Family Law

Question 1

The issue is whether the premarital agreement is enforceable.

Answer 1

In many states, a premarital agreement is enforceable if there has been full disclosure, the agreement is fair and reasonable, and it is voluntary. The agreement must be in writing and signed by the party to be charged. However, under the UPAA, which applies here, the party against whom enforcement is sought must prove (1) involuntariness or (2) both unconscionability at the time of execution and lack of disclosure and adequate knowledge of the other’s assets and obligations. Thus, a court may not refuse to enforce a premarital agreement based on substantive unfairness unless it also finds lack of adequate disclosure or knowledge. Full disclosure requires disclosure of all income, assets, and liabilities of both parties.

Entering into a contract voluntarily generally means there was no fraud, duress, or misrepresentation. Courts consider factors such as time-pressure, the parties’ previous business experience, and the opportunity to be represented by independent counsel. A party’s insistence on the agreement as a condition to marriage is not considered duress.

Question 2

The issue is which assets are subject to division in the divorce action.

Answer 2

This jurisdiction, like most states, follows a system of equitable distribution upon divorce. The objective of the equitable-distribution system is to order a fair distribution of all marital property, taking into consideration all of the circumstances between the parties. In most states, all property acquired during the marriage is marital property and subject to equitable distribution. Whether the appreciation in nonmarital property will be subject to equitable distribution will depend on whether the appreciation can be attributable to spousal labor.

In most states, property acquired by one spouse after separation but before divorce is marital property.

Question 3

The issue is which factors the court should consider in the distribution of marital property.

Answer 3

Courts consider a number of factors in determining the equitable distribution of marital property. Some of the relevant factors in this case include the length of the marriage, the age, health, earning potential, and needs of both spouses, the value of separate property, the spouses’ standard of living, and economic circumstances of each spouse at the time of divorce. The court is given broad discretion to consider these factors in making a property division.

Question 4

The issue is whether the trial court erred in denying Husband’s petition to invalidate the separation agreement on the basis of unconscionability and fraud.

Answer 4

Separation agreements can be invalidated, in whole or in part, if the court makes a finding of fraud or unconscionability. A contract is unconscionable when it is so unfair to one party that no reasonable person in the position of the parties would have agreed to it. The contract or part of the contract at issue must have been offensive at the time it was made. Unconscionability may also be applied to prevent unfair surprise.

Question 5

The issue centers on the elements of a divorce decree that can be modified.

Answer 5

Though a support award can be modified subsequent to a divorce decree, the property division award cannot be modified. Unlike support awards, which are subject to changing circumstances, the division of the marital assets was determined based upon known facts and circumstances as they existed at the time of divorce.

Question 6

The issue is whether there has been a significant change in Husband’s circumstances that justifies a modification of the spousal support award.

Answer 6

Spousal support awards can be modified based upon a significant change in a party’s circumstances.

Question 7

The issue is whether non-paternity of the child can be established after entry of the divorce decree to provide grounds to modify the child-support award.

Answer 7

Traditionally, courts have been loath to modify an established parent-child relationship, citing the child’s best interest as reason to deny admission of evidence of non-paternity or to deny a motion to disestablish paternity.

Question 8

The issue is whether personal jurisdiction over a nonresident respondent confers subject-matter jurisdiction over child support modification.

Answer 8

Modification of child support orders is governed by the Uniform Interstate Family Support Act (UIFSA). Under UIFSA, a state court does not have jurisdiction to modify an order of child support rendered by a court of another state if the original state has continuing, exclusive jurisdiction. This rule applies unless the parties, including the child, no longer reside in that state or the parties expressly agree to another state’s jurisdiction.

In this case, the wife and the daughter both continue to reside in State B and the wife has not consented to the jurisdiction of State A. Therefore, State B maintains continuing, exclusive jurisdiction over the original order and State A does not have jurisdiction to modify the child support order.

Question 9

The issue is whether State A court has jurisdiction to modify the marital-residence-sale-proceeds provision of the State B divorce decree.

