Family Law

Question 1

What is marriage?

Answer 1

The legal union of two individuals, with the accompanying obligations and liabilities

Question 2

What are the requirements to marry?

Answer 2

(1) Be a minimum age (usually 18, although frequently younger with parental or judicial approval)
(2) Not be too closely related
(3) Have capacity to consent (the ability to comprehend and voluntarily agree)
(4) Not have a prior undissolved marriage to a living spouse

Question 3

What state of mind is required to consent to marriage?

Answer 3

The parties must understand their actions and voluntarily agree to them

• Someone under the influence of drugs or alcohol may lack the mental capacity to enter into a valid marriage

A marriage is subject to attack if one party was induced by fraud, coercion, duress, or force

Question 4

What are the elements of common law marriage?

Answer 4

An exchange of consent between two people with capacity

Cohabitation, and

A holding out publicly of living together as spouses

Common law marriage has been abolished in most states, but if a common law marriage is formed in a state that recognizes common law marriage and where the couple lived, it will generally be regarded as valid in a state that abolished common law marriage

Question 5

What is a premarital contract?

Answer 5

A contract entered into prior to marriage that usually pertain to the distribution of property upon divorce

They are valid contracts to which the principles of contract construction apply

Marriage is sufficient consideration to support a premarital contract

Question 6

What can premarital contracts contain under the Uniform Premarital Agreement Act (UPAA)

Answer 6

The parties’ rights and obligations in property of either or both of them

The right to buy, sell, lease, assign, dispose of, or control property

Disposition of property upon separation, dissolution, death, or any other event

Modification or elimination of spousal support

The making of a will, trust, or other arrangement to carry out the provisions of the agreement

Choice of law governing construction of the agreement

Any other matter not in violation of public policy or criminal law

Courts may refuse to enforce provisions that would eliminate or severely limit spousal support, especially if a spouse would be left in need of public assistance

Question 7

Are child custody provisions in a premarital contract binding?

Answer 7

Never

In some states they are void as against public policy

In other states they are subject to judicial review

Question 8

What do most courts require for premarital contracts to be enforceable?

Answer 8

(1) Entered into voluntarily
(2) In wiring and signed by both parties
(3) Both parties must make a full and fair disclosure of their financial worth, and
(4) Economic provisions must be fair and reasonable

Question 9

What are the rights of each spouse regarding property?

Answer 9

Each spouse controls her own property

If spouses take title to real estate in their joint names, a tenancy by the entirety is presumptively created

• Upon dissolution, tenants by the entirety become tenants in common

Marital property includes most property acquired during marriage.

Upon dissolution, the court has broad discretion in equitable distribution of marital property

Question 10

What are the rights for spousal support?

Answer 10

Each spouse has an obligation to support to the other during the marriage.

Principles of agency may require that one spouse be held liable to a third party for the other spouse’s authorized purchases.

Even in the absence of agency authority, one spouse is liable for necessaries (food, clothing, medical care) purchased by the other spouse

Question 11

What are the rights of privacy?

Answer 11

The internal affairs of a family cannot be regulated by the courts

Families have the right to expect privacy for actions within their homes and freedom from governmental interference in their domestic affairs

Question 12

Which rights of privacy are fundamental rights subject to strict scrutiny?

Answer 12

The right to marry

The right to procreate

The right to use or sell contraceptives

Within limits, the right to abortion

The right of related persons to live together

The right of parents to educate their children outside public schools

The right to decide the care, custody, and control of their children

Question 13

What is an annulment?

Answer 13

A declaration that a marriage is invalid because there was an impediment at the time of the marriage

Once an annulment decree has been entered, the parties generally are treated as though they were never married

An annulment action in a void marriage is usually brought to determine property distribution and child custody

Question 14

What is the difference from a void and a voidable marriage?

Answer 14

A void marriage is a complete nullity. No subsequent act can ratify a void marriage.

