Family Law (smart sheets)

Question 1

UMDA

Answer 1

Uniform Marriage and Divorce Act

Question 2

UPAA

Answer 2

Uniform Premarital Agreement Act

Question 3

UIFSA

Answer 3

Uniform Interstate Family Support Act

Question 4

PKPA

Answer 4

Parental Kidnapping Prevent Act

Question 5

UCCJEA

Answer 5

Uniform Child Custody Jurisdiction and Enforcement Act

Question 6

Marriage requirements

Answer 6

A valid marriage requires:
1) consent from both parties;
2) a marriage license; AND
3) a ceremony (solemnized by a judicial officer or church).

Consent – Depends on the jurisdiction.
− Some States → if the parties participate in a ceremony AND sought some benefits of marriage.
− Other States → if parties consented to the obligations of marriage.

Question 7

Common law marriage

Answer 7

Requires that the spouses:
1) live together for a specified amount of time;
2) be legally able to marry;
3) have a present agreement that they are married; AND
4) hold themselves out as being married.

A valid Common Law Marriage creates rights/obligations identical to a ceremonial marriage.

Most states will honor a Common Law Marriage validly obtained in another state

Question 8

Bigamous Marriage

Answer 8

A person CANNOT be married to more than one person at the same time.
A marriage is NOT valid if entered into when one of the parties is still married (before the dissolution of an earlier marriage).

Question 9

Equity doctrine

Answer 9

creates a strong presumption that the most recent marriage is valid (rebuttable if evidence shows first marriage was not dissolved).

Question 10

UMDA view of bigamous marriage

Answer 10

marriage may be validated upon removal of the impediment (i.e. earlier marriage is terminated).

Question 11

Premarital agreements

Answer 11

Premarital agreements are enforceable unless procured by fraud, duress, or coercion.

Question 12

UPAA premarital restrictions

Answer 12

Agreement must be:
1) in writing; AND
2) signed by both parties.

*No consideration is required.
NOT Enforceable under UPAA if:
a) Involuntarily (fraud, duress, coercion); OR
b) Unconscionable when executed
AND before execution the spouse was: (i) not provided fair disclosure (of property/financial obligations); (ii)
did not waive disclosure in writing; or (iii) did not have (or could have) knowledge of such information.

Involuntarily Factors → Courts consider: (1) presence of independent legal counsel; (2) length of time between agreement and wedding; (3) ability to understand the
agreement; and (4) other reasons for proceeding with the marriage (i.e. pregnancy).

Question 13

Prenups: Child custody and support

Answer 13

NOT binding on a court, and any provision that adversely affects a child’s right to support is unenforceable.

If an agreement is NOT in the child’s best interests, a court may order a parent to pay an amount reasonable or necessary for the child’s support.

Question 14

Prenups: clauses for Spousal support

Answer 14

UPAA → Permitted, but not enforceable if it makes the spouse eligible for public support (welfare).

Court may order support to the extent necessary to avoid eligibility.
Some States → Invalid as against public policy.

Question 15

Payment for necessities

Answer 15

A spouse is liable to creditors who have provided necessities (food, clothing, shelter) to the other spouse.

Medical Expenses → deemed necessities in some states (a non-debtor spouse may be liable to the extent the debtor spouse is unable to pay).

Question 16

Jurisdiction in marital/divorce actions

Answer 16

State courts have subject matter jurisdiction.

Ex Parte Divorce → may be maintained without personal jurisdiction over the absentee spouse ONLY IF plaintiff-spouse is a domiciliary of the rendering state.

− Many States have durational residency requirements.
Economic or Child Support Issues → court MUST have personal jurisdiction over the defendant-spouse.

Divisible Divorce → one spouse can terminate the marriage (ex parte divorce) in one proceeding, and
reserve other issues for a later proceeding.

Question 17

Jurisdiction in child custody & adoption matters

Answer 17

Court MUST have UCCJEA jurisdiction to issue or modify a child custody order.

− Personal jurisdiction or physical presence of a party or child is NOT necessary.

Question 18

Uniform Child Custody Jurisdiction & Enforcement Act (UCCJEA)

Answer 18

A court may decide child custody ONLY IF it has:

1) Home State Jurisdiction → (a) child’s home state OR (b) where child lived with a parent for 6+ months immediately before action was filed, child is absent from state, and parent or acting parent is still present in the state.

2) Significant Connection Jurisdiction → (1) no home state, (2) child and at least one parent have a significant connection to the state, AND (3) substantial evidence in the state exists.

3) More Appropriate Forum Jurisdiction → all other courts decline to exercise jurisdiction because
this particular court is a more appropriate forum.