Answer 9

State courts have subject matter jurisdiction over domestic relations issues. A petition to modify a property settlement related to divorce is a domestic relations issue. Unlike child support, UIFSA does not apply to divorce related property disputes so those jurisdictional rules do not limit the state’s jurisdiction. The court may exercise personal jurisdiction over an individual if that person is voluntarily present in the state and served with process while there.

Question 10

The issue is whether the husband can claim retroactive child support modification.

Answer 10

Although a modification to child support may be made for the period while the cause of action is pending, states cannot retroactively modify child support before the date of service of process.

Question 11

The issue is whether the husband can obtain prospective downward modification of his child support even though he voluntarily accepted a job with a lower salary.

Answer 11

Generally, a state may prospectively modify a child support order when there is a substantial change in circumstances regarding the child’s needs or the parent’s financial situation. The parent requesting the modification has the burden of showing a substantial change in circumstances such as a significant decrease in income. However, when a parent voluntarily changes his employment, a reduction in income alone is not sufficient proof of substantial changes in circumstances. The courts will consider the parent’s earning capacity and other factors surrounding the change before deciding whether to modify the support order.

Question 12

The issue is whether the husband can obtain a property-division order modification.

Answer 12

Spousal support is an obligation of one party to provide financial support to the other after a divorce. Courts can modify a spousal support order based on a significant change in circumstances. Property division, on the other hand, is a one-time award of assets based on equity at the time of divorce. Because this property division is essentially frozen in time at the time of divorce, it cannot be modified post-divorce.

Question 13

The issue is whether State A has jurisdiction to grant the wife a divorce.

Answer 13

A court hearing a family-related dispute must generally have both subject-matter jurisdiction and personal jurisdiction. Most states have residency requirements to establish subject-matter jurisdiction. In State A, the residency requirement is six months.

Here, the wife moved to State A nine months ago and has filed for divorce there. As she has personally filed for divorce in State A, the state has personal jurisdiction over her. Additionally, because she has resided there for the past nine months, she meets the six-month residency requirement for subject-matter jurisdiction. Therefore, State A has jurisdiction to hear this family-related dispute and may grant the divorce.

Question 14

The issue is whether State A has jurisdiction to grant the wife sole physical custody of the daughter.

Answer 14

Most states have adopted the Uniform Child Custody Enforcement and Jurisdiction Act (UCCJEA). The purpose of the UCCJEA is to prevent jurisdictional disputes with courts in other states on matters of child custody and requires the court to have subject-matter jurisdiction. In an initial custody determination, a court has subject-matter jurisdiction to enter custody orders if the state is the child’s home state. A state is the “home state” when the child has lived with a parent or guardian for at least six consecutive months immediately prior to the custody proceeding. A court can decline jurisdiction if the party has wrongfully removed a child from another state.

[Satisfy UCCJEA = gives home state court subject matter jurisdiction]

Question 15

The issue is whether State A has jurisdiction to grant the wife a share of the couple’s marital property.

Answer 15

Under the doctrine of divisible divorce, a court may have sufficient jurisdiction to grant a divorce, but lack such jurisdiction with respect to other divorce-related matters, such as property division, without personal jurisdiction over the other spouse. A court may not exercise personal jurisdiction over a defendant unless the defendant has minimum contacts with the state in which the court sits and the exercise of jurisdiction would be fair and reasonable.

Question 16

The issue is whether State A can grant the wife a divorce.

Answer 16

Fault grounds for divorce include adultery, cruelty, desertion, habitual drunkenness, bigamy, imprisonment, indignity, and mental disorder. To prevail on the grounds of cruelty, most jurisdictions require that the plaintiff demonstrate a course of conduct by the other party that is harmful to the plaintiff’s physical or mental health and that makes the continued cohabitation between the parties unsafe or improper. The conduct of the defendant must be serious and typically cannot be based on one isolated incident. The majority of jurisdictions permit divorces on the basis of cruelty in cases of physical abuse, while only some permit it in cases of only emotional abuse or mental cruelty.