• Grounds include bigamy or polygamy (prior marriage in existence), consanguinity (marriages between parties too closely related), and nonage (under the statutory age without getting required consent; voidable instead of void in some states)

A voidable marriage is deemed valid, but because of an impediment that existed at the time of the marriage, one of the spouses may bring an action to have the marriage declared invalid.

• If the spouse with the cause of action ratifies the marriage by continuing in the relationship after the impediment is removed, or if one spouse dies, the marriage can no longer be invalidated
• Grounds include nonage, incurable physical impotence (inability to have normal sexual relations, not inability to procreate), lack of capacity (mental incompetence, duress, fraud involving the essentials of marriage)

Question 15

How do you defend an action to annul a void marriage?

Answer 15

The only way is to deny the existence of the defect

If the impediment has been removed and the parties continue the relationship, the marriage becomes valid in states following the UMDA

The children of annulled marriages are still marital children to which rules of spousal and custody support apply

Question 16

How is division of property treated in annulled marriages?

Answer 16

The courts attempt to place the parties in their pre-marital position

Spousal support is generally not awarded in annulment cases

Question 17

What is a divorce?

Answer 17

A court-issued decree terminating the marriage

Question 18

What is the difference from a no-fault and a fault divorce?

Answer 18

Most states allow for divorce without marital fault

• Reasons include (1) the marriage is irretrievably broken (irreconcilable differences), and/or (2) the parties have been living apart for a specified time

If a state allows for a fault divorce, the usual grounds are (1) adultery, (2) willful desertion for a specific time, (3) extreme physical or mental cruelty, (4) voluntary drug addiction or habitual drunkenness, and (5) a spouse’s mental illness

Question 19

What is an order of legal separation?

Answer 19

An order of legal separation does not terminate the marriage, but the parties may have all of their rights regarding property, spousal support, custody, and child support adjudicated in the proceeding.

A legal separation is usually capable of being enlarged into an absolute divorce if the parties so request

Watch for a fact pattern that states that a divorce decree was granted but is not yet final. During that time, the parties cannot remarry and continue to inherit from one another

Question 20

What is a separation agreement?

Answer 20

An agreement entered into during marriage under which the parties agree to live apart and resolve economic issues (spousal support, property division, child support) and custody rights

To be enforceable, the agreement must be voluntary, and there must have been a full and fair disclosure by both parties

Provisions relating to property and spousal support will be enforced by the court

Provisions relating to child support and custody will be enforced only if they are in the child’s best interest (the court is not bound by child and custody support provisions).

Question 21

How does the full faith and credit clause impact divorce?

Answer 21

As long as one party was domiciled in the state that granted the divorce, the decree is recognized as valid in all other states

Courts are most likely to recognize foreign decrees when one party was domiciled in the country rendering the judgment (known as comity)

Question 22

What are the three approaches to division of property?

Answer 22

Community property - all property acquired during the marriage is deemed owned one-half by each spouse, and all property brought into the marriage or acquired by gift or bequest is separate property

Equitable division of all property - owned by either spouse, whether acquired before or after the marriage

Equitable division of marital property - each spouse takes his separate property and the court divides the property acquired during the marriage

• Most common approach

Property distribution decrees are not modifiable

Question 23

What factors are considered in equitable division of property?

Answer 23

The age, education, background, and earning capacity of both parties

The duration of the marriage, and whether there were any prior marriages

The standard of living during the marriage

The present incomes of both parties, and their vocational skills and employability

Each party’s opportunity to acquire future income and assets

The source of money used to purchase the property

Each party’s contribution to the acquisition of, or enhancement of, the value of the existing marital assets

The health of the parties

The assets, debts, and liabilities of the parties

The needs of the parties

Child custody provisions

Whether the distribution is in addition to, or in lieu of, spousal support

Each party’s contribution as a homemaker to the family unit, and

Whether either party has dissipated marital property

Question 24

What is the standard for separate property?

Answer 24

Generally, each spouse can take the separate property that she owned prior to the marriage as well as any separate property acquired during the marriage by gift, bequest, or descent

Question 25

What is the standard for professional licenses or degrees?

