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BAR EXAM > Family Law > Flashcards

Family Law Flashcards

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1
Q

a marriage license will not be issued if… (4, +1)

A
  1. one of the parties is married to someone else
  2. the parties are too closely related (def by statute)
  3. parties entered into marriage as sham; or
  4. parties incapable of understanding the nature of the act
  5. (most) can’t be under influence rendering incapable, or lacked consent b/c duress / fraud
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2
Q

4 potential requirements for ceremonial marriage

A
  1. age restrictions (usu 18)
  2. waiting period (many jx, not all - may be waived in emergency)
  3. premarital med testing (some states)
  4. expiration date (most states)
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3
Q

common law marriage requirements (3, +1). where available?

A
  1. agree they are married
  2. cohabit as married
  3. hold selves out in public as married

NOT valid if married to someone else
not in all states - assume abolished

Four Cs: capacity, consent, cohabitation, conduct

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4
Q

how does a couple show the requisite intent for common law marriage?

A

evidence that intended to enter into marriage by words in the present tense made for the purpose of establishing a valid legal marital rel; future tense insufficient

can then look to cohabitation or reputation (cohab alone insufficient)

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5
Q

does cohabitation by itself prove holding self out as married?

A

no

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6
Q

heartbalm action

A

not available in most jx
jilted party permitted to file civil suit for money damages based on damage to reputation when marriage fails to take place

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7
Q

3 ways to end marriage

A

annulment, divorce, death

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8
Q

two types of annulment (and what judicial action required)

A
  1. void (as if never happened - need not be judicially dissolved)
  2. voidable (valid until one spouse seeks to void - requires judicial decree)
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9
Q

3 justifications for void annulment

A
  1. prior existing marriage
  2. incest
  3. mental incapacity (must understand nature of marriage K; valid if entered in lucid moment)
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10
Q

6 justifications for voidable annulment

A
  1. age (if underage party (not yet 18), and didn’t seek consent of parents or court)
  2. impotence (if natural and incurable, and other party didn’t know)
  3. intoxication (tho can ratify after with cohabitation)
  4. fraud, misrep, duress, coercion, force (must immed cease living together; must be present fraud)
  5. lack of intent (jest/hilarity; agreed to only some aspects of conventional marriage)
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11
Q

Enoch Arden statute

A

addresses bigamy cases; most states have adopted

defense to bigamy if parties had GF belief that previous spouse was dead

some jx require divorce proceeding from orig spouse

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12
Q

in bigamy cases, what is presumed about the status of the latest marriage? what evidence to rebut?

A

presumed that latest marriage valid

rebuttable by cogent evd of existence of prior valid marriage at time latest marriage entered into

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13
Q

putative marriage doctrine

A

protects party who is unaware of impediment to marriage that makes it void or voidable; if they 1. participated in the ceremonial marriage and 2. believe in good faith that it is valid, they can use the state’s divorce provisions even if later found void

divorce not required to end it, but allows equitable remedies

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14
Q

requirement for no fault divorce

A

majority of jx:
1. marriage irretrievably broken
2. no prospect of reconciliation (irreconcilable differences)

about 1/2 states require couple be separated for specific time prior to filing

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15
Q

upon divorce, two methods of distributing asssets

A
  1. community property (guiding principle: marriage is partnership, generally requires equal division)
  2. equitable distribution (most states - not nec equal)
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16
Q

four exceptions to marital property (subject to distribution in divorce) (6)

A
  1. acquired before the marriage (or in exchange for prop acq before)
  2. excluded by prenup/postnup
  3. acquired by gift or inheritance (or acq in exchange, unless xchange between spouses)
  4. property party sold, granted, conveyed or OT disposed of in good faith and for value before date of final sep;
  5. prop that has been mortgaged/encumbered in gf for value (b4 final sep)
  6. award or settlement payment for any coa/claim accrued before marriage
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17
Q

standard for child custody, support, other child issues

A

best interest of the child

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18
Q

states that do not have established common law marriage will recognize it from another state unless…

A

violates strong public policy of state

may also require parties to be domiciled in state for period of time

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19
Q

four heartbalm actions

A

seduction, alienation of affection, breach of promise to marry, criminal conversation

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20
Q

sufficient to constitute fraud for annulment: lying about wealth? pregnancy?

