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2024 DC Bar Exam - UBE > FAMILY LAW > Flashcards

FAMILY LAW Flashcards

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1
Q

What is required for a statutory law marriage?

A

1) Capacity
- At least 18 years of age
- Comprehend activities (no drugs/alcohol)
- Voluntary (no fraud/duress/coercion/force)

2) Licence
- Physician certificate (free from communable disease) (some states)
- Waiting period of 72 hours (many states)

3) Solemnization (Ceremony)

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2
Q

What remedies are available for breach of promise to marry?

A

(Most states have abolished such remedies)

Actual damages
Loss reputation
Mental anguish
Health damage
Punitive damages
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3
Q

What is required for a common law marriage?

A

(Most states have abolished)

1) Capacity
2) ‘Present’ agreement to be married
3) Cohabitation
4) Holding out publicly (living together as spouses)

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4
Q

Premarital Agreement

A

An agreement made in contemplation of marriage that alters or confirms the rights and obligations that would otherwise arise under applicable law.

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5
Q

What is required for a pre-marital agreement?

A

Uniform Premarital Agreement Act (UPAA) + Most courts

1) Capacity (NO unconscionability - full exertion of influence)
2) In writing + Signed (not waived)
3) Full fair disclosure of spouses’ financial worth
4) Fair + reasonable provisions
5) Independent counsel (not necessary but less chance of overturning)

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6
Q

Is a void pre-marital agreement still enforceable?

A

To extent necessary to avoid inequitable result

- E.g. Child custody provisions

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7
Q

What rights do spouses have in pre-marital agreements?

A

Uniform Premarital Agreement Act (UPAA) + Most states

  • Property
  • Sell/Lease/Assign
  • Spousal support
  • Will/Trust
  • Choice of law
  • NOT child custody (judicial reform/public policy/courts to decide based on child’s best interests)
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8
Q

What property rights do spouses have?

A

Right of survivorship (presumed joint tenancy)

  • No unilateral sales
  • No unilateral encumbrances

Equitable distribution of marital property after marriage

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9
Q

What type of support must spouses give to each other and third parties?

A

Equal obligations

Liability to TPs for other spouse’s authorised purchases (agency law)

Liability to TPs for necessaries (food, clothing)

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10
Q

Do spouses have constitutional privacy?

A

Due Process Clause

  • Marriage
  • Procreation
  • Contraceptions
  • Abortion
  • Homosexuals cohabitation
  • Children care/custody

Unless regulation meets strict scrutiny standard

1) Necessary
2) Meets compelling government interest

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11
Q

When may spouses assert spousal privilege?

A

Spousal immunity

  • Criminal cases (Not crimes vs spouses)
  • Witness spouse

Confidential communications

  • Regarding marriage
  • Made during marriage
  • Criminal + civil cases
  • Defendant/Witness spouse
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12
Q

When may spouses sue TPs for tortious interference with marriages?

A 
TP alienation (deprives marriage)
- Abolished in most states

TP sexual relations

  • TP lives separately from spouse
  • Abolished in most states

Negligent spouses causes loss of consortium
- Allowed in most states

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13
Q

How may community property be divided?

A

Marital property
- Equal distribution

Separate property

  • Gifts to directed spouses
  • Bequests to directed spouses
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14
Q

What is the procedure for equitable division of all property?

A

Equitable division (fair, but not necessarily equal)

- Property acquired before/during/after marriage

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15
Q

What type of marital property may be equitably divided?

A

Uniform Probate Code (Most common approach)

Acquired during marriage

Businesses operated + owned by spouses

Spouses’ active appreciations that increase value

  • Increased value => Supporting spouse
  • Original value => Original spouse

Support to spouses (even if not actively involved)

Pensions earned during marriage

Compensating contributions for education/training to acquire professional licence/degree

Personal injury damages (between marriage and separation)

Stock options acquired during marriage

Mixed property

  • Separate property no longer traceable
  • Evidential intention as marital property (named in both spouses’ names)
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16
Q

What type of separate property may be equally divided?

