Family Law

Question 1

How old must someone in Indiana be to marry?

Answer 1

18. Someone 17 may marry with the signed and verified consent of her parents or a judge. Someone 15-16 may marry if she receives signed and verified consent of her parents, she is pregnant and he is the putative father of the expected child, and the two decide to marry.

Question 2

What are the restrictions on marriage re: consanguinity.

Answer 2

Marriages between persons more closely related than second cousins is prohibited unless both parties are at least 65 years old.

Question 3

What two (2) things are required for a valid marriage in Indiana?

Answer 3

(1) A license (which expires in 60 days), and

(2) Solemnization.

Question 4

What are the three (3) state of mind requirements for marriage?

Answer 4

(1) Capacity to consent,
(2) Intent, of their own free will, to enter into the marriage, and
(3) The marriage is not for a limited purpose (a “sham” marriage).

Question 5

Is common law marriage recognized in Indiana?

Answer 5

No, unless a couple is considered married under another state’s law.

Question 6

What is consideration for a premarital contract? Must the contract be in writing?

Answer 6

Entry into the marriage is sufficient consideration. The contract must be in writing to satisfy the Statute of Frauds.

Question 7

May a premarital contract be amended? Must there be additional consideration?

Answer 7

A premarital contract may be amended or revoked only by written agreement signed by the parties. No additional consideration is required.

Question 8

If spouses take title to real estate in their joint names, what type of tenancy is formed?

Answer 8

A tenancy by the entirety with a right of survivorship. Conveyance or encumbrances of the property by one spouse is prohibited.

Question 9

What two (2) types of marriage are subject to annulment?

Answer 9

(1) Void marriages, and

(2) Voidable marriages.

Question 10

What is a void marriage?

Answer 10

One that never existed for any purpose and is a complete nullity. No subsequent act can ratify the marriage. Interested parties may attack void marriages.

Question 11

What is a voidable marriage?

Answer 11

One of the spouses (not an interested party) may bring an action to have the marriage declared invalid because of an impediment existing at the time of marriage. The marriage is deemed valid unless one of the spouses seeks an annulment.

Question 12

Under what grounds is a marriage void?

Answer 12

Bigamy, consanguinity, foreign marriage to avoid IN law, mentally incompetent at time of marriage, and common law marriages entered into in IN after 1957.

Question 13

Under what grounds is a marriage voidable?

Answer 13

Nonage, incurable physically impotence, and lack of capacity.

Question 14

What are the defenses to a void marriage?

Answer 14

The impediment did not exist.

Question 15

What are the defenses to a voidable marriage?

Answer 15

The impediment did not exist, ratification, laches, or estoppel.

Question 16

What are the grounds for a divorce?

Answer 16

Indiana is a “no fault” state. Generally, “irretrievable breakdown” is the reason for divorce. Others include: impotency, conviction a felony subsequent to the marriage, and incurable sanity for at least 2 years.

Question 17

When will a court grant a legal separation?

Answer 17

(1) Conditions in or circumstances of the marriage currently make it intolerable for both parties to live together,
(2) The marriage should be maintained, and
(3) Neither party has filed for dissolution of marriage.

Question 18

What type of theory re: property does Indiana employ?

Answer 18

The “one pot” theory.

Question 19

What factors will a court consider to determine whether a division of property is just and reasonable?

Answer 19

(1) The contribution of each spouse to the acquisition of the property,
(2) The extent to which property was acquired prior to marriage or through inheritance or gift;
(3) The economic circumstances of the party,
(4) The conduct of the parties during marriage re: the disposition or dissipation of property,
(5) The earning ability of each party;
6) Length of marriage, and
7) Tax consequences of the division to each party.

Question 20

What items are deemed property subject to division?

Answer 20

(1) Retirement plans,
(2) Personal injury settlements,
(3) Professional goodwill,
(4) Disability insurance benefits,
(5) Income tax refund,
(6) Interest in an annuity, and
(7) Remainder interest in real estate.

Question 21

What items are not deemed property subject to division?

Answer 21

(1) Property belonging to another,
(2) Future earnings or contingent benefits,
(3) A zero value business,
(4) An education degree, and
(5) Union disability pensions.

