Family Law

Question 1

How is common law marriage treated in most states?

Answer 1

Abolished in most states. But full faith and credit is given: If a valid common law marriage is formed in one state, it is regarded as valid even in states that don’t recognize it

Question 2

What are the best interest of the child factors?

Answer 2

1. Child Preference 2. Primary care-taker 3. Financial situation of parents 4. Domestic Abuse 5. Keeping children together

Question 3

UPAA stands for

Answer 3

Uniform Premarital Agreement Act

Question 4

When is unconscionability evaluated?

Answer 4

depending on the jurisdiction, as of the time the agreement was signed or at the time of divorce

Question 5

How is property usually divided?

Answer 5

Most common approach to division of property is equitable division of marital property, where each spouse takes separate property (brought into marriage or acquired by inheritance or gift), and court divides community/marital property (acquired during marriage)

Question 6

What is included in marital property?

Answer 6

pensions, damage awards from tort suits from cause of action that accrues during marriage, stock options. Does not include licenses or educational degrees. Some jurisdictions compensate for spouse’s contribution during other’s education or training

Question 7

Mixed property is what?

Answer 7

Initially SP may be transformed into MP if (1) SP is mingled with MP or with SP of other spouse to extent it can’t be traced or (2) SP is treated with intention for it to be MP (e.g., in names of both). If marital funds or effort by non-owner spouse enhances value of SP during marriage, it remains SP, but non-owner may be reimbursed for value added Sold to

Question 8

What is a separation agreement?

Answer 8

Agreement entered into during marriage to resolve economic issues (e.g., spousal support, property division, child support) and custody rights
1.To be enforceable, agreement must be voluntary, with full and fair disclosure by both pts
2. A separation agreement (or a portion) may be invalidated for fraud or unconscionability
a. Examples: misrepresentation or nondisclosure or asset or income, lack of representation by separate counsel
b. But keep in mind that a property distribution decree based on a separate agreement still may not be modified

Question 9

What is full faith and credit for the purpose of child support agreements?

Answer 9

Child support orders may be enforced in any state under Uniform Interstate Family Support Act (“UIFSA”), even without personal jurisdiction over respondent (obligor)
1. Court in another state may only enforce original order, UNLESS all parties (obligee, child, and obligor) no longer reside in issuing state, or parties consent on record to non-issuing court’s modification of order

Question 10

How may a child support agreement be modified?

Answer 10

Court may not retroactively modify child support orders in all circumstances. Prospectively modifiable based on a substantial change of circumstances affecting needs of child, availability of parent, or ability of parent to pay (e.g., employment change, child’s growth, inflation, illness), or fraud

Question 11

Effect of nonpaternity on child support

Answer 11

It is unclear whether child support may be modified based on a finding that a child is not the husband’s. Traditionally, courts are reluctant to terminate an established parent-child relationship, and some courts cite the child’s best interest. However, some states have placed emphasis on interests of an erroneously identified father

Question 12

What is UCCJEA?

Answer 12

Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”) governs child custody and visitation

Question 13

What is PKPA?

Answer 13

Parental Kidnapping Prevention Act (“PKPA”) governs interstate modification of child custody decrees, and gives full faith and credit to another state’s custody or visitation determination (subject to jurisdictional requirements

Question 14

What are the two types of custody?

Answer 14

Custody may be legal custody (right to make major decisions affecting minor’s life) or physical custody (possession and control of minor). Joint custody may be joint legal custody and/or joint physical custody

Question 15

What is a primary caregiver?

Answer 15

To decide between two qualified parents, award often goes to primary caregiver, the one most involved in child’s day-to-day life; some courts defer to wishes of an older child

Question 16

Joint custody

Answer 16

If parents agree to joint custody, court will generally agree unless not in child’s best interest

Other factors for determining whether joint custody is appropriate include: fitness of both parents, parents’ ability to cooperate w/r/t child’s wellbeing, child’s preference, involvement of parents in child’s life, proximity of two homes, similarity of homes, effect on child’s psychological development, parents’ ability to physically follow joint custody order

(1)
whether the parties agree to joint custody and can get along; (2) whether both
parents have mental capacity/character to parent; (3) who has been the primary
caregiver; and (4) where the parties reside geographically. Physical custody is the
custody of the child’s person, whereas legal custody is control over the decisions for
the child. The court will look to these factors and determine the best interests of the
child.

Question 17

What is adoption?

Answer 17

A legal proceeding terminating the relationship between child and biological parents (if necessary) and establishing a new relationship between child and adoptive parents.

Consent of natural parents is required, UNLESS parental rights were terminated, parents are unmarried (father’s consent not necessary), or waived by court if absent consent is against child’s best interest (e.g., natural parent deserted child)

Unmarried father may veto prospective adoption based on factors such as attempt to establish legal or personal relationship with child (willingness to assume custody himself), manifestation of parental responsibility, lived with and cared for child, visited child regularly, admission of paternity, child support

Question 18

What is the UPA?

Answer 18

Uniform Parentage Act (“UPA”)

Question 19

What are defenses to grounds for a fault divorce (abandonment, adultery, abuse, incapacity)?

Answer 19

There are common defenses to these fault-based divorces which include: (1) the parties colluding to bring forth fault; (2) both parties are guilty of the offense; (3) the party had permission; and (4) the party forgave the spouse (typically includes reengaging in marital relations)