Family Law

Question 1

MARRIAGE

Answer 1

A. Who May Contract – almost all states “no-fault”; civil K between man & woman 18+; both liable for families necessities; tort liability requires agency relationship; 19 states recognize same-sex marriage; 13 in appeals process
B. Validity Requirements – CALF SAW
1. Consanguinity – can’t be closer kin than 2d cousins
2. Already Married Prohibition – no polygamy/polyandry
3. License – regulatory requirement; failure to obtain does not render marriage per se invalid
4. Filed Certificate – signed by witnesses and person who solemnized marriage, filed w/county auditor and state registrar of vital statistics
5. Solemnization – by authorized officer or person
6. Age of Majority – 18+, 17 w/parental consent or if parents of child; minors w/out parental consent must get permission from judge or commissioner
7. Witnesses – two witnesses physically present
C. Common Law Marriages – couple must cohabit, hold themselves out as married, enter into present agreement that they are married; prohibition on same-sex marriage for federal legal or marriage benefits unconstitutional. Windsor.
D. Registered Domestic Partnerships – SURE
1. Share household
2. Unmarried to another person
3. Registered in state
4. Eighteen or older

Question 2

Temporary Relief

Answer 2

always available; get w/motion at a hearing on Family Law Calendar

	1. Temporary Parenting Plan – establishes contact plan for children w/each parent & necessary safeguards for child; permanent plan entered when divorce finalized
		a. Best Interests Test – used to determine parenting plan
		b. Typical Provisions – 1) designation of primary residential parent; 2) residential schedule for contact w/child; 3) allocation of decision-making authority; 4) transport arrangements; 5) restrictions on contact (if any) 2. Temporary Child Support Orders – from Support Schedule; income imputed to parent voluntarily unemployed or underemployed for purpose of avoiding support 3. Temporary Restraining Orders – issued to prevent 1) disposal or concealment of property; 2) interference w/peace of OP or child; 3) entry into either party’s home; or 4) removing child from court’s jurisdiction 4. Protection Orders/Domestic Violence – to protect spouses or children who have been physically harmed or threatened; require showing of potential DV; separate from divorce proceedings

Question 3

Dissolution v. Legal Separation

Answer 3

process is identical; differences are:

1. Status of Marriage – Legal Separation: parties still married; Decree of Dissolution dissolves and parties can remarry
2. Reconciliation – LS: only have to dismiss case; DD: must remarry
3. Waiting Period – from date of service and filing before DD entered; no waiting period for LS; once LS entered, 180 before converted to DD upon simple motion by either party
4. Conversion to Dissolution – “Date of Separation” = date of final, permanent physical separation, not entry of LS

Question 4

Declarations Regarding Validity

Answer 4

either or both parties can petition for declaration: “annulment” (religious term saying marriage never consummated) or “invalid”=DD entered

	1. Jurisdiction – at least 1 party resident of court’s state
	2. Grounds for Declaration of Invalidity – DAFT LUV
		a. Duress – marriage voidable by induced/forced party
		b. Already Married – bigamy 
		c. Fraud – involving essential intentions of marriage; fraudulent promise to have kids or convert
		d. Too Closely Related (Consanguinity) – closer than 2d cousins
		d. Lacked Capacity – either party lacked mental capacity
		e. Underage – under 18 or w/out parental or court approval to marry
		f. Void Out of State Marriage – void or voidable in that state
	3. Timeliness – either party can petition at any time
	4. Effect on Children – legitimate despite invalid marriage

Question 5

Personal Jurisdiction Required

Answer 5

to impose financial burdens on spouse (child support, alimony)

Question 6

Foreign Divorce Decree Enforcement

Answer 6

FF&C if other spouse had reasonable notice & opportunity to be heard

Question 7

DISSOLUTION

Answer 7

A. Jurisdiction – must be domiciled and reside in state where brought; need PJ for property, UCCJEA
B. Venue – any county in state OK, or by agreement
C. Grounds for Dissolution – must only contain allegation that marriage “irretrievably broken”; misconduct only comes into play w/division of property
D. Mediation and Settlement – most dissolutions settled through mandatory mediation
E. Minimum Waiting Period – even if agree on all terms, 30-90 day waiting period still applies
F. Denial Required or Granted – typically approved; if one party fights it, court must find broken

