Family Law

Question 1

Ceremonial Marriage

Answer 1

1. Consent
2. Capacity
3. Compliance with legal formalities:
   –License
   —Age: meet minimum age, usually 18 or have parental consent
   —Waiting period between license and ceremony
   —Some states require medical testing, results of which cannot block marriage
   —Expiration date: most jurisdictions impose expiration date on a marriage license
   A License will not be issued when:
   —a party is married to someone else
   —parties are too closely related
   —parties entered into marriage as a sham
   —parties are incapable of understanding nature of the act

Question 2

Same-Sex Marriage

Answer 2

Same-Sex couples may marry in all states

All states and the federal government must recognize a same-sex marriage legally entered into in another state

Question 3

Common-Law Marriage

Answer 3

No ceremony or license required

Elements:
1. Consent
2. Capacity
3. Cohabitation: must live together as married spouses
4. Hold themselves out as married in public

Limited availability: most states do not recognize common-law marriages but almost all state recognize a common-law marriage validly enter into elsewhere

Question 4

Putative Marriage

Answer 4

One based upon a good faith belief upon objectively reasonable grounds that the marriage is valid; equity principles allow property distribution and support to occur as if parties were legally married.

Question 5

Annulment

Answer 5

Voids a marriage as if it was never validly formed

1. Void: a marriage is null from its inception due to specific grounds; no judicial decree is required.
   -Bigamy: already legally married to another; Enoch Arden statute can make the marriage voidable if the parties in good faith but incorrectly believed the previous spouse dies and some jurisdictions then require a divorce proceeding from the previous spouse

-Incest or consanguinity: all states restrict marriages by blood relationships and nearly half bar marriages by first cousins

-Incapacity: one party lacks the ability to understand the nature of the marriage contract

2. Voidable marriage: a marriage valid until declared void after a challenge by either party; judicial decree required

-Grounds include nonage, impotence, intoxication, fraud, misrepresentation, duress, coercion, force, or lack of intent

-Validation: voidable marriages can be validated once the impediment is removed, (e.g. underage spouse stays in marriage after reaching age of consent.

• Putative spouse: a putative marriage; based on good faith belief upon objectively reasonable grounds that the marriage is valid.

3. Property distribution: a party seeking annulment may request an equitable distribution of property and in some states, spousal support; once competed, the property distribution may not be modified.

Question 6

Separation

Answer 6

1. Limited Divorce: AKA “divorce from bed and board” is recognized in most states and used by some for religious or medical reasons; the parties live apart and remain legally married but the court can resolve support and property issues.
2. Separation Agreements: an agreement made while planning for divorce
   -contract principles apply; consideration is provided by the mutual promises
   -enforceable so long as not unconscionable or based on fraud; provisions for child support or child custody can be modified if in the best interest of the child
   -merges with divorce decree

Question 7

Divorce

Answer 7

Dissolution of marriage

1. Residency: requires at least one of the parties to be a resident of the state (majority)
2. Grounds: no-fault or fault
3. Jurisdiction: a decree entered in one state will be given full faith and credit by another state so long as one spouse is a resident of the state that granted the decree
4. Divisible divorce: (ex parte divorce) a court withe subject-matter jurisdiction but personal jurisdiction over only one spouse can issue a divorce decree but cannot determine property, support, and custody issues; the non-resident spouse may collaterally attack by showing the other spouse was not domiciled in the state or left immediately after judgement was granted.

Question 8

No-Fault divorce

Answer 8

Recognized in every state and majority require a party to allege that the marriage is irretrievably broken with no possibility of reconciliation

Question 9

Fault divorce

Answer 9

Grounds include adultery, cruelty, desertion (abandonment), habitual drunkenness, bigamy, imprisonment, indignity, institutionalization

Question 10

Defenses to Fault based divorce

Answer 10

Recrimination
Unclean Hands
Connivance (consent to marital wrong)
Condonation
Collusion
Provocation
Insanity
Consent

Question 11

Division of Property

Answer 11

Generally, the theories of dividing assets are community property or equitable distrobution

Jurisdiction: the court must have both subject matter jurisdiction and personal jurisdiction over both parties to distribute the assets; for SMJ most states require a residency period

Question 12

Community Property

Answer 12

Minority Rule

Split 50/50 and presumed as all property acquired during marriage, including earnings of a spouse; separate property belongs to the specific spouse and is property acquired before the marriage, after permanent separation, or by gift or inheritance.

