Family Law

Question 1

Definition of Marriage

Answer 1

A civil contract between parties.
Requirements:
–Parties must be legally capable of consent AND
–There must be exchange of consideration (exchange of promises)

Note: marriage k can’t be modified or terminated without state intervention

Question 2

Requirements for a ceremonial/statutory marriage

Answer 2

General Rule: Parties must obtain a license and participate in a ceremony.

1. License
   Requirements:
   –Need capacity to marry (different places have different age restrictions, can still do it with parental consent if too young)
   –Waiting period between date of marriage and date of ceremony
   –Medical testing: State can mandate testing but can’t condition a license on the results
   –Expiration Date: most states impose an expiration date on a marriage license

License WONT be issued if:

• -One party is married to someone else
• -the parties are too closely related
• -the marriage is a “sham”
• -Either party incapable of understanding the nature of the act
• -One or both parties is under the influence of drugs or alcohol
• -A party lacks consent due to duress or fraud

Same-Sex Marriage: permitted in all states. All states and federal govt must recognize a same-sex marriage legally entered into in another state.

2. Solemnization (ceremony)
   - -Ceremony must be performed in front of two or more witnesses
   - -A judge, political official, or member of the clergy must solemnize a marriage

Question 3

Common Law Marriage

Answer 3

1. Requirements: the parties AGREE they are married, COHABIT as married, and HOLD themselves out to the public as married.
2. Recognition of common law marriage: only some states.
   - -Under conflict of law principles, a marriage that is valid under the law of the place in which it was contracted is valid elsewhere unless it violates a strong public policy.
3. Mental Capacity: same as that required for a ceremonial marriage
4. Intent: must be evidenced by words in the present tense (eg we are married)

Question 4

Heartbalm Action

Answer 4

Assume the jx has abolished this but basically allows a civil suit for money damages when someone is left at the altar or something like that.

Question 5

Ending a Marriage:

Annulment

Answer 5

Voids a marriage and declares it as having never been valid.

1. Void Marriage: treated as if it never happened; doesn’t have to be judicially dissolved; not legally recognized for any purpose; anyone can void it
   - -Prior Existing Marriage
   - —->The second marriage is void. Some states allow marriage to become valid is one party had a good faith belief that the marriage was valid and the impediment is removed.
   - —->Rebuttable presumption of validity of the latest marriage
   - -Incest: a prohibition on marriage between related spouses
   - -Mental Incapacity: A person who is unable to understand the nature of the marriage k lacks capacity to marry
2. Voidable Marriage–valid until a judicial decree dissolves the marriage.
   - -Grounds: age, impotence, intoxication, fraud, duress, or lack of intent to be married.
3. Equitable Distribution of Property in Annulment: a party may request an equitable distribution of property, spousal support, child support, custody, atty’s fees, and other costs related to the dissolution of the marriage.
4. Children: children of an annulled marriage are considered marital children.
5. Defenses:
   - -Void Marriage: the only defense is to deny the existence of the impediment that makes the marriage void. Removing the impediment makes the marriage voidable.

–Voidable Marriage: equitable defenses of unclean hands, laches, and estoppel are recognized.

6. Putative marriage doctrine: a party who participated in a ceremonial marriage and believes in good faith that the marriage is valid may use a state’s divorce provisions even if the marriage is later found to be void.

Question 6

Ending a Marriage:

Divorce and Separation:

Grounds for Divorce & Defenses

Answer 6

1. Grounds for divorce:
   - -No fault:
   
   • ——> The marriage is irretrievably broken and there is no prospect of reconciliation.
   • ——-> The irreconcilable differences must exist for a specific period of time prior to the filing of the divorce axn.

