Family Law

Question 1

Uniform Interstate Family Support Act - Enforcement of Child Support (UIFSA)

Answer 1

been adopted by all states.

Under UIFSA, the state that originally issued a child support order has continuing, exclusive jurisdiction to modify the order if that state remains the residence of the obligee, the child, or the obligor and all parties do not consent to the jurisdiction of another forum.

UIFSA does not apply to divorce property-division disputes.

Question 2

Child support orders cannot be modified retroactively

Answer 2

Fed law requires the states, as a condition of federal child-support funding adopt rules that absolutely forbid retroactive modification of the support obligation.

Question 3

Prospective modification of child support

Answer 3

Typically available only when the petitioner can show a substantial change in circumstances.

A significant decrease in income is typically viewed as a substantial change, but some courts refuse to modify if the shift was voluntary. other courts look towards the intent

Many courts use a multifactor approach where court would consider the impact on the child (i.e likely duration of income loss, and the likelihood of a promotion that would ultimately be of benefit to the child).

Question 4

Divorce property-division is non modifiable

Answer 4

division was made by court based on the circumstances at the time of the divorce and because the past cannot be ascertained, a property division award is not subject to a post-divorce modification

Question 5

enforceability of a premarital agreement

Answer 5

Enforceability of an agreement turns on three factors: voluntariness, fairness, and
disclosure

*In considering whether a premarital agreement was voluntarily executed, courts look to whether there was fraud, duress, or coercion

*consulting w/ independent counsel, embarssement from cancelling wedding, and financial loss goes to voluntariness

Question 6

enforceability of a premarital agreement under UPAA

Answer 6

the party against whom enforcement is sought must prove

(1) involuntariness or

(2) that “the agreement was 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 7

Premarital agreements regarding child custody are unenforceable

Answer 7

courts are not bound by custody provisions in a prenup that could be injurious to child’s interest

Question 8

marital property

Answer 8

assets acquired during the marriage except by gift, devise, or inheritance

continues to accrue until the marriage is dissolved

Question 9

Divorce and division of property

Answer 9

in most states, only marital property—assets acquired during the marriage except by gift, devise, or inheritance—is subject to division at divorce.

In a minority of “hotchpot” jurisdictions, the court may divide all assets, whenever or however acquired.

A few states permit the division of
separate property in special circumstances, such as hardship.

Question 10

an asset that is initially separate property may be partially transformed into marital property if

Answer 10

marital funds or significant postmarital effort by the owner spouse enhance its value or build equity

if marital funds are used to reduce mortgage indebtedness, such equity-building payments typically create marital property.

Question 11

Child custody decisions standard

Answer 11

best interest of the child

Question 12

best interest of the child factors

Answer 12

(1) the wishes of the child’s parent or parents as to his custody;
(2) the wishes of the child as to his custodian;
(3) the interaction and interrelationship of the child with his parent or parents, his siblings, and any other person who may significantly affect the child’s best interest;
(4) the child’s adjustment to his home, school, and community;
(5) domestic violence in the home; and
(6) the mental and physical health of all individuals involved.”

Question 13

a court may not deny a parent child cutosdy based on parent’s

Answer 13

values or lifestyle unless evid shows that the parental conduct adversely affects the child

Question 14

common law doctrine of nonintervention

Answer 14

disallows judicial intervention in an intact family

courts have used this doctrine to deny a support petition when couple is married and living together

Question 15

May the government limit parental decisions?

Answer 15

parental right to the care, custody, and control of a child is constitutionally protected under the 14A, but if it appears that parental decisions will jeopardize the health or safety of the child, or have a potential for significant social burdens then gov can limit that

• vaccination mandate is within state’s police powers to protect public health

Question 16

Under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), a court may exercise juris over a petition for child custody only if

Answer 16

this State is the home State of the child on the date of the commencement of the proceeding,

or was the home State of the child within six months before the commencement of the proceeding and the child is absent from this State but a parent or person acting as a parent continues to live in this State” and

no other state’s courts would have jurisdiction under the above standard or other courts having jurisdiction have declined to exercise it.

Question 17

The federal Parental Kidnapping Prevention Act (PKPA) grants exclsuive juris over a child-custody petition to…

Answer 17

a child’s home state

PKPA takes precedence over any conflicting state law under the supremacy clause

Question 18

When a non-party seeks to obtain custody of a child from a fit legal parent

Answer 18

parent is accorded a preference.

Troxel case SCOTUS implied such a prefernece is constitutioally mandated and invalidated a statute that allowed for any person to petition for visitation at any time if in best interest of child

Question 19

Under federal law, states are required to give full faith and credit to

Answer 19

child support awards from other states

Question 20

Subsection (e) of full faith and credit for child support orders act prohibits the modification of child support orders issued by a court w/ continuing exclusive juris unless

Answer 20

no contestant or child resides there, or unless each contestant has agreed in writing to allow another state to assert jurisdiction.

Question 21

modification of child support orders may be made only

Answer 21

upon a showing of a substantial AND continuing change in circumstances making the prior order unreasonable

Question 22

Modification of spousal support is allowed only upon a showing of…

Answer 22

a substantial AND continuing change in circumstances making the prior order unreasonable

Question 23

Requirements for a valid divorce decree being entered

Answer 23

Scotus has found that a state could enter a valid divorce decree as long as one spouse was domiciled in that state

Question 24

Power of court in an ex parte divorce

Answer 24

In an ex parte divorce where the court issues a divorce decree based on the domicile of the plaintiff and without personal jurisdiction over the defendant, the court lacks the power to adjudicate property and support rights.

