Family Law

Question 1

Ceremonial Marriage

Answer 1

License, solemnization (ceremony by judicial officer or church), capacity.

License requires: Age, Waiting period, Premarital medical testing (some states), and has an expiration date.

Question 2

When is a license not issued?

Answer 2

Bigamy, Sham marriage, Incest, and Incapacity.

Question 3

Common Law Marriage

Answer 3

Capacity; Parties agree they are married; cohabitate as married; and hold themselves out to the public as married.

Question 4

Capacity to Marry

Answer 4

Must understand the nature of the act.

Question 5

Heartbalm Actions

Answer 5

Civil suit for money damages based on damage to reputation when engagement broken off.

Question 6

Intact Families

Answer 6

Courts will refuse to hear matters b/w intact families as they are private matters that should be decided within the home.

Question 7

Ending a Marriage

Answer 7

Annulment, Divorce, or Death.

Question 8

Annulment

Answer 8

Declares marriage as having never been valid. Can be void or voidable.

Question 9

Void Marriages

Answer 9

Bigamy, Incest, Mental Incapacity.

For bigamy, latter marriage is void.

Question 10

Voidable Marriage

Answer 10

Age, Impotence, Intoxication, Fraud, Duress, Lack of Intent (joke).

Question 11

Defenses to Annulling Voidable Marriage

Answer 11

Unclean hands, laches, and estoppel.

Question 12

Defense to Annulling Void Marriage

Answer 12

Deny the existence of the impediment that voided the marriage, but this only makes marriage voidable.

Question 13

Prenuptial Agreements

Answer 13

Voluntary; In Writing; Full disclosure of Assets; and Fair and Reasonable.

Where conflict of laws, some states apply law with most sig. relationship, others apply where agreement was executed.

Question 14

Separation Agreements

Answer 14

Can detail spousal support and property division. Must be voluntary, in writing and signed, not unconscionable.

If custody or child support, not binding. Court can’t determine.

Question 15

No Fault Divorce

Answer 15

Must show the relationship is irretrievably broken for a set amount of time defined by statute.

Question 16

Fault Divorce Grounds

Answer 16

Adultery, Desertion, Bigamy, Indignity, Cruelty, Habitual Drunkenness, Imprisonment, Institutionalization.

Question 17

Fault Divorce Defenses

Answer 17

Recrimination and unclean hands, Condonation, Provocation, Consent, Connivance, Collusion, Insanity, Justification.

Sometimes cheating affects alimony but it’s more like if you use it to squander all the assest to pay for your new lover and shower them with gifts – not usually just for the “emotional harm” of it.

Question 18

Ex Parte Divorce/Divisible Divorce

Answer 18

One spouse can get a divorce in the state that they are domiciled without jx over the other spouse. However, cannot allocate property, decide alimony, or child support.

Question 19

Equitable Distribution of Property

Answer 19

Fair distribution of all marital property, taking into consideration all of the circumstances b/w the parties. Not necessarily equal division (though a few states presume equitable division is equal division, but permit deviation to achieve a more equitable result).

Considerations: Length of marriage, age/health/earning capacity, custody of minor children, contributions to education, etc.

Question 20

Marital Property

Answer 20

All property acquired during the marriage is marital property and subject to equitable distribution.

Some states subject all property owned by either spouse to equitable distribution (i.e., the “hotchpot” approach).

Question 21

Separate Property

Answer 21

Property acquired prior to marriage, acquired by gift or inheritance, excluded by valid agreement, award or settlement for cause of action that accrued prior to marriage, regardless of when payment received, etc.

Note that separate property can become marital property if the other spouse’s “significant efforts” transform it.

Question 22

Can property division be modified post divorce?

Answer 22

NO!

Question 23

Spousal Support

Answer 23

Spousal support is the obligation of one party to provide the other with support in the form of income.

Considers financial resources, contributions to marriage, marital misconduct, time to find employment, length of marriage, age/health, and standard of living.