A

wealth: no. must go to essence of marital relationship

pregnancy: jx differ

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21
Q

common grounds for fault based divorce

A

adultery; cruelty/inhumane treatment; desertion; habitual drunkenness; bigamy; imprisonment/incarc (for certain period); indignity; institutionalization (no reas prospect of discharge/rehab)

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22
Q

adultery requirement

A
  1. opportunity
  2. inclination
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23
Q

cruelty or inhumane treatment requirement

A

usually physical, and a course of conduct (not just once); affects the health, makes cohabitation unsafe or improper (some, not all allow if emotional abuse)

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24
Q

rq for abandonment/desertion

A

someone left w/o consent of other spouse w/o intent to return

some allow it when another has forced one out and harm will come if they return (constructive desertion)

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25
Q

bigamy

A

knowingly entered into second marriage w knowledge of prior marriage

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26
Q

indignity

A

when one spouse is subjected to some course of behavior that makes it intolerable and life burdensome (vulgarity, disdain, sexual deviance etc.)
most jx don’t allow

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27
Q

defenses to fault-based divorce

A

must be affirmatively pled

  1. recrimination / unclean hands (you also did adultery / harm)
  2. connivance
  3. condonation
  4. collusion (conspire together to get divorce)
  5. provocation
  6. insanity (no diff between right and wrong knowl)
  7. consent (desertion/adultery)
  8. justification (e.g. left house b/c forced)
  9. religion (fails in all jx)
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28
Q

connivance

A

complaining spouse gave consent to marital wrong (e.g. consent to adultery)

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29
Q

condonation

A
  1. has knowledge of grounds for divorce
  2. continues to engage in marital relations afterwards
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30
Q

limited divorce

A

legal separation; live apart and court determs support / prop division, but not rly used

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31
Q

separate maintenance

A

one party asks for support, but not for parties to live apart

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32
Q

a non marital asset can become marital property if…

A

increased value due to spousal effort / money - at least that extra value may become marital property

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33
Q

burden of proof allocation for claim something isn’t marital property

A

person claiming it isn’t bears burden of proof

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34
Q

if husband has house before marriage, does that become part of marital property?

A

no; but increase in value that has accrued during marriage can become marital property

if he transfers title to both parties, could be deemed a gift and become part of marital property

also look out for whether marital assets were used to improve

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35
Q

dissipation of marital property

A

occurs when one spouse uses marital property for his sole benefit after marriage has irreconcilably broken down (such as expensive gifts for paramour)

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36
Q

treatment of professional licenses or degree in divorce

A

most jx don’t treat this as distributable property interest (acq of knowledge, not prop)

but can have impact on support / distrib of other marital assets

if one spouse used educational expenses, might be reimbursable

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37
Q

treatment of retirement / pension benefits in divorce

A

if earned and accrued during marriage, considered part of marital property

will not look into future (just present value)

may also use time rule: part accrued during the marriage

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38
Q

treatment of personal injury proceeds in divorce

A

marital prop approach: if CoA during marriage, marital property even if proceeds gotten after divorce

separate and marital allocation approach: pain and suffering (sep for injured spouse); lost wages / med expenses award = marital property; loss of consortium belongs only to non injured spouse

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39
Q

treatment of goodwill of a business in divorce

A

considered marital property if developed during marriage; must be part of the business and independent of the individual (i.e. part of personal reputation vs. law firm’s)

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40
Q

treatment of accumulated sick and vacation days in divorce

A

split jx; often depends on how / when accrued

some look at nature of sick/vacation pay; not marital property if you have to use it by end of year

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41
Q

treatment of stock options in divorce

A

if acquired during marriage, even if to be ex after divorce, gen considered marital property

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42
Q

how is marital property division treated under tax law?

A

equitable distrib payments transferred between divorcing spouses not taxed as income

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43
Q

once property division occurs, is it modifiable?

A

no; but may warrant change in spousal support / child support

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44
Q

spousal support arises when…

A

one spouse cannot support themselves w/own employment and assets

45
Q

can spousal support be discharged in bankruptcy?

A

no

46
Q

can spousal support be waived?

A

yes, with consideration (e.g. waive maintenance in exchange for the house)

47
Q

factors in determining amount of support

A
  1. financial resources of both parties (includes all assets including non marital, earning potential)
  2. standard of living during marriage
  3. time to find a job or complete education
  4. duration of marriage
  5. contributions to marriage (esp if one enhanced earning capacity of other -homemaker while other in school)
  6. age and health
  7. marital misconduct (sometimes)
  8. children
48
Q

classifications of marriage duration for spousal support

A

short term: up to 7 years
moderate: 7-15/16 years
long: 16/17+

49
Q

is marital misconduct a factor in marital property? support?

A
  1. no
  2. sometimes; esp if adultery
50
Q

can maintenance be modified? how?

A

yes; must show significant change in circumstances (needs of recipient or financial abilities of payor. voluntary income reduction does not change it)

51
Q

factors affecting modification of support

A
  1. death (usually cont until death of spouse; not ob of the state unless court specifies)
  2. remarriage (usu ends if payee remarries)
  3. cohabitation w non-family member (court looks at nature of rel, duration, $ support etc)
  4. retirement (some jx deny mod if voluntary; others do modify. depends on nature/circ)
52
Q

alimony pendente lite

A

alimony paid during pendency of divorce litigation; not affected by whether payee cohabitating with someone else

53
Q

court jurisdiction over support obligations may depend on duration of residency. what range might we see?