• -Fault (possibly increases spousal support, prop division, custody, etc)
  
  • ——>Adultery: must be shown that the spouse had the opportunity and the inclination to commit adultery, usually proven by circumstantial evidence
  • ——>Cruelty: extreme or repeated physical or mental cruelty
  • ——–>Abandonment: one spouse voluntarily abandons other with the intent to remain apart permanently (doesn’t apply if both parties agree to separate)
  • ——–>Habitual Drunkenness: frequent intoxication that impairs the marital relationship (unless knew b4 marriage)
  • ——>Bigamy
  • ——>Imprisonment of one spouse for a specified period of time
  • ——>Institutionalization for insanity: with no rsbl prospect of discharge or rehab

2. Defenses to Fault-Based Divorce: must be affirmatively pleaded
   - -Recrimination, unclean hands (i.e. both cheated), connivance, condonation, collusion, provocation, insanity, consent, justification, religion

Question 7

Ending a Marriage:

Divorce/Separation:

Division of Property–Community Prop & Equitable Distribution

Answer 7

2 major ways to approach prop division: minority of states apply community prop (equal division). Common law states (maj) apply equitable distribution (equitable division)

1. Community Property: minority
   - -Most CP states require equal division of marital property
2. Equitable Distribution: majority
   - -The objective of an equitable distribution system is a FAIR distribution of marital property, not necessarily an equal division

Question 8

Ending a Marriage:

Divorce/Separation:

Division of Property–Marital Property Def and Factors for calculating distribution of marital property

Answer 8

~In equitable distribution states, marital property = all prop acquired during the marriage. This is the presumption, burden of proof is on spouse to assert that prop is nonmarital

~Nonmarital Prop: separate prop

• -Prop acquired before marriage
• -Prop excluded by parties’ valid agreement
• -Prop acquired by gift or inheritance (except for gifts between spouses)
• -Any award or settlement payment received for a cause of axn or claim that accrued before the marriage, regardless of when payment was received.

~Factors for calculating distribution of marital prop:
–length of marriage, prior marriages, age, health, earnings, earning potential liabilities, and needs of both spouses; contributions to education; income, medical needs, retirement of both spouses; homemaking and child rearing services; value of separate property; reduction of valuation in marital prop by one spouse; std of living; economic circumstances of each spouse at time of divorce; custody of any minor children

Question 9

Ending a Marriage:

Divorce/Separation:

Division of Property–Treatment of specific types of marital property

Answer 9

~Professional licenses/degrees–not a property interest, but can affect alimony

~Retirement or Pension benefits–marital prop if acquired during the marriage

~Personal Injury claim proceeds/workers’ compensation award

• -Some states: if the cause of axn accrued during the marriage, the proceeds or award are marital property
• -Other states: allocate the proceeds or award between marital prop and separate prop
  
  • —> Dmgs for pain/suffering/disability: SP of the injured spouse
  • —> Consortium losses: SP of the non-injured spouse
  • —-> Awards for lost wages, loss of earning capacity, and medical expenses–typically split between MP and SP based on the portion of the award attributable from the time of the accident to the end of the marriage (MP) and the portion attributable to loss of wages or medical expenses after the termination of the marriage (SP)

~Goodwill: the reputation and clientele of a professional practice is considered marital prop in some states

~Accumulated sick and vacation days: states split on classification, timing

~Expectancy interest in property: not distributable

~Social Security Benefits: not subject to equitable distribution

~Post-Separation property: can be marital prop (in most states)

~Unexercised Stock Options: marital prop if acquired during marriage

Question 10

Ending a Marriage:

Divorce/Separation:

Division of Property–Tax Consequences

Answer 10

–Transfer of prop between divorcing spouses is tax-free

–Transferee’s basis in prop = same as transferor’s basis

Question 11

Financial Support of Spouses & Children: Alimony & Alimony Factors

Answer 11

A. Spousal Maintenance (alimony): one spouse’s monetary obligation to provide the other spouse with financial support. Awarded if that spouse can’t provide for his own needs.

1. Factors: typically included financial resources, prop to be awarded in divorce, child support, spouse’s earning potential, and other spouse’s ability to pay support; spouses’ std of living; time to find employment or complete any education or training necessary for a job; length of marriage; contribution to marriage (particularly those that enhanced the earning potential of the other spouse); age and physical and mental health of each spouse; marital misconduct.

