

(1) income, property, and liabilities of each party; (2) duration of the marriage; (3) the obligations for support arising out of a prior marriage; (4) the lifestyle each spouse is accustomed to; (5) the contributions made by each spouse toward the accumulation of marital property. Marital fault = NO

Question 20

Modification of property division

Answer 20

Generally, courts may NOT modify a property division award (whether it results from a divorce settlement agreement or judicial determination) UNLESS exceptional circumstances exist

Question 21

Spousal support

Answer 21

Court has wide discretion, a spouse is eligible for spousal support if the spouse seeking support: (1) lacks property sufficient for his or her reasonable needs and is unable to support himself through gainful employment; OR (2) is the custodian of a child and not working

Question 22

Spousal support factors

Answer 22

(1) financial resources of the party seeking maintenance; (2) time necessary for the spouse seeking support to obtain an appropriate job; (3) duration of the marriage; (4) standard of living; (5) age and physical condition; (6) ability to meet own needs

Question 23

Modification of spousal support

Answer 23

When there is a substantial change in circumstances of either party making the prior order unreasonable. Some courts do not allow modification if the change in circumstances was anticipated or voluntary

Question 24

Child support guidelines

Answer 24

(1) income of both parents; (2) number of children and their needs

Question 25

Modification of child support

Answer 25

Modified only when there is a substantial change in circumstances of either party making the prior order unreasonable.

**State that originally issued the order has continuing exclusive jurisdiction to modify so long as that state remains the residence of the obligee, child, or obligor

Question 26

Best interest factors for custody

Answer 26

(1) needs of the child for relationship with both parents; (2) ability and willingness of the parents to actively perform their functions as parents; (3) relationships; (4) child’s adjustment to home, school, community; (5) mental and physical health of all individuals; (6) intention of parent to relocate; (7) wishes of the child’s parents as to custody AND (8) wishes of the child

Question 27

Visitation

Answer 27

When one parent is granted custody of a child, the other parent is usually always entitled to visitation unless the court determines that visitation would seriously endanger the child’s wellbeing

Question 28

Third party visitation

Answer 28

In a minority of states, courts may order visitation for a nonparent if: (1) the nonparent has a substantial relationship with the child; AND (2) the visitation is in the child’s best interests

Question 29

Modification of Child Custody

Answer 29

In order to modify a child custody order, the parent must show that (1) circumstances have substantially changed and (2) the modification would be in the child’s best interests

**state that issued has continuing and exclusive jx

Question 30

Relocation of child

Answer 30

Courts will allow if: (1) motives are not vindictive AND (2) move is in child’s best interests.

Question 31

Rights of Cohabitants

Answer 31

Most courts allow express contracts of economic sharing, some states allow unmarried cohabs to seek a remedy based on an implied in fact theory, or equitable remedies (resulting trust, constructive trust, quantum meruit)

Question 32

Establishing paternity

Answer 32

(1) an effective acknowledgement of paternity by the man unless the acknowledgement has been rescinded or successfully challenged; (2) a valid adoption or (3) an adjudication on man’s paternity

Question 33

Man presumed to be father

Answer 33

(1) married to mom at child’s birth or child born within 300 days of marriage ending; (2) while child is under the age of majority, father openly holds child out as his own

Question 34

Legitimation

Answer 34

Legal action brought by biological father to establish his rights concerning child born out of wedlock. To establish his rights, father may file a petition seeking to legitimate his child. Must show that he has (1) assumed parental responsibilities; AND (2) established a substantial parent-child relationship

Question 35

Adoption

Answer 35

Statutory procedure that terminates the rights of biological parents and establishes the rights of the adoptive parents. In most states, the biological parents lose the right to visit their child after the adoption. However, some states will permit visitation if it is in the child’s best interests.

Question 36

Parental consent in adoption

Answer 36

BOTH parents. If born out of wedlock, dad only required if he assumed parental responsibility. An unwed father who knew of his child’s pending birth is NOT entitled to notice of the adoption if he did not take steps to establish a parent-child relationship with the child.

Question 37

Challenge to validity of consent for adoption

Answer 37

can challenge if consent was (1) procured by fraud or duress or (2) failed to comply with statutory formalities (some states require two witnesses to consent to an adoption, most states declare pre-birth adoptions invalid)

Question 38

Revocation of valid consent to adoption

Answer 38

(1) consent is revocable until the final adoption decree is entered with the court; (2) consent is revocable at the court’s discretion up to a specified amount of time so long as the revocation is in the child’s best interests; or (3) absent fraud or duress, consent is not revocable

Question 39

Jurisdiction to modify child support order

Answer 39

The state originally issuing the order has continuing and exclusive jurisdiction to modify the order if: (1) the obligee, obligor, or child resides in the state

Question 40

Child support jurisdiction

Answer 40

The Uniform Interstate Family Support Act (“UIFSA”) provides methods of enforcement and guidelines for modifications of support orders issued in other sates

Question 41

Original child support jurisdiction

Answer 41

Original jurisdiction to enter a child support order is proper where the first petition under UIFSA is filed

Question 42

When can another state exercise support jurisdiction

Answer 42

only if (1) the second petition is filed before the time to answer the first has expired; (2) the petitioner objected to jurisdiction in the first action; (3) the second state is the child’s home state

Question 43

Initial Custody Determination

Answer 43

A court has jurisdiction to initially enter or modify a child custody or visitation order if the state: (1) is the child’s home state; or (2) was the child’s home state within the pst six months and the child is absent from the state, but a parent or person acting as a parent continues to live in the state

Question 44

When “home state” does not apply

Answer 44

The child and at least one parent (or person acting as a parent) has a significant connection with the state, and substantial evidence concerning the child is available in the state

Question 45

Defenses to marital fault grounds

Answer 45

(1) recrimination (dirty hands, spouse also cheating) (2) condonation (waiver, knowledge and forgiveness) (3) connivance (entrapment) (4) collusion

Question 46

Types of alimony

Answer 46

temporary, permanent periodic, rehabilitative

Question 47

What governs child support

Answer 47

Uniform Interstate Family Support Act (UIFSA)

Question 48

What governs child custody

Answer 48

Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA)

Question 49

Which state’s laws govern premarital agreements?

Answer 49

Some states will apply the law of the state where the contract was executed. Other states apply the law of the state with the most significant relationship to the parties and transaction.

Question 50

Best interests of the child (FLIP DADS)

Answer 50

F - financial ability of parents – who has the money?

L - lifestyle of parents – does one parent smoke crack or hang out with a shady crew?

I – Initial custody, courts will look at how custody was initially awarded

P – Primary caregiver (who has been the childs primary caregiver up until now).

D – Desires of the child (this one is pretty important if the child is older. Maybe a 6 year old can’t decide… but a 14 year old? That will be given way more weight).

A – Availability of parents and their respective living arrangements.

D – Domestic violence. Obviously prior incidents of domestic violence initiated by one parent will cut against them for custody.

S – Siblings should not be separated because one can find a lot of support and stability being with their sibling (unless you don’t like your siblings).