Family law

Question 1

common law marriage elements?

Answer 1

1. capacity to enter into marriage
2. Agreement that is present to be marriage
3. Cohabitation
4. Holding out as married

Question 2

what saves a bigamous marriage?

Answer 2

1. Presumption most recent marriage is valid
2. Removal on the impediment will render subsequent marriage valid

Question 3

How to end a marriage?

Answer 3

Anulment for fraud

Divorce (fault no fault)

Question 4

What standard is used for custody and child support?

Answer 4

Best interest of the child.

Question 5

Custody determinations?

Answer 5

1. Best interest of the child
2. Requires considering parents wishes, who the caretaker is, parents issues, etc.

Question 6

Modifying custody?

Answer 6

Can be modified only if there are substantial changes in circumstances

Question 7

issuing Child support?

Answer 7

All states employee numerical guidelines that looks at factors like income, special needs, etc

Question 8

modifying child support?

Answer 8

1. petitioner must show substantial change in circumstances making the prior order unreasonable
2. cant be retroactive

Question 9

Relocation of parents and others

Answer 9

1. Moves sought in good faith and serve best interest will be approved
2. Some courts put burden on leaving parent and some on staying parent

Question 10

DO decisions by parents get defference>?

Answer 10

Yes, including health, unless it will jeopardize the child

Question 11

When does the parent have rights?

Answer 11

Generally biological fathers have rights but may have to excerisice them by a certain time

Question 12

rights of parent when another person wants to adopt?

Answer 12

an involved parent that demonstrated commitment to parenthood can oppose adoption by another

Question 13

third party custody rights

Answer 13

Custody in the parent is presumed to be in the childs best interest

If third party wants child must prove parent is unfit and would be detrimental to child

Question 14

How a court will divide property in a divorce proceeding

Answer 14

1. marital property is divided at divorce but separate property remains property of owning spouse
   2. Marital vs separate
   1. marital
   1. Acquired during marriage
   2. Separate
   1. Before marriage
   2. inheritance
   3. gift to one party
   3. Division based on marital agreement
   1. a court will enforce a premarital agreement so long as it was made
   1. voluntarily, its fair, and had full disclosure
   2. Cannot have agreement as to custody of child if its not in childs best interest

Question 15

Three factors to determine alimony?

Answer 15

Can be permanent, temporary, or lump sum. Trial court has wide difference.

look for:

Financial needs
marital contributions
marital duration

Question 16

Which court may issue child support

Answer 16

UIFSA governs. when order is registered in one state it is enforced in all states.

State that originally issued th order has exclusive Jx to modify so long as it remains the residence of one of the parties

Question 17

Child custody orders?

Answer 17

UCCJEA applies and divided into tests

1. Home state
   1. Home state has exclusive Jx to modify a custody decree
   2. Home state is a state where child has lived with parent for 6 consecutive months before the order was issued.
   3. Continues to be home state for at least 6 months after child leaves so long as it remains home of parent
   2. Significant connections test
      1. If child has no home state, a stat may excessive Jx based on
      1. significant connections with child and one parent
      2. substantial evidence relationg to custody
2. Emergency Jx
   1. If no other state has Jx this applies

Question 18

Parent by estoppel?

Answer 18

If a child has lived with a third party for an extended period of time the courts have employed parent by estoppel to get around the presumption that a parent is best fit to take care of a child