Question 22

Is debt considered part of the marital pot?

Answer 22

Yes, absent proof of an unjust result.

Question 23

Can a property division order be revoked or modified once entered?

Answer 23

Only in the case of fraud, which must be asserted within 6 years after the order is entered.

Question 24

What are the limited circumstances under which spousal maintenance may be awarded?

Answer 24

(1) Based on disability of the spouse or a child,
(2) Rehabilitative maintenance (continuing education for up to 3 years), or
(3) Maintenance agreements.

Question 25

Under what circumstances is child support terminated?

Answer 25

When the child:

(1) Dies,
(2) Turns 19,
(3) Is legally emancipated,
(4) Is on active duty in the armed services,
(5) Is married,
(6) Is no longer under the parents’ control, or
(7) Is at least 18, has not attended school in the past 4 months, and is capable of self-support.

Question 26

What is the general rule re: modification of maintenance and child support awards?

Answer 26

No modifications before 12 months.

Question 27

What are the grounds for modifying a maintenance, child support, or child custody award?

Answer 27

Substantial and continuing change in circumstances.

Question 28

What are the enforcement options for maintenance and child support awards?

Answer 28

(1) Civil contempt,
(2) Criminal contempt,
(3) Judgment against the noncomplying party,
(4) Seizure of real estate,
(5) Attachment of wages, and
(6) Order of payment of attorneys’ fees.

In addition to the above, child support awards also allow:

(7) Automatic wage withholding,
(8) Interception of tax return, or
(9) Nonrenewal or refusal of professional or driver’s license.

Question 29

What is the purpose of the Uniform Interstate Family Support Act (“UIFSA”)?

Answer 29

To simplify collection of child support/spousal support where the original support order was issued in one state or foreign country but the obligor or the child resides in another.

Question 30

What are the jurisdictional rules re: UIFSA?

Answer 30

Jurisdiction is proper in the state in which the first action for support under UIFSA was filed. If a petition was already filed in one state, jurisdiction may be exercised in another state only if:

(1) The second petition is filed before the time to answer the first petition has expired,
(2) The petitioner in the second state has timely objected to jurisdiction in the first state, and
(3) The second state is the child’s home state.

Question 31

What is a settlement agreement?

Answer 31

An agreement entered into during marriage, prior to divorce, in which the parties may resolve economic issues and custody rights. These agreements are governed under contract principles. However, courts are not bound by custody decisions if it is not in the best interest of the child.

Question 32

Define legal custody.

Answer 32

The right to make major decisions affecting the child’s life (re: religion, medical care, education).

Question 33

What is the UCCJEA and what is its purpose?

Answer 33

Uniform Child Custody Jurisdiction and Enforcement Act. The act is intended to avoid jurisdictional disputes with courts of other states re: child custody and visitation, to promote interstate cooperation, and to facilitate the interstate enforcement of custody and visitation orders.

Question 34

What test does the UCCJEA employ to determine jurisdiction?

Answer 34

Home state. A child’s home state is the state in which the child lived with a parent for at least 6 consecutive months immediately before the commencement of the proceeding.

Question 35

What test is used if the home state test does not apply?

Answer 35

A court may exercise jurisdiction if no other state has home state jurisdiction and:

(1) The child is and at least 1 parent have a significant connection with the state, and
(2) Substantial evidence is available in the state concerning the child’s care, protection, training, and personal relationships.

Question 36

What is the standard to be applied in awarding custody and visitation?

Answer 36

Best interest of the child.

Question 37

What are the factors considered when determining the best interest of the child?

Answer 37

(1) The wishes of the parents (to be given special weight),
(2) The age and sex of the child,
(3) The wishes of the child (especially if 14+),
(4) The interaction and interrelationship of the child with the parents, siblings, and others who affect the best interest,
(5) The child’s adjustment to home, school, and community,
(6) The mental and physical health of the individuals involved, and
(7) Evidence of a pattern of domestic violence.

Question 38

What effect does the status of primary caregiver have?

Answer 38

If the court is left to decide between 2 qualified parents, the court will look to the one most involved in the child’s day-to-day life (ex. feeding, clothing, carpooling, etc.).