Question 12

Financial Support of Spouses & Children: Types of Alimony Support

Answer 12

Lump Sum: a fixed amount, can’t be modified.

Permanent: an award for the remainder of the dependent spouse’s life (unless certain circumstances occur); typically awarded only when the marriage was one of long duration (15 yrs or more)

Limited Duration: typically awarded when the marriage was of short duration, but there is still an economic need for support

Rehabilitative: to enhance and improve the earning capacity of the economically dependent spouse; limited period of time, such as until spouse receives education or employment

Reimbursement: to compensate a spouse for financial sacrifices made during the marriage that resulted in a reduced std of living to secure an enhanced std of living in the future.

Palimony: support provided by one unmarried cohabitant to another after the dissolution of a stable, long-term relationship (available in only a few states)

Question 13

Financial Support of Spouses & Children: Modification of Alimony Support

Answer 13

–the party seeking modification typically has the burden of establishing a significant change in circumstances in the needs of the dependent spouse or financial abilities of the obligor that warrant the modification

–Willful or voluntary reduction in income: no reduction in support payments

–Death of spouse: terminates support

–Remarriage: if the receiving spouse remarries, support may be terminated

–Cohabitation: if the receiving spouse cohabits with someone who is not family, then spousal support may be modified if the recipient spouse’s need for the support decreases as a result of the cohabitation (not automatic)

–Retirement: effect depends on jx

Question 14

Financial Support of Spouses & Children: Alimony Tax Consequences

Answer 14

Spousal support payments are treated as income to the recipient, and are deductible by payor

Question 15

Financial Support of Spouses & Children: Child Support

Child’s Right to Support

Answer 15

Both parents, regardless of marital status, are legally required to support their minor children.

Visitation rights can’t be denied for nonpayment of support

Parents can enter into private agreements regarding child support payments but they cannot agree to any release or compromise that would negatively affect the child’s welfare.

Question 16

Financial Support of Spouses & Children: Child Support

NonMarital Children

Answer 16

Cannot be denied child support, govt benefits, or wrongful death claims.

May inherit from their father’s estate so long as paternity proved prior to father’s death

Can become marital children when the parents marry after the child’s birth, the father consents to being named on the birth certificate, the father acknowledges that he is the father, OR a judicial decree establishes paternity.

Question 17

Financial Support of Spouses & Children: Child Support

Paternity

Answer 17

~Evidence to establish paternity:

• -Blood tests ordered by the court
• -Prior statements regarding paternity by deceased family members
• -Medical testimony on the probability or improbability of conception
• -D’s acknowledgement of paternity

~Time limit on filing of paternity petition: unconstitutional unless there is a rsbl opportunity to pursue such an axn and the limit is substantially related to the govt’s interest in restricting such an axn.

~Marital Presumption; child born to married woman is the child of that woman and her husband,

~Estoppel: a husband who isn’t the biological father of his wife’s child may be estopped from denying his obligation to pay child support WHEN:

• -There’s a representation by the husband that he would provide for the child, +
• -The wife relied on his representation, AND
• -The wife suffered an economic detriment as result of the reliance

Question 18

Financial Support of Spouses & Children: Child Support

Personal JX over an out-of-state parent

Answer 18

A court obtains PJ over an out of state parent pursuant to a long-arm provision in the Uniform Interstate Family Support Act.

Question 19

Financial Support of Spouses & Children: Child Support

Amount of Child Support

Answer 19

Based on child support guidelines. Determination of parental income for purposes of child support typically includes income from any source.

1. Methods of calculating support:
   - -Income-Shares Model: Combine net income of both parents to determine correct percentage (goal is to make sure child receives the same as if the parties continued to live together (maj)
   - -Percentage of Income Model: Determines the minimum amount of child support by using a percentage of the supporting (ie non custodial) parent’s net income, determined by the number of children supported.
2. Deviations from Child-Support Guidelines
   - -Rebuttable presumption that the amount calculated pursuant to the guidelines is correct.
   - -If the court decides to deviate from the guidelines, it must set forth specific findings explaining and supporting the deviation
   - -Once a child-support award has been paid, the obligor is not permitted to monitor how the money is expended.
   - -The cost of providing medical insurance for the child is included in the child-support award (most states).