Answer 25

Most jurisdictions that have considered the matter have held that a professional license or educational degree is not distributable property

Some jurisdictions have compensated supporting spouses for their contribution during the other spouse’s education or training (e.g. the supporting spouse’s contribution may be a factor on which alimony may be based)

Question 26

What is the standard for pensions?

Answer 26

The portion of a pension earned during a marriage is marital property subject to distribution

Question 27

What is the standard for damages awarded in tort suits?

Answer 27

Many states hold that if a cause of action for personal injury accrues between the date of marriage and final separation, the proceeds from the settlement or award are marital assets subject to distribution

Some states differentiate between lost wages (marital property) and pain and suffering (separate property)

Question 28

What is the standard for stock options?

Answer 28

The majority rule is that stock options earned during marriage are marital property even if they will not be exercised until after the divorce

Question 29

What is the standard for mixed property?

Answer 29

Separate property may become marital property if:

• (1) The separate property is inextricably mingled with marital property or with the separate property of the other spouse to the extent it can no longer be traced, or
• (2) The separate property is treated in a way that evidences an intention for the property to be marital property (e.g. placing separate property in the names of both spouses)

When separate property is improved by the use of marital funds or the effort of a spouse, courts generally hold that the property remains separate property, but most jurisdictions grant the marital estate or the non-owning spouse reimbursement for the value added to the separate property

Question 30

What are the types of spousal support?

Answer 30

Permanent periodic spousal support - paid regularly (e.g. monthly) to support a spouse who has neither the resources nor the ability to be self-sustaining

Rehabilitative spousal support - periodic payments for a limited time to enable a spouse to gain skills to become self-supporting

Lump sum payment - a nonmodifiable, fixed amount payable to either all at once or broken into a series of payments

Reimbursement spousal support - paid to a spouse who supported the other spouse while the latter obtained a professional license or degree. Awarded as a fixed sum, which is neither modifiable nor terminable, and is based on the amount of the supporting spouse’s contribution, not the value of the professional license or degree

• A growing minority of jurisdictions are implementing reimbursement support

Question 31

What types of spousal support are prospectively modifiable for changed circumstances?

Answer 31

Permanent periodic and rehabilitative spousal support

There must be a substantial change in circumstances and the changes must be unanticipated

• A self-induced reduction in income by the payor spouse is insufficient. Be alert of this issue in a fact pattern where the payor spouse quits her job

Question 32

When does spousal support terminate?

Answer 32

Periodic spousal support terminates upon the death or either spouse or the remarriage of the recipient spouse

Some jurisdictions also terminate spousal support if the recipient spouse enters into a cohabitating or conjugal relationship

Lump sum spousal support is not modifiable and survives the death of either spouse

Question 33

What are the basics of child support?

Answer 33

Both parents share equally in a duty to support their children

The amount of the award of support to the custodial parent is usually arrived at by the use of a formula based on the number of children, their ages and special needs, and the parents’ income

Parents can also be ordered to provide medical insurance for children

Support obligations are independent of the noncustodial parent’s visitation rights

Visitation can be withheld for failure to pay child support

Child support may be indefinite for a severely disabled child (e.g. does not terminate at 18)

Question 34

What are the standards for modification of child support?

Answer 34

Child support is modifiable based on a substantial change in circumstances affecting the needs of the child or the ability of the parent to pay

Circumstances include changes in employment, growth of the child, inflation, income, retirement, or disabling illness

Full faith and credit must be given to child support orders issued in a different state

Question 35

What are the standards for enforcement of spousal and child support?

Answer 35

Contempt of court (usually civil, but may be criminal if failure to pay is willful); judgment against the noncomplying party; seizure of real estate; attachment of wages

Child support may be enforced through automatic wage withholdings once the court has issued a support order; interception of the noncomplying party’s tax return; nonrenewal or refusal of a professional or driver’s license

Question 36

What is the difference from a separation agreement and a divorce decree?

