Family Law

Question 1

What is required for a ceremonial marriage to be valid?

Answer 1

A license and solemnization

Question 2

When will a marriage license not be issued?

Answer 2

1) if a party is already married
2) too closely related
3) marriage is a sham
4) can’t understand (substances, no consent bc fraud or duress)

Question 3

What is required for solemnization?

Answer 3

Two witnesses

An officiant

Filing license

Proxies are okay in some states

Question 4

What is required of a common law marriage?

Answer 4

capacity: mental and legal capacity to marry

Parties agree they’re married

Cohabit as spouses

Hold themselves out in public as being married

Question 5

What is the difference between an annulment and a divorce?

Answer 5

An annulment means a marriage was never valid, while a divorce is the legal dissolution of a formerly valid marriage.

Question 6

What are the two types of annulment, and what’s the difference? What are the grounds for each?

Answer 6

Void and voidable: difference is that void does not need judicial decree, which is required to void a voidable marriage.

Void marriage: as if it never happened.

• prior existing marriage
• incest
• mental incapacity

Voidable marriage: valid until spouse seeks annulment

• age
• impotence
• intoxication
• fraud, misrepresentation, duress, coercion, force
• lack of intent (jest/hilarity)

Question 7

What are the grounds for a no-fault divorce?

Answer 7

Irretrievably broken (a.k.a. irreconcilable differences)

Incapacity

Question 8

What are the grounds for a fault-based divorce?

Answer 8

1) adultery
2) cruelty or inhumane treatment
3) desertion/abandonment
4) habitual drunkenness (in some states)
5) bigamy
6) imprisonment
7) institutionalization
8) indignity* (*majority of states don’t recognize)

Question 9

What are the defenses to a fault-based divorce?

Answer 9

1) connivance
2) consent
3) condonation
4) collusion
5) provocation
6) insanity
7) Recrimination and unclean hands
8) justification
9) religion* (*never works)

Question 10

What is the difference between the community property method of division of property and the equitable distribution method?

Answer 10

Community property: marriage is a partnership, so equal distribution

Equitable: fair distribution (not necessarily equal)

Question 11

What is and is not considered marital property?

Answer 11

IS: generally anything acquired during marriage, including increases in value of non-marital property, and gifts between spouses.

EXCEPTIONS:

1) property acquired before marriage
2) property excluded by valid agreement
3) property acquired by GIFT or INHERITANCE (unless gift between spouses)
4) property that’s been sold for value in good faith before separation
5) settlement for something that happened before marriage

Question 12

What are the 5 (+1) types of support available in a divorce action?

Answer 12

1) Lump sum
2) permanent alimony (long marriages)
3) durational alimony (short marriages)
4) rehabilitative alimony
5) reimbursement maintenance
6) palimony*

Question 13

What are factors that MAY affect the modification of spousal support?

Answer 13

Death

Remarriage

Cohabitation

Voluntary retirement

Question 14

When is the one circumstance in which a common law marriage valid in one state will not be valid in another state?

Answer 14

When it violates a strong public policy of the other state.

Question 15

What are the duties of a mediator? What is a consequence of misconduct?

Answer 15

Impartial, disclose any conflicts

Explain/control mediation process

Not coerce or improperly influence a party

NB: Misconduct MAY be grounds for not enforcing an agreement

Question 16

When is modification of a property division award allowed?

Answer 16

Never!!

Question 17

What is required to modify a spousal support agreement?

Answer 17

A “significant change in circumstances”

Not voluntary reduction in income

Question 18

If a court does not have PJ over a spouse, what can it do re: divorce?

Answer 18

It can grant the divorce to one spouse, but cannot address property division, spousal support, or child support.

Question 19

What statute governs PJ over out of state parents for CHILD SUPPORT, and when can a court have PJ over an out of state parent for child support?

Answer 19

Uniform Interstate Family Support Act (UIFSA):

PJ over out of state parent when:

1) Personally served in state
2) Resided in state with child in past
3) fucked in the state, may have conceived child

Question 20

What statute governs jurisdiction in child custody and visitation matters? What does it say?

Answer 20

Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA):

Three levels of court, in order of preference:
1) Home state: six months or since birth; OR was home state in last six months AND one parent still lives there

2) Significant-connection: no other state; significant connection between state + child and state + one parent, substantial evidence
3) Exclusive-continuing jurisdiction: stays with original initial court, unless (1) both parties now out of state, or (2) child no longer has a significant connection to state

Question 21

Does an unwed, biological father have any constitutional claim to his child?

Answer 21

Yes, under 14A, unwed biological father has substantive DP right to have contact with child, but only when he demonstrates a COMMITMENT to responsibilities of parenthood.

Also can object to adoption, often via registry.

Question 22

When can a custody order be modified based on relocation?

Answer 22

Custodial parent must show that relocation is for a legitimate and reasonable purpose.

Question 23

What is required of a prenup?

Are there any things that can’t be enforced in a prenup?

How can it be made unenforceable?

Answer 23

Full disclosure;

Fair and reasonable;

Voluntary;

Clauses relating to child support and custody are unenforceable.

Under Uniform Premarital Agreement Act (UPAA), unenforceable if involuntary (fraud, duress, coercion), or unfair/unreasonable + lack of reasonable knowledge or disclosure.

Question 24

Which state’s laws apply when determining validity of a prenup?

Answer 24

State in which agreement was executed, OR

State with most significant relationship to parties and transaction

Question 25

Can a parent demand anything of their child when they’re giving child support?

Answer 25

An EMPLOYABLE child’s right to support is contingent on compliance with REASONABLE parental demands.

An employable child who fails to comply, even if attending college, risks the loss of financial support.

Question 26

When does child support typically end? What are the exceptions?

Answer 26

Typically ends when child reaches age of majority (typically 18).

Some jx can order support beyond 18 if child is in college.

Question 27

Is property acquired after separation but before divorce considered marital or nonmarital property?

Answer 27

Marital property (in most states)

Question 28

What is the main question to determine whether a spouse should have equity in the appreciation of nonmarital property?

Answer 28

Whether the nonmarital property remains separate property and whether it can be attributable to SPOUSAL LABOR.

Question 29

When will a court reject/dissolve a separation agreement, spousal maintenance agreement, and property division agreement?

Answer 29

The court generally will enforce separation agreements, spousal maintenance and property division provisions so long as the agreement is not UNCONSCIONABLE (no reasonable person) or based on FRAUD.