Question 8

Property Subject to Division

Answer 8

court: 1) Identifies all property and debts; 2) Values the property; 3) Divides the property between the spouses – “a court should divide all property – joint, community, and/or separate – in a just and equitable distribution”
1. Marital Property – all property accumulated during marriage, no matter how titled, whether real, personal, income earnings, goodwill or reputation in business; value acquired during marriage
2. Separate Property – pre-marital acquired property/value (e.g., retirement account; home) and separate bequests, gifts; medium to long-term comingling can change character
3. Prenuptial Agreements – written and signed Ks; required FOG: Full disclosure of all material facts; Opportunity for both parties to seek independent counsel; Good faith

Question 9

Factors Affecting a “Just and Equitable” Distribution − DEP

Answer 9

1. Duration of Marriage – 5 yrs > “short term” court more likely to put back into original positions; 30 yrs+ “long term” marriage justifies equalizing assets & income
   2. Economic Circumstances – of each spouse @ time of separation
   3. Property Amount – character not controlling

Question 10

Joint and Separate Property Issues

Answer 10

court determination of property doesn’t control distribution

	1. Compensation – all income and earnings during marriage subject to division
	2. Goodwill – if capable of being valued, will be considered an asset and divided accordingly
	3. Joint v. Separate Property – increases in separate property kept separate; joint property created by joint contributions to separate property assets; interest reduced by benefit = or > contribution
	4. “Hidden” Joint Property – both parties hold as TIC; each 50% unless otherwise provided in DD

Question 11

Spousal Maintenance

Answer 11

determined case by case; court has a lot of discretion but considers:

	1. Need v. Ability – financial situation of both spouses, needs of maintenance seeker, ability of other spouse to pay
	2. Standard of Living – established during marriage and age, physical, emotional condition of spouse seeking maintenance
	3. Education – time necessary for spouse seeking to acquire sufficient education

Question 12

Modifications

Answer 12

even permanent alimony can be modified or terminated upon showing a change of circumstances; re-marry = lose spousal support; burden on party seeking modification

Question 13

Joint Responsibility

Answer 13

of both parents to support, right to be involved in lives

	1. Child’s Best Interest – guiding principle; try to foster relationships that currently exist; GAL
	2. Residential Schedule – court imposes minimum temporary support and residential schedule that supports child’s emotion growth, health, stability; look @ relationship between child and parents
	3. Stability Objective – maintain existing patterns of interaction between parents & child
	4. Termination of Parental Rights – requires clear evidence of parental surrender, abandonment, serious neglect, or unfitness

Question 14

Permanent Parenting Plans

Answer 14

allocate rights and responsibilities for minor children

	1. Primary Residential Placement – court must name 1 parent (where child spends 51% of time) to satisfy fed requirement of 1 “custodial parent”; doesn’t affect parental rights
	2. Residential Schedule – where child shall reside; noncustodial parent gets visitation rights
	3. Factors – parent’s historical involvement in day-to-day needs of child; sometimes kid’s wishes
	4. Decision Making – sole or joint assigned re: non-emergency health care, religious upbringing, education; past conflict, violence, geographic separation considered when awarding sole
	5. Dispute Resolution – process included to reduce judicial intervention; waived if history of DV
	6. Child’s Input – may be considered, doesn’t control; most states have “age of discretion” for kids
	7. Restrictions on Contact with Children – HARA - History of DV; Abuse of child physical, sexual, emotional; Refusal to perform parental functions; Abandonment for extended period of time
	8. Negative Parent Characteristics – see above

Question 15

Non-Parent Visitation

Answer 15

general rule is can’t petition; parents have fundamental rights; court can’t grant custody visitation rights to 3d parties (grandparents, aunts) over objection of fit parent; to survive constitutional challenge, must be able to show that there will be actual harm and detriment to child if visitation not allowed; custody: must show parent unfit, providing detrimental care to child; Truxell v. Granville

Question 16

Modification of Parenting Plan

Answer 16

substantial change of circumstances; current situation emotionally/physically detrimental to child; substantial deviation from PP; other parent held in contempt at least twice w/in 3 years; parents agree on need for modification

Question 17

Relocation

Answer 17

some states have notice requirements if moving out of school district; non-moving party can object and contest; courts look at: 1) relative strength of relationships between child & family members; 2) relative harm of disrupting relationship w/non-primary; 3) reason for relocation & good faith; 4) age, stage, needs of child and overall impact of move on development; 5) quality of live & benefits to child in new location

Question 18

Custodial Interference

Answer 18

crime in most state

Question 19

Failure to Comply

Answer 19

seek enforcement from court, have other parent found in contempt, petition for modification; can’t w/hold child support in retaliation for other parent’s failure to follow PP