A

Acquired before marriage

Acquired during marriage

  • Gifts
  • Bequests
  • Descent
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17
Q

Transmutation

A

A voluntary change in the character of property by one or both spouses, either from separate property to marital/community property or vice-versa.

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18
Q

What factors may determine equitable division?

A

Age/Education/Background

Financial capacity

Marriage standard/duration

Present incomes

Financial sources

Health

Assets/Debts

Needs

Child custody provisions

Alimony

Contributions

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19
Q

Are property decrees modifiable?

A

No

Property awards

  • Determines past division at time of divorce
  • Ascertained division

Support awards

  • Determines future support
  • Unascertained division
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20
Q

Is jurisdiction required for enforcing property awards?

A

Yes

- To adjudicate on the merits only

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21
Q

What is required for a void marriage?

A

Impediment at time of marriage

  • Bigamy (another living spouse unless other spouse unaware of bigamy + reasonably believed marriage was valid - ‘Doctrine of putative spouse’)
  • Incest/Consanginuity (most states)
  • Underage (some states)
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22
Q

Annulment

A

A legal action declaring a marriage invalid because of an impediment at the time of the marriage.

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23
Q

What are the consequences of a void marriage?

A

Nullity (no court order required)

Any interested party may seek annulment

Subject to collateral/parties’ attack after death

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24
Q

What defenses are available against void marriages?

A

Uniform Marriage and Divorce Act (UMDA)

1) Remove impediment
2) Parties continue to co-habit

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25
Q

What is required for a voidable marriage?

A

Impediment at time of marriage

  • Inability to have normal sexual relations
  • Lack of capacity (drugs/alcohol/duress/fraud/no mutual assent)
  • Underage (most states)
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26
Q

What are the consequences of a voidable marriage?

A

Valid until declaration of annulment

Spouse may seek annulment

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27
Q

What defenses are available against voidable marriages?

A

Uniform Marriage and Divorce Act (UMDA)

1) Remove impediment
2) Parties continue to co-habit

Ratification

Laches

Estoppel

Spouse’s death

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28
Q

What is a legal separation order?

A

Prevents termination of marriage

Adjudicate spouses’ rights
- Alimony/Custody/Support/Property

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29
Q

Divorce

A

A court judgment that legally ends a marriage.

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30
Q

What grounds are required for a divorce?

A

No fault grounds

1) Irretrievably broken down (at least one spouse believes)
2) Separated for specified period

Fault grounds

  • Adultery
  • Impotence
  • Incarceration
  • Mental illness
  • Addiction
  • Cruelty (Physical Abuse)
  • Abandonment (Desertion)
  • NOT collusion/connivance/condonation/recrimination
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31
Q

What is required for state to have jurisdiction (satisfaction of full faith and credit) over divorces?

A

1) Spouse domiciled in rendering state (SMJ)
- 90 days for most states

2) PJ over Defendant

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32
Q

What are the consequences of a state having jurisdiction over divorces?

A

NO PJ => Divorce decree valid in all states

PJ => Satisfaction of full faith and credit => Determines property/alimony/child support provisions (not child custody)
- NO fraud/unconscionability

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33
Q

What type of divorce orders can be made?

A

Final

Interlocutory (not final until after specified period)

  • No remarriage allowed
  • Co-inheritance allowed
34
Q

How can spouses mediate divorce orders?

A

Parties’ decisions (mediator’s decision not binding)

Independent counsel

Impartial mediator

Informed decision-making

35
Q

What is a separation agreement?

A

Prevents termination of marriage

Agreement to live separately

Resolve economic issues

  • Enforce property/alimony provisions
  • Enforce child support/custody provisions (in child’s best interests)
36
Q

What is required for a separation agreement?

