Family Law

Question 1

Ceremonial Marriage

Answer 1

LICENSE

• most, 18 (or parental and/or judicial approval)
• waiting period between marriage and ceremony
• medical testing (can mandate, but can’t condition)
• licenses usually have expiration date

SOLEMNIZATION

• Usually, two witnesses
• Some states proxy may stand in at the ceremony w/ written authorization.
• Most jxs, either a judge, political official, or member of clergy must solemnize.

FILED
- License must be completed, filed w/ appropriate office.

Question 2

When Ceremonial Marriage License Won’t be issued

Answer 2

• Married to someone else
• Too closely related
• Marriage is a sham
• Incapable of understanding nature of act

NOTE: If one or both parties were under the influence when the license was sought, most jxs will not issue.

Question 3

Common Law Marriage

Answer 3

1. ) Mental and legal capacity
2. ) Present agreement
3. ) Cohabitation
4. ) Held out as spouses

NOTE: Almost all states will recognize a CL marriage from another state, unless strong public policy interest, etc.

RESIDENCE: Some recognize only for domiciled parties, others for parties w/ only a short, transitory visit to the state.

INTENT: Show words in the present tense (intent to marry later does NOT work)

Question 4

Annulment

Answer 4

• VOID
  1. ) prior existing marriage
• latter marriage is void
• some consider it valid once impediment is removed, if one party had G/F belief it was valid
• other states: must continue to cohabitate and one party must continue to believe validity in G/F
• “Enoch Arden” Statute: Defense to bigamy if parties had G/F belief previous spouse was dead. Some require divorce proceeding once existence of spouse is discovered.
• Multiple marriages: presumption that the latest is valid.

2. ) Incest
3. ) Mental incapacity

VOIDABLE:
Valid until party seeks judicial decree to invalidate

1. ) Age
   - Only underage can challenge
   - Some states, guardian can challenge
   - Many courts, can’t bring challenge once of age, if continuing to freely cohabit.
2. ) Impotence
   - Unless other party knew before marriage.
3. ) Intoxication
   - Must demonstrate that they didn’t ratify by continuing to freely cohabit.
4. ) Fraud, misrepresentation, duress, coercion, force
   - must be based on present, not future facts
   - must demonstrate they didn’t continue to live together
   - courts differ on false claims of religion or pregnancy
5. ) lack of intent
   - e.g., “limited purpose” immigration marriages

Question 5

Annulment, Property

Answer 5

Just because a marriage is terminated by annulment rather than divorce does not mean that parties to annulled marriages have no rights. The party seeking the annulment still has a right to request an equitable distribution of property and, in some cases, spousal support. That party may also seek child support, custody, attorney’s fees, and other costs related to the dissolution of the marriage. Many jurisdictions have statutorily provided courts with the ability to award spousal support. In states without this statute, courts will not award spousal support. However, many of these states allow temporary spousal support during the pendency of the suit. Also, most courts will not reinstate spousal support from a previous marriage.

Question 6

Defenses to annulment

Answer 6

When a marriage is void, the only way to defend against the annulment is to deny the existence of the impediment that voided the marriage. Removing the impediment merely makes the marriage voidable, but it will not necessarily prevent the annulment.

In annulling voidable marriages, courts recognize the equitable defenses of unclean hands, laches, and estoppel.

Question 7

Putative Marriage Doctrine

Answer 7

Most jurisdictions, either by statute or common law, have adopted a version of the putative marriage doctrine (also known as “putative spouse doctrine”). See, e.g., Williams v. Williams, 97 P.3d 1124 (Nev. 2004); In re Marriage of Himes, 136 Wash. 2d 707 (1998); Colo., Rev. Stat. Ann. §14-2-111 (West 2003). The purpose of the doctrine is to protect a party who is unaware of an impediment to the marriage that makes it either void or voidable. Under the doctrine, a party who participated in a ceremonial marriage and believes in good faith that the marriage is valid may use a state’s divorce provisions even if the marriage is later found void due to an impediment. UMDA § 209.

Because a putative marriage is not technically a marriage, divorce is not needed to terminate a relationship. The doctrine, however, is normally invoked to provide equitable relief, including maintenance and property distribution.

Question 8

Residency Requirement

Answer 8

Most states have a residency requirement that requires at least one of the parties to be a resident of the state. The required length of residency in a state before a party can file for divorce can turn on several factors, such as whether the couple was married in the state or the grounds for divorce happened in the state.