4) Emergency Jurisdiction → child is physically present in the state AND child is abandoned or it’s an emergency to protect the child.

5) No Other State Jurisdiction → when no other state has jurisdiction.

Question 19

Annulment

Answer 19

Invalidates a marriage.

Grounds:
a) Lack of capacity (fraud, duress, mental incapacity);
b) Bigamy;
c) Consanguinity (marriage between close family members); OR
d) Underage at the time of marriage (voidable by the underage spouse).

Fraud → exists when:
1) a spouse made a misrepresentation prior to marriage on an essential and vital part of the marriage (sex, procreation); AND
2) the marriage would not been consented to if the other spouse had been made aware.

*Waived if a spouse continues to cohabitate after discovering the facts underlying the fraud.
Fraud is usually NOT granted for misrepresentations concerning character or financial situation.

Question 20

Divorce (Five grounds)

Answer 20

1) Cruel and inhuman treatment
2) Adultery
3) Abandonment for a set amount of time
4) Habitual drunkenness or drug addiction
5) No-fault divorce (irretrievable breakdown of the relationship for a set amount of time)

Question 21

Setting aside divorce/separation agreements

Answer 21

Divorce Settlement Agreement → may be set aside if:
a) mediator misconduct; OR
b) it’s substantially unfair and the result of fraud, duress, overreaching, or coercive conduct.

Separation Agreement → Invalid if:
a) unconscionable; OR
b) was the result of fraud.

Question 22

Equitable division approach

Answer 22

(most states) → marital assets are divided among the spouses by equitable distribution; separate property is NOT divided.

Question 23

Marital property

Answer 23

ALL OTHER property acquired
during the marriage, including: (1) active appreciation – caused by the effort of a spouse; and (2) future
expectancies, even if payment will not be received until after the marriage ends.

Question 24

Separate property

Answer 24

includes: 1) Property acquired before marriage;
2) Gifts and bequests (even if during marriage);
3) Property that spouses agreed will be separate property; and
4) Passive appreciation of separate property – an increase in value due to a passage of time.

Question 25

Distribution of martial property

Answer 25

All marital property is pooled, and then divided among the spouses. The
court considers various factors to determine distribution amounts.

Factors → duration of marriage, age of spouses, earning capacity, lifestyle, income, separate property of each spouse.

Question 26

Accrual of martial property

Answer 26

Some States → ends upon permanent separation.

Other States → ends upon a final divorce decree.

Question 27

Professional degree/license

Answer 27

Most States → NOT marital property, but allowed reimbursement for any support provided to a spouse to
obtain the degree/license.

Minority View → IS marital property – value is based on potential future earnings.

Question 28

Martial/economic fault

Answer 28

fault of either party (i.e. adultery) is generally irrelevant in determining distribution of marital property.

BUT, economic misconduct (i.e. dissipation of assets) is considered.

Question 29

Modification of a property division award

Answer 29

A property division award can be modified ONLY IF exceptional circumstances exist (i.e. fraud, duress).

Question 30

Spousal support

Answer 30

purpose is to maintain a spouse’s
standard of living and limit any unfair economic effects of a divorce.
− Also known as Maintenance or Alimony.

When Awarded under UMDA – only awarded if the spouse:
1) Lacks sufficient property; AND
2) Is unable to support him/herself through employment or is the custodian of a child with a condition where the spouse cannot seek employment.

Determining the Amount – Relevant factors a court will consider →
(1) financial resources;
(2) time necessary for obtaining a job;
(3) standard of living during marriage;
(4) duration of marriage;
(5) age and physical/emotional
condition; and
(6) the ability of the spouse paying
support.

A minority of states will also consider marital misconduct or fault.

Termination – Spousal support obligations terminate upon the death of obligor spouse.

Question 31

Reinstatement of a prior award

Answer 31

Most Courts → “No-Revival” Approach – no reinstatement of a prior award that was terminated.
Some Courts → “Logic of Annulment” Doctrine – will order reinstatement of a prior alimony award.

Question 32

Modification & enforcement of support orders

Answer 32

Most States → A support order can only be modified when there is a substantial & continuing change in
circumstances making the prior order unreasonable.

Uniform Marriage & Divorce Act (UMDA) → A support order can only be modified upon a showing of changed circumstances so substantial and continuing as to
make the terms unconscionable.

Some courts will NOT permit a modification if the change was anticipated or voluntary. Other courts will permit a modification if the spouse acted in good faith.
Courts CANNOT retroactively modify support orders.

Question 33

Child support: parent’s legal obligations

Answer 33

A biological parent is legally obligated to pay child support (whether or not the child was intended or wanted).

