Family Law

Question 1

What are the rules for a pre-marital agreement?

Answer 1

A valid pre-marital agreement (1) must be in writing and signed, (2) entered into voluntarily, and (3) include a full and fair disclosure of the parties’ assets or proof that the party against whom the agreement is being enforced had independent knowledge of the assets (last element only examined if the agreement is unconscionable). Some courts consider whether the economic provisions are fair and reasonable.

These agreements can cover the disposition of property in the event of death or divorce; the making of a will, trust, or other arrangement to carry out the provisions of the agreement; and the choice of law governing construction of the agreement. However, these agreements cannot address child custody or support because doing so would violate public policy.

Question 2

What are the requirements of a ceremonial marriage?

Answer 2

(1) A license, (2) a ceremony with an authorized officiant, (3) no legal impediment to marriage (e.g., parties cannot be too closely related and one party cannot have a prior undissolved marriage), and (4) capacity to consent (i.e., 18-years of age or older, cannot be under the influence of drugs or alcohol, cannot be induced by fraud, duress, or coercion).

Question 3

What are the requirements of a common law marriage?

Answer 3

(1) Consent to marry (includes having capacity and a lack of legal impediments), (2) cohabitation, and (3) a couple holding themselves out publicly as spouses.

Question 4

What is the obligation to support?

Answer 4

During marriage, each spouse has an obligation to support the other. The doctrine of necessaries can be used to make one spouse liable to third parties for the other spouse’s purchases for necessary expenses, such as food, clothing, and health care.

Question 5

What are spousal abuse orders?

Answer 5

Spousal abuse orders allow a battered spouse to obtain a protective order against a violent spouse. The protective order may be granted ex parte.

Question 6

What are the causes of action for tortious interference with marriage?

Answer 6

Alienation of Affection: Requires (1) evidence of genuine love and affection between validly married spouses, (2) evidence that the love and affection was alienated or destroyed, and (3) proof that the defendant’s actions caused the loss of love and affection. Proof of damages is also required.

Criminal Conversation: Requires (1) the existence of a valid marriage, and (2) an act of adultery need to be proven. The spouses may have even been living apart at the time of the act.

Negligent Interference with Consortium or Services: Either spouse may maintain an action for loss of the other’s consortium due to injuries from a defendant’s negligence.

Question 7

What are the rules for voiding a marriage?

Answer 7

A void marriage is invalid because it fails to meet the essential requirements for a legal marriage. Collateral attacks are allowed.

If a spouse failed to successfully terminate a prior marriage, the spouse may argue (1) there is a strong presumption that the latest marriage is valid, and (2) if the prior marriage is later terminated by divorce, annulment, or death, continued cohabitation validates the second marriage under the UMDA and similar statutes. However, other states do not allow validation, holding that the marriage remains void and the parties need to marry after the impediment is gone to have a valid marriage.

The grounds for voiding a marriage include (1) bigamy or polgamy (the party has a living spouse) and (2) consanguinity (the parties are too closely related)

Defenses: The impediment does not exist.

Question 8

What are the rules for a voidable marriage?

Answer 8

A voidable marriage is valid until declared null. However, because of an impediment that existed at the time of the marriage, one of the spouses may bring an action to have the marriage annulled. Collateral attacks are not permitted.

Marriages that are voidable can be remedied (or ratified) by continued habitation after the removal of the impediment, and ratification means the marriage cannot be annulled.

The grounds for a voidable marriage include (1) nonage (i.e., underaged spouse), (2) incurable physical impotence (i.e., then inability to have normal sexual relations), (3) lack of capacity, (4) duress, and (5) fraud.

Defenses: The impediment does not exist, ratification, latches, estoppel, and unclean hands.

Question 9

When does a court have jursidiction over a divorce?

Answer 9

A court has jurisdiction over a divorce if at least one of the spouses is domiciled in the forum state. As long as one of the parties was domiciled in the state that granted the divorce, the decree is recognized as valid in all other states. Provisions of the decree relating to property rights, spousal support, child support, and other financial issues are given full faith and credit only if the court had personal jurisdiction over the defendant.