A

6 weeks to 2 years

54
Q

ex parte divorce

A

personal jx over one but not the other spouse

can determine maritual status, but cannot issue orders on property, spousal support, child custody/support w/o PJ

55
Q

is there a right to legal counsel?

A

no, but can order attorneys fees if one party is indigent

56
Q

when is spousal support awarded in a divorce?

A

whenever a spouse cannot provide for their own employment

57
Q

a party seeking modification in spousal support has the burden of establishing…

A

a significant change in circumstances in either:
- recipient’s needs OR
- payor’s ability to pay

58
Q

child support is paid until…

A

age of 18-
but, if child still in HS, until age of 19 while working on hs diploma, or
if child has disability and requires support past high school

sometimes cont through college

59
Q

right to receive financial child support belongs to…

A

the child
cannot be bargained away by parents

60
Q

a nonmarital child is entitled to child support, government benefits, or inheritance rights, but requires…

A

that paternity is established before the father’s death

61
Q

4 ways nonmarital children can become marital children

A
  1. parents subsequently marry
  2. father consents to putting name on childs birth cert
  3. holding out as the father
  4. by judicial decree (usu thru paternity action)
62
Q

once paternity is established, gives rise to…

A

rights to custody and vistation
and duty to support

63
Q

how paternity proven

A

blood test; DNA test
prior statements by deceased family members
med testimony on prob of conception
defendant’s own knowl of paternity
physical resemblance between child and defendant

64
Q

time limit on paternity claim?

A

no; violates EPP. child or mother can bring it

65
Q

burden of proof for paternity

A

varies by jx

66
Q

marital presumption

A

presumes child born to married woman presumed to be child of husband
applies to artificial insemination so long as father consented to it and it was performed by a doctor

67
Q

when can a wife deny that her husband is the father?

A

in some states, woman is stopped from denying wife’s paternity

half states: allow for wife to present evd that husband is not father (e.g. sterile, impotent, not accessible)

some states - allow court to exclude evd of mother’s rebuttal if not in BI of child

68
Q

when can husband who isn’t bio father be estopped from denying duty to pay child support?

A
  1. husband promised to provide for child
  2. wife detrimentally relied on promise
  3. wife would suffer econ detriment from relying on that promise

some states may still allow him to show he is not bio father

69
Q

uniform interstate family support act (UIFSA)

A

adopted in all states; long arm statute that allows to get PJ over out of state parent

70
Q

UIFSA grounds to et PJ over out of state parent

A
  1. personal service on defendant parent
  2. consent
  3. past residency with the child in state
  4. past residency while providing child support
  5. defendant directed child to reside in the state
  6. defendant engaged in conception in that state resulting in child’s birth
  7. defendant asserted parentage via the putative father registry
  8. any other const basis
71
Q

can any source of income be factored into calculating child support?

A

yes

72
Q

three policy principles that guide child support

A
  1. parents have fundamental obligation to financially support their children
  2. combined income is what’s important (what would child have had access to?)
  3. how to minimize litigation - fair and efficient
73
Q

in determining child support, what are parents required to file?

A
  1. affidavit regarding their net income
  2. child support guidelines worksheet
74
Q

2 models of calculating support

A

income shares (most)
percentage of income model (some)

75
Q

income shares model of calculating child support

A
  1. add both incomes
  2. determine amount of child support based on total income
  3. allocate responsibility respective to each person’s net income
76
Q

percentage of income model for calculating child support

A
  1. uses percentage of non custodial parents income
  2. determined by number of children supported
77
Q

can court deviate from formula child support guidelines?

A

yes, but court must specify why it is deviating

78
Q

standard for modifying child support & who bears burden

A

substantial changes in parents circumstances (10% or more change in amount owed b/c income and therefore percent changed)
burden on party seeking modification

does not count if voluntary reduction; court may impute income

79
Q

are modifications in child support retroactive or prospective? what date applies?

A

retroactive to date of service on motion

80
Q

in child support modification, when will the court not impute income when a party has voluntarily elected to have lower income?

A

if it was in good faith and there is no hardship for the child

81
Q

child support may be terminated if… (5)

A
  1. child marries
  2. child emancipation
  3. termination of parental rights
  4. child dies
  5. parent dies (though courts may require they have a life insurance policy)
82
Q

in what circumstances can jurisdiction for child support agreement be modified?