Question 9

No-Fault Divorce

Answer 9

• Must show (1) irretrevably broken, and (2) no prospect of reconciliation.
• TIME LIMIT - Half of states require 1 year separation.
• Wish for reconciliation: One spouse wishing to reconcile may lengthen time period but is not an absolute bar.

Question 10

Fault Divorce Grounds

Answer 10

1) Adultery

Adultery is voluntary sexual intercourse with someone other than one’s spouse. Because the details of adultery are rarely known to both parties, it is usually proven by circumstantial evidence. It must be shown that a party had the opportunity and the inclination to commit adultery. The facts of the case must provide enough evidence to conclude that the person was guilty of the adulterous act.

2) Cruelty

To prevail on the grounds of cruelty or inhumane treatment, most jurisdictions require that the plaintiff demonstrate a course of conduct by the other party that is harmful to the plaintiff’s physical or mental health and that makes the continued cohabitation between the parties unsafe or improper. The conduct of the defendant must be serious and typically cannot be based on one isolated incident. The majority of jurisdictions permit divorces on the basis of cruelty in cases of physical abuse, while only some permit it in cases of only emotional abuse or mental cruelty.

3) Desertion

Desertion (also called “abandonment”) results when one spouse, without cause or the consent of the other spouse, voluntarily leaves the marital home with the intent to remain apart on a permanent basis. Most jurisdictions require that the abandonment be for a statutorily designated period of time. Some jurisdictions also find desertion when one spouse forces another out of the marital home, and there is a fear of harm if that spouse returns. If the parties separate by mutual consent, the ground of desertion will not apply.

4) Habitual drunkenness

Some states permit habitual drunkenness as a ground for divorce if it is the frequent habit of getting drunk that causes impairment in the marital relationship. There is no requirement that the defendant be an alcoholic or that she be constantly under the influence of alcohol, but more than an occasional level of intoxication is required. A possible defense to the grounds of habitual drunkenness may be assumption of the risk.

5) Bigamy

Bigamy, which in most jurisdictions is also grounds for annulment, occurs when one of the parties in the marriage knowingly entered into a prior legal and existing marriage before entering into the current marriage.

6) Imprisonment

Imprisonment of one spouse for a specified period of time may be grounds for divorce.

7) Indignity

Indignity grounds arise when one spouse exhibits negative behavior toward the other that renders that spouse’s condition intolerable and life burdensome. Indignity can include: vulgarity, unmerited reproach, habitual laziness, neglect, intentional incivility, manifest disdain, abusive language, malignant ridicule, habitual humiliating treatment, repeated accusations of infidelity, sexually deviant behavior, serious temper tantrums, or violence. Although it is still available in some states, indignity is no longer recognized in the majority of states.

8) Institutionalization

Institutionalization is grounds for divorce if a spouse’s insanity or serious mental condition results in her being confined to a mental institution for a specified period of time prior to the commencement of the divorce, and there is no reasonable prospect of discharge or rehabilitation.

Question 11

Defenses to Fault Divorce

Answer 11

• Must be AFFIRMATIVELY PLEADED
  a. Recrimination and unclean hands

Recrimination occurs when both spouses have committed a marital wrongdoing of like conduct. In other words, because both parties were guilty of the same offense (e.g., adultery) that would justify a divorce, a court could not grant the request. A similar defense is “unclean hands,” when the plaintiff’s own behavior or acts are questionable. Both of these defenses are most commonly seen in desertion, adultery, or cruelty cases.

b. Connivance

Connivance is consent to or participation in the marital wrong, usually adultery (e.g., allowing or benefitting from a spouse’s prostitution).

c. Condonation

Forgiveness of a spouse is a defense to a fault-based divorce. There must be knowledge of the misconduct and forgiveness of the misconduct, and the party must resume marital relations with the guilty party. It is typically based on a promise not to engage in the misconduct again. At common law, once an act was forgiven, it could not become future grounds for divorce.

d. Collusion

Collusion occurs when both spouses “conspired to fabricate” grounds for divorce. Collusion defenses are not as common since the adoption of no-fault grounds in many jurisdictions.

e. Provocation

If misconduct is provoked by the moving party, then it is not grounds for divorce.

f. Insanity

Insanity is a valid defense when one spouse does not know the difference between right and wrong or lacks the ability to understand that an act is wrongful.

g. Consent

Consent is a defense to desertion or adultery.

h. Justification

Justification grounds may be established if one party left the home because of the other’s misconduct. This is a defense to desertion.

i. Religion

A litigant that challenges a divorce on religious grounds will fail in all jurisdictions.

