family law

Question 1

requirements to be married (cars)

Answer 1

1. capacity to consent
2. of marital age (or with judicial or parental consent)
3. not closely related to other person
4. single

Question 2

Common law marriage requirements

Answer 2

1. capacity to enter into a marital contract
2. present agreement to be married
3. cohabitation
4. holding out a martial relationship to the community

Question 3

recognition of marriage in other states and bigamy

Answer 3

marriage valid under hte law of hte place in which it was contracted will be valid else unless it violates a strong public policy of hte state that has the most significant relationship with the spouses

bigamy. bigamous marriage void from beginning. 2 marriage saving doctrines - presumption that most recent marriage is valid. removal of impediment (divorce) will render subsequent marriage valid

Question 4

doctrine of necessities

Answer 4

a creditor may recover from the non-purchasing spouse on ad ebt that the purchasing spouse owes for necessaries furnished by the creditor

Question 5

family privacy doctrine and spousal/intra family tort immunities

Answer 5

family privacy - disputes of intact families are treated by courts as private matters that should be resolved at home. this does not extend to parental decisionmaking that endangers the child.

spousal immunity - at common law, spouses could not sue each other. this has been mostly abolished.

intra-family tort immunity - members of a family could not sue each other. abolished in most states.

Question 6

no-fault divorce

Answer 6

irreconcilable differences, and
a minimum period of separation (usually one year or less)

Question 7

at-fault divorce

Answer 7

proving fault can increase alimony or property division award. grounds:
adultery, desertion without reasonable cause, cruelty, addiction, mental illness, felony conviction.

Question 8

annulment

Answer 8

marriage void or voidable, invalid from date of inception. reasons for annulment:
1. fraud (in the essentials of marriage, ie, sex)
2. inability to consummate marriage
3. not allowed by law,
4. duress

Question 9

putative spouse doctrine

Answer 9

spouse can seek divorce like remedies when an annulment is granted so long as there was a marriage ceremony and good faith belief in the marriage

Question 10

custody determinations

Answer 10

best interest of the child:
1. child preferences
2. parents religious faith (court cannot pick one faith or other, but can inquire into religion if it damages children)
3. any other factor relevant to the child

Question 11

kinds of child custody

Answer 11

physical/legal, joint/sole.
physical is right of parent to have child live with them.
legal is decisionmaking power.
joint is cooperative parents,
sole is when only one has it (usually when one is unfit)

Question 12

when can you modify custody?

Answer 12

substantial change in circumstances

Question 13

child support guidelines

Answer 13

reubttable presumption that the award that results from applying the guideliness is correct.

Question 14

modification of child support

Answer 14

must show a substantial change in circumstances
1. significant involuntary income reduction would warrant relief.
2. voluntary reduction approach 2 ways: refuse to modify is shift was voluntary, multi-factor - see whether reduced party had good faith

Question 15

retroactive modifications of child support

Answer 15

absolutely forbidden absent circumstances like fraud

Question 16

relocation of parent and child approaches

Answer 16

1. relocating parent must show the move is in the child’s best interest
2. the objecting parent must show the move is not in the child’s best interest.
3. a parent may relocate with the child unless the parent is vindictive

Question 17

parents rights to make decision

Answer 17

1. fit parents decisions, including religious upbringing and medical care, must be given some deference
2. a parents decision can be limited if it jeopardizes teh childs health or safety or has potential for significant social burdens

Question 18

father rights

Answer 18

1. biological fathers generally do, with due process. establishing paternity statutes are usually upheld. required to support child even if did not want
2. right of parent when another wants to adopt: must show a full commitment to the responsibilities of parenthood.

Question 19

grandparent/third party rights

Answer 19

if there is a custody contest bt third party and parent, custody in parent is presumed to be in best interest. to rebut, Third party must prove:
1. parent is unfit, or
2. granting custody to parent would be highly detrimental to a child

Question 20

2 approaches to property division

Answer 20

1. majoirty approach - court divides all marital assets but not separate
2. minority hotchpot approach - all assets are divided.

Question 21

what is marital v separate property

Answer 21

marital = any proeprty acquired during marriage, title does not control. (a home acquired during marriage, lottery winnings, debts acquired, etc)
separate = property acquired before marriage, inheritance, or gift.

Question 22

when will a court uphold a premarital agreement

Answer 22

court will enforce as long as:
1. voluntarily made,
2. substantively fair, and
3. full disclosure of assets and obligations were made.

court will not enforce an agreement regarding child custody or support if it is not in the best interest of the child.

Question 23

cohabitation agreement and property division

Answer 23

cohabitatnts agreeing to divide property a certain way is allow as long as agreement does not involve the explicit exchange of money for sex.

Question 24

division based on settlement agreement (marriage)

Answer 24

may be set aside based on fraud, overreaching, or duress, that results in a substantively unfair agreement.

Question 25

types of alimony

Answer 25

1. permanent alimony (long marriage, long gap between each parties economy prospects. does not end until death, remarriage, etc)
2. temporary alimony
   look at parties financial resources and needs, marital contributions and marital duration. TC has substantial discretion

Question 26

modificaiton and termination of alimony

Answer 26

modification: substantial and unanticipated change in circumstances
termination of alimony: death of either spouse, or a specified time has elapsed, or if there is a remarriage of the spouse receiving alimony

Question 27

Jurisdiction over divorce

Answer 27

Court only needs jurisdiction over one party. however, unless it has jurisdiction over both, it cannot issue a bidning order affecting personal rights, such as property divison or spousal support.

Question 28

jurisdiction to modify child support order

Answer 28

the state originally isssuing the order has continuing and exclusive jurisdiction to modify the order if
a. the obligee obligor, or child resides in teh state, and
one party does not consent to another forums jurisdiction

Question 29

home state test for child custody

Answer 29

the childs home state has exclusive and continuing jurisdiction to issue and modify a custody order unless more than six months have elapsed since hte child’s departure from teh state
2. a home state is the state where teh child lived with a parent or person acting as a parent for a t least six consectutive months immediately before child custody proceeding commences

Question 30

significant connections test:

Answer 30

if a child has no home state, a state may exercise jurisdiction based on significant connections with the child and least one parent, and the evidence of substantial evidence relating to child custody in the forum jurisdiction.