Family Law

Question 1

Prenumps

Answer 1

• Child custody provisions – invalid
• Enforcement
o Agreement must be entered into voluntarily;
o Must be in writing
o Full and fair disclosure of financial worth; and
o Fair and reasonable

Question 2

Rights and Responsibilities of Spouses

Answer 2

• Tenancy by Entirety – if spouses take tile to RE in joint names. Includes right of survivorship and prohibits conveyance or encumbrance by one spouse. Upon dissolution, they become tenants in common.
• Marital property – property acquired during marriage.
• Support – P-A relationship

Question 3

Annulment

Answer 3

• Annulment – declaration marriage is invalid bc an impediment at time of marriage
o Void Marriage – complete nullity. No subsequent act can ratify and don’t need court order. However, if impediment is removed, the marriage becomes valid if parties continue to cohabit.
o Voidable marriage – deemed valid, but bc of an impediment that existed at time of marriage, one of the spouses may bring an action to have it declared invalid.
o Grounds
 Bigamy or Polygamy – if either has living spouse. (void(
• Tip for if prior marriage not successfully ended – 1)strong presumption marriage is valid; 2) if prior marriage terminated by divorce or annulment, continued cohabitation validates the second marriage under UMDA.
 Consanguinity- marriages b/w parties too closely related (void)
 Nonage – under statutory marriage (voidable)
 Incurable physical impotence – inability to have normal sexual relations (voidable)
• If ability to have children was misrepresented, marriage may be annulled on grounds of fraud
 Lack of capacity – 1) lack of understanding due to mental condition; 2) lack of mutual assent; 3) duress; or 4) fraud going to the essentials of marriage (misrepresentation).
o Defenses
 Deny existence of defect.
 Ratification – in common defense in an action to annul a voidable marriage.
 Laches, estoppel – may be used

Question 4

Divorce

Answer 4

o No-fault divorce – requires showing that: 1) the marriage is irretrievably broken (irreconcilable differences or incompatibility); and/or; 2) the parties have been living apart for specified time.
o Fault Grounds
 Usual: adultery, willful desertion for specified time, extreme physical or mental cruelty, voluntary drug addiction or habitual drunkenness; and a spouse’s mental illness
• Defenses:
o Collusion - agreement b/w spouses to simulate grounds for divorce or forgo raising a valid defense;
o Connivance – willing consent by one spouse to the other’s misconduct (adultery cases);
o Condonation – forgiveness of marital offense with full knowledge of their commission;
o Recrimination – not on the books

Question 5

Division of Property

Answer 5

o 3 approaches: 1) community property – all property acquired during the marriage is deemed owned ½ by each spouse, and all property brought into marriage or acquired by gift or bequest is separate property); 2) equitable division of all property – owned by either spouse, whether acquired before or after the marriage; and 3) equitable division of all marital property – each spouse takes his separate property and ct divides property acquitted during marriage (not modifiable).
o Factors considered:
 Age, education, background and earning capacities of both parties
 Duration of the marriage and if there were any prior marriages;
 Std of living during the marriage;
 Present incomes of both parties;
 Source of money used to purchase property;
 Health of parties;
 Assets, debts, and liabilities of the parties;
 Child custody
 Whether distribution is in addition to spousal support;
 Each party’s opportunity to acquire future assets and income;
 Each party’s contributions to acquire future income and assets; each party’s acquisition of, or enhancement of the value of marriage assets;
 Each party’s contribution as homemaker to family;
 Whether either party has dissipated marital property
o Separate property – each spouse can take the sep property that she owned prior to marriage and any separate property acquired during marriage by gift, bequest, or descent;
o Marital Property – all prop acquired during marriage subject to equitable distro by court:
 Pensions, professional license or degree; damage award in tort suit; stock options;
 Mixed property – may become marital property if mingled with marital property to point it can’t be traced; separate property is treated in a way that evidences an intention for the property to be marital. When sep property is improved by use of marital funds, courts hold that property remains separate property.

Question 6

• Spousal Support

Answer 6

o May be awarded while parties still married, during pendency of a divorce proceeding, and as part of divorce decree. Fault generally not considered.
o Amount – great discretion. Factors like 1)duration of marriage and std of living; 2)age and physical emotional condition of parties; 3)financial resources of the parties; 4)time needed for party seeking support to obtain training necessary to find appropriate employment; contribution of each party to marriage; and ability of the payor spouse to meet his needs while paying spousal support.
o Types:
 Permanent periodic spousal support – paid regularly (monthly) to support a spouse who can’t self-sustain
 Rehabilitative spousal support – periodic pmts for limited time enable spouse to gain skills to become self-supporting
 Lump sum (a total amount, even if periodic)
o Termination – terminates on death of either spouse or remarriage of recipient spouse- some terminate if recipient enters cohabiting or conjugal relationship.

Question 7

• Child Support

Answer 7

o Both spouses share equal duty to support their children (usually based on formula).
o Duty to support ceases at 18, the child’s marriage, TPR, or death of supporting parent.