Question 34

Child support guidelines

Answer 34

Federal law requires States to set guidelines that:
1) take into account all earnings and income of the non-custodial parent; AND
2) are based on specific descriptive and numeric criteria.

Question 35

College/educational expenses

Answer 35

Some states require support for college/continuing education.
− But, a child may lose the right to payments if the child does not follow the obligor-parent’s reasonable instructions.

Question 36

Termination of child support obligations upon death

Answer 36

Most States → Child support obligations terminate upon death, but the deceased’s estate
remains liable for past due payments.

Some States → Obligation DOES NOT terminate. Allows access to the deceased’s estate to fulfill future payments.

Question 37

Uniform interest family support act

Answer 37

Courts MUST give full faith and credit to support orders from other states.

Under UIFSA, a court CANNOT modify a child support order of another state unless:
1) The court has jurisdiction to issue an order; AND
2) Either:
a) all parties do not reside in the issuing state (obligor, obligee, child), or
b) each party has consented in writing to jurisdiction in another state.
An Issuing State has continuing exclusive jurisdiction over an order if:
a) the State is still the residence of one party; OR
b) all parties consent in a record or in open court.

Question 38

Best interests of the child standard

Answer 38

Courts determine child custody based on the best interests of
the child.
− Gives great discretion to the court.
− Courts will evaluate various factors → the wishes of the parents and mature children; age, financials, health of each parent; new partners in each parent’s life; effect custody will have on a child’s relationship with extended family; history of domestic violence; stability of home and school environment; and any other relevant
factor.

A court CANNOT award/deprive custody based on a parent’s lifestyle, values, or religious beliefs.
− BUT, it may take into account if such behavior or conduct endangers the child.
− A parent’s sexual behavior (by itself) CANNOT be used to deny custody.

Question 39

Parent vs. third party custody

Answer 39

A fit legal parent is given preference, and it’s presumed that such custody is in the best interests of the child.

− In some States, this presumption may be rebutted if detrimental to the child.
− The court MUST give great weight to a parent’s determination of what’s best for the child (as parental rights are Constitutionally protected).

A court will only grant custody to a third-party upon a showing of special circumstances → abuse, neglect,
abandonment, mentally incompetent, or parent surrendered the child.

Question 40

presumption of parental fitness

Answer 40

Parents are presumed fit to care for their children.
− May be rebutted by clear and convincing evidence of conduct endangering the child (abuse, neglect, abandonment, mental
incompetence).

Question 41

Third party visitation rights

Answer 41

A court MUST give great weight to a parent’s choice of what is best for the
child.
− Parental rights are Constitutionally protected.

Some States permit visitation to third-parties who have a substantial relationship with the child (a de-facto
parent) when in the best interests of the child.

BUT, the third-party must: (1) overcome a presumption that the parent is acting in the best interests of the child; AND (2) show that a denial of visitation poses a risk of harm to the child.

Question 42

Parents visitation rights

Answer 42

Parents not granted custody are entitled to reasonable visitation rights.
− UNLESS the court finds (after a hearing) that visitation would seriously endanger the child’s physical, mental, moral, or emotional health.

Visitation rights may be modified by the court if it serves the best interests of the child.

Payment of child support is independent from the right to visitation – interference with visitation DOES NOT suspend the obligation to pay child support.

Question 43

relocation

Answer 43

A court will permit a custodial parent to relocate with the child if:
1) made in good faith; AND
2) it’s in the best interests of the child.
*The court will balance the effect on visitation vs. the benefits of relocation.

Question 44

Modification of a child custody order

Answer 44

Allowed ONLY IF there is a substantial change in circumstances.

− Custody determinations CANNOT be retroactively modified.
The court that had jurisdiction over the original order usually retains continuous and exclusive jurisdiction
to make modifications.

− But see exceptions below under PKPA and UCCJEA.

Question 45

PKPA modification of child custody order

Answer 45

A court may modify an order from another State if:

1) it had jurisdiction to make an initial
determination; AND
2) the issuing State (a) no longer has jurisdiction, or (b) declined to exercise it.

Question 46

UCCJEA modification of child custody order

Answer 46

A court may modify an order from another State if:
1) It had jurisdiction to issue an initial order; AND
2) Either:
a) the Issuing State determines it no longer has jurisdiction;
b) the Issuing State determines that the Current State is more appropriate; or
c) the court determines that all parties do not reside in the Issuing State.