Question 13

Equitable Distribution

Answer 13

Majority Rule

Applies the theory that property will be split equitably; but not necessarily equally.

2 types of property being dealt with:
1. Marital property: all property acquired during marriage
2. Non-marital property: all property acquired before marriage, by gift or inheritance, as agreed upon by the parties in a valid agreement, or acquired as a result of a claim arising before marriage; some states treat property acquired after legal separation as non-marital.

Question 14

Factors affecting Equitable Distribution

Answer 14

-Length of marriage
-prior marriages
-health/age/income of the spouses
-contributions to education/child-rearing
-future needs, education
-non-marital assets, child custody
-spousal support
-standard of living

martial fault is not a factor unless it has an economic impact (e.g. giving gifts to a mistress)

Question 15

Modification of property division

Answer 15

Modification of a property division is not allowed for changed circumstances and can only be set aside based on grounds such as fraud.

Question 16

Equitable distribution rules for specific assests

Answer 16

-Professional License or Degree: not a divisible asset but the other spouse may be entitled to reimbursement for contributions made to help acquire the license or degree.

-Retirement or Pension benefits: marital property subject to equitable distribution

-Personal Injury recovery: distribution varies by region
–Marital property: if injured during marriage (Community Property States)
–Separate and marital allocation: will be marital property if the recovery is replacing compensation (lost wages, loss of earning capacity, medical expenses) and will be separate property if it is personal to the injured spouse (pain and suffering, consortium losses)

-Professional goodwill: of a business started during marriage is considered marital property in some jurisdictions

-Accrued employment benefits: like unused vacation days might be treated as marital property depending upon if accrued during marriage and they can be cashed out, as opposed to a “use it or lose it” policy of an employer

-Social Security benefits: not divisible; state laws regarding such benefits are preempted by the Supremacy Clause

-Stock options: generally subject to equitable distribution as marital property if earned during marriage, even if they will not be exercised until after marriage.

Tax consequences: transfers between spouses are not treated as taxable event but will be taxable if sold.

Question 17

Spousal Support

Answer 17

(i.e. spousal maintenance or alimony)

Spousal support is the obligation of one party to provide financial support to the other if that person cannot provide for his/her own needs; alimony obligations cannot be discharged in bankruptcy

Question 18

Court Jurisdiction over Spousal Support

Answer 18

The court must have SMJ and PJ over both spouses, for SMJ and most states require a residency period.

Question 19

Factors to calculate spousal support

Answer 19

(State vary but use a combination of these factors)

1. Financial Resources: assets, earning capacity, and potential; court can impute income if a spouse is voluntarily underemployed below earning capacity
2. Standard of living
3. Length of marriage
4. Time to reintegrate into the workforce
5. Contributions to the marriage (i.e. paying for education or training)
6. Age and health (both physical and mental health)
7. Marital misconduct/faut (states vary as to the weight given to this type of evidence)
8. Needs (debt, children)

Question 20

Types of Spousal Support

Answer 20

Lump sum
Permanent (remainder of life)
Limited duration
Rehabilitative
Reimbursement
Pendent lite (made while divorce is pending

Palimony for cohabitating partners is largely unrecognized

Question 22

Child Support

Answer 22

Both parents are obligated to support their children until they reach age 18 or longer if the child is incapable of self-support; some states require support through college.

