Family Law

Question 1

What does a valid marriage require?

Answer 1

1) consent from both parties
2) marriage license
3) the marriage is solemnized in a ceremony
4) no legal impediments (too closely related or lack of capacity)

Question 2

How is a common law marriage formed?

Answer 2

Spouses

1) live together for a specific amount of time
2) legally able to marry
3) have a present agreement that the two parties are married AND
4) hold themselves out as being married

Most states honor other states’ valid common law marriage

Question 3

Pre-marital Agreements Requirements

Answer 3

voluntary
writing and signed
full and fair disclosure of assets
independent counsel

Question 4

Under the UPAA, a Premarital Agreement is NOT enforceable if a spouse proves what?

Answer 4

Either:
a) The agreement was made involuntarily (fraud, duress,
coercion); OR
b) It was unconscionable when executed AND before
execution the spouse was not:
i. Provided fair disclosure of property/financials;
ii. Did not waive disclosure in writing; AND
iii. Did not have knowledge of such information.

Question 5

What factors will be considered to determine if a
Premarital Agreement was made voluntarily?

Answer 5

1) Presence of independent legal counsel;
2) Length of time between the date of agreement and the
wedding;
3) The party’s ability to understand the agreement; AND
4) Other reasons for proceeding with marriage (i.e.
pregnancy).

*A party’s insistence on signing the agreement as a condition to
marriage DOES NOT render it involuntary.

Question 6

Are provisions in a marital agreement regarding
child support/custody binding?

Answer 6

NO, they are not binding.

*Additionally, any provisions that adversely affects a child’s
right to support is unenforceable.

Question 7

Under UPAA, are modifications or eliminations of
spousal support in a Premarital Agreement
permitted?

Answer 7

Yes, BUT such provisions will not be enforced if doing so will
make the spouse eligible for public welfare.

*In some states, such provisions are invalid as against public policy.

Question 8

May an ex-parte divorce action be maintained
without personal jurisdiction over the absentee
spouse?

Answer 8

YES, if the plaintiff-spouse is a domiciliary of the rendering
state. Property division though is not permitted.

*Many states have Durational Residency Requirements –
specifies the amount of time a spouse must live in the state
before he/she can bring a divorce action.

Question 9

What is a Divisible Divorce?

Answer 9

It allows one party to terminate the marriage in one proceeding,
and reserves other issues (property division, spousal support) for
another proceeding.

*It occurs when a court has personal jurisdiction over the
marriage (the res) to maintain a divorce action, BUT not over
the defendant spouse to maintain an economic or support action.

Question 10

Under the UCCJEA, when does a court have Home
State Jurisdiction?

Answer 10

Either:
a) Child’s home state; OR
b) Where (i) child lived with a parent for 6+ months
immediately before action was filed, (ii) child is
absent from state, and (iii) parent or acting parent is
still present in the state.

Question 11

Under the UCCJEA, when does a court have
Significant Connection Jurisdiction?

Answer 11

If:
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.

Question 12

Under the UCCJEA, when does a court have More
Appropriate Forum Jurisdiction?

Answer 12

When:
All other courts decline to exercise jurisdiction
because this particular court is a more appropriate
forum.

Question 13

Under the UCCJEA, when does a court have No
Other State Jurisdiction?

Answer 13

When:
No other state has jurisdiction

Question 14

Under the UCCJEA, when does a court have
Temporary Emergency Jurisdiction?

Answer 14

When the:
1) Child is physically present in the state; AND
2) Child is abandoned or it’s an emergency to protect
the child.

Question 15

What grounds must be established for a court to
grant an Annulment?

Answer 15

One of the following:
a) Lack of capacity (fraud, duress, mental incapacity);
b) Bigamy;
c) Consanguinity (marriage between close family
members); OR
d) Spouse was underage at the time of the marriage.

Question 16

What are the five grounds for Divorce?

Answer 16

Divorce grounds:
1) Cruel and Inhuman Treatment
2) Adultery
3) Abandonment for a Set Amount of Time
4) Habitual Drug Addiction or Drunkenness
5) A “No Fault” Divorce (Irretrievable Breakdown)

Question 17

When may a Separation Agreement be set aside?

Answer 17

If it’s unconscionable OR the result of
fraud.

Question 18

When may a Divorce Settlement Agreement set aside?

Answer 18

Divorce Settlement Agreement: If (a) mediator misconduct;
OR (b) agreement was substantially unfair and the result of
fraud, duress, overreaching, or coercive conduct.
*Settlement agreements may be set aside for mediator
misconduct if: failure to be impartial, disclose conflicts, or fully
inform the participants about the law and their rights.

Question 19

What does Separate Property include?

Answer 19

It includes:
a) Property/assets acquired prior to marriage;
b) Gifts/bequests to an individual spouse during marriage;
c) Property which spouses agree will be separate; AND
d) Passive appreciation of assets for any of the above.

*Each spouse’s separate property will NOT be subject to equitable
distribution

Question 20

What does Marital Property include?

Answer 20

It includes:

All property acquired during the marriage, regardless of whose
name is on the title of the property.

Most states also consider active appreciation (appreciation
caused by the effort of one or both of the spouses) as Marital
Property.

*Generally, fault is IRRELEVANT to the division of marital
property.

Question 21

Are Professional Degrees/Licenses deemed Marital Property subject to equitable distribution?

Answer 21

NO, in most states.
However, reimbursement is generally required for any support
provided by a spouse that contributed to the other spouse’s
education or licensing.

*A minority of states treat a professional degree/license as
marital property.

Question 22

Do courts consider marital or economic fault for the
division of property?

Answer 22

Marital Fault is generally IRRELEVANT.

BUT, most courts will consider Economic Misconduct (i.e. dissipation of assets).

