Family Law

Question 1

Premarital agreements (Generally)

Answer 1

Premarital agreements are generally valid devices to resolve disputes between spouses in the event of divorce and a means for estate planning in the event of death.

Question 2

When premarital agreements will be invalidated

Answer 2

In most states, premarital agreements will be invalidated when there is a court finding of either: procedural unfairness in the making of the agreement or substantive unfairness in the agreement itself.

Question 3

Subject matter of premarital agreements

Answer 3

• Property division (permissible)
• Waiver of alimony (permissible)
• Children
  
  • In virtually all states, it is invalid as against public policy to limit the obligation of a parent to support a minor child during or after marriage
• Sexual relations
  
  • Majority rule–provisions dealing with frequency of sex and child bearing are not enforceable. UPAA: such provisions are permitted

Question 4

Legal requirements for formal marriage

Answer 4

• Issuance of marriage license
• Solemnization of the marriage by a state-authorized official

Question 5

Common law marriage

Answer 5

Outlawed in most states, but generally recognized if performed validly in another state.

Requires:

• Capacity to marry
• Present intent to be married
• Cohabitation
• Consummation of the marriage, and
• Holding out as a married couple to the world.

Question 6

legal impediments to marriage–Nonage

Answer 6

• If either party is under 14, marriage is prohibited.
• If either party is between 14 and 18, they need consent of a parent/guardian to marry

Question 7

legal imediments to marriage–consanguinity and affinity

Answer 7

Marriage is not allowed between blood relatives (whole or half) who are ancestor-descendant, brother-sister, and uncle-niece or aunt-nephew

Question 8

Legal impediments to marriage–lack of consent

Answer 8

• Mental incapacity:
  
  • Inabilty of a party to consent to marriage due to mental incapacty or infirmity will render the marriage invalid.
• Fraud:
  
  • Lack of consent to the marriage because of fraud (tort definition of fraud) will render the marriage invalid.

Question 9

Annulment

Answer 9

Annulment=judicial declaration that the marriage is invalid

Question 10

Annulment because marriage is void

Answer 10

Void marriages have no legal effect and cannot be recognized.

Grounds:

• Bigamy
• incest

Question 11

Annulment because marriage is voidable

Answer 11

Voidable marriages are valid until and unless the aggrieved party obtains an annulment.

Grounds: nonage, impotence of spouse, temporary lack of capacity (eg drunkenness), mental incompetence

Question 12

Presumption of marital legitimacy

Answer 12

• Children born to, or conceived by, a married woman are presumed to be children of the husband.
  
  • Presumption is rebutted by clear and convincing evidence that the husband is not the father (usually DNA evidence).
• The father may also be estopped from denying paternity in certain instances

Question 13

actions brought by putative father

Answer 13

Many states have enacted statutes that give an unmarried father no more than 2 years to establish his paternity when his alleged child has a persumed father.

The Uniform Parentage Act (UPA) provides presumption of paternity in two circumstances, which can be rebutted only by genetic testing introduced in a paternity proceeding. If the man and the child’s natural mother:

• marry after the child is born and the man voluntarily asserted his paternity (such as by agreeing to be namedas the child’s father on the birth certificate); or
• for the first 2 years of the child’s life, the man resided in the same household with the child and the man openly held out the cild as his own.

Question 14

child support action brought by or for a child

Answer 14

generally, most states allow a patenrity action to be brought:

• before a child turns 18, and
• during the life of the putative father.

Question 15

Custody and Control

Answer 15

• A parent who is living, competent, and has not been found unfit is entitled to custody of the minor child and to direct her education and medical care.
• For a non-parent to seek custody or visitation rights over a child with living parents, significant deference must be given to a legal parent’s objection to visitation (ie a finding of parental unfitness or harm to the child would likely satisfy this).
• Standard for determining custody and the parenting time allocation between the parties is the best interest of the child which is determined by examination of all relevant factors, including:
  
  • the wishes of the child as to his custodian
  • the interaction and interrelationship of the child with his parents, siblings and any other person who may significantly affect the childs’s best interest; and
  • the mental and physical health of all individuals involved.

Question 16

obligation of support

Answer 16

a parent’s obligation to support a child ends when the child: reaches the age of majority (most states=18), or is legally emancipated.

Question 17

legal emancipation (Factors)

Answer 17

Factors for emancipation:

• financial independence
• maturity
• marriage
• having children of their own
• ability to support themselves

Question 18

Divorce: subject matter jurisdiction

Answer 18

SM Jx established if one spouse is domiciled in the state when the action is filed

Question 19

Divorce: personal jurisdiction

Answer 19

A court must have personal jurisdiction over the defendant to enter or enforce any decrees in personam (e.g., order imposing child support)

Question 20

fault-based grounds for divorce

Answer 20

• desertion
• adultery
• impotence
• cruelty
• felony conviction (1 year+ of incarceration)
• intoxication or excessive use of addictive drugs,

Question 21

No-fault divorce

Answer 21

Requires proof that:

• marriage is irretrievably broken (or irreconcilable differences between spouses) and there is no reasonable prospect of reconciliation, and
• parties have been separated for a definitive period of time.

Question 22

Equitable distribution

Answer 22

How most states divide property on divorce.