Contracts that attempt to bargain away child support obligations are unenforceable

Question 22

Modification of Spousal Support

Answer 22

Spouse seeking change must prove a substantial change in circumstance

1. Factors considered: death, remarriage (in most states), cohabitation, and retirement
2. Voluntary change: when one’s income is reduced by a voluntary changed (e.g. quits job) courts vary and may deny adjustment or allow it in good faith; court can impute income if a spouse is voluntarily underemployed below earning capacity

Question 23

Court Jurisdiction over Child Support

Answer 23

Uniform Interstate Family Support Act (UIFSA) adopted in all 50 states allows long arm Personal Jurisdiction over a non-resident parent to establish or enforce child support

Question 24

Child Support Guidelines

Answer 24

Used to calculate support (court may deviate from the formula in its discretion):

1. Income-shares model: (majority) percent of combined net income of both parents
2. Percentage-of-income model: percent of the non-custodial spouses income
3. Melson Formula: takes into account six specific considerations, such as the minimum amount that each supporting parent must retain, the number of the supporting parent’s dependents, and a Standard of Living adjustment (SOLA)

Question 25

Factors in determining Child Support

Answer 25

1. Ages and number of children
2. Unusual needs and obligations (e.g. special education)
3. Support Obligations of the parties;
4. Assets of the parties
5. Medical expenses not covered by insurance
6. Standard of living
7. Best Interests of the Child

Question 26

Modification of Child Support

Answer 26

Allowed if a parent can prove a substantial change in circumstances regarding the child’s needs of the parent’s ability to pay and that change is expected to be continuing rather than temporary.

1. Jurisdiction: UIFSA establishes continuing exclusive jurisdiction of the original ordering state unless neither parent nor child resides in that state or the parties consent to another state’s jurisdiction; even if allowed to modify, a state may not modify a non-modifiable aspect of the original order
2. Prospective only: any child that has accrued cannot be retroactively modified
3. Voluntary Change: when one’s income is reduced by a voluntary change (e.g. quits job) courts vary and may dent adjustments or allow if in good faith; court can impute income if a spouse is voluntarily underemployed below earning capacity.
4. Change in custody: the obligations of child support are adjusted as the physical possession of the child changes between parents.

Question 27

Termination of Child Support

Answer 27

the obligation to support a child capable of self-support ends upon majority. (Typically 18 unless required to pay through college), emancipation, marriage by the child, termination of parental rights, or at death of the child or parent

Question 28

Enforcement of Child Support

Answer 28

Jurisdiction: to simplify enforcement when the payor or child moves out of state UIFSA allows enforcement (but not modification) in a new state.

Remedies for non-payment:
-civil contempt
-criminal contempt
-wage garnishment
-suspension of driver’s or occupational license
-seizure of property or assets
-order of attorney’s fees
-withholding of tax refunds
-denial of passport application when more than $5000 in arrears.

Question 29

Paternity

Answer 29

Father’s identity is sought to establish rights to support, custody, visitation

1. Presumption: a child born during marriage is presumed to be of the marriage
2. Timing: a paternity action is allowed only before the child reaches the age of 18
3. Evidence: may include blood test, medica testimony, and acknowledgement by the defendant.
4. By estoppel: a doctrine used to prevent a non-biological father from denying his obligation to pay child support after he promised he would provide support and the wife relied on this promise to her economic detriment.

Question 30

Child Custody

Answer 30

Custody of a child consists of both legal and physical custody, either or both of which can be shared under a joint custody agreement.

1. Legal: the right to control decisions on major issues (e.g. health, education, religion)
2. Physical: The right to physically reside with the childe and provide daily care
3. Joint: (favored) shared legal and/or physical determined in the best interests of the child

Question 31

Best Interest of the Child Standard

Answer 31

Rule: a child custody or visitation determination is made in the best interest of the child

Default: a parent is in the best position to care for a minor child, unless the parent is unfit

Factors: the court can consider the wishes of the child, which parent acts as primary caretaker, any domestic violence, or opinion of a guardian ad litem, but cannot consider race, religion, or (in most jurisdictions) the sexual conduct of the parent.

De Facto Parent: a third party with whom the child has lived for an extended period of time can be considered a “de facto” parent to get around the presumption in favor of the natural parent who has had little or no contact with a child or is unfit.

Question 32

Modification of Child Custody

Answer 32

The party must prove a substantial and unforeseen change in circumstances; failure to pay child support is not a basis to modify an existing child-custody order.

