Family Law

Question 1

property division at divorce

Answer 1

at divorce, courts divide marital property between spouses pursuant to state law. Some
states follow the community property approach; however, most states have adopted the equitable distribution approach for division

Question 2

Separate property

Answer 2

Separate property generally includes:
(a) All property acquired by either spouse BEFORE marriage;
(b) All property acquired by a spouse during marriage by gift, bequest,
devise, or descent;
(c) All property either spouse acquires with the proceeds of the spouse’s
separate property; AND
(d) All passive appreciation of separate property (appreciation in value due
to the passage of time rather than the efforts of either spouse).

Question 3

When can a gift be marital property?

Answer 3

Joint gift to both spouses

Question 4

Marital property

Answer 4

Marital property generally includes all property acquired
during marriage (regardless of who holds title) that is NOT separate property.
Active appreciation (appreciation in value due to the efforts of either spouse) of
separate property is usually categorized as marital property.

Question 5

Professional Degrees

Answer 5

In almost every state, professional
degrees and licenses are considered separate property not subject to
distribution at divorce. However, reimbursement may be available for
any support provided by a spouse that contributed to the other
spouse’s degree or license.

Question 6

Factors considered for distribution

Answer 6

1) income, property, of each party
2) duration of marriage
3) obligations for support arising out of prior marriage
4) lifestyle
5) contributions made by each spouse

Question 7

Marital “Fault” in distributions

Answer 7

In most states, the marital “fault” of either spouse (e.g., adultery) is NOT
a factor considered in the division of marital property.

Question 8

Modification of Property Division

Answer 8

Generally, courts may NOT modify a property division award (whether it results from a
divorce settlement agreement or judicial determination) UNLESS exceptional
circumstances exist (e.g., fraud).

Question 9

Spousal Support

Answer 9

The purpose of spousal support is to ensure an adequate income stream for the spouse whose economic dependency has resulted, at least in part, from the marital relationship

Question 10

Marital Fault and Alimony

Answer 10

Some states will consider marital fault when awarding alimony. In others, alimony is not based on marital fault.

Question 11

Factors court considers for spousal support

Answer 11

1) standard of living during marriage
2) duration of marriage
3) age and physical or emotional conditions of both parties
4) financial resources of each party
5) contribution of each party to marriage
6) time needed to obtain education or training
7) ability for payor spouse to meet his needs while paying spousal support

Question 12

Permanent spousal support

Answer 12

Permanent spousal support is awarded to a spouse who has neither the resources nor the ability to be self-sustaining

Question 13

Temporary spousal support

Answer 13

More likely to be awarded when a spouse has the sources to enter the profession and have their own profession

Question 14

Modification of Spousal Support

Answer 14

In most states, a spousal support order can only be modified when there is a substantial
change in circumstances of either party making the prior order unreasonable. Under
the UDMA, a modification of spousal support is allowed only upon a showing of changed.

Some courts will not permit modification if the change in circumstances was anticipated or voluntary.

Question 15

State court jdx over Child Support

Answer 15

The state that originally issued the child support order has continuing exclusive jurisdiction to modify the order so long as that state remains the residence of the
obligee, child, or obligor (i.e., no other court can attempt to modify a child support order if the obligee, child, or obligor remains a resident of the state that issued the
order).

Question 16

Standard for Child Custody

Answer 16

courts determine child custody based on the best interests of the child. A parent’s misconduct (e.g., adultery) generally may NOT be considered unless it causes significant harm to the child.

Question 17

Federal law requirement for modification of child support

Answer 17

Requires states to give full faith and credit to child support awards from other states.

Question 18

Factors considered for Child Custody

Answer 18

1) needs of the child for a meaningful relationship with both parents
2) ability and willingness of the parents to actively perform their functions
3) interaction of child with parents
4) adjustment to child’s home
5) mental and physical health of all individuals
6) intention of either parent to relocate the child
7) wishes of parents and child

Question 19

Parental Visitation rights

Answer 19

When one parent is granted custody of a child, the other parent is usually always
entitled to visitation rights UNLESS the court determines that visitation would seriously
endanger the child’s wellbeing

Question 20

Third Party Visitation Rights

Answer 20

Court may order visitation for a non parent if:

1. in the best interest of the child
2. non parent has a substantial relationship with the child

Question 21

Joint Custody

Answer 21

Generally, a court must determine that joint
custody is in the child’s best interests in order to award the parents joint custody. Thus,
joint custody is usually only an option for cooperative parents, as it may be harmful to
the child if the parents are hostile toward each other.

