Family Law

Question 1

Family Law Opening Statement

Answer 1

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

Question 2

What are the requirements for a valid marriage?

Answer 2

CALFSAW: consanguinity, not already married, licensed, filed certificate, solemnization, age 18 (unless parental consent or they are parents), two witnesses.

Question 3

What are the requirements for a common-law marriage (where allowed)?

Answer 3

The couple holds themselves out as married, cohabits, and enters a present agreement that they are married.

Question 4

What are the requirements for a domestic partnership?

Answer 4

SURE: share household, unmarried to another, registered in the state, and 18 or older.

Question 5

What temporary relief can be granted pending a dissolution?

Answer 5

Temporary parenting plans, child support, restraining orders, and domestic violence protection orders.

Question 6

What are the differences between a separation and a dissolution?

Answer 6

The process is almost identical, except that under a separation: the parties are still married, may simply dismiss their case if they reconcile, have no waiting period (vs. 30-90 day for disso, but 180 days before conversion into disso).

Question 7

What are the grounds for a declaration of invalidity?

Answer 7

DAFTLUV: duress, already married, fraud, too closely related, lacked capacity, underage, or a void out-of-state marriage.

• Need just one party to be a resident for jxn.
• Kids are still legitimate.
• Will enter decree of disso, will look just like disso if kids or property.

Question 8

Where can you get a dissolution?

Answer 8

A court can enter a dissolution if the petitioner is domiciled and resides in the state and either spouse has a significant relationship. Personal jxn is required to determine prop status or impose maintenance/CS. Venue is the county where either party or the child resides, or any other in the state by agreement.

Question 9

What are the grounds for dissolution?

Answer 9

Almost all states are now “no-fault” states; the petitioner need only allege that the marriage is irretrievably broken.

Question 10

How does a court divide property in a disso?

Answer 10

The court identifies it as separate or marital, values it, and divides it in a just and equitable distribution.

Question 11

What is required for a court to enforce a prenuptial agreement?

Answer 11

Full disclosure of material facts, opportunity for independent counsel, and good faith (no fraud/coercion).

Question 12

What are the factors affecting a joint and equitable distribution?

Answer 12

Duration of the marriage, economic circumstances, and the amount of property.

Question 13

How will a court determine spousal maintenance?

Answer 13

Balance need vs. ability to pay, retaining the standard of living, and the education level of the spouse.

Question 14

What is the standard for a modification of prop division, maintenance, custody, or CS?

Answer 14

The petitioner must show a significant change in circumstances, unforeseeable at the time of the original decree.

Question 15

Responsibility for Children Opening Statement

Answer 15

Both parents have the responsibility to provide support, necessities, and the costs of care and growth of their minor children. The “best interests of the child” standard is the guiding principle by which the court allocates these responsibilities in a divorce. (Look to maintain a child’s emotional growth, health and stability, physical care, and a relationship with each parent.)

Question 16

What must be shown to terminate parental rights?

Answer 16

Clear evidence of parental surrender, abandonment, serious neglect, or unfitness.

Question 17

What are the factors for deciding the primary residential parent and granting decision-making authority in a PP?

Answer 17

Res: historical involvement in meeting day-to-day needs, physical/emotional stability parent can provide (possibly wishes of children)
DM: same, but conflict, DV, or geographical separation may lead to sole authority

Question 18

When would a parent have restrictions placed on contact with children in a PP?

Answer 18

After willful abandonment for an extended period, refusal to perform parenting functions, physical/sexual/emotional abuse, or history of DV or drug use.

Question 19

What are the factors a court will consider regarding whether to allow one parent to relocate with the child?

Answer 19

Relative strength of relationships, relative harm of disrupting the relationship with the non-primary parent, good faith reasons, impact on child’s development, and quality of life at new location.

Question 20

How does a court determine child support?

Answer 20

Child support is based on a state schedule, taking into consideration both parents’ portion of the total household net income (treated as if they were still a family) after allowable deductions.
SODATHIEF: standard calc, other expenses pro rata, deviations (other CS, new spouse), adjustments/mods (every 2 yrs by statute, but not retroactive), transpo, health care, life insurance, educational support (secondary if ability, aptitude, intention), fed tax exemptions.

Question 21

Who’s the baby daddy?

Answer 21

Under the Uniform Parentage Act, a man is presumed to be the father if the child was born during the marriage or w/in 300 days after its termination; or, if after the child’s birth, he marries the mother and (a) files a written acknowledgement, (b) is named (by consent) on the BC, or (c) promises in writing to support the child as his own.

• Dad better challenge in two years unless they never cohabited and he never treated the kid as his own.
• If contested by anyone, court can require genetic testing and refusing presumed father will be adjudicated father.

Question 22

Do surrogates have parental rights?

Answer 22

Donors are not parents, consenting father is parent, woman who gives birth from donated egg is parent unless signed surrogacy agreement.

Question 23

What should I know about adoption?

Answer 23

Parental rights are terminated, and the child gets all rights and privileges of a natural child of the adoptive parents. The natural parent must consent in writing unless there was abandonment (may not seek to set aside adoption after one year).