Question 17

The issue is whether State A can grant the wife custody of the daughter.

Answer 17

Physical custody is the right to have the child reside with the parent and provide for routine daily care and control of the child. The standard for determining child custody is the best interests and welfare of the child. In addition, courts can consider who the primary caretaker of the child was during the marriage and the separation, and prior to the divorce, as factors in determining who should have custody. Nearly every jurisdiction requires the court to consider the presence of domestic violence between the parties when awarding custody and some jurisdictions have created rebuttable presumptions in favor of the nonabusive spouse.

Question 18

The issue is whether the husband may obtain spousal support from his wife [while still married].

Answer 18

Spousal support is available to a dependent spouse in the event of the termination of a marriage. When a marriage is still intact, courts are disinclined to interfere in a couple’s private affairs, even if there is evidence of marital strife. Absent an annulment or divorce, a court will not award spousal support in the face of a valid marriage.

Question 19

The issue is whether Frank’s constitutional challenge will prevail [to refuse to vaccinate kid and enroll in public school].

Answer 19

The Constitution’s substantive due process rights include a fundamental right to privacy. This right includes the rights of parents to raise their children as they see fit, but this right may be limited by appropriate governmental action. Because privacy is a fundamental right, any regulation impacting a privacy right must satisfy strict scrutiny review, meaning the law is narrowly tailored to achieve a compelling state interest. This standard is the most stringent form of review. But states are also permitted to legislate for the general welfare under their police powers. This power includes legislating for the health and safety of the public. States are permitted, under their police powers, to require vaccinations and to refuse admission to public school for students who fail to receive required vaccinations. Such statutes are not subject to constitutional challenge based on a violation of parental rights.

Question 20

The issue is in what state must the aunt file a custody petition.

Answer 20

The Uniform Child Custody Jurisdiction and Enforcement Act governs the determination of where a custody petition must be filed. The first jurisdiction is the home state. The child’s home state is the state in which the child and at least one parent (or person serving as the child’s parent) have lived the last six months. If the child has been absent from their home state for the last six months, a state will still have home state jurisdiction if a parent of the child remains in the state. If no state has home state jurisdiction, a court in a state with significant connections to the child may exercise jurisdiction. Significant connection jurisdiciton requires a child and at least one parent to have significant ties to a state or for there to be substantial evidence of the child’s case present in that state. If no state has significant connections to the child, then a court with appropriate connections to the child may exercise jurisdiction.

Question 21

The issue is whether the court is likely to grant legal custody of the child to her aunt.

Answer 21

A court makes a custody decision by considering the best interest and welfare of the child. Courts highly disfavor involuntary parental termination and are loathe to involuntarily terminate a fit parent’s rights in the absence of evidence of abuse or neglect. Parents are free to raise their children as they wish, and a parent’s choices as to how they raise their children will not cut against a fit parent’s custodial rights unless those choices are substantially and adversely neglectful or abusive towards a child. While a child’s preferences may be taken into consideration if the child is mature enough to express an independent preference, a child’s preference is not dispositive. Rather, the best interests of the child are paramount, as well as the fit parent’s right to custody of their children.

Question 22

The issue is whether Harry’s behavior constitutes fraud sufficient to invalidate the settlement agreement.

Answer 22

The court will generally enforce separation agreements unless it is unconscionable or based on fraud. As in any contract, the parties must enter into a seperation agreement voluntarily. Courts consider factors such as time-pressure, the parties’ previous business experience, and the opportunity to be represented by independent counsel.

Question 23

The issue is whether a divorce obtained on grounds of adultery significantly enhances Wendy’s prospects of obtaining a monetary award.

Answer 23

Most jurisdictions recognize both fault and no-fault grounds for divorce. In most states, the fact that a divorce is granted on a fault ground, such as adultery, is not a factor in the distribution of property.