Question 10

What are the grounds for no-fault divorce?

Answer 10

(1) Both spouses agree that the marriage is irretrievably broken (bilateral), (2) the spouses have been living apart for a specified and continuous period of time (bilateral or unilateral), and (3) both spouses agree they are now incompatible and can no longer be married (bilateral).

Question 11

What are the grounds for fault divorce?

Answer 11

Adultery: The filing spouse presents circumstantial evidence of opportunity and inclination. Corroboration is often required.

Willful Desertion: Requires an unjustified departure from the marital home for a specified period with no intent to return.

Extreme physical or mental cruelty

Voluntary drug addiction or habitual drunkenness commencing after the marriage.

Insanity

Question 12

What are the defenses to fault and no-fault divorce?

Answer 12

No-Fault: Denying one of the no-fault grounds exists.

Fault: Collusion (an agreement between the spouses to simulate grounds for divorce or to forgo raising a valid defense), connivance (willing consent to the other spouse’s misconduct), condonation (the forgiveness of marital offenses with full knowledge of the wrongs), and recrimination (the party seeking the divorce is guilty of misconduct for which a divorce may be granted).

Question 13

What are the rules for property division upon a divorce?

Answer 13

Community Property: All property acquired during the marriage is deemed owned one-half by each spouse, and all property brought into the marriage or acquired by gift or bequest is separate property.

Equitable Division of All Property: The court divides all property owned by either spouse, whether acquired before or after the marriage.

Equitable Division of Marital Property: Courts follow a two-step process: (1) classify what is martial property and what is separate property and (2) make an equitable division of the marital estate no matter how the property is titled.

Marital Property Approach - Separate Property: Separate property includes (1) property owned before marriage, (2) property acquired by gift or inheritance, (3) property acquired in exchange for separate property, (4) income and appreciation of separate property, (5) pain and suffering awards, (6) personal damages, and (7) property acquired after an order of legal separation that includes a final disposition of property.

Marital Property Approach - Marital Property: Marital property includes (1) property acquired during the marriage, (2) earnings, (3) employment benefits, pensions, and stock options (even if not vested until after divorce), (4) lost wages, (5) reimbursement for medical bills incurred and paid with marital property, and (6) recovery for damages to marital property.

Question 14

When are some of the special issues that arise in classifying property?

Answer 14

Property the Changes Character: Separate property becomes marital property by commingling or transmutation. Commingling occurs when separate property is inextricably intertwined with marital property or with the separate property of the other spouse to the extent that it can no longer be traced. Transmutation occurs when the separate property is treated in a way that evidence an intent for the property to be marital property.

Improvement of Separate Property: If martial funds are used to improve separate property, the property remains separate property, but the nonowning spouse receives a reimbursement for the value added to the separate property.

Property Acquired Before Marriage But Paid for After: The majority view is that such property should be apportioned between separate and marital estate in proportion to the contribution for separate and marital funds.

Professional License or Degree: A professional license or degree is not distributable property, but some courts use alimony to compensate supporting spouses for their contribution during the education or training period.

Question 15

What are the rules for the equitable division of marital property?

Answer 15

Courts consider many factors in determining the equitable division of martial property. The most important are (1) the duration of the marriage, (2) each party’s contribution to the marriage, and (3) whether the distribution is in addition to, or in lieu of alimony.

Question 16

What are the types of alimony and when can alimony be terminated?

Answer 16

Permanent Periodic Spousal Support: Permanent periodic spousal support is paid regularly (for example, monthly) to support a spouse who has neither the resources nor the ability to be self-sustaining. This type of alimony payment lasts indefinitely and is modifiable upon proof of a substantial change in circumstances regarding the needs of the recipient spouse or the ability of the payor spouse to pay.

Lump Sum: A lump sum payment is a fixed amount payable either all at once or via a series of payments. This type of alimony payment lasts for a specific period of time, payable in a lump sum or installments, and it is not modifiable.

Rehabilitative Spousal Support: Consists of periodic payments for a limited time to enable a spouse to gain skills to become self-supporting. This type of alimony payment lasts for a specified period of time and is modifiable upon proof of a substantial change in circumstances regarding the needs of the recipient spouse or the ability of the payor spouse to pay.

