Family law

Question 1

Bigamous Marriage

Removal of Impediment and Presumption of Validity

Answer 1

a) NO state recognizes the validity of a bigamous marriage (being married to more than one person at the same time). However, there are two marriage saving doctrines that apply to bigamous marriages:
(1) Removal of Impediment. Under the Uniform Marriage and Divorce Act (UDMA), an invalid marriage (e.g., a bigamous marriage) may be validated upon the removal of the impediment (e.g., an earlier marriage). The marriage becomes valid as of the date that the impediment is removed.
(2) Presumption of Validity. Under the presumption of validity, the last of several marriages will be presumed to be valid. This presumption may only be rebutted with strong evidence that the prior marriage still persists.

Question 2

Common Law Marriage

Answer 2

Most states have abolished common law marriage. In jurisdictions that recognize common law marriage, the proponent of the marriage must prove that the parties:
(1) Cohabitated (i.e., lived together) for the statutory period;
(2) Held themselves out as married; AND
(3) Intended to be married.
b) Most states will recognize a common law marriage if it was validly obtained in a jurisdiction that permits common law marriages UNLESS doing so contradicts a powerful public policy of the jurisdiction with the greatest interest in the marriage of the parties.

Question 3

Premarital Contracts

UPAA

Answer 3

Most states will enforce a premarital agreement as a valid contract if it is:
In writing and signed by both parties;
Executed after full disclosure of the property and financial obligations of both
parties; AND
Voluntary – courts will consider the following factors to determine whether an
agreement was voluntary:
(a) The presence of independent legal counsel;
(b) The length of time between the agreement and the marriage;
(c) The sophistication of the parties; AND
(d) The presence of other pressing reasons to proceed with the marriage (e.g., a pregnancy).
b) Under the Uniform Premarital Agreement Act (UPAA), the party against whom enforcement is sought must prove that the agreement was:
(1) NOT voluntary; OR
(2) Unconscionable when it was executed AND that he or she did not receive or waive fair and reasonable disclosure AND did not have, or reasonably could not have had, an adequate knowledge of the other’s assets and obligations.

Question 4

UPAA

Answer 4

b) Under the Uniform Premarital Agreement Act (UPAA), the party against whom enforcement is sought must prove that the agreement was:
(1) NOT voluntary; OR
(2) Unconscionable when it was executed AND that he or she did not receive or waive fair and reasonable disclosure AND did not have, or reasonably could not have had, an adequate knowledge of the other’s assets and obligations.

Question 5

Child Custody and Support in Premarital Contracts

Answer 5

a) Child Custody. Most courts decide custody according to the best interests of the child at the time of the custody hearing, regardless of any premarital agreements.
b) Child Support. Parents have an absolute obligation to support their children. A premarital contract CANNOT adversely affect a child’s right to support under any circumstance. Such agreements are NOT binding on the court and are unenforceable.

Question 6

Divorce

Answer 6

a) Traditionally, divorce was only permitted if one party was determined to be at fault (e.g., cruelty, adultery, abandonment, incapacity, substance addiction, felony
convictions).
b) Today, some states have completely abolished fault as a ground for divorce; however, every state has adopted a form of no-fault divorce. Common grounds for a no-fault
divorce are:
(1) A minimum duration of separation (usually 6 months to 1 year); AND/OR
(2) Irreconcilable differences.
(3) NOTE. Some states require both a separation and irreconcilable differences, while others only require one or the other.

Question 7

Marital Action Jurisdiction - anullment

Answer 7

Annulment. Under the majority view, a state where either party is domiciled has jurisdiction to enter an annulment decree. Ex parte annulments (an annulment action where only one party is appearing before the court) are allowed in the state where either party is domiciled.

Question 8

Jurisdiction - divorce

where to initiate and other state recognition

Answer 8

Divorce. Under the Full Faith and Credit Clause, a divorce validly granted in one state is entitled to full faith and credit in other states. Generally, a divorce is valid and must be recognized by other states if the petitioning party:
(1) Was domiciled in the state that granted the divorce (regardless of whether that court had personal jurisdiction over the other spouse); AND
(2) Provided adequate notice of the proceeding to the other spouse.

Question 9

divisable divorce

Answer 9

a court with 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 a judgment was granted

Question 10

Property Division at Divorce

Answer 10

At divorce, courts divide marital property between spouses pursuant to state law. Some states follow the community property approach; however, most states have adopted the equitable distribution approach for division of property at divorce. The analysis is relatively similar under both approaches:
(1) Categorize the property as separate or marital; THEN
(2) Determine an equitable distribution of the marital property between the
spouses.

Question 11

separate property at divorce

Answer 11

Separate Property. Separate property generally includes:
(a) All property acquired by either spouse BEFORE marriage;
(b) All property acquired by a spouse during marriage by gift, bequest, devise, or descent;
(c) All property either spouse acquires with the proceeds of the spouse’s separate property; AND
(d) All passive appreciation of separate property (appreciation in value due to the passage of time rather than the efforts of either spouse).

Question 12

marital property at divorce

Answer 12

Marital property generally includes all property acquired during marriage (regardless of who holds title) that is NOT separate property. Active appreciation (appreciation in value due to the efforts of either spouse) of separate property is usually categorized as marital property.
(a) Professional Degrees and Licenses. In almost every state, professional degrees and licenses are considered separate property not subject to distribution at divorce. However, reimbursement may be available for any support provided by a spouse that contributed to the other spouse’s degree or license.