Question 8

• Modification of Spousal Support and Child Support Awards

Answer 8

o Spousal – only periodic spousal support may be modified – if SUBSTANTIAL CHANGE IN CICUMSTANCES regarding needs of recipient spouse or ability of payor to pay.
 Self-induced reduction in income not sufficient to have support reduced.
o Child Support – modifiable based on SUBSTANTIAL CHANGE IN CIRCUMSTANCES – affecting the needs of the child or the ability of parent to pay (employment, growth of child, inflation, income, retirement, illness)

Question 9

• Enforcement of Awards

Answer 9

judgment, seizure of RE, attachment of wages, order of pmt of attys fees; wage withholding.

Question 10

• Separation agreement

Answer 10

parties live apart during marriage and resolve economic issues (spousal support, property division, child support and custody rights)

Question 11

• Initial Custody Determination

Answer 11

o Primary Test – Home State Jurisdiction (MOST IMPT- - FREQUENTLY TESTED) – ct has jurisdiction to enter or modify child custody or visitation order if the state 1)is the child’s home state; or 2) was child’s home state within past 6 months and child is absent from state, but parents or guardian continues to live there.
 Child’s home state – state which child lived with parent for at least 6 consecutive months before commencement of proceeding.
o When Home State Doesn’t Apply – Ct has jurisdiction to enter or modify if no other state has or accepts home state jurisdiction and 1)the child and at least one parent have significant connection with state, and 2) substantial evidence concerning child available in the state.

Question 12

• Exclusive continuing jurisdiction

Answer 12

where custody or visitation determination was made until ct determines 1) neither child nor parents continue to reside there; or 2) child no longer has significant connection with the state and substantial evidence relating to matter no longer available.

Question 13

• Best Interest of Child Standard

Answer 13

o Standard applied in awarding custody and visitation is best interest of the child. Factors include: wishes of the child and parents, the child’s relationship with the parents, siblings, and others; child’s adjustment to home, school, and community; and physical and mental health of individuals involved
 Child preference – if over 12, their preference is significant. Younger (under 8) can be disregarded or given little weight.
 Effect of Primary Caregiver Status – preference cannot be shown to one parent bc of gender or financial ability. If it’s a tie, award goes to primary caregiver (most active in child’s day-to-day life).

Question 14

• Joint Custody

Answer 14

o In determining whether joint custody is appropriate, courts often consider: fitness of both parents, whether the parents agree on joint custody, parents’ ability to communicate and cooperate concerning child’s well-being, child’s preference, level of involvement of both in child’s life, geographical proximity of 2 homes, similarity or dissimilarity b/w the 2 homes, effect of award on child’s psychological development; and parents’ ability to physically carry out order.

Question 15

• Counsel for Child

Answer 15

o Most cts may appoint counsel or ad litem for child in custody dispute – but done only when counsel can provide substantial assistance in reaching result of child’s best interest.

Question 16

• Visitation

Answer 16

o When sole custody, other parent has to get reasonable visitation rights
 Limitation—ct can limit if parent engages in injurious conduct, but denial is rare.
 Removal of Child from Jurisdiction – if motivated by benefit to parent and not to frustrate visitation rights
 Remedy – contempt
o Enforcement – contempt, equity, UCCJEA.

Question 17

Nonmarital Children

Answer 17

• Nonmarital child – one born to an unmarried woman
• Presumption of Marital Child – child of a married woman is presumed to be child of her husband
• Every child is lawful child of his mother, but is the lawful child of his father only if: the parents were married after child’s birth, father holds out child as his, consents to be named on birth certificate, or judicial decree
• Suit to Establish Paternity
o May be brought by child, mother, or state. Once established, duty of support attaches, and rights to visitation and custody may be asserted by father.
 SOL – tolled during child’s minority, limitations period is more than 18 years
 Evidence – Admissible evidence includes – exhibition of child to show resemblance, stmts regarding paternity, medical testimony, blood or genetic tests.

Question 18

• Parental Autonomy

Answer 18

o Parents have authority to make decision concerning upbringing of child, but some state interests take precedence over parental autonomy (abuse and neglect, compulsory education)
o If kid is bad – cts can pursue ordering counseling, placing child under supervision of social worker, or state agency
o TPR –
 DP required – right to counsel. Grounds for termination must be CCE.
 Grounds – include infliction of serious physical harm on child, sexual abuse, abandonment, neglect or deprivation failure to provide support without justifiable cause; mental illness or retardation making parent incapable, and parental unfitness

Question 19

• Custodial disputes b/w parents and 3rd parties –

Answer 19

decision doesn’t rest solely on child’s best interest – natural parent has right to raise child and absent voluntary relinquishment, the parent entitled to custody unless shown parent is unfit. Ct may find circumstances, biological parent lost right to rear child.

Question 20

Adoption

Answer 20

• Legal proceeding terminating relationship b/w child and biological parents and establishing new relationship with adopted parents.
• Procedural Consideration –
o Consent of Natural Parents – consent required, but not dad if parents unmarried
o Rights terminated – parental consent not necessary if parental rights have been terminated
o Waive if Unreasonably Withheld – Parental consent can be waived if ct concludes being unreasonably withheld against best interest of child
o Rights of unmarried fathers – if dad wants to veto, ct considers level of his involvement with kid
o Consent of adoptee – if 12 or above, gotta consent
o Can’t- withdraw consent for adoption, or pay money for kid.