However, marital misconduct may be taken into account in many states in determining spousal support. The weight marital misconduct is given in determining alimony is dependent on the jurisdiction. Some jurisdictions consider it a factor and others give it a preclusive effect.

Question 24

The issue is whether Harry’s law degree is marital property subject to division at divorce.

Answer 24

The majority of jurisdictions do not treat a professional license or degree as a distributable property interest. In this case, Wendy has no property interest in Harry’s degree and a court could not grant her a cash award in compensation for such an interest.

Question 25

The issue is whether Wendy can obtain spousal support, even though Wendy and Harry were only married for three years.

Answer 25

A court may use its equity power to award a spouse reimbursement for his actual contribution toward the other spouse’s educational and related living expenses. Unfortunately for Wendy, this jurisdiction does not permit reimbursement spousal support.

A court may, however, view an advanced degree or license as increased earning capacity, which may have an effect on the determination of alimony. If the court invalidates the settlement agreement, Wendy could seek an alimony (spousal support) award. Spousal support may be a lump sum, permanent, limited duration, rehabilitative, or reimbursement.

Permanent spousal support is typically awarded only when the marriage was one of long duration. Although jurisdictions differ on the definition of long-term, it typically refers to a marriage of at least 15 years.

Rehabilitative support is for a limited period of time, such as until the spouse receives education or employment. The purpose of this type of support is to enhance and improve the earning capacity of the economically dependent spouse. The court would consider other factors including the couple’s standard of living during the marriage, the time it will take for a spouse to complete any education or training, the length of the marriage, and the parties’ age and health.

Question 26

The issue is whether State B is required to enforce an order that was made in State A court.

Answer 26

Under the Full Faith and Credit Clause as well as the UIFSA, an order for child support hat is made in one state must be given effect in other states.

Question 27

The issue is whether the State B court has jurisdiction to modify the father’s child support obligation.

Answer 27

The court must have personal jurisdiction over the parties and subject matter jurisdiction. Personal jurisdiction exists when a party is domiciled in the state–that is, when a party is present with an intent to remain in the state.

Under the UCCJEA, the initial court that determined the child support order has exclusive continuing jurisdiction. Any modifications must be made through the court of exclusive continuing jurisdiction. A court other than the initial court may modify the order only if the inital court is located in a state that is no longer the child’s home state or if the parties agree. A child’s home state is the state in which the child and at least one parent have resided the last six months.

Question 28

The issue is when a child support order can be modified.

Answer 28

The standard for changing obligations is whether there has been a significant change in circumstances and whether the change is in the best interest of the child. A voluntary job change that results in a reduction of income does not qualify as a significant change in circumstances, but an involuntary loss of employment or job change may qualify.

Question 29

The issue is whether the father can retroactively modify the child support obligation.

Answer 29

A court cannot retroactively modify child support obligations. It may only prospectively modify child support obligations from the date of the filing of the motion or petition requesting the modification.

Question 30

The issue is whether the mother has a material change in circumstances which would qualify her for a modification of the spousal support award.

Answer 30

Spousal support is given when one party’s salary alone would not be sufficient to meet that spouse’s needs. The court should modify the spousal support award only if the court believes there is a substantial change in circumstances warranting modification. There are five kinds of spousal support: Permanent, periodic, temporary or rehabilitative, lump sum, and reimbursement awards. The first two kinds are modifiable, while the latter are not. When a court makes a spousal support determination, it will consider factors such as the skills, background, and education of the parties; the parties’ earning capacities; contributions the spouses made during the marriage; the duration of the marriage; the standard of living during the marriage; the way property was divided upon divorce; and custody arrangements of marital children.

Question 31

The issue is whether the State A court’s exercise of personal jurisdiction over the woman violated her rights under the due process clause of the Fourteenth Amendment.