Question 20

Child Support – SODA THIEF

Answer 20

all states required to have a formula

1. Standard Calculation – basic figure from State Support Schedule, divided between parents based on their portion of total household income
2. Other Expenses – shared by parents pro rata as they arise
3. Deviations – when extraordinary time spent w/paying parent; change in spousal resources
4. Adjustments and Modifications – courts review every 2 years; can’t be changed retroactively
5. Transportation – costs for achieving visitation considered; shared proportionate to income
6. Health Care – in excess of standard calculation shared pro rata
7. Insurance – court may order parent to obtain life insurance
8. Educational Support – no obligation to support beyond 18 or graduation from high school; court can impose post-secondary obligation based on: 1) ability of parents to contribute; 2) aptitude and ability of child; 3) whether either parent obtained post-secondary; 4) whether parents intended to contribute toward post-secondary ed while married
9. Federal Tax Exemptions – can be allocated to either parent; alternate between

Question 21

Uniform Parentage Act

Answer 21

Uniform Child Custody and Enforcement Act enacted by most states; establish legal relationship between parents and child
1. Presumption of Paternity – when child is born of a marriage or w/in 300 days of dissolution of marriage; or before marriage and father holds out as own, name on birth certificate; also if marries mother after birth and 1) signs acknowledgement of paternity and files w/registrar of vital statistics; 2) agrees to be and is named on child’s birth certificate; 3) promises in writing to support child as his own (acknowledges obligations; mother acknowledges his rights as parent)

Question 22

Determination of Paternity

Answer 22

a. Bringing Action – paternity action for declaring father-child relationship
b. Child as Party – not necessary party, but if court believes not adequately represented, court will appoint GAL (more common in denial of paternity actions)
c. Time Limit – can only commence denial of paternity action w/in 2 yrs of birth; doesn’t apply if 1) father and mother never lived together, or had sex during time of conception; 2) presumed father never treated child as his own
d. Genetic Testing – court can order in paternity action
e. Denial of Genetic Testing – PATCH – if genetic testing refused, presumed father adjudicated as father of child; decided by Probability of outcome, Assumption of father’s role, Time the moving party waited to bring action, Child age and Harm possible

Question 23

Surrogate Parentage

Answer 23

not all states recognize/accept

		a. Donors not Parents – of egg or sperm
		b. Consenting Father is Parent – failure to sign consent doesn’t defeat paternity if husband provided sperm or consents to assisted reproduction for wife

Question 24

Alternate Agreements

Answer 24

woman who births child from donated egg presumed mother unless written surrogacy agreement signed by donor, her doctor, donee, and other intended parents specifies otherwise; must be filed under seal w/registrar of vital statistics

Question 25

Adoption

Answer 25

heavy burden on moving party

	1. Consent – natural parent must consent in writing to adoption or termination of parental rights
	2. Notice – 20 days in-state; 30 days out-of-state for personal service; if personal service not possible, must provide notice 30 days prior to adoption via 1st class & certified mail; once a week for 3 consecutive weeks by publication beginning 30 days before hearing
	3. Legal Result of Adoption – adoptee becomes child, legal heir of adoptive parent; parental rights of original parent terminates

Question 26

Opening Argument

Answer 26

Family Law protects the rights of parties subject to marital dissolution, including children.

Question 27

Divorce

Answer 27

Almost all jurisdictions today are no-fault divorce states. The petitioning party need only allege that the marriage is “irretrievably broken.” If the dissolution is uncontested, it will be granted, usually after between 30-90 days.

Question 28

Jurisdiction

Answer 28

Jurisdiction usually vests if one party is a resident, and it is not necessary to acquire jurisdiction over both parties, so long as the petition spouse is domiciled in the forum state. However, personal jurisdiction over both parties is required for the court to divide property, or make decisions regarding maintenance, child custody, and child support.

Question 29

Division of property

Answer 29

Upon dissolution, the court will divide all property (separate and jointly owned) in a just and equitable fashion. To ensure such a division, the court will identify all property of the marital estate, value it, and divide it.

Question 30

Prenuptial Agreements

Answer 30

Prenuptial agreements require full disclosure, the opportunity for both parties to seek legal counsel, and good faith.

Question 31

Best Interests of the Child

Answer 31

In any proceedings involving children, the court will look to the “best interest of the child” as a standard to determine parents’ responsibility for their children.

Question 32

Permanent Parenting Plans

Answer 32

Parenting plans allocate parental responsibility for children, including residential schedules and decision-making authority.