A

1) Capacity
2) Full and fair disclosure of spouses’ financial worth
3) Consideration (mutual promises)
4) Independent counsel representation

37
Q

What is the difference between a separation agreement and a divorce?

A

Separation agreement
- Enforceable as ‘contract’

Divorce

  • Enforceable as court judgment
  • Can merge divorce + separation agreement
38
Q

When may alimony be granted?

A

During divorce proceeding

As part of divorce decree

During marriage (if annulled/divorced)
- Otherwise courts disinclined to interfere with spouses' affairs
39
Q

What factors may determine amount of alimony?

A

Duration/Standard of marriage

Age/Conditions

Financial resources

Contributions

Time for necessary training

Payor’s ability to meet recipient’s needs

Marital fault

40
Q

Why do courts have wide discretion to determine alimony?

A

Ensure adequate income stream to recipient economically dependent on marriage

41
Q

Can alimony be waived?

A

No

  • Contrary to public policy
  • Not leave spouse dependent on state
42
Q

What type of spousal support is available?

A

Permanent periodic spousal support

  • Regular + permanent
  • For spouse with no self-sustaining resources at all

Rehabilitative spousal support

  • Regular + temporary
  • For spouse with no self-supporting skill/education until sufficient

Reimbursement spousal support

  • Fixed
  • For spouse’s compensation for licence/degree

Lump sum payment

  • Fixed
  • Single/Instalments
43
Q

How may alimony be modified?

A

Unanticipated + substantial change in circumstances

  • Recipient’s needs
  • Payor’s ability to pay
  • Legal obligation to new spouse

NOT stepchildren
NOT intent to remarry
NOT self-induced reduction to income

44
Q

How may alimony be terminated?

A

Spouse’s death

Recipient’s marriage

Recipient’s cohabitating relationship

45
Q

Uniform Interstate Family Support Act (UIFSA)

A

The statute, adopted in some form by all states, that prevents parents from avoiding court-ordered child support by moving across state lines

46
Q

How may alimony be enforced by law?

A

Uniform Interstate Family Support Act (UIFSA)

Income withholding order

  • Mail to payor’s out-of-state employer
  • Mail to payor’s out-of-state support enforcement agency

Registration support order

1) Mail order to payor’s state
2) Payor’s state files order as foreign judgment
3) Subject to enforcement proceedings

47
Q

How may alimony be enforced by sanctions?

A

Hold non-payer in court contempt

File judgment against non-payer

Seize real property

Wages attachment/withholding

Attorneys’ fees

Intercept tax returns

Not renew driver’s licence

48
Q

Which states may modify alimony awards?

A

Uniform Interstate Family Support Act (UIFSA)

Issuing state
- Generally has continuing + exclusive jurisdiction

Sister state

  • Child + Parents no longer reside in issuing state
  • ALL parties consent to sister state’s modification
49
Q

Best interest of the child

A

A standard for the determination of custody that includes the child’s short- and long-term interests.

50
Q

How are parents’ duties to support children distributed?

A

Equal duties

51
Q

What factors may determine amount of child support?

A

Child’s monetary need

Obligor’s ability to pay

No. children

Ages

Special needs

Parents’ income

NOT visitation rights (non-custodial parents)

52
Q

How may child support be modified?

A

Substantial change in circumstances (child’s needs/parent’s ability to pay)

  • Changes in employment
  • Child’s growth
  • Inflation
  • Retirement
  • Income (NOT self-induced reduction)
  • Disability/Illness
53
Q

How may child support be terminated?

A

Emancipation

Child’s marriage

Termination of parent’s rights (lack of paternity)

Obligor’s death

54
Q

How may child support be enforced by law?

A

Uniform Interstate Family Support Act (UIFSA)

Income withholding order

  • Mail to payor’s out-of-state employer
  • Mail to payor’s out-of-state support enforcement agency

Registration support order

1) Mail order to payor’s state
2) Payor’s state files order as foreign judgment
3) Subject to enforcement proceedings

55
Q

How may child support be enforced by sanctions?