Reimbursement Spousal Support: Reimbursement spousal support is occasionally awarded to a spouse who supported the other spouse while the latter obtained a professional license or degree. This type of alimony payment lasts for a specific period of time, payable in a lump sum or installments, and it is not modifiable.

Termination of Spousal Support: Permanent period spousal support and rehabilitative spousal support terminate upon the remarriage of the recipient spouse, the death of either spouse, and if the recipient spouse begins cohabitating with another partner.

Question 17

What factors do courts consider when awarding alimony?

Answer 17

The court has great discretion in awarding alimony. Courts will consider (1) the standard of living established during the marriage, (2) the duration of the marriage, (3) the age and physical and emotional condition of the parties, (4) the financial resources of the parties, (5) the contribution of each party to the marriage, (6) the time needed for the party seeking support to obtain the training necessary to find appropriate employment, (7) the ability of the payor spouse to meet their needs while paying spousal support, and (8) marital fault.

Question 18

What are the rules for separation agreements?

Answer 18

A separation agreement is an agreement entered into after marriage under which the parties agree to live apart and resolve economic issues and custody rights. To be enforceable, the agreement (1) must be voluntary, (2) there must have been a full and fair disclosure by both parties, and (3) there must be consideration.

In a separation agreement, parties can waive alimony or property division and parties can agree on custody and child support (assuming in BIOC), but the court is not bound by the parties’ contract concerning children.

If the divorce decree states that the separation agreement is merged into the decree, or if the specific provisions of the agreement are repeated in the decree, the whole agreement assumes the status of a court judgment, is enforceable as such, and can be modified by the court. If the agreement is not merged in this way, it retains its separate character as a contract and is enforceable as such.

Question 19

How long does child support last?

Answer 19

The duty to pay child support ceases upon (1) the child reaching the age of majority, (2) the death of the child, (3) the emancipation of the child, and (4) the termination of parental rights.

Question 20

What are the rules for jurisdiction over child support orders under the Uniform Interstate Family Support Act?

Answer 20

Original jurisdiction to enter a child support order is proper where the first petition under UIFSA is filed. The court that initially issued the order has jurisdiction to enforce. Another state can enforce the child support order by (1) mailing the order to the obligor’s out-of-state employer or (2) registering the support order with the obligor’s state. Generally, the court that issues the controlling child support order has continuing and exclusive jurisdiction to modify it.

Child support is modifiable based on a substantial and continuing change of circumstances affecting the needs of the child or the ability of the parent to pay.

Question 21

When does a state have jurisdiction to enter or modify a child custody or visitation order?

Answer 21

Home State Jurisdiction: A court has jurisdiction to initially enter or modify a child custody or visitation order if the state: (1) is the child’s home state or (2) was the child’s home state within the past six months and the child is absent from the state, but a parent or person acting as a parent continues to live in the state. A child’s home state is the state in which the child lived with a parent (or a person acting as a parent) for at least six consecutive months immediately before the commencement of the proceeding.

Home State Rule Inapplicable: A court has jurisdiction to enter or modify a child custody or visitation order of (1) no other state has or accepts home state jurisdiction, (2) the child and at least one parent (or person acting as a parent) have a significant connection with the state, and (3) substantial evidence concerning the child is available in the state.

Modification of Existing Decree: The issuing court has continuing exclusive jurisdiction to modify an existing decree. Another state can only exercise jurisdiction if (1) no child or parent (or persons acting as parents) continues to reside in the issuing state, or (2) the child no longer has a significant connection with the issuing state and substantial evidence relating to the matter is no longer available in that state.

Declining Jurisdiction: If a court has jurisdiction to enter or modify a decree, it may decline to exercise jurisdiction if it determines that it is an inconvenient forum under the circumstances and that a court in another state is a more appropriate forum. A court may also decline to exercise jurisdiction if the party seeking to invoke the court’s jurisdiction has engaged in unjustifiable conduct.