Question 12

Finalizing Divorce

Answer 12

When a divorce is initially granted, many states do not permit a divorce to be finalized until a specified period of time has elapsed. This is known as an “interlocutory” decree. During this interlocutory period, neither spouse can remarry.

Question 13

Use of Mediation

Answer 13

Mediation is a frequently used, less expensive, and often more effective manner to resolve separation disputes. A neutral, court-approved mediator assists both parties with spousal- and child-support issues, as well as custody and visitation rights. Discussions during the mediation process and the written agreement derived from the discussions remain confidential, unless both parties agree to their disclosure. The court may approve the agreement and make it part of the final judgment. A mediator must conduct the mediation process in an impartial manner and disclose all and potential grounds of bias and conflicts of interest. A mediator must facilitate the participants’ understanding of what mediation is. A mediator should recognize a family situation involving domestic abuse and take appropriate steps to shape the mediation process accordingly. Additionally, a mediator shall structure the mediation process so that the participants make decisions based on sufficient information and knowledge.

Question 14

Community Property vs. Equitable Distribution

Answer 14

1. Community Property

Community property is a method for the distribution of marital assets that is used in nine states: Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin. The guiding principle behind community property is that marriage is a partnership. Most community-property states require an equal division of the marital property.

2. Equitable Distribution

Most states follow a system of equitable distribution. The objective of the equitable-distribution system is to order a fair distribution of all marital property, taking into consideration all of the circumstances between the parties. Unlike a community-property division, an equitable distribution is not necessarily an equal division of marital assets. There are, however, a few states that presume that an equitable division is an equal division, but permit deviation when necessary to achieve a more equitable result.

Question 15

Marital Property

Answer 15

In most states, all property acquired during the marriage is marital property and subject to equitable distribution. Some states subject all property owned by either spouse to equitable distribution (i.e., the “hotchpot” approach). The definition of marital property is typically broadly applied and includes retirement benefits and, under some circumstances, equity in nonmarital property. Classification of the appreciation in nonmarital property will typically depend on whether it remains separate property and if the appreciation can be attributable to spousal labor. Title to the property is immaterial. If a party claims that an asset is nonmarital and not subject to equitable distribution, then the burden is placed on that party to prove the assertion.

Question 16

Exceptions to marital property

Answer 16

. Exceptions to marital property

Most states treat certain property as separate, rather than marital, property. Among the types of property treated as separate property are the following:

i) Property acquired before the marriage or property acquired in exchange for property acquired before the marriage;
ii) Property excluded by the parties’ valid agreement entered into before, during, or after the marriage;
iii) Property acquired by gift or inheritance, or property acquired in exchange for such property, except when it is between spouses;
iv) Property a party has sold, granted, conveyed, or otherwise disposed of in good faith and for value before the date of final separation;
v) Property to the extent that it has been mortgaged or otherwise encumbered in good faith for value before the date of final separation; and
vi) Any award or settlement payment received for any cause of action or claim that accrued before the marriage, regardless of when the payment was received.

Question 17

Factors in determination of distribution

Answer 17

i) Length of the marriage;
ii) Prior marriages;
iii) Age, health, earnings, earning potential, liabilities, and needs of both spouses;
iv) Contributions to education;
v) Needs for future acquisitions;
vi) Income, medical needs, retirement of both spouses;
vii) Contributions to increases in marital property, including homemaking and child-rearing services;
viii) Value of separate property;
ix) Reduction in valuation in marital property by one spouse;
x) Standard of living;
xi) Economic circumstances of each spouse at the time of divorce; and
xii) Custodianship of any minor children.

Dissipation occurs when one spouse uses marital property for his sole benefit after the marriage has irreconcilably broken down, such as the purchase of expensive gifts for a paramour.

