Family Law

Question 1

When is a marriage void?

Answer 1

Incest
Prior existing marriage
Mental incapacity

Question 2

When is marriage voidable?

Answer 2

age, impotence, fraud, duress, intoxication, lack of intent

Question 3

What is the residency requirement for divorce?

Answer 3

At least one spouse must be resident of the forum state

Question 4

Non-marital property

Answer 4

• property acquired before a marriage
• property excluded by parties valid agreement
• property acquired by gift or inheritance

Question 5

Property division - community vs separate property states

Answer 5

Community - equal split of marital property

Separate - equitable division of marital property

Question 6

Spousal support - factors and modification

Answer 6

Earning potential, length of marriage, homemaking and childrearing services, standard of living at time of marriage, marital misconduct (only in some states)

Modifiable only if there is a significant and continuing change in circumstances

Question 7

Paternity - Estoppel

Answer 7

husband estopped from denying paternity if:

1 - husband rep that he would provide support for child

2 - wife relied on rep

3 - wife suffered economic detriment from reliance

Question 8

Modification of child support

Answer 8

substantial and continuing change in circumstances

voluntary reduction in income not a valid reason

Question 9

Jurisdiction for modification of child support

Answer 9

• A different court may not modify a child support order issued by a court of continuing exclusive jurisdiction.
  
  • EXCEPTION: the parents and child no longer resides in that state
  • EXCEPTION: the parties consent to a different court’s jurisdiction.

Question 10

Enforcement of child support

Answer 10

• Only the issuing state can modify a child support order. BUT, another court can enforce the order if it is registered in that state.

Question 11

When is a SEPARATION agreement not enforceable?

Answer 11

If it is unconscionable or based on fraud

Question 12

When does a court consider a fault based ground in entering the divorce decree?

Answer 12

1 - a court does NOT typically consider the fault based ground when doing property division

2 - a court MAY consider the fault based ground when determining alimony, i.e. marital misconduct.

Question 13

Are professional degree marital property subject to division at divorce?

Answer 13

No, they are not property. HOWEVER, they can affect alimony.

Also, the non-degree spouse may seek reimbursement for support given through school.

Question 14

What are the different types of alimony?

Answer 14

Permanent, lump sum, limited duration, rehabilitative, reimbursement

Question 15

Retirement benefits - marital property?

Answer 15

Yes, if acquired during marriage

Question 16

Personal injury claims/proceeds - marital property?

Answer 16

Two approaches

1 - if cause of action accrued during marriage, proceeds are marital property

2 - allocate damages for pain and suffering as separate of injured spouse, consortium separate for other spouse, remainder is split between marital and separate.

Question 17

Social security benefits

Answer 17

no subject to equitable distribution

Question 18

Can an unwed father object to adoption?

Answer 18

If the father records his paternity and demonstrates a commitment to the responsibilities of parenthood, then he may be able to object.

Failure to record waives this right.

Question 19

Adoption and Safe Families Act

Answer 19

State can move for termination of parental rights if child has been placed outside of home and not with relative for 15 of the past 22 months

Question 20

Gestational (surrogacy) agreements

Answer 20

Intended parents must agree

provisions for medical care

gestational mother - cannot limit her healthcare decisions

Agreement must be approved by court

Question 21

Putative Marriage

Answer 21

If innocent party enters marriage in good faith that is actually invalid, still protected.

Can still sue for spousal support and property division

Question 22

Mediation in divorce

Answer 22

Some states require this. Mediator must
-disclose potential conflicts
-control the process
-not coerce or improperly influence decision

Question 23

Can separate property be transformed to marital property?

Answer 23

Yes, if marital efforts or marital funds are used to increase the value in the asset or build equity.

Think: mortgage previously owned by one spouse and then wages used to add value to home and build equity.

Question 24

Support during marriage

Answer 24

if creditor provides a necessary item to one spouse, it may be able to come after the other spouse for payment

Question 25

Jurisdictional issue of granting divorce when one spouse is not a resident of state

Answer 25

The court in the state in which the one spouse lives can still grant that spouse a divorce, but it cannot do property division, alimony, or child support unless it has PJ over the out of state spouse

Question 26

Jurisdiction for child custody

Answer 26

(1) child’s home state (state where child has lived with at least one parent for 6 months prior), or
(2) was the child’s home state in the past 6 months and the child is absent, but one of the parents still resides in the state.

Question 27

When will a court have PJ over an out of state parent to determine child support?

Answer 27

-service or consent in state
-parent has lived with child in the state in the past
-parent had sex in state and this is probably what led to conception