Family Law

Question 1

Premarital Contracts

Answer 1

Courts will enforce if:

1. entered into voluntarily
2. in writing signed by party to be charged
3. both parties make full and fair disclosure of financial worht
4. economic provisions are fair and reasonable

Common Defenses:

1. Unconscionability: look for
   
   • failure to disclose finances
   • no waiver by other party
   • no independent knowledge
2. Duress: consider
   
   • one party without counsel
   • disparity in business experience
   • lack of understanding of rights being forfeited

Question 2

Forming a Marriage

Answer 2

Requires:

1. Marriage License
   
   • to verify capacity; create record
2. Ceremonial Marriage
   
   • Requires:
     
     • Officiant
       
       • Clergy or Gov. Official
     • Exchange of Solemn Promises

Common law marriages are portable to other states

Question 3

Annulment

Answer 3

Something preceding marriage that voids or makes voidable the marriage

• Voids Marriage (automatic but can obtain an opptional annulment to verify)
  
  • Bigamy
  • Consanguinity
• Voidable Marriage (waivable; and affirmed if not waived–affirmed by continued cohabitation after impediment is removed)
  
  • Nonage
  • Incurable physical incompetence
  • Lack of Capacity
    
    • Mental Incompetance
    • Duress
    • Fraud going to the essentials of marriage
      
      • Religion, Procreation, Sex (yes)
      • Money, property, social status, family history (no)

Question 4

Divorce (no fault)

Answer 4

Ground: marriage is irretrievably broken

Proven by separation (sexual) for a specified period:

• Bilateral: shorter period (e.g., 90 days)
• Unilateral: longer period (e.g., 9 months)

Question 5

Divorce (Fault Based)

Answer 5

A fault divorce is recognized in some states. Grounds include:

• Adultry;
• Unjustified disertion of specified period (must be continuous);
• Physical (one time sufficient) or mental (continuous) abuse;
• Drug addiction/habitual drunkeness;
• Felony

Defenses:

• Condonation (forgiveness); must show:
  
  • knowledge, manifest forgiveness, resumption of cohabitation
• Connivance (induced)
• Recrimination (dirty hands) - trend away from this defense

Question 6

Legal Separation

Answer 6

Court order of separation that does not terminate the marriage; but rights (re: property, children, etc.) determined similarly to divorce

Allows people to keep financial benefits of marriage

Can be obtained for same grounds as divorce and also for non-support

Question 7

Jurisdiction over Divorce

Answer 7

• Divorce is an in rem proceeding, so jurisdiction is where one of the parties is domiciled and a durational residency requirement (e.g., 90 days) is met
• However, to have jurisdiction over spousal support or other out of state property rights, the court must have personal jurisdiction
• Divorce decrees recognized in other states under full faith and credit clause

Question 8

Divorce (Division of Property)

Answer 8

Process:

1. Categorize Assets
   
   • Separate Property of each spouse
     
     • Property owned prior to marriage
       
       • and appreciation thereon
         
         • some states don’t include work-based appreciation (this would be marital property)
     • Property aquired during marriage by gift, bequest, or descent in spouse’s own name
   • Marital Property
     
     • Everything else acquired during marriage, regardles of who earned the money to pay for it or whose name is on the title
2. Distribute Marital Property in an Equitable Fashion
   
   • Consider all factors
   • Can be a division in kind or a cash distribution

Question 9

Spousal Support (Alimony)

Answer 9

Awarded in the court’s discretion (consider all factors)

Types:

• Permanent periodic spousal support
• Rehabilitative spousal support
  
  • most common today, temporary to enable spouse to gain skills to become self-supporting
• Lump sum
• Reimbursement spousal support
  
  • e.g., one spouse supported other through school

First two terminate on death of either spouse or remarriage of recipient spouse (some states consider cohabitation of recipient spouse, especially where finances are combined); and First two are modifiable upon substantial change in circumstances

Question 10

Child Support

Answer 10

Both parents have duty to support child

Ends when child reaches 18

Modifiable on substantial change of circumstances (but overdue payment not modified)

Uniform Interstate Family Support Act, enacted in all states, allows many methods for enforcing child support

Question 11

Separation Agreements

Answer 11

Generally allowed; it’s a contract

Provisions modifiable if “merged into” divorce decree

Child support provisions are always modifiable

Question 12

Child Custody (Parental Responsiblity)

Answer 12

• Legal Custody (right to make decisions)
• Physical Custody (actual possession)

Jurisdiction:

• Uniform Childe Custody Jurisdiction and Enforcement Act
  
  • Gives jurisdicton to child’s home state or state that was child’s home state within last six months
    
    • home state = at least 6 months in state
• Thatc court has exclusive continuing jurisdiction

Standard: Best Interest of Child

Presumption child stays with biological parent, unless it is shown that bio parent is unfit

Question 13

Adoption

Answer 13

Requires consent of all parties (including child if 12)