FAMILY LAW

Question 1

Prenuptial Agreement

Answer 1

A prenuptial agreement is an express contract between prospective spouses in contemplation of marriage, typically addressing economics matters in the event of divorce after marriage, provisions for testamentary dispositions, and any other topics related to the marriage.

Question 2

Postnuptial Agreement

Answer 2

Agreements entered into after marriage are generally valid as long as they satisfy the Statute of Frauds where applicable and satisfy other elements of general contract..

Question 3

Common Law Marriage

Answer 3

Common law marriage is an informal form of marriage, recognized in some states by statute, in which a couple is recognized as being married despite not being in the traditional sense. Requirements for common law marriage generally include requisite mental capacity to marry, cohabitation, reputation as married and a present intent to be married. No time requirement applies.

Question 4

Annulment

Answer 4

Annulment is the process of having the marriage declared void or voidable.

Question 5

Voidable Marriages

Answer 5

Voidable marriages must be challenged before they are invalid. Voidable marriages may also be ratified by the party who has the right to have the marriage deem invalid, if the party signifies their desire to remain in a valid marriage despite the circumstances which made it voidable.

Question 6

Void Marriages

Answer 6

Void marriages require no legal proceeding to be declared invalid because they were never legally sufficient and held no legal status.

Question 7

Separation Agreements

Answer 7

Parties may enter into separation agreements when they separate, particularly if they are anticipating a divorce. These agreements may set forth terms like maintenance and property division. The effect of these agreements is set out in state law, but they will generally be considered binding on the court unless the maintenance terms are unconscionable or terms relate to child custody and support, which must be independently evaluated by the court. Most courts require that the agreement be in writing.

Question 8

No Fault Divorce Grounds

Answer 8

All states offer some version of no fault divorce, though some states require that the spouses live apart for some period of time before getting divorced. In most states the parties may divorce if there are “irreconcilable differences” between the parties.

Question 9

Maintenance

Answer 9

Maintenance payments are provided for in a valid agreement between the parties, or awarded by the court, to be paid at fixed intervals for a definite or indefinite amount of time. An award of maintenance will terminate upon the death of either party or upon the recipient’s marriage, upon modification, or upon agreement of the parties.

Question 10

Passive Appreciation

Answer 10

Passive appreciation refers to an increase in the value of property without any contribution or effort by either spouse. Most often, passive appreciation is the result of market forces or the efforts of independent third parties.

Question 11

Active Appreciation

Answer 11

Active appreciation refers to an increase in value that is the result of the contributions or efforts of the married couple.

Question 12

Marital Property

Answer 12

Marital property is all property acquired by the spouses during the marriage regardless of how the property is titled.

Question 13

Best Interest of the Child Standard

Answer 13

The standard when determining child custody is the best interest of the child standard. In order to determine the best interest of the child, the court may look to he following factors:

(1) Wishes of the parties;
(2) The child’s wishes if child is old enough (about 12y);
(3) Health and age of the parties;
(4) Whether there are domestic violence issues;
(5) Proximity of the parents and need for a continuing relationship with both parents; and
(6) Any other relevant factors the court deems appropriate.