Question 18

Professional licenses or degrees

Answer 18

The majority of jurisdictions do not treat a professional license or degree as a distributable property interest. Simmons v. Simmons, 708 A.2d 949 (Conn. 1998); but cf. Elkus v. Elkus, 572 N.Y.S.2d 901 (1 Dep’t 1991) (a professional degree is an asset subject to equitable distribution). Most courts look at advanced degrees or licenses as an acquisition of knowledge as opposed to a property interest.

A court may, however, view an advanced degree or license as increased earning capacity, which may have an effect on the determination of alimony. A court may also use its equity power to award a spouse reimbursement for his actual contribution toward the other spouse’s educational and related living expenses. This is often referred to as the “cost-value” approach.

Question 19

Retirement or pension benefits

Answer 19

Retirement or pension benefits acquired during the marriage are considered marital property and are subject to equitable distribution. This includes military pensions.

Question 20

Personal-injry claim proceeds

Answer 20

1) Marital property

In some jurisdictions, if the cause of action accrues between the date of the marriage and the final separation, the proceeds from the settlement or award are marital property. As long as the cause of action accrued during the marriage, the proceeds are marital property—even if the claim is paid after the final separation.

2) Separate and marital allocation

Other jurisdictions view the nature of the award to determine whether it is separate or marital property and allocate the award between nonmarital and marital property. Compensatory damages for pain, suffering, disability, and loss are considered the separate property of the injured spouse. Consortium losses are considered separate property of the non-injured spouse. Awards for lost wages, loss of earning capacity, and medical expenses are typically split. The court calculates the portion of the award attributable from the time of the accident until the termination of the marriage, and it treats that portion as marital property. Any part of the award attributable to loss of wages or medical expenses after the termination of the marriage is separate property.

Question 21

Goodwill

Answer 21

The reputation and clientele of a professional practice (such as that of a doctor or lawyer) is considered marital property in some jurisdictions.

Question 22

Accumulated sick and vacation days

Answer 22

Jurisdictions are split on the issue of whether vacation and sick days are marital property. Courts have held the following: (1) accrued vacation and sick days are marital property subject to division at the time of dissolution; (2) accrued vacation and sick days are marital property but are subject to distribution when received, as opposed to the time of dissolution; and (3) accrued vacation and sick days are not marital property.

Question 23

Future interests

Answer 23

A possible future interest in property (e.g., inheritance) is not distributable.

Question 24

Social security

Answer 24

Not distributable.

Question 25

Post-Separation Property

Answer 25

In most states, property acquired by one spouse until a divorce is granted can be marital property. Some states treat property acquired by a spouse after permanently separating from the other spouse as separate property. Still other states draw the line between marital and separate property on the date that the divorce action is filed.

Question 26

Stock options

Answer 26

Stock options acquired during the marriage are marital property even if they will not be exercised until after the marriage.

Question 27

Modification of a Property Division Award

Answer 27

A property division under either approach is not modifiable because it is based on the parties’ assets at the time of divorce. Changes in the parties’ circumstances after divorce are not considered once the award has been entered.

Question 28

Spousal Maintenance

Answer 28

• Either DEFINITE or INDEFINITE, and cannot be discharged through bankruptcy.

TYPES:

1. ) Lump sum (cannot be modified in absence of fraud)
2. ) Permanent (compensate for lost earning capacity or benefit conferred to other spouse, e.g., to compensate for homemaking or child-rearing) - almost always for long-term, 15+ year marriages
3. ) Limited Duration (usually short marriage, continuing need for support)
4. ) Rehabilitative - compensate for financial sacrifice, to secure enhanced standard of living for future

FACTORS:

1. ) Financial resources
2. ) Couples’ standard of living during the marriage
3. ) Time it will take for spouse to find employment or complete any education or training
4. ) Length of marriage
5. ) Contributions during the marriage (and to other spouse, to increase potential of other spouse)
6. ) Age and health
7. ) Marital misconduct

Question 29

Palimony

Answer 29

Available in only a few states, palimony is support provided by one unmarried cohabitant to another after the dissolution of their relationship. First recognized in 1976 by the Marvin decision, palimony is available only when the cohabitants have lived together in a stable, long-term relationship. Marvin v. Marvin, 557 P.2d 106 (Cal. 1976). The treatment of such cohabitation agreements and the resulting support of palimony vary among jurisdictions. A majority of jurisdictions distinguish between contracts that are based on sexual services and those in which the agreement is independent of the illicit relationship. Some courts also permit remedies to unmarried couples based on an implied-in-fact contract, resulting trust, constructive trust, or quantum meruit theories. In most states, the Statute of Frauds does not require that an express contract between cohabitants be in writing.