Answer 36

If the divorce decree says that the separation agreement is merged into the decree, or if the specific provisions of the agreement are repeated in the decree, the whole agreement assumes the status of a court judgment and is enforceable.

If the agreement is not merged, it retains its separate characteristic as a contract and is enforceable as such

A statement by the court that it is incorporating the agreement by reference is generally insufficient to constitute merger

Question 37

What are the three types of child custody?

Answer 37

Legal custody - the right to make major decisions affecting the child’s life

Physical custody - actual possession and control of the child

Joint custody - either joint legal custody, joint physical custody, or both

Question 38

When does a court have jurisdiction to enter or modify a child custody or visitation order?

Answer 38

When the state (1) is the child’s home state and (2) was the child’s home state within the past six months and the child is absent from the state, but a parent or person acting as a parent (e.g. guardian) continues to live in the state

Question 39

What is a child’s home state? (frequently tested)

Answer 39

The state in which the child lived with a parent (or person acting as a parent) for at least six consecutive months immediately before the commencement of the proceeding (or the state where the child has lived since birth if younger than six months old), disregarding temporary absences

A custody or visitation order of one state can be registered in another state and enforced in that state in the same manner as one of its own orders

Question 40

When does the Home State Rule not apply?

Answer 40

A court has jurisdiction to enter or modify a child custody or visitation order if no other state has or accepts home state jurisdiction and

• (1) the child and at least one parent (or person acting as a parent) have a significant connection with the state, and (2) substantial evidence concerning the child is available in the state

In addition, a court has jurisdiction to enter or modify a child custody or visitation order if no other state has jurisdiction under another test

Question 41

When does the court stop having exclusive continuing jurisdiction over the matter?

Answer 41

Until the court determines that (1) neither the child nor the child’s parents continue to reside in the state, or (2) the child no longer has a significant connection with the state (e.g. a close relationship with a parent who lives in the state) and substantial evidence relating to the matter is no longer available in the state

Question 42

When can a court decline jurisdiction over child custody cases?

Answer 42

Even if a court has valid jurisdiction, it may decline jurisdiction if it determines that it is an inconvenient forum under the circumstances and that a court in another state is a more appropriate forum

A court may also decline jurisdiction if the party seeking to invoke jurisdiction has engaged in unjustifiable conduct (e.g. wrongfully taking the child from another state)

Question 43

When does a court have temporary emergency jurisdiction?

Answer 43

If the child has been abandoned or it is necessary in an emergency to protect the child (e.g. abuse)

Question 44

What factors are considered in the “best interest of the child” standard?

Answer 44

Factors:

• The wishes of the child and the parents
• The child’s relationship with the parents, siblings, and others
• The child’s adjustment to home, school, and community
• The physical and mental health of the individuals involved

The standard is applied in awarding custody and visitation

Preferences of children over 12 are given weight; preferences of children under 8 may be disregarded or given little weight

If, after considering all of the relevant factors, the court is left to decide between two qualified parents, the award often goes to the parent who has been the primary caregiver (the one most involved in the child’s day-to-day life)

If parents agree to joint custody, the court will usually go along unless it is not in the child’s best interest

Question 45

What factors do courts consider when awarding joint custody?

Answer 45

The fitness of both parents

Whether the parents agree on joint custody

The parents’ ability to communicate and cooperate concerning the child’s well-being

The child’s preference

The level of involvement of both parents in the child’s life

The geographical proximity of the two homes

The similarity or dissimilarity of the homes

The effect of the award on the child’s psychological development, and

The parent’s ability to physically carry out the joint custody order

Question 46

What are the standards for visitation rights?

Answer 46

When an award of sole physical custody is made to one parent, the other parent must be given reasonable visitation rights

A court may limit a parent’s visitation rights if the parent engages in conduct that might injure the child, but absolute denial of visitation is rare

• Supervised visitation may be an option

Most courts allow the custodial parent to move out of state as long as it is motivated by benefit to the parent and not merely to frustrate visitation rights

Consistent and willful denial of visitation rights could result in a modification of custody

Question 47

What is the standard for modification of custody decrees?

