Family Law

Question 1

Limitations on Marriage

Answer 1

(1) Age
(2) Capacity
(3) Bigamy/polygamy
(4) Too closely related

Question 2

Requirements to Marry

Answer 2

(1) license
(2) solemnization – conducted by an authorized clergy member or judicial officer

Question 3

Common Law Marriage

Answer 3

(1) Consent
(2) Cohabitation
(3) Holding out publicly as spouses
*eg. joint bank account, same last name, telling people they are married

Question 4

Recognition of Common Law Marriage

Answer 4

If a valid common law marriage is formed under one state’s law, it is regarded as a valid marriage in other state, even those where common law marriage is illegal

Question 5

Premarital Agreement Requirements

Answer 5

(1) Writing
(2) Voluntariness
(3) full & fair disclosure

Question 6

Enforcement of Premarital Agreements

Answer 6

Courts strictly scrutinize premarital K’s under the Uniform Premarital Agreement Act (UPAA)

Question 7

Annulment Definition

Answer 7

Judicial declaration that the marriage was invalid due to some impediment at the time of marriage, and thus never occurred
*Marriage is considered void or voidable

Question 8

Grounds for annulment

Answer 8

*bigamy or polygamy
*too closely related
*non-age
*incurable physical impotence
*incapacity to consent (fraud/duress or mental incompetence)

Question 9

Grounds for Divorce

Answer 9

*Irretrievably broken
*Living separate
*Incompatibility

Question 10

Jurisdiction over Annulment

Answer 10

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

Question 11

Jurisdiction over Divorce

Answer 11

*Residency requirement – one or both parties must be domiciled in the jurisdiction where the action is brought
*Full Faith & Credit Clause – divorce degree obtained in one state is recognized in other states as long as one or both parties was domiciled in the state that granted the decree

Question 12

Equitable division of marital property

Answer 12

Each spouse takes their separate property and the court divides property acquired during marriage on an equitable basis

Most popular approach, assume on MEE unless provided otherwise

Question 13

Community property approach

Answer 13

Property acquired during the marriage is 50-50 by each spouse, unless acquired by gift or bequest then it is considered separate property

Question 14

Separate Property

Answer 14

Generally includes property:
(1) acquired before marriage
(2) acquired by gift or bequest
(3) separate property proceeds
(4) appreciations because of time

Question 15

Marital Property

Answer 15

Generally includes all property acquired during marriage that is not separate property, regardless of who holds title

Question 16

Factors courts look at concerning distribution of marital property

Answer 16

*income
*duration of marriage
*standards of living during marriage
*assets/debts/liabilities
*obligations for support
*contribution made by each spouse towards marital property

Question 17

Types of Spousal Support

Answer 17

(1) Permanent Periodic Spousal Support
(2) Rehabilitative Spousal Support
(3) Lump Sum Spousal Support
(4) Reimbursement Spousal Support

Question 18

Factors determined for spousal support

Answer 18

*financial resources of each party
*standard of living established during the marriage
*time necessary for party seeking support to obtain employment
*contribution of each party to the marriage
*ability of the spouse paying support to meet their own needs

Question 19

Child support guidelines

Answer 19

State determined, usually based on formula that considers number of children, their ages, healthcare needs, and parents income

Lasts until child reaches age of majority

Question 20

Types of custody

Answer 20

(1) Legal custody – right to make major decisions affecting childs life
(2) Physical custody – possession and control of the child
(3) Joint custody – either child divides time between both parents, or lives with one but both parents share decisions

Question 21

Custody factors

Answer 21

Focuses on childs best interest
*parents wishes
*childs wishes
*ability and willingness of each parent to provide
*childs adjustment

Question 22

Non-parent visitation

Answer 22

(1) non-parent has substantial relationship with the child
(2) non-parent visitation is in the childs best interests

Question 23

Modification of Spousal Support

Answer 23

Requires a substantial, material, and unanticipated change in either party’s circumstances

*self-induced changes will generally not justify modification

Question 24

Modification of Child Support

Answer 24

Modifiable based on substantial change in circumstances that affects either:
(a) needs of child
(b) ability of parent to pay

*self-induced changes will generally not justify modification

Question 25

Modification of Child Custody

Answer 25

Requires parent to show substantial, material change in circumstances * courts will not change custody unless its in childs best interest

Question 26

K's between unmarried cohabitants

Answer 26

K's between unmarried cohabitants to share property or engage in other forms of economic sharing are valid

Question 27

Division of property between unmarried cohabitants

Answer 27

courts may grant equitable distribution of property based on rehabilitative alimony or one of the following theories: (a) **resulting trust** -- party makes claim to property in anothers name (b) **constructive trust** -- imposed to prevent a party from being unjustly enriched by obtaining title through wrongful conduct (c) **quantum meruit** - recovery in quasi K for valuable services

Question 28

Discrimination based on non-marital child status

Answer 28

almost always unconstitutional

Question 29

Establishing paternity

Answer 29

Once paternity established ,a duty of support attaches

Question 30

Admissible evidence in paternity actions

Answer 30

*blood or genetic tests *prior statements regarding paternity *medical testimony *admissions or acknowledgments by alleged parent

Question 31

Adoption process

Answer 31

Consent of both biological parents generally required *unwed fathers consent may not be necessary if he has not assumed parental responsibility

Question 32

Withdrawal of biological parent consent

Answer 32

Not allowed after adoption, but may be allowed before adoption decree is entered if court determined its in adoptee's best interests

Question 33

Payment (adoption)

Answer 33

Most states prohibit adopting parents from paying money to biological parents beyond pregnancy-related medical expenses

Question 34

Surrogacy Agreement

Answer 34

Surrogate, surrogate's spouse (if married), and intended parent enter into a written agreement in which surrogate relinquishes her rights and duties as a parent

Question 35

Exception to donor parental rights

Answer 35

Donors may have parental rights if agreed to in writing by donor and parent(s)