Question 20

Financial Support of Spouses & Children: Child Support

Modification/Termination of Support/Jx for Mod of Support/Tax Consequences

Answer 20

1. Modification of Support
   - -Standard: a substantial change in circumstances regarding the child’s needs or the parents’ financial situation
   - -No reduction bc of voluntary reduction in the obligor’s pay
2. Termination of Support
   - -Child reaches the age of majority, child marries, parental rights are terminated, or child or parent dies.
   - -Extensions: child in college, disabled adult child who is unable to support himself
   - -A parent can be required to buy life ins on his life for child’s benefit.
   - -Support may be terminated by emancipation
3. Jx for Modification of Support
   - -UIFSA–expands the long arm jx over non resident parents to enforce a child support order and to counter forum shopping
   - -The child’s home state has continuing jx over modification matters as long as at least one parent still resides in that state
   - -Tax Consequences: child support is nondeductible and nontaxable

Question 21

Financial Support of Spouses & Children: Child Support

Enforcement of Awards

Answer 21

Full Faith and Credit for Sister State Orders: if payor moves out of state, the UIFSA applies. It says that a child support order in one state is enforceable in another state. No second child support axn needed in new state.

Remedies if obligor fails to pay child support:

• -civil contempt
• -criminal contempt
• -wage garnishment
• -suspend driver’s licenses
• -withholding tax refunds.

Question 22

Child Custody: Definition/Types

Answer 22

Legal Custody: right of parent to make major decisions of child’s life

Physical Custody: Right of parent to have child reside with him and the obligation to provide for routine daily care and control of child.

Joint Custody: Parents must be both willing and able to cooperate with respect to the wellbeing of the child.

• -Joint Legal Custody: neither parent has a superior right to make major decisions
• -Joint Physical Custody: doesn’t necessarily require 50-50 time sharing arrangement

Question 23

Child Custody: Uniform Child Custody Jx and Enforcement Act (UCCJEA)

Answer 23

1. Purpose: to prevent jurisdictional disputes with courts in other states on matters of child custody and visitation.
2. Initial Custody Determination (home state jx)
   - -Ct has subject matter jx to preside over custody hearings and either enter or modify custody or visitation orders if the state is:
   
   • -> the child’s home state and has been the home state for 6 mos or since birth if child is was the child’s home state in the past 6 mos and the child is absent from the state now but a parent or guardian continues to live in that state.
3. Significant Connection Jx: Ct can enter or modify an order if:
   - -No other state has or accepts home-state jx
   - -The child and at least one parent have a significant connection with the state, AND
   - -There’s substantial evidence in the state about the child’s care, protection, training, and personal relationships.
4. Default Jx: if no state has jx thru home-state or substantial connection jx, court in the state with appropriate connections to child has jx.
5. Exclusive-Continuing Jx: a court that makes ruling has exclusive jx over matter until parties no longer reside in state, or child no longer has significant connection to state.
6. When Court can decline jx–if ct has either initial or exclusive-continuing jx it may decline to hear the case if it finds the forum to be inconvenient.
7. Temporary Emergency Jx: child is in danger and needs immediate protection.
   - -if there’s no prior custody order, an emergency order remains in effect until a decision is made by the child’s home state
8. Enforcement of another state’s orders:
   - -Need to register other states’ order–doesn’t need to be accompanied by enforcement request.
   - -If requesting expedited enforcement of a child-custody determination–a hearing is held on the first judicial day after service of the order (or on the first possible judicial day)
   - -Warrant for Child Custody: if the child is likely to suffer serious physical injury or be removed from the state.