The divorce decree is thus “divisible”; jurisdiction to terminate a marriage does not establish jurisdiction over other divorce claims.

state cant enter property division w/out PJ and need minmum contacts. (brief stopover or marriage in a state does not equal min contacts)

Question 25

Fault based divorce

Answer 25

a divorce may typically be granted on grounds of cruelty or a like concept

if abuse, traditionally it needed to be phsyical, successivee, and continuing or a single severe act

courts today recgonize a single, less phsyical incident as sufficent and recognize emotional/mental cruelty

Question 26

common law marriage requirements

Answer 26

requires that the partners
(1) capacity to enter a marital k,

(2) cohabited,

(3) agreed to be married, and

(4) held themselves out to others as a married couple.

*requires dissolution through divorce

Question 27

Will another state recognize a common law marraige?

Answer 27

Under COL principles, a marriage valid under the law of the state where it was contracted is valid elsewhere unless it viols the strong public policy of another state which has the most significant relationship to the spouses and the marriage.

courts have consistently held that common law marriage doesnt viol public policy

Question 28

common law marriage analysis

Answer 28

1) did they form a valid common law marriage?
2) does the state/diff state recongize the common law marriage?
3) are they still married?

Question 29

Putative-Spouse doctrine

Answer 29

permits a would-be spouse, who participated in a marriage ceremony with a good-faith but mistaken belief in its validity, to be treated like a spouse for purposes of equitable distribution of the property acquired by the couple during their invalid marriage

Question 30

states that dont recognize the putative spouse doctrine permit a distribution of marital assets in a proceeding to declare a marriage void

Answer 30

the trend of modern statutes is increasingly to blur the line not only between void and
voidable marriages but even between them and valid marriages in an attempt to equalize the consequences of termination of marital relationships on whatever ground

Question 31

Bigamy

Answer 31

Bigamy is illegal in all states; no individual may have more than one legal spouse at a time.

when a first marriage has not been legally terminated, a second marriage has no legal effect.

Question 32

presumption that the latest in a series of marriages is valid

Answer 32

The presumption is one of the strongest known to the law” and can be rebutted only by strong evidence that the prior marriage still subsists or by cogent and conclusive evidence.

The presumption is designed to protect the parties’ expectations; thus, some cases hold that the presumption’s strength increases with the lapse of time and the birth of children in the later marriage.

Question 33

Visitation of children

Answer 33

SCOTUS has recognized that parents have a fundamental constitutional right to control the upbringing of their children, including decisions about with whom their children will visit.

A fit parent is presumed to act in the best interests of her children, and courts are constitutionally required to give “special weight” to a parent’s reasons for objecting to visitation with a third party before overriding the parent’s objection and granting visitation

Question 34

circumstances determining what effect court should give between mature child testimony

Answer 34

child age and judgment capacity, basis for and strength of its preference, treatement extended to child by contestants for custody, and wrongful inducement of child’s wishes

Question 35

courts are placing greater emphasis on interest of erroenously identified fathers

Answer 35

some states have adopted paternity disestablishment legislation that places greater emphasis on erroneously identified fathers

Question 36

when dividing up property, courts strive for an equitable distirbution using these factors

Answer 36

duration of the marriage,

indicators of each spouse’s future needs,

contributions of parties to the marriage

Question 37

UIFSA §603(b)

Answer 37

a registered child support order issued in another state is enforceable in the same manner and is subject to the same proceudres as an order issued by a tribunal of the adopting state

Question 38

UCCJEA §202

Answer 38

a state that properly issued a custody decree retains continuing exclusive jurisdiction until all parties have left the state or until issuing has determined no longer any significant connection between child and person liing in the state and there’s substantial evidence in that state

Question 39

burden of proof for each party in a modification hearing

Answer 39

movant must show the modification is for a legitimate purpose

objecting parent show mod isnt in child’s best interest

Question 40

factors considered in spousal support award

Answer 40

age
work experience
duration of the marriage
ability to provide for oneself

Question 41

Marvin v. Marvin

Answer 41

property or support rights between non-married cohabitants can be founded upon an express or implied contract to share assets

Question 42

based on mutual support obligation in a marriage,

Answer 42

a creditor who has furnished necessaries to a husband or wife may, in most states, sue spouse of the purchaser to recover on the debt

necessaries doctrine is only availble to a credito who has already provided goods or services - not for future spending

Question 43

a state child welfare agency may intervene in family decision making only when

Answer 43

the decision at issue endangers the well being of a child or another family member incapable of protecting his own interests

Question 44

courts refuse to intervene in family disputes if

Answer 44

couple is living together/married

unless dispute between parties is over child abuse/neglect which includes medical care/child rearing decisions that endanger the child

Question 45

courts typically have refused to consider religion unless the evidene shows

Answer 45

that the parent’s religious practice would imperil the child’s well being

Question 46

SCOTUS has held that a father who lived with his children and their mother and held the children out as his own is entitled to a hearing to
demonstrate his parental fitness before his parental rights may be terminated

Answer 46

equal protection clause requires the state to give a father the opportunity to veto his
child’s adoption when state law grants a similarly situated unmarried mother a veto.

Question 47

Under federal law, a voluntary
acknowledgment of paternity is binding if unchallenged by the named father within

Answer 47

60 days