Answer 31

Personal jurisdiction is the court’s authority over the parties. Personal jurisdiction may be established by a state’s long arm statute. In addition, the court must establish that the defendant has minimum contacts and that jurisdiction over them would not offend traditional notions of fair play and substantial justice. Minimum contacts may exist if the state has specific or general jurisdiction. Specific jurisdiction exists when th cause of action at issue is specifically related to the defendant’s contact with the state, the defendant could reasonably foresee being hailed into court there, and the defendant has purposefully availed themself of the laws of the forum state. The fairness factors a court may consider typically include the burden on the defendant, the state’s interest in adjudicating the matter, and the interests of the judicial system at large.

Question 32

The issue is whether the court has subject-matter jurisdiction to award the man sole custody of the daughter.

Answer 32

In addition to personal jurisdiction, a court must also have proper subject matter jurisdiction to adjudicate the rights of parties. With child custody, the majority of states have adopted the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), which provides for special rules regarding proper subject-matter jurisdiction over child custody cases. Under the UCCJEA, a court will have proper subject-matter jurisdiction to adjudicate a child custody issue if the state is the child’s home state. In general, the home state is the state wherein the child has resided for the last six months, or if the child is absent from the state, the state where the child resided within the past six months and where a parent of the child continues to reside. If no state satisfies the meaning of home state, then the state with significant connections to the child has jurisdiction. If no such state exists, the state with appropriate connections to the child has jurisdiction. Once the home state is established, that state has exclusive, continuing jurisdiction to adjudicate child custody matters and may not be replaced by a different home state unless the parent/child reside elsewhere or agree to consent to the jurisdiction elsewhere which would terminate the home state’s exclusive continuing jurisdiction.

Question 33

The issue is whether the court has proper subject-matter jurisdiction to require the woman to pay the man child support.

Answer 33

With respect to proceedings to establish or enforce child support or to determine parentage, a court obtains personal jurisdiction over an out-of-state parent pursuant to a long-arm provision in the Uniform Interstate Family Support Act (UIFSA), which has been adopted in every state. The ways in which a court can obtain personal jurisdiction are (1) personal service on the defendant parent; (2) consent of the defendant parent (including by entering an appearance); (3) past residency with the child in the state; (4) past residency in the state and the provision of prenatal expenses or support for the child; (5) residency of the child in the state as a result of acts or directives of the parent defendant; (6) the parent defendant engaged in sexual intercourse in the state, and the child may have been conceived by that act; (7) the parent defendant asserted parentage in the putative father registry maintained by the state; or (8) any other basis consistent with federal and state constitutions for the exercise of personal jurisdiction. The Supreme Court has stated that due process requires an act by which the defendant purposefully avails himself of the privilege of conducting activities within the forum state before that state may exercise long-arm jurisdiction.

Question 34

The issue is determining which state has jurisdiction to award custody of Daughter to Grandparents.

Answer 34

Under the UCCJEA, which has been widely adopted, a court has subject-matter jurisdiction to preside over custody hearings and either enter or modify custody or visitation orders if the state is: (1) the child’s home state (the state in which the child has lived with a parent or guardian for at least six consecutive months immediately prior to the custody proceeding, or since birth, if the child is less than six months old); or (2) 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.

When there is no home-state jurisdiction, the UCCJEA permits a court to enter or modify an order if (1) the child and at least one parent have a significant connection with the state, and (2) there is substantial evidence in the state concerning the child’s care, protection, training and personal relationships.

Question 35

The issue is whether a court must defer to the express wishes of a 14-year-old child when determining custody.

Answer 35

The standard for determining child custody is the best interests of the child. Most courts will consider the wishes of the child if the court can determine that the child has a sufficient maturity to express a preference. Although age is not the sole factor in determining whether a child should be consulted, it is considered by the court. If children are consulted, the court evaluates the reasons behind the preference.

Question 36

The issue is whether a statute that authorizes granting custody to grandparents is constitutional in light of a fit and available parent’s fundamental right to custody of his child.

Answer 36

The Supreme Court has held that a fit parent has a fundamental right to the care, custody, and control of his children and state courts must give “special weight” to a fit parent’s decisions on care, custody, and control.