Question 30

MODIFICATION of SUPPORT

Answer 30

• Generally, may modify even if permanent.
• Party seeking modification has burden to show SIGNIFICANT CHANGE IN CIRCUMSTANCES.

As with child support, a party who willfully or voluntarily reduces her income will not receive a reduction in her support payments.

DEATH: Usually ends at death unless specified by court

REMARRIAGE: May be terminated if receiving spouse remarries. Subsequent annulment does not revive support obligation from the earlier marriage.
– additionally, remarriage can result in reduction in spousal support to receiving spouse.

COHABITATION: If the receiving spouse cohabits with someone who is not family, then spousal support may be modified if the recipient spouse’s need for the support decreases as a result of the cohabitation. Support, however, typically is not automatically terminated, as the new cohabitant does not have a legal duty to support the alimony recipient. Cohabitation can also forestall the award of spousal support. The courts, however, will also consider the nature of the cohabitation, such as whether the cohabitation involves a sexual relationship.

RETIREMENT: Some jurisdictions hold that the parties should have addressed the issue during the divorce proceedings and deny modification, while other jurisdictions find that the dependent spouse cannot expect to receive the same level of support after the supporting spouse retires.

SUPPORT DURING MARRIAGE: Most jurisdictions have modified the necessaries doctrine to apply equally to both spouses, and often refer to them as “family expense” statutes. A minority of jurisdictions have abolished the doctrine as a violation of equal protection rights.

In those jurisdictions retaining the doctrine, a creditor may sue either spouse for payment of necessaries, but it may be required to seek payment first from the incurring spouse.

Question 31

Equity powers in matrimonial actions

Answer 31

i) Division of property;
ii) Divorce or annulment;
iii) Custody;
iv) Support and alimony;
v) Award of attorney’s fees;
vi) Enforcement of separation agreements; and
vii) All other matters related to matrimonial actions.

Question 32

Divisible divorce doctrine

Answer 32

Under the doctrine of divisible divorce, also known as ex parte divorce, a court may have sufficient jurisdiction to grant a divorce but lack such jurisdiction with respect to other divorce-related matters, such as property division, alimony, and child support. A court with subject-matter jurisdiction over the divorce action as well as personal jurisdiction over one spouse can grant a divorce, but it cannot determine property division, alimony, or child-support issues without personal jurisdiction over the other spouse. If a court makes such a determination, the defendant can challenge the court’s orders due to the court’s lack of in personam jurisdiction over the defendant.

Question 33

Collateral attack on jx

Answer 33

The only way for the nonresident defendant to attack the issuance of an ex parte divorce is to demonstrate that the plaintiff either was not domiciled in the divorcing state at the time that the judgment was granted or left the state’s domicile immediately after the entry of the divorce. If the court had both personal and subject-matter jurisdiction over the parties, and the attacking party litigated or had the opportunity to litigate, then that person will be precluded from collaterally attacking the judgment in any jurisdiction. Sherrer v. Sherrer, 334 U.S. 343 (1948). This is often seen in cases in which the parties colluded to obtain an out-of-state divorce. Although persons other than the party may collaterally attack a divorce if standing exists (i.e., a child), they will be precluded from attacking it if the third person is in privity with any party who would have been estopped from attacking the judgment themselves.

Question 34

Child Support

Answer 34

• Parents are legally required to support their minor children. Some jxs extend that support obligation through college, or indefinitely if the child is incapable of self support.
• Cannot bargain away child-support payments, even before intending to have a child.
• Visitation cannot be denied for failure to pay support.

Question 35

Nonmarital children -> marital children

Answer 35

i) The parents marry after the birth of the child;
ii) The father consents to being named on the birth certificate;
iii) The father holds himself out or in some way acknowledges that he is the child’s father; or
iv) A judicial decree establishes paternity.