Question 24

Child Custody: Best Interests of the Child Standard

Answer 24

1. Standard for determining child custody: “best interests and welfare of the child”

–Between Parents: the primary caretaker during the marriage, separation, and prior to the divorce is a factor

–Race, Religion: cannot be used as factors determining custody

–Parents’ Sexual Conduct: a factor only if the parent’s conduct has or will have a negative effect on the child

• -Third Party Rights:
  
  • ->Parents presumptively entitled to custody of their children in cases against third parties
  • ->Exceptions: the legal parent is unfit or parental custody would be detrimental to the child

–Child’s Preference: taken into account if the child is of sufficient maturity

–Guardian ad litem: a court appointed atty to advocate for the child’s preferences and act on her behalf.

–Siblings: generally not separated from each other

• -Domestic Violence: almost always a factor:
  
  • ->Some states have created rebuttable presumptions in favor of the nonabusive spouse

Question 25

Child Custody: Visitation

NonCustodial Parent & Third Parties

Answer 25

1. Noncustodial Parent: allowed rsbl visitation (or “parenting time”) with a minor child

• -Denial of visitation only when it would seriously endanger a child’s physical, mental, or emotional health
  
  • ->Restrictions: (eg supervision, no overnight visits) may be imposed.

–Sexual Relationship or Cohabitation: can be used as basis for restriction only if there’s an adverse impact on the child.

–A parent can’t be denied visitation for failure to pay child support

2. Third Parties

–A fit parent has a fundamental right to the care, custody, and control of his children; the parents’ decisions regarding third party visitation must be given special weight therefore.

• -Visitation is sometimes granted to stepparents and same-sex nonbiological co-parents.
  
  • -> Typically limited to individuals who acted like parent with the child prior to the divorce

–Grandparent visitation: subject to the special weight given to a fit parent’s decision

–Unwed biological father: has a fundamental right to have contact with his child if he demonstrates a commitment to the responsibilities of parenthood

Question 26

Child Custody: Enforcement; Modification; Termination

Answer 26

1. Enforcement: Sanctions: eg compensatory visitation, atty’s fees, court costs, fines, jail time
   - -Tort dmgs awarded to parent for the period of time that the child is wrongfully out of the parent’s custody.
2. Modification: Change in circumstances std (maj)
   - -Relocation: may be permitted if there’s a legitimate and rsbl purpose for the move.
3. Termination–a child custody order terminates upon the child reaching the age of majority
   - -Death of custodial parent: surviving parent is typically awarded custody of the child.

Question 27

Child Custody: Parental Consent re Medical Care and Upbringing

Answer 27

1. Medical Care:
   - -Parental consent must be obtained regardless of the parents’ marital status except in the case of an emergency.
   - -A parent’s religious beliefs can be overridden by a court to prevent serious harm to the child
2. Upbringing: a parent has a right to raise her child as she sees fit, including decisions relating to the child’s religious upbringing

Question 28

Marital Agreements:

Types of Marital Agreements

Answer 28

1. Premarital Agreement: a valid marriage is sufficient consideration
   - -many states: a premarital agreement must expressly state its applicability to divorce
2. Separation Agreement
   - -can define prop division, spousal support, child support, custody, and visitation
   - -Generally merged into the final judgment for divorce or else governed by contract law
3. Property Settlement Agreement
   - -can settle economic issues; entered into by parties before a divorce decree is issued.

*If any sort of agreement (most likely settlement or separation) is mediated by a mediator, the mediator must be impartial and fair, and must disclose conflicts of interest. Also must educate about process of mediation, and possibly must inform the spouses that they can obtain independent legal counsel.

Question 29

Marital Agreements: Validity of Marital Agreements

Answer 29

~Generally:

• -A premarital agreement is enforceable IF:
  
  1. FULL DISCLOSURE of financial status of each party at the time of execution
  2. Agreement is FAIR and RSBL, and
  3. Agreement is VOLUNTARY
     
     • Must be in writing and signed by the party to be charged.

~Modification of marital agreements

• -provision that prevents modification of property rights (including spousal support) is permitted
• -Provision that prevents the modification of the child support is NOT enforceable.

