Family Law

Question 1

Requirements for a Valid Marriage

Answer 1

1. Capacity to Consent
2. Marriable Age
3. Not Related (No Incest)
4. Single (No Bigamy)
5. License
6. Solemnization
7. Does not violate public policy in state w/ most significant relationship

Question 2

Common Law Marriage

Requirements

Answer 2

1. Agreement to be Married
2. Capacity to Consent
3. Living together (Cohabitation)
4. Holding out as Married

recognized in some states

Question 3

No-Fault Divorce

Answer 3

recognized in the majority of states - almost all states

Irreconcilable Differences + Separatation for Minimum Period

Question 4

Fault-based Divorce

Answer 4

recognized in majority of states - 2/3 of states

• adultery
• cruelty
• felony conviction
• desertion

Question 5

Annulment

Answer 5

marriage invalid from the start

1. fraud
2. inability to consummate the marriage
3. not allowed by law (incest, bigamy)
4. duress

Question 6

Child Custody

Answer 6

1. Best Interests of the Child Standard
2. **Sole or Joint **Custody
3. Legal Custody (make imp. decisions); Physical Custody (child lives with parent)
4. Modification permitted ONLY withsubstantial change of circumstances that were unforseen at the time of the initial judgment.

JURISDICTION
* HOME STATE TEST - 6 MO CONSECUTIVELY
* SUBSTANTIAL CONNECTIONS - CONNECTION TO PARENT; EVIDENCE OF CUSTODY IN FORUM JURISDICTION

Question 7

Child Support

Answer 7

Child support is generally based on
1. child’s monetary need
2. obligor’s ability to pay

Federal legislation requires all states use child support guidelines that create a rebuttable presumption that the support award is correct.

The award can only be modified if there is a substantial change in circumstances, which may include a change in income.
* If involuntary change in income (lost job) – warrants relief
* If voluntary change in income (chose to go to school; chose to take lesser paying job) – multi-factor test to assess whether parent acted in good faith; some states instead do not allow modification

Under federal law, any award modification is NOT retroactive. Can only modify future support payments.

JURISDICTION
UNIFORM INTERSTATE FAMILY SUPPORT ACT (UIFSA)
* STATE THAT ORIGINALLY ISSUED CHILD SUPPORT ORDER
* HOWEVER - ONLY CUSTODIAL PARENT CAN REQUEST SUPPORT FROM NONCUSTODIAL PARENT

Question 8

Rights of Fit Parents

Answer 8

Decisions by fit parents are given deference.

However, parental rights are not absolute.

Parental rights may be limited if the decisions will
* jeopardize the health or safety of the child OR
* have significant social burdens

Question 9

Rights of Biological Fathers

Answer 9

Involved biological father:
* right to oppose adoption petition
* right to notice of adoption proceedings

Question 10

Adoption

Answer 10

Adoption is a complete and final transfer of parental rights and responsibilities.

Question 11

Third-Party Rights

Answer 11

Custody Battle b/w Parent v. 3rd party:
there is a rebuttable presumption that custody in the parent is in the best interest of the child.

Question 12

Property Division by Premarital Agreement

Answer 12

Premarital Agreement is enforceable IF
1. voluntarily made - VOLUNTARY
2. substantively fair - FAIR
3. full disclosure of assets and obligations - DISCLOSURE

Question 13

Property Division by Settlement Agreement

Answer 13

Court may accept / reject / accept with modification

Court will set aside IF
* duress
* fraud
* overreaching
* substantively unfair

Question 14

Property Division

without Premarital Agreement or Settlement Agreement

Answer 14

Marital Property - subject to division at divorce
- wedding gifts
- gift: look to donor’s intent (intended for both parties?)

Separate Property - remains (BIG: $ before marriage, inheritance, gifts)

transmutation & intermingling - separate becomes marital

Question 15

Spousal Support

Purpose, Types & Determination of Amount

Answer 15

Purpose: Provide adequate income for spouse whose economic dependency resulted from the marital relationship.

Types:
* Permanent - awarded to party w/ no resources or ability
* Temporary - awarded to allow for education/training time
* Lump Sum -

Determination of Amount
* Financial resources
* Needs of party
* Marital contributions
* Duration of the marriage
* Standards of living during the marriage
* Age, physical, emotional conditions of both parties
* Time needed to obtain education or training
* Marital fault (some states)

Modification permitted IF unforeseen substantial change in circumstances.