Family Law

Question 1

Requirements for Who Can Marry

Answer 1

(1) 18 y/o unless parental or judicial approval; (2) not be too closely related (no direct ancestors/descendants, no nieces/aunts); (3) capacity to consent, and; (4) no prior undissolved marriage to a living spouse

Question 2

Common Law Marriage

Answer 2

(1) exchange of consents between two ppl with capacity; (2) cohabitation, and; (3) holding out publicly of living together as spouses (no solemnization)

Question 3

Premarital Agreement (Contents)

Answer 3

Rights and obligations in property, right to buy/sell property, disposition of property upon separation, modification or elimination of spousal support, making of a will, trust, or other arrangement to carry out the provisions of the agreement, choice of law governing agreement. NOT child custody or child support provisions (always subj to review).

Question 4

Premarital Agreement (Requirements)

Answer 4

(1) Agreement was entered into voluntarily; (2) K was in writing and signed by party to be charged; (3) Parties made full and fair disclosure of financial worth, and; (4) Economic provisions were fair and reasonable [UPAA] [look for unconscionability]

Question 5

Marital Property

Answer 5

Most property acquired during the marriage (incl. pensions, damage awards in tort suits, stock options. NOT professional degrees)

Question 6

Void v. Voidable Marriage

Answer 6

Void: Complete nullity; nothing can ratify it; you can walk away without even getting an annulment (but might want one to divide property) (nonwaivable)
Voidable: Valid, but because of an impediment that existed at time of marriage, one spouse can have it declared invalid (waivable)

Question 7

Annulment - Grounds (Voids Marriage)

Answer 7

Bigamy or Polygamy; Incest; Underage (some states)

Question 8

Annulment - Grounds (Makes Marriage Voidable)

Answer 8

Underage (most states); Incurable Physical Impotence; Lack of Capacity (mental condition, no mutual assent, duress, fraud about essential aspect of marriage)

Question 9

Waiving Voidable Grounds

Answer 9

You waive if you continue to cohabitate after the impediment has been removed [Note: only way to waive void grounds is to insist the impediment doesnt exist]

Question 10

Divorce - No Fault

Answer 10

Marriage is irretrievably broken (irreconcilable diffs) AND/OR parties hae been living apart for a specified time [to defend, must deny one of the above]

Question 11

Divorce - Fault Grounds

Answer 11

(1) adultery, (2) willful desertion for specified time; (3) extreme physical or mental cruelty; (4) voluntary drug addiction / habitual drunkenness; (5) mental illness; (6) conviction of a felony requiring jail time

Question 12

Divorce - Defenses to Fault Grounds

Answer 12

(1) Collusion (couple created the grounds as a sham); (2) Connivance / Entrapment (consent by one spouse to the other spouse’s misconduct); (3) Condonation (forgiveness and resumption of sex); (4) Recrimination (unclean hands – both of yall are adulterers)

Question 13

Legal Separation

Answer 13

No termination of marriage, but all of the rights regarding property and custody are adjudicated

Question 14

Division of Property - Approaches

Answer 14

Community Property (all marital prop is split 50-50); Equitable Division of All Property (all marital and separate property is split); Equitable Division of Marital Property*** (each spouse gets separate property and court equitably divides marital property)

Question 15

Equitable Division of Marital Property - Factors to Consider

Answer 15

(1) Age, education, background, and earning capacities; (2) duration of marriage; (3) Std. of living during marriage; (4) Present incomes and employability; (5) Source of money sued to purchase property; (6) Health; (7) Assets and liabilities; (8) Needs; (9) Child custody provisions; (10) Spousal support provisions; (11) Contributions to marital assets and family unit; (12) Dissipation of property

Question 16

Mixed Property

Answer 16

Separate property inextricably mingled with marital property or with the separate property of the other spouse to the extent it can no longer be traced or separate property treated in a way that shows intent for it to be marital property

Question 17

Spousal Support - Amount

Answer 17

Court has discretion and will consider (1) duration of marriage / std of living; (2) age / phys/emotional conditions; (3) financial resources; (4) contributions to marraige; 95) time needed for party to get training; (6) ability of payor spouse to meet his needs while paying SS

Question 18

Spousal Support Types

Answer 18

(1) Permanent Periodic SS: regularly for life to support spouse who doesn’t have resources to be self-sustaining, modifiable; (2) Rehabilitative Periodic SS: regularly for a ltd period of time until spouse gains skills to be self-supporting, modifiable; (3) Lump Sum: nonmodifiable fixed amount payable all at once or in a series of payments; (4) Reimbursement SS: nonmodifable payment of a fixed sum to a souse who supported the other spouse while they obtained a degree

Question 19

Termination of Spousal Support

Answer 19

Periodic SS terminates upon the death of either spouse or the remarriage of the recipient spouse; lump sum / reimb survives cuz fixed payment

Question 20

Child Support - Amount

Answer 20

Formula based on number of children, ages, special needs, and parents’ income. Courts have discretion.

Question 21

Child / Spousal Support - Enforcement

Answer 21

Contempt of court or going after pay check, assets, tax refunds, property, license, etc. If support order was issued in another state, UIFSA funnels everything back to the original state; gives state “continuing exclusive jx” over support order

Question 22

Custody - UCCJEA Home State Test

Answer 22

A court has jx to initially enter or modify a child custody or visitation order if the state (1) is the child’s home state or (2) was the child’s home state within the past 6 months and a parent still lives there.
If there is no home state, court will give jx to the state that has a significant connection with the child and a parent and there’s substantial evidence that child is available there.

Question 23

Custody - “Home State” Defined

Answer 23

Child lived with a parent for at least 6 consecutive months immediately before commencement of proceeding

Question 24

Custody - BIC Standard

Answer 24

Best Interest of Child Standard: (1) wishes of child and parents (if child is >12); (2) child’s relationship with parents/siblings/others; (3) child’s adjustment to home/school; (4) physical and mental health of individuals involved

Question 25

Joint Custody - Factors

Answer 25

(1) fitness of parents; (2) what parents want; (3) parents’ ability co cooperate; (4) child’s preference; (5) level of involvement of parents; (6) how close together they live; (7) homes; (8) effect on child; (9) parents’ ability to carry out joint custody order

Question 26

Custody - 3Ps

Answer 26

Not unless court finds that biological parents are totally unfit (DPC concerns – you have a right to raise children) (not BIC Standard)

Question 27

Visitation

Answer 27

Independent of the child support obligation; cannot be withheld because of arrearages but may be supervised; no right of 3Ps to visit if parent is fit

Question 28

Adoption - Requirements

Answer 28

Consent of biological parents (may be waived if unreasonably withheld like abandonment), consent of adoptee (if >12), investigation and court approval

Question 29

Parent-Child Relationship (UPA)

Answer 29

(1) giving birth to child (unless governed by surrogacy k); (2) being married to the woman who gave birth to child during marriage or within 300 days after separation; (3) adjudication of parentage; (4) adoption; (5) acknowledgement of paternity; (6) consent to assisted reproduction; (7) consent by intended parent to a surrogacy agreement