Family Law

Question 1

what is required for a valid prenup

Answer 1

1. voluntarily in writing and signed
2. full and fair disclosure of all party assets
3. some court will look to see if provisions are fair and reasonable

Question 2

what statute governs prenups and what is COL for it

Answer 2

UPAA - COL where executed or most significant relationship

Question 3

requirements for ceremonial marriage

Answer 3

1. license
2. ceremony w/ authorized officiant
3. no legal impediments to marriage (bigamy, etc)
4. capacity to consent

Question 3

does a failure to have proper license invalidate ceremonial marriage

Answer 3

no

Question 4

requirements for common law marriage

Answer 4

1. consent to marry
   2.. cohabitation
2. holding themselves out publicly as spouses

Question 5

marriage by estoppel

Answer 5

equitable remedy to protect innocent parties in acquiring assets/right

Question 6

doctrine of necessaries

Answer 6

make one spouse liable to third parties for spouse’s purchase of necessaries even if they dont live together

Question 7

alienation of affection vs criminal conversion

Answer 7

alienation: proof that D’s action caused loss of love (no adultery necessary)

criminal conversion: cheating

Question 8

what does annulment do

Answer 8

declares marriage invalid because was void or voidable

Question 9

void vs. voidable marriage

Answer 9

void marriages cannot be ratified; complete nullity (but may be valid if the impediment to voidness is removed)

voidable marriage valid until null and can be ratified

Question 10

defenses to annulment

Answer 10

ratification, laches, estoppel

Question 11

is spousal support awarded with annulment

Answer 11

no, property goes to pre-marriage position

Question 12

how does jurisdiction over divorce work

Answer 12

as long as jx over one person, there is in rem PJ; no need for PJ over both Ds

note. cant award property or awards though

Question 13

grounds for divorce (no fault)

Answer 13

bilateral agreements – incompatible/irretrievably broken

unilateral or bilateral - living apart for specified time

Question 14

grounds for divorce (fault)

Answer 14

adultery (opportunity + inclination needed)
willful desertion
cruelty
insanity

Question 15

defenses to no fault divorce

Answer 15

reconciliation only

Question 16

defenses to fault divorce

Answer 16

collusion; consent to misconduct; forgivness; unclean hands

Question 17

what is legal separation and why

Answer 17

marriage continues but parties have rights re: custody, child support, etc

Question 18

can a court with pj over one party determine property issues in divorce

Answer 18

cannot determine out of state property unless PJ over both parties

Question 19

how is property divided?

Answer 19

3 approaches

1. community property - 1/2 1/2 marital property
2. equitable division of ALL property
3. equitable division of marital property

Question 20

separate property vs marital property

Answer 20

Separate property = things before marriage, inheritance, income from separate property, pain and suffering awards, etc.

Marital property = property acquired during marriage, earnings, benefits, lost wages, reimbursement, anything that’s replacement income

Question 21

when does commingled property become marital property

Answer 21

when cant trace funds anymore

Question 22

whose property is it if property was acquired before marriage but paid for after

Answer 22

majority: contribution based

minority: title

Question 23

what is considered for equitable division in property?

Answer 23

i. Age, education, background
ii. Duration
iii. Standard of living
iv. Incomes, source of money
v. Health of parties
vi. Needs of parties
vii. Child custody and alimony
viii. Future earnings
ix. Economic fault (if one party squandered)

Question 24

what are 4 types of alimony

Answer 24

permanent periodic spousal supper lump sum rehabilitative reimbursement support

Question 25

permanent periodic spousal support

Answer 25

paid regularly to support spouse; indefinite until death or remarriage; modifiable

Question 26

lump sum payment

Answer 26

fixed payment; until paid off; no modification

Question 27

rehabilitative alimony

Answer 27

periodic payments allowing spouse to gain skills; specified period of time; modifiable

Question 28

reimbursement support

Answer 28

reimburse spouse who supported other through professional license or degree; specified amount no modification

Question 29

Under what conditions is alimony modifiable

Answer 29

substantial change in circumstances = unforeseeable events

Question 30

does quitting a job count as unforeseeable events

Answer 30

no

Question 31

tldr of alimony considerations

Answer 31

needs of claimant, ability to pay

Question 32

separation agreement. what need?

Answer 32

amicable agreement figuring out all the issues voluntary full and fair disclosure consideration of mutual promises

Question 33

are courts bound by separation agreement

Answer 33

not re children

Question 34

how long does someone need to pay child support

Answer 34

i. Age of majority ii. Death iii. Emancipation iv. Termination of parental rights v. Note: may be indefinite for severely disabled child or changed for up to certain level of education

Question 35

how does jx work for child support? who governs?

Answer 35

UIFA says that original jx where petition filed unless 1. Another state gets jx if 2nd petition filed before time to answer expire; 2. P objected to jx in the first action 3. 2nd state is child’s home state

Question 36

does issuing court have continuing and exclusive jx over child support order? what does this mean?

Answer 36

yes, only they can modify unless jx is moved by all parties moving or consent

Question 37

how is initial custody determined re: jx

Answer 37

i. Occurs in child’s home state; or ii. Was child’s home state within past 6 months but moved and parent still lives there

Question 38

does court have continuing and exclusive jx over custody order

Answer 38

yes unless all parties moved or child has no significant connection in state

Question 39

what factors go into best interest of the child?

Answer 39

i. Wishes of parents ii. Child’s preference if above 12 iii. Child’s relationship with parents iv. Child’s adjustment to home, school, and community v. Parent’s mental and physical health vi. Primary caregiver

Question 40

when is joint custody given

Answer 40

when parents can co-parent; look to agreement, fitness, ability to communicate with each other

Question 41

does non-custodial parent have right to visitation

Answer 41

yes unless harm to child

Question 42

can parents take away visitation from grandparents

Answer 42

court must give preference special weight

Question 43

when is a custody award modifiable

Answer 43

when material change in circumstance affecting *child's well-being* see hypo where mom gets better but child is thriving with grandma. Custody will not change.

Question 44

when is husband presumed to be father

Answer 44

Mother’s husband presumed to be father of child born during marriage of within 300 days of marriage’s termination

Question 45

who can bring paternity suit

Answer 45

child, state, or mother 18 year SOL

Question 46

grounds for involuntarily termination

Answer 46

i. Abuse ii. Abandonment iii. Neglect iv. Failure to provide support v. Mental illness note: court will work to get back if change in circumstances

Question 47

what does a gestational agreement need

Answer 47

1. Voluntary 2. Writing 3. Approved by court 4. Not limit rights of surrogate healthcare decisions 5. Provide reasonable consideration note. can transfer before any time before embryo transfer