A

Hold non-payer in court contempt

File judgment against non-payer

Seize real property

Wages attachment/withholding

Attorneys’ fees

Intercept tax returns

Not renew driver’s licence

56
Q

Which states may modify child support awards?

A

Uniform Interstate Family Support Act (UIFSA)

Issuing state
- Generally has continuing + exclusive jurisdiction

Sister state

  • Child + Parents no longer reside in issuing state
  • ALL parties consent to sister state’s modification
57
Q

Physical custody

A

The right to live with a child.

58
Q

Legal custody

A

The right to make decisions about a child’s welfare on matters including medical care, schooling, religion, and finances.

59
Q

Joint custody

A

A situation where the child lives with each parent for significant lengths of time or where both parents have equal rights in making decisions on the child’s behalf.

60
Q

What is required for state to enforce child custody orders?

A

Home state jurisdiction

  • Child domiciled in state (at least 6 consecutive months before proceedings)
  • Child domiciled in state during last 6 months + Parent/Guardian domiciled in state

NO home state jurisdiction

1) NO other state accepts home state jurisdiction/State has jurisdiction + petition already filed in State
2) Child + Parent have significant connection with State
3) Available substantial evidence re child care in State

61
Q

What methods of enforcement are available for states?

A

Single state

  • Contempt proceedings
  • State habeas corpus proceedings
  • Suits in equity
  • Uniform Child Custody & Jurisdiction Enforcement Act (UCCJEA) (avoid jurisdictional disputes/promote interstate cooperation/facilitate interstate enforcement)

Sister state
- Federal Parental Kidnapping Prevent Act (PKPA) (avoid jurisdictional disputes/discourage ‘forum shopping’ by parents dissatisfied with existing custody order pursuant to child’s home state)

62
Q

When may jurisdiction be denied to a state for enforcement?

A

Inconvenient forum + more appropriate forums available

Unjustifiable conduct (wrongfully taking child from state)

63
Q

What is required for modifying child custody orders?

A

Burden of proof => Applicant

1) Elapsed time/Endangered child (emotionally/physically/mentally)
2) Substantial/Material change in circumstances

64
Q

How may court grant single child custody?

A

Child’s best interests (court must provide substantial assistance in reaching interests => Then appoint counsel/guardian)

  • Child’s wishes (at least 12 years of age)
  • Parents’ wishes
  • Child’s relationship with parents
  • Child’s adjustment to home/school/community
  • Child’s physical/mental health
  • Gender (Tender Years doctrine - Grants mother custody unless gender bias found/unfit mother)
  • NOT adultery/financial ability

Primary caregiver (two qualified parents)

65
Q

How may court grant joint child custody?

A 
Parents' fitness
Parents' agreement
Communication with child
Child's wishes (at least 12 years of age)
Parents' involvement
Geographical proximity
Similarity of homes
Effect on child's psychological development
Child's physical capacity
66
Q

How may court grant TP child custody?

A

Unfit parent

Full abandonment

Physical incapacity (NOT depression)

67
Q

How may court grant visitation rights?

A

Child’s best interests (court must provide substantial assistance in reaching interests => Then appoint counsel/guardian)

  • Child’s wishes (at least 12 years of age)
  • Parents’ wishes
  • Child’s relationship with parents
  • Child’s adjustment to home/school/community
  • Child’s physical/mental health
  • Gender (Tender Years doctrine - Grants mother custody unless gender bias found/unfit mother)
  • NOT adultery/financial ability
68
Q

Who may exercise visitation rights?

A

Biological parent (fit) (SDP rights)

TP (stepparent)
- TP child custody

69
Q

How may court limit visitation rights?

A

Injury to child (rare absolute denial)

Removal of child from state (motivated by benefit to parent)

In child’s best interests + TP-child relationship

70
Q

How may unmarried cohabitants have contract rights?