Enforcement: Under the federal Parental Kidnapping Prevention Act (“PKPA”), full faith and credit must be given to another state’s custody or visitation determination if the Act’s jurisdictional requirements are met.

Question 22

What are the rules for child custody?

Answer 22

Custody of a minor can refer to legal custody (the right to make decisions regarding the child’s life) or physical custody (physical possession and control of the child).

The Best Interest of the Child Standard: Courts award child custody and visitation rights based on the best interest of the child. In making this determination, courts will consider (1) the wishes of the parents, (2) the child’s preferences (preferences for children 12 or older given great weight), (3) the child’s relationship with parents, siblings, and others involved with parents, (4) the child’s adjustment to home, school, and the community, (5) the parties’ mental and physical health, and (6) the child’s primary caregiver. The trial court has great discretion in making this determination.

Question 23

What are the forms of child custody?

Answer 23

Joint Custody: Joint custody is encouraged in most jurisdictions. However, courts will not award joint custody if the parents are openly hostile or unable to communicate.

Sole Custody: Sole custody is awarded to one parent if there is strong evidence that demonstrates it is in the best interest of the child. The court will usually award visitation rights to the other parent.

Custody to a Nonparent: In disputes between parents and third parties, the decision does not rest solely on the child’s best interest. A natural parent has a constitutional right to raise their child. Absent voluntary relinquishment, the parent is entitled to custody unless the nonparent can show that it will result in harm to the child or that the parent is unfit. However, based on special circumstances (such as abandonment, neglect, or abuse), a court may find that the biological parent has lost the right to rear the child, and the nonparent should get custody.

Question 24

What are the rules for visitation?

Answer 24

Parental visitation: Courts may limit parental visitation based on parental misconduct, but absolute denial of visitation is rare.

Nonparent Visitation: If a parent is fit, their wishes on nonparent visitation are constitutionally protected and must be given “special weight.” A judge may not override a fit parent’s decision regarding third-party visitation merely because it would be in the best interest of the child.

Question 25

What is the rule for modification of custody decrees?

Answer 25

Custody orders are always modifiable. Custody awards will be modified only if there has been a substantial and material change in circumstances affecting the child’s well-being.

Question 26

What are the rules for parentage?

Answer 26

Presumption of Parentage: The mother’s husband is presumed to be the father of a child if the child is born during the marriage or within 300 days of the marriage’s termination. Rebutting this presumption requires clear and convincing evidence.

Unwed Fathers: A child is the lawful child of the mother. A child is the lawful child of an unwed father if (1) the parents married after the child’s birth, (2) the father holds the child out as his biological child, (3) the father consents to be named on the birth certificate, (4) the father formally acknowledges paternity, or (5) there is a court order establishing paternity.

Question 27

What are the rules for terminating parental rights?

Answer 27

Voluntary: Parents can relinquish the rights to their children voluntarily.

Involuntarily: Parents rights to their children may be terminated involuntarily by a showing of clear and convincing evidence. The grounds for involuntary termination include: (1) infliction of serious physical harm on the child, (2) abandonment, (3) neglect or deprivation, (4) failure to provide support without justifiable cause, (5) mental illness so severe as to make the parent incapable of caring for the child, and (6) parental unfitness.

Question 28

What are the requirements for adoption?

Answer 28

Adoption requires (1) termination of the biological parent’s rights in the child (parental consent usually required) and (2) the creation of new parental rights.

Termination of Natural Parents Rights: The consent of the child’s natural parents is generally required. Parental consent is not necessary if parental rights have been terminated. The parental consent requirement may be waived if the court concludes it is being unreasonably withheld against the best interest of the child. In deciding whether an unwed father can veto a prospective adoption, the court considers the level of the father’s involvement with the child, such as whether he lived with and cared for the child, visited the child regularly, admitted paternity, or paid child support. A father of a nonmarital child who has never attempted to establish a legal or personal relationship with that child has no right to notice prior to the adoption of the child by others.

Creation of New Parental Rights: Requires (1) the consent of adoptee (if over 12 or 14),(2) and an investigation of the suitability of the proposed adoption and approval by the court.