Question 37

The issue is whether State B will recognize a common law marriage that is contracted in State A.

Answer 37

Under the traditional approach under the First Restatement, the 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. But under the Second Restatement approach, such 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.

Question 38

The issue is whether Dave and Meg met all the requirements of a valid common-law marriage in State A.

Answer 38

Common-law marriages are valid when the parties: (i) have the capacity to agree to be married; (ii) presently agree that they are married; (iii) cohabit as married; and (iv) hold themselves out in public as married.

Question 39

The issue is whether State B can constitutionally grant Meg and Husband’s adoption petition over Dave’s objection when he has demonstrated commitment to parenthood, even though he cannot meet State B’s statutory requirements.

Answer 39

The U.S. Supreme Court 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. On the other hand, some jurisdictions 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.

[Therefore, State B’s adoption veto statute would likely be found to be unconstitutional as applied to Dave, a biological father who has established his paternity, fulfilled his obligations as a father, and only fails to meet the state’s adoption objection law through no fault of his own.]

Question 40

The issue is whether State B has subject matter jurisdiction to terminate Dave’s parental rights or issue an order awarding custody.

Answer 40

Under the UCCJEA, a court has subject matter jurisdiction to preside over custody hearings and either enter or modify custody or visitation orders if the state is: (i) the child’s home state (the state in which the child has lived with a parent or guardian for at least six consecutive months prior to the custody proceeding, or since birth, if the child is less than six months old), 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.

[Here, Meg took Child from State A five months ago. Dave continues to live in State A, the state where Child resided within the preceding six months. Thus, only State A qualifies as Child’s home state and only State A has subject matter jurisdiction. State B does not have jurisdiction to either terminate Dave’s parental rights or issue an order awarding custody of Child to Meg.]

Question 41

The issue is whether the premarital agreement is enforceable.

Answer 41

A premarital agreement is enforceable if there has been full disclosure, the agreement is fair and reasonable, and it is voluntary. In addition, the agreement must be in writing and signed by the party to be charged. Any clauses included in a premarital agreement that relate to child custody and support are unenforceable. Under the Uniform Premarital Agreement Act (UPAA), the party defending against enforcement of a premarital agreement must prove it invalid by clear and convincing evidence. A premarital agreement is invalid if it was (1) involuntary or (2) unconscionable when executed AND the defending party did not have, or reasonably could not have had, adequate knowledge of the other’s assets and obligations due to lack of disclosure. To determine whether an agreement is voluntary, courts consider factors such as time pressure, the parties’ previous business experience, and the opportunity to be represented by independent counsel. However, a party’s insistence on the agreement as a condition to marriage is not considered duress.

Question 42

The issue is which assets will be divisible at divorce if the premarital agreement is not enforceable.

Answer 42

In most states, property acquired during marriage is considered marital property. However, property acquired by gift or inheritance during the marriage is the individual’s separate property. And separate property is not subject to division at divorce. But the appreciation in separate property can be marital property if it is attributable to either spouse’s labor during the marriage. A minority of states subject all property owned by either spouse to equitable distribution (i.e., the “hotchpot” approach), but there is no indication this jurisdiction follows the minority rule.

Question 43

The issue is whether David may obtain sole physical custody of Anna based on Meg’s adultery.

Answer 43

The standard for determining custody is the “best interests and welfare of the child.” A parents’ sexual conduct is a factor in determining custody only if the parent’s conduct has or will have a negative effect on the child.

Question 44

The issue is whether David may obtain sole physical custody of Anna based on other factors.

Answer 44

The standard for determining child custody is the best interests and welfare of the child. Generally, a parent is in the best position to care for a minor child, unless the parent is determined unfit. There is no presumption in favor of the mother. Many courts consider who the primary caretaker of the child was up until the divorce when determining who should have custody. The primary-caretaker consideration not only encompasses the day-to-day care of the child, but also includes the quantity and quality of the time spent with the parent at the time of the hearing, rather than in the past.