A

Express contracts

  • Earnings
  • Property rights

NOT implied contracts/sexual relations

71
Q

How may unmarried cohabitants have property rights?

A

Express contracts

Equitable distribution

  • Constructive/Resulting trust
  • Quantum in meruit
72
Q

How can non-marital children presume legitimacy from their fathers?

A

Father married mother after birth

Father holds out as biological child

Father consents to birth certificate name

Paternity acknowledgement (by Father/court) (clear + convincing/preponderance of evidence - some states)

  • Medical testing
  • Blood testing
  • Paternity statements
73
Q

What rights does a non-marital father have if he acknowledges paternity?

A

Child custody/visitation rights

Child support duty (full commitment to parenthood)

  • Acknowledgment of paternity
  • No acknowledgement of paternity (Knowledge of non-paternity + opportunity to litigate at time of divorce)
74
Q

What rights do illegitimate children have?

A

No discrimination between legitimate + illegitimate children

No father inheritance preclusion

No discriminatory statute of limitations

Same rights as legitimate children

Government benefits

75
Q

What rights do non-marital parents have for child’s death?

A

Mother/Father

  • Recovery in tort (negligence/intentional)
  • Bring action for Child’s loss of consortium

Father (legally recognised) - Full commitment to parenthood

  • Daily supervision
  • Education/Care/Protection
  • Birth expenses
  • Paternity acknowledgment
76
Q

When are intra family immunities applied?

A

Parent-Child tort actions

  • NOT intentional torts (Parent/Child can sue Parent/Child)
  • NOT automobile accidents (personal injury) (Parent/Child can sue Parent/Child)

NOT Spouse-Spouse tort actions
- Spouse can sue Spouse

77
Q

When may court intervene parental autonomy?

A

Children in need of supervision

  • Habitual truancy/Escaping home
  • Counselling/Social worker supervision/State agency adoption

Termination of parental rights

1) Due process (Right to counsel)
2) Clear + convincing evidence (harm/abandonment/sexual abuse/neglect/mental illness/unfit parent)

78
Q

What is required for adoption?

A

1) Natural parents’ consent
- Unless waiver/withdrawal before adoption decree entered (in child’s best interests) (notice + hearing for Adopting parent)
2) Child’s consent (at least 12 years of age)
3) Father’s consent
- Married
- NO veto (depends on father’s level of involvement re care/regular visits/admit paternity/child support)
4) Investigation + Court consent (most states)
5) Medical costs to natural parents (most states)

79
Q

What is required for jurisdiction to enforce adoption orders?

A

UCCJEA
Home state jurisdiction
- Child domiciled in state (at least 6 consecutive months before proceedings)
- Child domiciled in state during last 6 months + Parent/Guardian domiciled in state
NO home state jurisdiction
1) NO other state accepts home state jurisdiction/State has jurisdiction + petition already filed in State
2) Child + Parent have significant connection with State
3) Available substantial evidence re child care in State

Uniform Adoption Act (UAA)

  • Child + Parent domiciled in state (6 months before proceedings)
  • Adopting Parent domiciled in state (6 months before proceedings) + Substantial evidence re child care
  • Adopting Agency domiciled in state + Substantial evidence re child care + Parent and Child’s significant connections with state
  • Adopting Parent and Child physically present + Child was abused/neglected/abandoned
  • NO other child accepting/declining jurisdiction + In child’s best interests
80
Q

What is required for assisted reproduction/in vitro fertilisation?

A

Uniform Parentage Act (UPA)

1) Parent intended to act as parent
2) Parent provides gamete/consent => Sperm mixed with frozen embryo
- UNLESS Parent died + NO written consent before Child’s birth

81
Q

What is required for surrogacy agreements?

A

Genetic surrogacy

  • Surrogate uses own gamete
  • Additional safeguards
Gestational surrogacy (UPA + most states)
- Surrogate uses other gamete

2024 DC Bar Exam - UBE (8 decks)

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