Question 39

In Indiana, what is child visitation known as?

Answer 39

Parenting time.

Question 40

What is the procedure if the custodial parent wants to move?

Answer 40

The custodial parent must file a Notice of Intent to Move with the court and notify the noncustodial parent. Upon request, the court may hold a hearing to determine whether to modify custody, visitation, or support based on the move.

Question 41

What remedies are in place for a custodial parent refusing parenting time to a noncustodial parent?

Answer 41

(1) Incarceration,
(2) Fines,
(3) Make-up visitation,
(4) Payment of attorneys’ fees, and
(5) Community service.

Question 42

When may a grandparent seek visitation rights?

Answer 42

If:

(1) The grandchild was born out of wedlock,
(2) The grandchild’s parents are divorced, or
(3) The grandchild’s parent is deceased.

A paternal grandparent may not seek visitation rights to a child born out of wedlock unless paternity has been established.

Grandparent visitation rights survive the adoption of a child by a stepparent or any biologically related person.

Question 43

What is the standard re: grandparent visitation?

Answer 43

Best interest of the child. The burden is on the grandparent seeking visitation. However, a judge may not override a fit parent’s decision re: third-party visitation.

Question 44

Define joint custody.

Answer 44

It can mean joint legal custody, joint physical custody, or both.

Question 45

What factors are considered re: whether joint custody is appropriate?

Answer 45

(1) The fitness and suitability of both parents,
(2) Whether the parents agree on joint custody,
(3) The parents’ ability to communicate and cooperate re: the child’s well-being,
(4) The child’s preference (especially if 14+),
(5) The level of involvement of both parents in the child’s life,
(6) The geographical proximity of the 2 homes,
(7) The similarity or dissimilarity of the two homes,
(8) The effect of the joint custody award on the child’s psychological development, and
(9) The parents’ ability to physically carry out the joint custody order.

Question 46

What is the Parental Kidnapping Prevention Act (“PKPA”)?

Answer 46

A federal act mandating full faith and credit be given to the child custody or visitation determination of another state. It was enacted because generally full faith and credit must be given to final orders only, but a child custody order is technically not a final order because it can still be modified.

Question 47

What is the proper term for an illegitimate child in Indiana?

Answer 47

Nonmarital child (a child born to an unmarried woman).

Question 48

What constitutional standard is used re: nonmarital children?

Answer 48

Intermediate scrutiny. An act has to be substantially related to an important governmental interest.

Question 49

May a nonmarital child be precluded from suing for a parent’s wrongful death?

Answer 49

No.

Question 50

In what situation may marital children be given preference over nonmarital children?

Answer 50

Immigration.

Question 51

What is the statute of limitations re: paternity?

Answer 51

A mother or any other party besides the child must bring a paternity suit no later than 2 years after the birth of the child. The child may bring a paternity suit up to 20 years of age. If the alleged father dies, the action must be filed within five months after death.

Question 52

What are the presumptions re: parentage?

Answer 52

(1) The man and mother were married when the child was born or within 300 days before the birth,
(2) The man and mother attempted to marry, but the marriage was later deemed void/voidable and the child was born during or within 300 days of the attempted marriage, or
(3) A genetic test indicates with at least 99% probability that the man is the child’s biological father.

Question 53

What is Indiana’s stance on parent-child immunity?

Answer 53

Indiana retains parent-child immunity, but it does not apply to cases of intentional torts.

Question 54

What is CHINS?

Answer 54

A child in need of services = a child under 18 whose physical or mental condition is endangered as a result of parental abuse/neglect or who is a victim of sex or human trafficking offenses, lives in the same household as another child who is a victim of the same, or lives in the same household as an adult convicted of the same.

Question 55

Whose consent is needed for adoption?

Answer 55

(1) The natural parents,
(2) Adoptees over 14 years of age,
(3) Spouse, or
(4) Any agency having lawful custody of the child.

Question 56

Who is listed on the birth certificate of an adopted child?

Answer 56

The adopted parents.

Question 57

Are surrogacy agreements valid in Indiana?

Answer 57

Surrogacy agreements are generally void and unenforceable in Indiana.