Family Law

Question 1

When is a prenup invalid?

Answer 1

(1) Involuntary OR (2) unconscionable at the time of execution.

Question 2

What types of unconscionability are there?

Answer 2

(1) Substantive, (2) procedural, and (3) in terms of disclosure.

Question 3

What is substantive unconscionability?

Answer 3

There is substantive unconscionability when (1) the provisions are not mutual OR (2) the devision of property is inconsistent with the parties’ financial condition.

Question 4

What is procedural unconscionability?

Answer 4

There is procedural unconscionability when there is an exploitation of the disadvantaged party’s lack of knowledge or unequal bargaining power.

Question 5

What is unconscionability in terms of disclosure?

Answer 5

Unconscionability in terms of disclosure means that before the execution the parties (1) did not have a disclosure of property or financial obligations, (2) did not waive the right to this disclosure, and the disadvantaged party could not have had reasonable knowledge of the property or obligations.

Question 6

Zablocki Rule

Answer 6

The right to marry is a fundamental right, and any legislative attempts by a state to limit that right are unconstitutional unless they are narrowly-tailored to the accomplishment of an important governmental purpose.

Question 7

Obergefell Rule

Answer 7

Laws prohibiting marriage on the basis that the couple is same-sex is unconstitutional under the 14th amendment.

Question 8

What is the validity of a void marriage?

Answer 8

A void marriage is invalid from inception, thus never had a legal existence.

Question 9

What is the validity of a voidable marriage?

Answer 9

A voidable marriage is valid until subsequently declared invalid.

Question 10

What are grounds for void marriages?

Answer 10

(1) Incest

(2) Bigamy

Question 11

Who may challenge a void marriage?

Answer 11

Either party or a third party may challenge the validity of the marriage at any time in any proceeding.

Question 12

Who may challenge a voidable marriage?

Answer 12

Only one of the parties and only during the marriage can the validity be raised.

Question 13

What is an annulment?

Answer 13

An annulment declares that no marriage occurred because some impediment exited at the time of the ceremony.

Question 14

What is the test for an annulment?

Answer 14

(1) Strict test: fraud must go to the essential representations (usually pertaining the sex or child bearing.)

OR

(2) Fraud must be material (P would not have married D BUT FOR the fraud.)

OR

(3) Would the plaintiff spouse not have married the other because of the truth - the “deal-breaker”

Question 15

What is divorce?

Answer 15

Divorce is the termination of a valid marriage.

Question 16

What are justifications of licensure statutes?

Answer 16

(1) they aid in enforcing marriage laws by requiring persons not qualified to marry for reasons of ge, health, or existing marital status to disclose such information;

(2) they serve as public health measures by preventing marriages that would be damaging to the health of one spouse or would produce unhealthy children; and

(3) licensure serves as proof that marriage has occurred.

Question 17

What are the elements of Common Law Marriage?

Answer 17

(1) Capacity to enter a marital contract

(2) Present agreement to be married

(3) Cohabitation

(4) Holding out to the community as spouses

Question 18

What is a putative spouse?

Answer 18

A person who in good faith believed they were legally married to someone until they found out they were not.

Question 19

What are the rights of the putative spouse?

Answer 19

A putative spouse acquires the rights conferred upon a legal spouse.

If there is a legal spouse or other putative spouses, rights acquired by a putative spouse do not supersede the rights of the legal spouse or those acquired by other putative spouses, but the court shall apportion property, maintenance, and support rights among the claimants as appropriate in the circumstances and in the interests of justice.

Question 20

What must a putative spouse show?

Answer 20

A putative spouse seeking such status, generally must show:

(1) They participated in a marriage ceremony in good faith;

(2) Believed that a valid marriage took place; and

(3) Was ignorant of an impediment making the marriage void or voidable.

Question 21

What are the elements for alienation of affection? (At common law)

Answer 21

(1) A valid marriage;

(2) wrongful conduct by the defendant with the plaintiff’s spouse;

(3) the loss of affection or consortium; and

(4) a causal connection between the defendant’s conduct and the deprivation of affection.

Question 22

What is the marital communication privilege?

Answer 22

-BOTH parties hold the privilege

-The communication must be confidential

-The communication must have been made DURING A VALID MARRIAGE

-Does not protect the witness-spouse’s OBSERVATIONS that aren’t intended to communicate meaning.

-The privilege SURVIVES the marriage.

Question 23

What is adverse spousal testimonial privilege?

Answer 23

-The holder of the privilege is the witness spouse.

-The privilege protects testimony REGARDING ANY SUBJECT. THE COMMUNICATION DOES NOT HAVE TO BE CONFIDENTIAL.

-The couple must be validly married at the time of the legal proceeding at which the evidence is sought.

-The privilege DOES NOT survive marriage.

Question 24

What are the elements for fault-based adultery?

Answer 24

(1) Adulterous inclination

and

(2) Opportunity to commit adultery

Question 25

What are the elements for fault-based cruelty?

Answer 25

(1) Course of conduct (habitual) that is so severe it (2) creates an adverse health affect on the moving party.

Question 26

What are the elements for fault-based desertion?

Answer 26

(1) a cessation of cohabitation,

(2) without cause of consent,

(3) with intent to abandon,

(4) continuing for a statutory period.

Question 27

What are defenses to fault based divorce?