Dissipation occurs during the breakdown of the marriage when a
spouse uses marital property for the sole benefit of himself for a
purpose unrelated to the marriage.

Question 23

Under the Uniform Marriage and Divorce Act
(UMDA), the court may order Maintenance when?

Answer 23

If the spouse seeking maintenance:
1) Lacks sufficient property to provide for their reasonable
needs;

AND

2) Is either unable to support themselves through
employment OR is the custodian of a child whose
condition makes it so they cannot seek work.

Question 24

What factors will a court weigh when determining
the amount of Spousal Support?

Answer 24

1) The party’s financial resources;
2) The time necessary to obtain an appropriate job;
3) The standard of living established during the marriage;
4) The duration of the marriage;
5) The age and physical condition of the seeking spouse;
6) The ability of the spouse paying, to meet their needs,
while still supporting their ex-spouse.

*Support obligations terminate upon death of the obligor spouse.

Question 25

What kind of State Child Support Guidelines are
required by federal law?

Answer 25

Guidelines that:
1) Take into consideration ALL earnings and income of the
non-custodial parent;

AND

2) Are based on specific descriptive and numeric criteria to
compute the support obligation.

Question 26

Modification of a Child/Spousal Support Order
Most States vs. UMDA

Answer 26

Most States: ONLY when there is a substantial & continuing
change in circumstances of either the payor or payee spouse
making the prior order unreasonable.

UMDA: ONLY allowed upon a showing of changed
circumstances so substantial and continuing as to make the
prior terms unconscionable.

Question 27

Under UIFSA, child/spousal support orders from
other states CANNOT be modified unless what
occurs?

Answer 27

1) The court has jurisdiction to issue an order; AND
2) Either:
a. All of the parties do not reside in the issuing state;
OR
b. Each party has consented in writing to jurisdiction in another state.

Question 28

What is the standard for determining Child
Custody?

Answer 28

The best interests of the child standard.
*This broad standard gives great discretion to the court.

Question 29

What is the Parent vs. Third-Party custody preference?

Answer 29

Parental rights are Constitutionally protected.

As such, a fit legal parent is given preference, and it’s
presumed that custody with a parent over a third-party is in
the best interests of the child.

*A court will ONLY grant custody to a third-party upon the showing
of special circumstances (i.e. neglect).

Question 30

When may reasonable visitation rights be limited or reduced by the court?

Answer 30

If it finds that the visitation would seriously endanger the child’s physical, mental, moral, or emotion health. The court may modify a child visitation agreement whenever it’s in the best interests of the child.

*Interference of visitation rights by one parent DOES NOT suspend
the other’s obligation to pay child support.

Question 31

When are third-party visitation rights permitted?

Answer 31

When the third-party:
1) Has a substantial relationship with the child;
2) Overcomes the presumption that the parent is acting in the best interests of the child; AND
3) Shows that the denial of visitation poses a risk of harm to the child.

Question 32

When may a Child Custody determination be modified?

Answer 32

ONLY when there is a substantial change in circumstances.

*Note, custody determinations cannot be retroactively modified.

Question 33

A state court retains continuous and exclusive jurisdiction to make modifications to the original Child Custody Order.

How may another state court modify the same order under PKPA and UCCJEA?

Answer 33

PKPA: If it had jurisdiction to make an initial determination AND the issuing state either no longer has jurisdiction or has declined to exercise it.

UCCJEA: If it had jurisdiction to issue an initial order AND either (a) the issuing state determines it no longer has jurisdiction or that the current state is more appropriate, or (b) the court determines that all parties do not reside in the issuing state.

Question 34

Agreements between Unmarried Cohabitants – Division of Property
Express vs. Implied Agreements

Answer 34

An express agreement is enforceable so long as it wasn’t based on sexual relations.

An implied agreement is also enforceable, BUT more difficult to prove.

Question 35

What is the Putative Spouse Doctrine?

Answer 35

It protects the financial and property interests of a person who:

1) Entered into a void or voidable marriage;
2) Believing in good faith that the marriage was valid. If applicable, the putative spouse is entitled to the same marital property rights as a legal spouse.

Question 36

What is Paternity by Estoppel?

Answer 36

A male (who is not the biological father) will be estopped from denying paternity if he:
1) Held himself out as the father; AND
2) Paid support.

*If paternity by estoppel applies, he will be responsible for child support.

Question 37

When is an Unmarried Father’s right to a relationship with his child protected under the Due Process Clause?

Answer 37

Its ONLY protected if the father:

1) Has assumed parental responsibilities; AND
2) Has established a substantial parental-child relationship.

The stronger the relationship, the stronger the protections.

Question 38

When is an Unmarried Father entitled to Notice of Adoption?

Answer 38

When:
a) His parental rights are protected under the Due Process Clause of the U.S. Constitution; OR
b) He acted consistent with the state’s guidelines for the putative father registry.

Question 39

Parental consent is required before medical care may be performed on a minor. What are the exceptions?

Answer 39

In emergency situations OR where prescribed by statute

Question 40

Adoption
Generally, the consent of both parents is required to place a child up for adoption. When is the consent of a parent NOT required?

Answer 40

1) If the child is non-marital, the consent of the biological father is only required when he has assumed parental responsibility.
2) If the parent has:
a. Surrendered the child to an adoption agency;
b. Is incompetent due to mental illness;
c. Has abandoned the child without contact; OR
d. Has permanently neglected the child.

Question 41

Under the Uniform Parentage Act (UPA), when is a husband presumptively the father of a child born through Artificial Insemination or In Vitro Fertilization?

Answer 41

If:
1) He consented in writing; AND
2) A medical doctor performed the procedure.

He will be deemed the legal father of the child even if he isn’t the biological father (the sperm donor’s rights are severed).