Question 13

distribution of marital property factors

Answer 13

Once the court categorizes the property as either separate or marital, the court will then equitably distribute the marital property between both spouses. Courts are afforded significant discretion in determining the equitable distribution of martial property at divorce. General factors include:
1. The income, property, and liabilities of each party;
1. The duration of the marriage;
1. The obligations for support arising out of a prior marriage;
2. (4) The lifestyle each spouse is accustomed to;
(5) The contributions made by each spouse toward the accumulation of marital
property (including contributions as a homemaker).
(6) NOTE. In most states, the marital “fault” of either spouse (e.g., adultery) is NOT
a factor considered in the division of marital property.

Question 14

whether to award spousal support

UDMA

Answer 14

At divorce, spousal support (sometimes called maintenance or alimony) is awarded if a spouse’s separate property is insufficient for their maintenance. Courts are afforded significant discretion in making this determination and usually examine a spouse’s needs under the totality of the circumstances.
b) Under the UDMA, a spouse is eligible for spousal support if the spouse seeking support:
(1) Lacks property sufficient for his or her reasonable needs and is unable to
support himself through appropriate gainful employment; OR
(2) Is the custodian of a child such that it would be inappropriate for him to work.

Question 15

amount of spousal support

Answer 15

Once the court determines that a spouse is eligible for support, the court will then determine the appropriate amount to award. General factors include:
1. The financial resources of the party seeking maintenance;
The time necessary for the spouse seeking support to obtain an appropriate job
* 1. (includes time needed for education or training);
The duration of the marriage;
The standard of living established during the marriage;
The age and physical/emotional condition of the spouse seeking maintenance;
The ability of the spouse paying support to meet her own needs while meeting those of the spouse seeking support.
NOTE. In most states, the marital “fault” of either spouse (e.g., adultery) is NOT a factor considered in determining the amount of spousal support to be awarded.

Question 16

Modification of Spousal Support

UDMA

Answer 16

In most states, a spousal support order can only be modified if there is a
change in circumstances of either party making the prior order unreasonable.

Under the UDMA, a modification of spousal support is allowed only upon a showing of changed circumstances so substantial and continuing to make the terms unconscionable.

Some courts will NOT permit a modification of spousal support if the change in circumstances was anticipated or voluntary.

Question 17

Modification of child support

Answer 17

In most states, a child support order can only be modified when there is a substantial change in circumstances of either party making the prior order unreasonable. Under the UDMA, a modification of child support is allowed only upon a showing of changed circumstances so substantial and continuing to make the terms unconscionable.
b) Some courts will NOT permit a modification of child support if the change
in circumstances was anticipated or voluntary. If the obligor voluntarily made this change, courts usually require that the obligor prove the change occurred in good faith, rather than to punish the obligee or deprive the child of support (e.g., voluntarily quitting a job to reduce income in order to pay less child support is usually not allowed).

Question 18

jurisdiction for modification of child support

Answer 18

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

Question 19

Jurisdiction for enforcement of child support

Answer 19

to simplify enforcement when the payor parent or child moves out-of-state,
UIFSA allows enforcement (but not modification) in the new state

Question 20

child custody test

Answer 20

Generally, courts determine child custody based on the best interests of the child. A parent’s misconduct (e.g., adultery) generally may NOT be considered unless it causes
significant harm to the child. Courts consider multiple factors to determine what custody order will serve the child’s best interests.

2. Default—a parent is in the best position to care for a minor child, unless the parent is unfit
3. 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 states) the sexual conduct of the parents

Question 21

Modification of Child Custody

Answer 21

a) In order to modify a child custody order, the parent must show that:
(1) Circumstances have substantially changed; AND
(2) The modification would be in the child’s best interests.

Question 22

modification of custody jurisdiction

Answer 22

The state that issued the child custody order has continuing exclusive jurisdiction to modify the order so long as that state remains the residence of any party involved.

Question 23

jurisdiction for initial custody order

Answer 23

D. UCCJEA (Uniform Child Custody Jurisdiction and Enforcement Act) adopted in nearly all states streamlines jurisdiction to avoid disputes and ease enforcement of child custody and visitation orders
1. Initial Custody Determination (Home-State Jurisdiction): A court has SMJ to enter or modify custody or visitation orders if it is the child’s home state, determined as:
* The state where the child has lived with a parent or guardian since birth or for at least six consecutive months immediately prior to the proceeding or since birth (if less than six months old); or
* The state that was the child’s home state for the past six months and the child is absent from the state, but one of the parents continues to live in the state.
2. Significant-Connection Jurisdiction: A court can enter or modify an order if:
* No other state has or accepts home state jurisdiction;
* The child and at least one parent have a significant connection with the state; and
* There is substantial evidence in the state regarding the child’s care.
3. Default Jurisdiction: A state has jurisdiction by default when no other state has home-state or significant-connection jurisdiction and the state has appropriate connections to the child.

Question 24

court may decline jurisdiction

Answer 24

Court May Decline Jurisdiction if the forum is inconvenient based upon factors:
* Occurrence of domestic violence, length of time the child has lived in another state, distance between the competing jurisdictions, parties’ relative financial circumstances, agreement of the parties regarding jurisdiction, nature and location of the evidence, ability of each state’s court to decide issue expeditiously and procedures necessary to present the evidence, familiarity of the court with the facts and issues, or if a party has engaged in “unjustifiable conduct”
* If a court declines jurisdiction, the first part of significant connection jurisdiction is met

Question 25

COHABITATION AGREEMENT

Answer 25

contract between unmarried persons; invalid if only consideration is sexual relations; evaluate property rights using contract principles; absent written agreement, use equitable principles (e.g., constructive trust, quantum meruit)

Question 26

paternity

Answer 26

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, medical testimony, and acknowledgment by the defendant
4. By estoppel—Under equitable estoppel, a man who is not the biological father will be estopped from denying paternity if:
   (1) He has held himself out as the father; AND
   (2) Paid support.