Answer 27

(1) Recrimination

(2) Condonation

Question 28

Bodie Rule

Answer 28

The Due Process clause of the Fourteenth Amendment prohibits a State from denying, solely because of inability to pay, access to its courts to individuals who seek judicial dissolution of their marriages.

Question 29

Bodie Holding

Answer 29

The State’s refusal to admit these appellants to its courts, the sole means in Connecticut for obtaining a divorce, must be regarding as the equivalent of denying them an opportunity to be heard upon their claimed right to a dissolution of their marriages, and, in the absence of a sufficient countervailing justification for the State’s action, a denial of due process.

Question 30

Counsel Costs Rule

Answer 30

There is an obligation upon counsel, if he expect his fee to be paid by the other spouse, to control excessive demands upon his time, energy, and intellect by the dependent spouse.

Question 31

In re marriage of Kimura Rules

Answer 31

(1) Subject matter jurisdiction is conferred by the party’s domicile in the forum state.

(2) Personal jurisdiction over the Defendant is not necessary to end the marriage but is necessary to resolve the financial incidents of marriage. (Thus jurisdiction over both spouses would be required)

(3) Notice to the defendant is required.

Question 32

International Shoe Rule

Answer 32

Due process only requires that the defendant have certain minimum contacts with the forum state. Those contacts must be such that the maintenance of the suit does not offend traditional notions of fair pay and substantial justice.

Question 33

What is the process of property division?

Answer 33

(1) Is it property?

(2) How is it classified?

(3) What is its value?

(4) How should it be distributed?

Question 34

Residency Requirement Rule

Answer 34

It is constitutional for a state to require a one-year residency period before one living in that state is permitted to file for a divorce therein.

Why: Avoid forum shopping

Question 35

Marital Fault consideration in alimony Rule

Answer 35

In cases where marital fault has negatively affected the economic status of the parties, it may be considered in the calculation of alimony.

Question 36

What is the purpose of property distribution?

Answer 36

Property distribution looks back to divide what was acquired during the marriage

Question 37

What is the purpose of spousal support?

Answer 37

Spousal support looks forward, imposes on one former spouse the obligation to make future payments to the other, sometimes indefinitely.

Question 38

What does a party have to show to prove modification of a spousal support award?

Answer 38

Substantial change in circumstances

Question 39

What are the rules that call for automatic termination spousal support?

Answer 39

(1) Obligor dies

(2) Recipient dies

(3) Recipient remarries

Question 40

What are three ways to classify property?

Answer 40

(1) Tracing

(2) Marital efforts

(3) Recharacterization

Question 41

Bankruptcy Rule

Answer 41

Discharge under Chapter 7 does not discharge the debtor from any debt “to a spouse, former spouse, or child” for something other than a “domestic support obligation” (i.e., child support or maintenance) that “is incurred by the debtor in the course of a divorce or separation or in connection with a separation agreement, divorce decree, or other order of a court of record, or a determination made in accordance with State or territorial law by a governmental unit.”

Question 42

Pension Rule

Answer 42

Defendant’s expectation in his unvested pension benefits constitute a presently existing property interest for equitable distribution purposes where the benefits are concrete, reasonable and justifiable.

Question 43

Degree Rule

Answer 43

A degree earned during a marriage and the expected future earnings from the attainment of that degree is not a marital asset in the distribution of marital property.

Question 44

What is goodwill?

Answer 44

Goodwill is an intangible asset arising as the result of name, reputation, customer loyalty, location, and products, among other factors. The majority approach distinguishes personal goodwill (not divisible property) and corporate goodwill (divisible property).

Question 45

Religion Rule

Answer 45

Absent proof that an order restricting either parents parental right would cause demonstrable physical or psychological harm to the child, the order of the trial court order delaying the ceremony until the child can make that determination, absent the parents’ written agreement is a narrowly tailored accommodation that “intrudes least on the religious inclinations of either parent and is compatible with the health of the child.”

Question 46

Sexual Conduct Rule (UMDA)

Answer 46

Uniform Marriage and Divorce Act (UMDA), sexual conduct is relevant to custody determinations only if the conduct has an adverse effect on the child (the “nexus test”). See UMDA §402.

Question 47

Visitation Refusal Exception

Answer 47

Where child support is not paid by the noncustodial parent, the denial of visitation is warranted, only when the noncustodial parent is financially able to support his or her children but refuses to do so.

Question 48

Third-Party visitation rule

Answer 48

If a fit parent’s decision in third-party visitation becomes subject to judicial review, the court must accord at least some special weight to the parent’s own determination.

Question 49

Child’s Preference rule

Answer 49

Where both parents have been found to have suitable households, a child’s preference may be considered when considering custody.

Question 50

Custody Modification

Answer 50

According to the prevailing standard, the plaintiff has the burden of showing by a preponderance of the evidence that conditions since the dissolution decree have so materially and substantially changed that the children’s best interests require a change of custody.

Question 51

College Tuition in Child Support

Answer 51

Requiring a parent to pay, as an incident of child support, for postsecondary education under appropriate and limited circumstances is rationally related to the State’s interest.

Question 52

Child Support Modification

Answer 52

Where an obligor is petitioning the court for a modification in child support that would decrease their obligation, the obligor must show a permanent, involuntary, and substantial change in circumstances.

Question 53

Survivors-insurance benefits rule

Answer 53

A child is entitled to survivors-insurance benefits under the Social Security Act only if the child could inherit from the decedent under state intestacy law.