Can be permanent (15 yrs of marriage), limited duration, reimbursement, or rehabilitative.

Question 24

Child Support

Answer 24

Income shares model: child receives same proportion of parental income as if parties continued to live together.

Also, Melson formula and Percentage of income.

Question 25

Uniform Interstate Family Support Act (UIFSA)

Answer 25

Registered child support order in one state is valid in another state without looking at minimum contacts.

Question 26

Modification of Child Support

Answer 26

Requires substantial change in circumstances that is continuing.

Cannot be modified retroactively. If voluntary reduction, income can be imputed.

Must be modified by court of continuing jx unless consent or parties moved.

Question 27

What state can modify child support?

Answer 27

The original state that entered the decree has continuing and exclusive jurisdiction to modify. Only way to get around this is if NO ONE involved (either parent or child) lives there or both parents agree to a new forum to modify it.

Question 28

Who gets custody? “FLIPDADS”

Answer 28

Best interest of the child. Factors include: financial ability of parents, lifestyle of parents, initial custody, primary caregiver, desire of child, availability of parents and living arrangements, domestic violence, and siblings.

Question 29

Troxel

Answer 29

Parents have a FUNDAMENTAL AND CONSTITUTIONAL RIGHT TO CONTROL THE UPBRINGING OF THEIR CHILD. Any statute which cuts out the parents wishes will be against this right.

Fit parent is presumed to act in the best interests of their child, and courts are required to give “special weight” to a parent’s wishes when determining visitation

Question 30

UCCJEA and PKPA

Answer 30

Uniform Child Custody Jurisdiction and Enforcement Act: A court will have jx to issue an initial child custody order if the court is in the child’s HOME state.

i) Is the child’s home state (child has lived with a parent for at least 6 months immediately prior to custody proceeding); or
ii) Was the child’s home state in the past six months, and the child is absent from the state, but one of the parents (or guardians) continues to live in the state.

If there is no home state that reaches the 6 month thereshold they will look to a state where the child and one parent have a significant connection to.

In cases of abuse or abandonment they can enter an emergency jurisdiction decree in any state so long as the child is physically present.

Parental Kidnapping Prevention Act is like Full Faith and Credit.

Question 31

Kulko

Answer 31

There must be minimum contacts to exercise PJ over a non-resident parent

Question 32

Matrimonial Courts

Answer 32

Have full equity powers in actions involving: division of property, divorce/annulment, custody, support, etc.

Question 33

PJ over out-of-state parent

Answer 33

A court obtains PJ over an out-of-state parent pursuant to a long-arm provision in the Uniform Interstate Family Support Act.

Personal service, consent, past residency with the child in the state, parents had sex in state and child may have been conceived there, etc.

Question 34

Custody Types

Answer 34

Legal: Make major decisions.
Physical: Day-to-day and residency.
Joint: Neither parent has superior rights, make decisions together.

Question 35

Adoption

Answer 35

SCOTUS has held that the right of an unwed father to object to an adoption cannot be denied if the father has demonstrated that he is committed to fulfilling the responsibilities of parenthood.

Some jx have created adoption registries for the purpose of determining the identity and location of putative fathers and providing notice in the event of an adoption.

A putative father’s failure to register within a statutorily prescribed period of time constitutes a waiver of his right to notice of the adoption and irrevocably implies his consent to the adoption. However, termination in this fashion typically applies only to cases in which the father and child never developed a relationship.

Question 36

Full Faith and Credit - Marriage Validity

Answer 36

RS1: Validity of marriage is governed by the law of the state where the marriage was celebrated. If the marriage is valid where it was celebrated, it is recognized in all other states. If a marriage violates a particularly strong public policy of the domicile of either party, however, it will be invalid under the traditional approach.

RS2: A marriage will be valid everywhere else unless the marriage violates the public policy of the state with the most significant relationship with the parties at the time of marriage.