Question 22

Modification of Child Custody

Answer 22

In order to modify a child custody order, the parent must show that:
(1) Circumstances have substantially changed; AND
(2) The modification would be in the child’s best interests.

Question 23

State jurisdiction over child custody order

Answer 23

The state that issued the child custody order has continuing exclusive jurisdiction to
modify the order so long as that state remains the residence of any party involved.

Question 24

Moving the Child

Answer 24

Most courts will permit a custodial parent to move the child is in 1) best interest and 2) motives are not vindictive

Question 25

Express Contacts for Cohabitants

Answer 25

In most states, an express agreement (written or oral) between unmarried cohabitants to share property or otherwise engage in forms of economic sharing is enforceable, so long as the economic sharing is NOT intended as payment for sexual services. However, some states refuse to recognize such contracts between unmarried cohabitants as against public policy.

Question 26

Paternity Actions

Answer 26

Paternity actions typically arise when a man wishes to avoid child support obligations by denying paternity of the child. A mother or government agency may bring a paternity action to establish the father’s paternity. Once paternity is established, the law imposes all rights, privileges, duties, and obligations on the father.

Question 27

Presumption of paternity

Answer 27

Under the UPA, a man is presumed to be the father of the child if: (1) He and the child’s mother are or have been married to each other and the child is born during the marriage, or within 300 days after the marriage is terminated; (2) Before the child’s birth, he and the child’s mother attempted to marry in apparent compliance with law, although the attempted marriage is or could be declared invalid, and the child is born during the invalid marriage or within 300 days after its termination; OR (3) While the child is under the age of majority, he receives the child into his home and openly holds out the child as his own. (4) NOTE. A presumption of paternity under the UPA may only be rebutted by clear and convincing evidence.

Question 28

Parens Patriae

Answer 28

Under the parens patriae authority of the state, a state can intervene to protect children when their parents deny them needed medical care (usually based on abuse or neglect grounds).

Question 29

Parents Right to Direct Child's upbrining

Answer 29

Parents have a fundamental right to direct their child’s upbringing, which includes a right to control their child’s religious education. Generally, courts will not interfere with parental decisions regarding their child’s upbringing and education UNLESS the child’s wellbeing is endangered.

Question 30

Duration of Child Support:

Answer 30

1) age of majority/ 18 2) death of child 3) emancipation of child 4) termination of parental rights

Question 31

Adoption

Answer 31

Generally, consent of the child's natural parents is required. But parental consent is not necessary if parental rights were terminated.

Question 32

Involuntary termination of parental rights

Answer 32

1. infliction of serious physical harm 2. Abandonment 3. Neglect 4. Failure to provide support 5. Mental health of parent 6. Unfitness (drug abuse, etc.)

Question 33

Requirements for adoption

Answer 33

1) termination of biological parent rights 2) creation of adoptive parents rights

Question 34

Waiver of parental consent requirement for adoptions

Answer 34

Parental consent requirement can be waived if the court concludes it is being unreasonably withheld against the best interest of the child. A non consenting parent is entitled to notice of the hearing and an opportunity to be heard.

Question 35

Consequences of adoption

Answer 35

Termination of biological parents rights and creation and adoptive parents rights. Some states say that adopted child can still inherit from biological parent.

Question 36

Assisted Reproduction

Answer 36

UPA: Uniform Parentage Act Many states have not yet adopted the Act; therefore, it is best to discuss both general legal principles and the UPA if a question does not specify the law of the particular jurisdiction.

Question 37

Parent Child Relationship for Assisted Reproduction

Answer 37

Under the UPA, the parent-child relationship is established between an individual and a child by: (STATE LAWS CAN CHANGE THIS!) Adoption by the mother A husband who is married to a woman who has a child through assisted conception is the child’s father unless he proves his lack of consent within two years after birth

Question 38

Sperm Donor Rights

Answer 38

If a gamete provider consented in writing that their gametes could be used after death to conceive a child, that child can be considered the child of a deceased parent.