Question 47

Rights of unmarried cohabitants: division of property

Answer 47

The party who has title retains sole ownership of the property UNLESS:
a) Agreement Between Cohabitants (may be express or implied); OR
b) Equitable Remedy Theory (3 types).
i. Resulting Trust – title in one party’s name, but another party gave money to acquire the property with intent to have ownership.
ii. Constructive Trust – one party obtained title through wrongful conduct.
iii. Quantum Meruit – one party is unjustly enriched by the services provided by another.

*Either party may bring an action to partition jointly held
property.

Question 48

Agreements between cohabitants

Answer 48

An agreement for division of property between unmarried cohabitants may
be express or implied.

− Express (oral or written) → is enforceable except if based on sexual relations.

− Implied → court may find an implied-in-fact agreement if the parties comingled funds during
the relationship.

Question 49

Putative spouse doctrine

Answer 49

Protects the financial and property interests of a person who:
1) Entered into a void/voidable marriage; AND
2) Believed in good faith (objective standard) that the marriage was valid.

*A putative spouse is entitled to the same marital property rights as a legal spouse.

Question 50

Paternity

Answer 50

May be established by:
a) Birth certificate;
b) Legal presumption;
* A child born during marriage is
presumed to be the marital child of the husband (may be rebutted).
c) When unmarried parents voluntarily sign an acknowledgment of paternity;
d) An unmarried biological father’s successful challenge of a presumption;
e) Paternity suit; AND/OR
f) Paternity by estoppel – held himself out as the father and paid support (assuming parental responsibilities).

*If paternity is established, that person is responsible for
child support obligations.

Question 51

Unmarried biological father’s rights

Answer 51

Protected under the Due Process Clause only if:
1) Father assumed parental responsibilities; AND
2) Established a substantial parent-child relationship.

Entitled to notice of adoption if:
a) his right is protected under the Due Process Clause; OR
b) He acted consistent with the State’s guidelines for the putative father registry.

Question 52

Right to control child’s upbringing

Answer 52

Is a fundamental right, and the govt. generally CANNOT interfere.

Exceptions – The govt. MAY LIMIT parental rights & decisions when it:
a) jeopardizes the health or safety of the child (e.g. lifesaving medical treatment is needed); OR
b) has a potential for a significant social burden (e.g. spread of a preventable contagious illness).

Question 53

Education

Answer 53

A parent may provide religious education or deny education because of religious beliefs.
− But, ALL children must attend school at least through the 8th grade.

Question 54

Medical care

Answer 54

Parental consent is required before
medical care is performed on a minor, except in an emergency or where prescribed by statute.

− Some states DO NOT honor a parent’s refusal of child medical treatment based on religious
beliefs. Courts consider whether strong facts in favor of treatment exist, and weigh the risks/benefits of the treatment.

Question 55

Vaccination mandate

Answer 55

Is within the State’s police power. Requiring vaccinations as a condition for school admission does not violate the Constitution.

Question 56

Adoption

Answer 56

Severs the biological parent’s legal rights and responsibilities for the child.
− Some States → Inheritance rights of the child are NOT terminated if adopted by a blood relative.

Question 57

Consent to adoption

Answer 57

Consent to Adoption – BOTH parents’ consent is generally required.
− Non-Marital Child → Father’s consent is only required when he assumes parental responsibilities (i.e. interaction with mother during pregnancy, paid for expenses,
willingness/ability to assume custody and care of child).

− Consent of a parent is NOT required when the parent →
(a) has surrendered the child to an
adoption agency;
(b) is incompetent due to mental illness;
(c) abandoned the child; OR
(d) permanently neglected the child.

Consent for adoption CANNOT be withdrawn after the adoption decree is entered.

− BUT, consent may be withdrawn prior to the adoption decree if in the best interests of the child.

Question 58

Adoption jurisdiction

Answer 58

Same as a child custody determination
under UCCJEA.

Question 59

Artificial insemination & IVF

Answer 59

Artificial Insemination – Is the introduction of sperm into a female’s uterus for achieving pregnancy by means other than sexual intercourse.

In Vitro Fertilization – Fertilization by combining egg and sperm in a laboratory, and then transferring it into the female’s uterus.
The husband is presumed to be the legal father of the child if:
1) he consented in writing; AND
2) a medical doctor performed the procedure.
*A sperm donor’s rights are severed (unless the donor is also the husband).

Question 60

Surrogacy

Answer 60

When a woman agrees to
carry a pregnancy for another person/couple who will become the child’s parents.

− States that Allow Surrogacy Agreements →
Courts will only enforce the agreement under certain conditions, such as prior court approval
of the surrogacy agreement.
− Some States → Surrogacy is NOT allowed, and the agreement is void as against public policy.