Time limit: some courts may impose a waiting period before modification will be considered

Relocation: the court will balance the policy to maintain frequent contact with both parents against the needs of an individual to relocate and seek employment.
–Standard applied when a parent requests to relocate a minor child varies by jurisdiction
–Best interest of the child is the usual focus, though which parent carries the burden to prove what is or is not in the child’s best interest varies by jurisdiction

Question 33

Visitation/Parenting Time

Answer 33

There is a rebuttable presumption that he noncustodial parent should be granted reasonable visitation (parenting time) with a minor child; denial of visitation is only allowed if it would seriously endanger the child’s physical, mental or emotional health.

Modification: the party must prove a substantial and unforeseen change in circumstances; failure to pay child support is not a basis to withhold visitation

Third parties: A fit parent has a fundamental right to deny visitation to a nonparent (including grandparents); statutes regarding nonparent visitation vary by state

Unwed biological Father: has a due process right to have contact with his child if he demonstrates a commitment to the responsibilities of parenthood (e.g. provides support)

Cohabitation of a custodial parent (including same-sex relations) wil not restrict visitation rights unless it has an adverse impact on the child’s physical or emotional health.

Question 34

Prenuptial Agreement

Answer 34

Applicable Law: Uniform Premarital Agreement Act (UPAA) followed by 26 jurisdictions; to resolve a conflict of laws regarding enforceability, apply the law of the state with the most significant relationship to the agreement and subsequent marriage

Modification: the parties may include a clause to prevent modification of the agreement, but aa court may always modify child support provisions despite a no-modification clause

Impoverished Spouse: valid agreement may be set aside if result leaves one spouse woefully impoverished to the extent that he/she becomes dependent on the state

Question 35

Separation and Settlement Agreements

Answer 35

Parties define property, custody, and support issues pending divorce; the type of agreement depends upon state law and the length of separation, however the same rules apply to both.

1. Enforceability: the agreement must meet the same enforceability elements of a prenuptial agreement.

2.Modification: provisions related to child support and custody are modifiable by the court if the terms are not in the best interest of the child

3. Merger: the agreement will generally merge into the divorce decree but if not, enforcement will be through contract law rather than judgement enforcement.

Question 36

Enforceability of Prenuptial, Separation and Settlement Agreements

Answer 36

Enforceability requires three elements:

1. Full and fair disclosure of the assets and obligations (if not can argue unconscionability)
2. Terms are fair and reasonable considering the wealth, age, and health of the parties; the agreement may not leave a spouse dependent upon public assistance nor determine issues related to child custody or child support
3. Voluntary: whether the party against whom enforcement is sought did not act voluntarily (due to fraud, duress, or undue influence); consider factors such as time pressure, to sign the agreement, prior business experience, and opportunity to consult independent counsel.

Question 37

Adoption

Answer 37

Adoption of a child may occur after termination of the parental rights of the biological parent(s)

1) Involuntary termination: an adoption requires a finding the parent has abandoned the parent-child relationship; the standard varies by jurisdiction.
-Subjective: whether the parent subjectively intended to abandon the relationship
-Objective: whether the parent failed to act in a way that shows commitment to maintain the parent-child relationship

2) Voluntary termination: the natural parent voluntarily relinquishes parental rights; consent can be waived up until the final adoption decree is issued.
-Consent of unwed father is not required if the father fails to demonstrate a commitment to the responsibilities of parenthood, or (in states with registry) fails to register as a putative father within the statutory time frame.
-Consent of prospective adoptee is required for a child aged 14 years or older; some jurisdictions lower the age to 12 years.

Court Approval: the court will usually conduct an investigation before approving the adoption

Legal effect: once the adoption decree is entered, adoptive parents have the same rights as biological parents and the adopted child has all the rights of a biological child.

Question 38

Limits on Parental Authority

Answer 38

Medical Care
-Consent: parental consent is generally required for medical care except a hospital can ovverride lack of consent when the child’s life is at risk; the child can authorize an abortion (in some states), get birth control and treatment for STDs
-Religious beliefs of the parents may conflict with the best interests of the child; the court can intervene to protect the child when necessary to prevent serious harm to the child, declaring abuse or neglect to override the parent’s lack of consent.

Liability for torts or crimes: minors are held to a different standard than adults resulting in lesser penalties depending on the age of the child

Question 39

Emancipation

Answer 39

A child who is self-supporting, and no longer living with her parents may petition the court to become emancipated from his/her parents.