Question 39

Surgacy Agreement Requirements

Answer 39

1) Must be in writing and approved by court 2) be voluntary 3) Any consideration must be reasonable If unenforceable, gestational mother is the mother of the child If agreement is enforceable: intended parents must file notice of birth and court will issue an order of parentage

Question 40

Gifts in comptemplation of marriage

Answer 40

Subject to condition of marriage, so if dont get married, condition is failed and K is void

Question 41

Requirements for valid premarital agreement:

Answer 41

1. In writing and signed 2. Entered into voluntarily (if night before wedding, duress) 3. Full disclosure of assets or independent knowledge of assets

Question 42

UPAA Rule on Prenup

Answer 42

UPAA: Agreement was unconscionable? Then analyze full disclosure of assets

Question 43

Requirements of Ceremonial Marriage

Answer 43

1) license Failure to meet procedural requirements of license do not invalidate the marriage 2) ceremony with authorized officiant 3) no legal impediment A. Cant be too closely related (family up and down, siblings) First cousins can sometimes marry depending on state Second cousins are NOT too closely related B. Can’t be married to someone else (bigamy) 4) capacity to consent at time of ceremony Alcohol, drugs, age (18+ has capacity)

Question 44

Minors and marriage

Answer 44

In nearly every state, persons must be 18 years of age to marry. However, some states allow 16 or 17 year olds to marry with parental consent or judicial approval.

Question 45

Common Law Marriage

Answer 45

Most states have abolished common law marriage. In jurisdictions that recognize common law marriage, the proponent of the marriage must prove that the parties: (1) Cohabitated (i.e., lived together) for the statutory period; (2) Held themselves out as married; AND (3) Intended to be married.

Question 46

Doctrine of Necessaries:

Answer 46

3rd party can go after other spouse for necessaries/medical bills even if separated

Question 47

annulment

Answer 47

Annulment is a judicial declaration that a marriage never existed and was invalid from when the parties entered into it. A marriage can be annulled if it is void or voidable.

Question 48

Void Marriage for Annulment

Answer 48

Ex. Bigamy, too closely related, already married to someone else at time of being married - no legal action needed

Question 49

Voidable marriage for annulment

Answer 49

Valid until declared null Ex. age, capacity, duress, fraud (shotgun weddings) Can only be attacked by party to marriage, no collateral attacks ONLY the person who is suffering from lack of consent

Question 50

Remedy for Voidable marriages

Answer 50

CAN be remedied/ratified by continually living together when impediment removed (had the ability to consent)

Question 51

effect of an annulment

Answer 51

marriage set aside as if it never existed

Question 52

Jurisdiction for divorce

Answer 52

one spouse must be domiciled in the state: 1) residence 2) intent to remain

Question 53

Multiple divorce filings

Answer 53

First to file does not matter. It is possible for multiple states to have jdx over a divorce, and multiple causes could proceed until one court renders a judgment causing the other to lose SMJ BUT, whichever court comes to a judgment first is binding. The other one is moot now, because marriage is gone.

Question 54

Grounds for Divorce - No fault

Answer 54

No fault Irreconcilable differences Living separate and apart (unilateral decision or bilateral) Incompatibility

Question 55

Grounds for Divorce - Fault

Answer 55

Adultery (generally proven through circumstantial evidence) Proving opportunity and inclination. Corroboration is often required Desertion (abandonment) Departure has to be unjustified with NO intent to return Cruelty (extreme physical or mental cruelty) Habitual drunkenness or drug abuse (has to commence after marriage) Insanity *many states have completely abolished fault as a ground for divorce*

Question 56

3 approaches to dividing property at divorce

Answer 56

1) Community Property: All property acquired during the marriage is deemed owned one-half by each spouse, and all property brought into the marriage or acquired by gift or bequest is sepa- rate property 2) Equitable Division of all property: The court divides all property owned by either spouse, whether acquired before or after the marriage 3) Equitable Division of marital property: Each spouse takes their separate property, and the court only divides the property acquired during the marriage

Question 57

2 step process for division after divorce

Answer 57

1) classification 2) division

Question 58

termination of spousal support

Answer 58

Recipient remarries Either spouse dies Most jdxs: cohabitation with another

Question 59

modification of spousal support

Answer 59

Permanent and Rehabilitative: Modifiable upon substantial change in circumstances Not that you were a lawyer and want to be a florist Lumpsum and reimbusement: nonmodifiable