A
  1. parties agree, OR
  2. no one lives in court of continuing jx
83
Q

3 tax consequences of child support

A
  1. paying parent cannot deduct child support from their income
  2. receiving parent cannot include child support as income
  3. parent who pays medical expenses can deduct those expenses
84
Q

main three ways of enforcing child support orders by federal law

A
  1. contempt orders
  2. wage garnishment
  3. withholding tax refunds
85
Q

is counsel required for indigent parents in contempt orders for failure of child support?

A

in civil contempt, split

86
Q

for criminal contempt for failure to pay child support, court must find that…

A

failure to pay by obligor is willful BRD

87
Q

can a paternity action be subject to an SoL? why or why not?

A

no; violates EPP

88
Q

legal custody defined

A

right to make major decisions for the child (religion, education, medical decisions)

89
Q

physical custody defined

A

right to make everyday decisions for daily care and control of the child (gen includes right to have child reside with parent)

90
Q

requirement for joint custody of child

A

both parents must be willing and able to cooperate for the best interest of the child

91
Q

what is the UCCJEA?

A

act that has the purpose of prevent forum shopping regarding child custody and visitation; determines which state can have jx, change it, or decline it

requires SM jx

92
Q

5 types of jx under UCCJEA

A
  1. initial custody determination (home state jx)
  2. significant connection jx
  3. default jx
  4. temporary emergency jx
  5. exclusive continuing jx
93
Q

how is home state jx determined?

A

where child lived w parent for six months (or since birth, if child under 6 months)

if child moved, home state still has jx if:
1. home state w/in past six months, and
2. parent / guardian still lives there

94
Q

requirements for UCCJEA significant connection jx

A
  1. no other state is home state
  2. child and at least one parent have a significant connection to new state AND
  3. substantial evidence in that state concerning the child
95
Q

requirements for UCCJEA default jx

A
  1. no home state or subst connection jx AND
  2. appropriate connections
96
Q

requirements for UCCJEA temporary emergency jx

A
  1. child in danger AND
  2. requires immediate protection

if prior custody order in existence, must allow time for parties to enter prior court to resolve
otherwise, if no prior custody order, emergency order stays in place until home state changes it

97
Q

requirements for exclusive-continuing jx

A

court that made initial rulings in custody case keeps jx until:
1. parties no longer reside in state
2. child no longer has sig connection to state AND no significant evd of child’s condition remains in state

98
Q

when courts can decline jx over child support under UCCJEA

A

when forum no longer convenient per:
1. domestic violence occurs
2. length of time child has resided outside of jx
3. distance between competing jx
4. parties relative financial circs
5. agreement of parties
6. nature / location of rel evidence
7. courts can decide ability to decide iss expeditiously
8. familiarity of each court with the issues / facts

99
Q

can one state enforce another state’s child support orders? how?

A

yes
register the order with the new court; can grant relief under it

100
Q

expedited enforcement of child custody determination requirements

A

requires respondent to appear very next judicial day after being served, or else petitioner will be awarded immed phys possession, UNLESS
1. custody order not registered, AND one of:
a. court didn’t have jx
b. order had been stayed or vacated, or
c. notice improper; OR

  1. registered but stayed / vacated / modified
101
Q

court may issue warrant upon petitioner’s request to take physical possession of child if child is likely to:

A
  1. suffer serious physical injury or
  2. be wrongfully removed from the state
102
Q

under UCCJEA, law enforcement may obtain return of child or enforce an order if:

A
  1. official believes person holding the child violated a criminal statute or
  2. if such action is requested by the court
103
Q

what is the main thrust of the Uniform Deployed Parents Custody and Visitation Act (UDPCVA)?

A

applies UCCJEA to parents serving in the military
1. if there is not imminent deployment, courts cannot use potential deployment negatively against military;
2. sets out procedures for temp custody / out of court agreements;
3. prohibits permanent orders before or during deployment (absent consent)

104
Q

parental kidnapping prevention act (PKPA)

A

applies to kidnapping cases and to interstate parental responsibility disputes

supersedes any conflicting state law

allocates powers and duties between states regarding child custody disputes

international PKPA prohibits children from being taken out of country

105
Q

under international PKPA, the hague convention requires ____

A

that a child be returned after being removed from country, unless return puts the child in grave danger (physical or psychological)

106
Q

FC STOPPED AT CHAPTER 7 CHILD CUSTODY PART 2

A
107
Q

what act provides a court with personal jurisdiction over an out of state parent to establish or enforce child support or to determine parentage?

A

Uniform Interstate Family Support Act (UIFSA)

108
Q

can child support be ordered when a child is past the age of majority? if so, subject to what conditions?

A

some jurisdictions have authority to order child support beyond the age of majority when the child is in college

if a child is employed, however, support rights are contingent on the compliance by the child with reasonable parental demands

BAR EXAM (28 decks)

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