Steps are:

1. classify property as marital or separate
2. value property
3. divide property

Question 23

Equital distribution: marital property

Answer 23

Marital property is property jointly owned and jointly acquired through the labor of the parties.

Property acquired during marriage is presumed to be marital property.

Question 24

equitable distribution: separate property

Answer 24

Property owned before marriage, acquired after dissolution of marriage, excluded by premarital agreement, or acquired by gift or inheritance to one spouse.

Question 25

Equitable distribution: property that has increased in value during the marriage

Answer 25

Classification of increased value of separate property typically depends on the reason for the increase of value:

• if the increase is due to passive appreciation, the increase is separate property.
• If the increase is due to labor of the parties, the increase is marital property.

Question 26

equitable distribution: mixed character, commingled, or transmuted property

Answer 26

If separate property can be traced to its source and its character is proved as either separate or marital, treat it as such.

Question 27

equitable distribution: marital residence

Answer 27

If the marital residence was purchased prior to marriage but marital earnings were used to pay off the mortgage and build equity in the house –> it can be both separate property AND marital property, and reimburse the marital estate for mortgage payments.

Question 28

equitable distribution: pension and retirement accounts

Answer 28

whether the accounts are vested or unvested, they are subject to equitable distribution but not premarital contributions or post-separation increases

Question 29

equitable distribution: stock options

Answer 29

options granted to a spouse during marriage are marital property

Question 30

equitable distribution: debt

Answer 30

• Debts incurred during marriage = marital debts.
• Debts incurred before or after marriage = separate debt of the spouse who incurred the debt.

Question 31

equitable distrubtion: Step 2, value the property

Answer 31

Valuation is determined at the date the parties separate

Question 32

equitable distribution: step 3, divide the property

Answer 32

Court determines what is an equitable distribution of all marital property based on a number of factors, including:

• length of marriage
• standard of living during the marriage
• contributions (monetary and non-monetary) of each party during the marriage
• current financial circumstances of each party

Question 33

Alimony/spousal maintenance: types

Answer 33

• Periodic:
  
  • a certain amount of money paid at set intervals, usually monthly
    
    • Obligation generally contiues until the recipient dies, remarries or court modifies order)
• Lump sum:
  
  • A fixed amound (not a periodic obligation)
    
    • Cannot be modified
• Rehabilitative
  
  • Awarded for a limited period of time, until recipient spouse can become self-supporting by entering the work force

Question 34

Alimony/spousal maintenance: grounds

Answer 34

Under the UMDA, alimony can be made only if the spouse seeking alimony:

• lacks sufficient property to provide for his/her reasonable means, and
• either:
  
  • is unable to support himself through employment, or
  • the spouse is unable to work due to taking care of a child with special needs.

Factors:

• parties’ respective financial resources and needs
• contributions each has made to the marital relationship (financially or by providing care within the home), and
• length of marriage.

Question 35

Alimony/spousal maintenance: Modification

Answer 35

Most jxs place a heavy burden on the party requesting the change and requre a substantial change in circumstances tha trendered the original award unreasonable and unfair

Question 36

Alimony/spousal maintenance: termination

Answer 36

Generally, alimony terminates after a specified period of time, on the death of either spouse, or automatically on remairrage and cohabitation.

Question 37

Child suport: generally

Answer 37

• Child support is generally owed by both parents–parent with custody is presumed to provide it already, so the order is entered against the non-custodial parent.
• To calculate child support, most states use child-support guidelines, a mathematical formula based on the income of the parents.
  
  • If the court deviates from the guidelines, they must give a written explanation.

Question 38

Child support: modification

Answer 38

Child support orders are only modified if the party shows a substantial and continuing change in circumstances making the prior order unreasonable.

Question 39

Child Support: Uniform Interstate Family Support Act (UIFSA)

Answer 39

Once a state has issued a child support order consistent with the jx requirements of the UIFSA, that state’s court has continuing, exclusive jx over the order, so long as:

• the child or any party still resides in the issuing state; and
• all parties do not consent to change jx to a new state.

State with continuing, exclusive jx over the order is the only state that can modify the order unless jx is lost.

Question 40

Parental Rights: Custody and control

Answer 40

• Parent who is living, competent, and has not been found unfit is entitled to custody of the minor child and to direct her education and medical care.
• For a non-parent to seek visitation rights over a child with living parents, significant deference must be given to a legal parent’s objection to visitation (ie, a finding of parental unfitness or harm to the child would likely satisfy this)

Question 41

Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA): Initial jurisdiction

Answer 41

Under the UCCJEA, a state court can adjudicate over matters impacting a child if it has jurisdiction over the child (don’t need jurisdiction over the respondent spouse). State has jx over the child:

• If the state is the home state–has the child lived in the state since birth or at least 6 mos?
• If no home state, does the state have significant connections to the child?
• If no home state and the staet does not have significant connections to the child, is the state nevertheless the most appropriate forum for the matter?
• If no to all three, is the state the default jurisdiction?

Question 42

UCCJEA: Continuing and exclusive jx

Answer 42

Once a state has made a valid child-custody determination under the UCCJEA, the state has exclusive jurisdiction over the determination until:

• a court determines that neither the child nor the child and one parent have a significant connection with the state and substantial evidence is no longer available in teh state regarding the child’s welfare; or
• a child and both parents move out of the state.