Question 30

Marital Agreements:

Agreements between unmarried cohabitants

Answer 30

1. Cohabitation Agreements: a k between unmarried persons is invalid if the only consideration is sexual relations; otherwise, generally enforceable
2. Property Division between unmarried cohabitants: equitable prop distribution to avoid unjust enrichment (eg resulting trust, constructive trust, etc)

Question 31

Relationship Between Family and the State:

Adoption: voluntary termination of parental rights

Answer 31

1. Adoption results in termination of a natural parent’s rights.

~Voluntary termination: the biological parents give up their parental rights of the minor child and consent to the child’s adoption by the adoptive parents.

• -Unwed father
  - ->Consent by failure to register: constitutes a waiver of the right to notice of the adoption and irrevocably implies his consent to the adoption
  - ->Right to object can be denied if the father doesn’t demonstrate a commitment to the responsibilities of parenthood.
• -Prospective Adoptee must consent to his adoption if he is over 14 years old.

Question 32

Relationship Between Family and the State:

Adoption: involuntary termination of parental rights

Answer 32

~Involuntary termination of natural parents’ rights by Court

• -Typically occurs as part of an abuse, neglect, or dependency case, or when consent to adoption is unrsbly withheld
• -Includes abandonment or abuse of sibling, termination of parental rights over a sibling
• -Adoption and Safe Families Act: a state can move for termination of parental rights when the child has been placed outside of the home and not with a relative for 15 of the last 22 months, provided certain reunification attempts have been provided by the state.
• -Some States: an adoption is permitted if a parent has abandoned the parent-child relationship
  
  • ->Objective test: parent has failed to act in a way that indicates a commitment to maintaining the parent-child relationship
  • ->Subjective test: parent subjectively intended to abandon the parent-child relationship

Question 33

Relationship Between Family and the State:

Adoption: Legal Effects of Adoption

Answer 33

–Adoptive parents have all of the rights and responsibilities of the biological parents; adopted child has all of the rights and responsibilities of a biological child

–Most states: no visitation is permitted between the adoptee and her biological parents

Question 34

Relationship Between Family and the State:

Uniform Parentage Act: Assisted Reproduction

Answer 34

1. Assisted Reproduction

–Maternity is determined by woman who gives birth to child

–Husband of mother is the child’s father

Question 35

Relationship Between Family and the State:

Uniform Parentage Act: Gestational Agreement (Surrogacy)

Answer 35

All parties must enter the agreement voluntarily

• -Intended parents agree to be parents of the resulting child
• -Agreement must make provisions for the proper medical care
• -Agreement may not limit the right of the gestational mother to make healthcare decisions
• -Consideration to the gestational mother must be reasonable
• -Agreement may be terminated for cause by any of the parties, or the court, prior to the gestational mother’s pregnancy
• -Agreement that isn’t approved by the court is unenforceable.

Question 36

Relationship Between Family and the State:

Domestic Violence

Answer 36

1. Perpetrator of Violence: must be in relationship with the victim or a household/family member; generally requires a continuum of behavior, but a single episode may qualify.
2. Relief granted: an injunctive order prohibiting defendant’s further abuse of and contact with victim; can also include exclusive possession of residence, child custody, and support
3. Process: ex parte order with limited relief, followed by a hearing, after notice to defendant, on petition for permanent relief; violation of the order can trigger criminal penalties

Question 37

Relationship Between Family and the State:

Rights and Obligations of Children

Answer 37

1. Right to consent to medical care:
   - -May consent to medical treatment if over a certain age
   - -May obtain abortion, birth control, treatment for STD without parental consent.
2. Liability for Tort/Crim acts: children judged by more moderate std
3. Emancipation: child has all the duties and obligations of an adult; parents have NO duty to support

Question 38

Substantive Rights of Unwed Father

Answer 38

An unwed biological father has a substantive due process right under the U.S. Constitution to have contact with his child. This right exists only when the father demonstrates a commitment to the responsibilities of parenthood.