Answer 47

Custody awards will be modified only if there is a substantial material change in circumstances

The party seeking the modification bears the burden of proof

The child’s best interest is the overriding concern

Question 48

What is meant by a nonmarital child?

Answer 48

A child born out of wedlock

The child of a married woman is presumed to be the child of her husband

Question 49

What is the constitutional standard for laws between marital and nonmarital children?

Answer 49

Such laws are subject to intermediate scrutiny and are stricken unless the action is substantially related to an important governmental interest

Question 50

What is the treatment of unmarried parents for tort recovery of the child?

Answer 50

An unmarried mother may recover in tort for the death of her child, but an unmarried father may be precluded from recovery if he did not previously legally recognize the child

Question 51

How are contracts between unmarried cohabitants enforced?

Answer 51

Express contracts between unmarried cohabitants regarding earnings and property rights will generally be enforced. These contracts are unenforceable only when sexual relations constitute the only consideration provided

Courts are likely to enforce an implied contract between unmarried cohabitants

Question 52

How do courts handle division of property between unmarried cohabitants?

Answer 52

If no express contract, courts often grant an equitable distribution of property based on theories of constructive trust, resulting trust, or quantum meruit

Question 53

What are an unwed father’s due process rights?

Answer 53

If an unwed father is part of the family unit that includes the child, the relationship between the father and child will be protected by due process

• The unwed father must demonstrate a full commitment to the responsibilities of parenthood by participating in the rearing of his child

The court will consider whether the father shouldered any significant responsibility with respect to the daily supervision, education, protection, or care of that child

To have due process rights with respect to a newborn infant, the unwed father must be willing to assume custody of the child, not merely block adoption by others

Other considerations include public acknowledgement of paternity, payment of pregnancy and birth expenses, steps taken in establishing legal responsibility for the child, and other acts showing a commitment to the child

Question 54

What are factors showing a child is a lawful child of an unwed father?

Answer 54

The parents were married after the child’s birth

The father holds the child out as his biological child

The father consents to be named on the child’s birth certificate

The father formally acknowledges paternity

There is a judicial decree establishing paternity

Under most statutes, every child is the lawful child of his mother

Question 55

Who may bring a paternity suit seeking support of a child?

Answer 55

The child, mother, or the state (if the child is receiving support from the state)

Once paternity is established, the duty of support attaches, and rights to visitation and custody may be asserted by the father

Question 56

What evidence is admissible to establish paternity?

Answer 56

Exhibition of child to show resemblance to defendant

Statements regarding paternity

Medical testimony

Blood or genetic tests

• If blood or genetic tests show the defendant cannot be the father, the case must be dismissed

Some states require clear and convincing evidence while others require a preponderance

Question 57

What is adoption?

Answer 57

A legal proceeding terminating the relationship between the child and his biological parents (if necessary) and establishing a new relationship between the child and his adopted parents

Question 58

What are the rules for consent of natural parents regarding adoption?

Answer 58

The consent of the child’s natural parents is generally required, but the father’s consent may not be necessary if the parents are unmarried

Consent is not necessary if parental rights have been terminated

Consent may be waived if a court determines it is being unreasonably withheld against the best interest of the child

Prospective adoptees over a certain age, usually 12, must also consent to their own adoption

Consent cannot be withdrawn after an adoption decree has been entered

Question 59

What are the rights of unmarried fathers in adoption proceedings?

Answer 59

The court considers the level of the father’s involvement with the child, such as whether he lived with and cared for the child, or visited the child regularly; admitted paternity; or paid child support

A father of a nonmarital child who has never attempted to establish a legal or personal relationship with that child has no right to notice prior to the adoption of the child by others

Question 60

What are the consequences of adoption?

Answer 60

A new birth certificate is issued that lists the adoptive parents as the child’s parents

The adoption cuts off the biological parents’ rights and obligations, and creates new rights and obligations in the adoptive parents