Question 36

Paternity

Answer 36

• Father has rights to custody and visitation, and duty to support, once paternity is discovered.
• Blood tests: Court may order. State must provide expenses if father is indigent. If paternity disproved, must dismiss.
• Other evidence: (i) prior statements, (ii) medical testimony, (iii) defendant’s acknowledgment, (iv) resemblance of child to defendant.
• CONSTITUTIONAL LIMITATION: A time limit on the filing of a paternity petition in order to secure support from the purported father is invalid unless there is a reasonable opportunity to pursue such an action and the limit is substantially related to the government’s interest in restricting such an action (e.g., prevention of fraudulent claims). Otherwise, the time limit is a violation of the Equal Protection Clause of the U.S. Constitution because it subjects illegitimate children to restrictions not imposed on legitimate children. Pickett v. Brown, 462 U.S. 1 (1982). The suit may be brought by the child or the child’s mother. The standard of proof varies by jurisdiction, but it could be as low as preponderance of the evidence or as high as clear and convincing proof.

Question 37

Marital Presumption

Answer 37

There is a marital presumption that a child born to a married woman is the child of that woman and her husband. Most states apply the presumption even when the wife is artificially inseminated, provided that the husband gave his consent to the procedure, and the procedure is performed by a physician. In some states, a wife is estopped from denying her husband’s paternity of her child, but approximately half of the states permit rebuttal of the marital presumption if the husband is impotent, sterile, or lacked access to his wife. When rebuttal is permitted, some states permit a court to exclude evidence rebutting the presumption if rebuttal is contrary to the child’s best interests.

Question 38

Estoppel

Answer 38

A husband who is not the biological father of his wife’s child may be estopped from denying his obligation to pay child support. Under the doctrine of equitable estoppel, the husband may be required to pay child support when:

i) There is a representation by the husband that he would provide for the child;
ii) The wife relied on his representation; and
iii) The wife suffered an economic detriment as a result of the reliance (e.g., loss of opportunity to obtain child support from the child’s biological father).

Although many jurisdictions recognize the doctrine of paternity by estoppel, some jurisdictions will permit it to be used only as a basis to prevent a party from denying his obligation to support as opposed to preventing a biological father from asserting his rights. See R.W.E. v. A.B.K., 961 A.2d 161 (Pa. Super. 2008). However, some states have recently begun placing greater emphasis on the interests of men who have been erroneously identified as fathers. In these jurisdictions, a husband’s child support may be terminated, and paternity may be disestablished, without regard to a child’s financial interests.

Question 39

Uniform Interstate Family Support Act

Answer 39

The ways in which a court can obtain personal jurisdiction are:

i) Personal service on the defendant parent;
ii) Consent of the defendant parent, such as by entering an appearance in the action;
iii) Past residency with the child in the state;
iv) Past residency in the state and the provision of prenatal expenses or support for the child;
v) Residency of the child in the state as a result of acts or directives of the parent defendant;
vi) The parent defendant engaged in sexual intercourse in the state, and the child may have been conceived by that act;
vii) The parent defendant asserted parentage in the putative father registry maintained by the state; or
viii) Any other basis consistent with federal and state constitutions for the exercise of personal jurisdiction.

Every jurisdiction has adopted the Uniform Interstate Family Support Act (UIFSA) to simplify collection of support payments when the obligor or child resides in a jurisdiction different from the one in which the original order was issued. Once an order is registered in another state, it is enforceable in the same manner and to the same extent as a child-support order issued by the original state. UIFSA §603(b). If the order is properly registered, the Full Faith and Credit Clause of the U.S. Constitution applies to it. UIFSA § 603(b).

Only the issuing state may modify the original support order; the other state’s responsibility is simply to enforce the order. If there is no personal jurisdiction over the obligor, then there is a two-state procedure that can be employed. Under this approach, an enforcement order can be obtained in the issuing state by filing an enforcement petition in the initiating state that will be forwarded to the issuing state’s court. UIFSA § 203.

EXAM NOTE: The modification and enforcement of interstate child support is always governed by the UIFSA, which has been adopted in every jurisdiction. If more than one state is involved in a fact pattern, always discuss the UIFSA, as the failure to follow its requirements does not result in its enforcement under the Full Faith and Credit Clause of the U.S. Constitution.

Question 40

Determining Amount of Child Support

Answer 40

INCOME SHARES MODEL: Most jurisdictions have adopted an income-shares model, which operates on the theory that a child should receive the same proportion of parental income as if the parties continued to live together.

PERCENTAGE OF INCOME MODEL: Determine by using percentage of supporting parent’s net income, determined by number of children supported.

ALLOWANCE OF DEVIATIONS: n all jurisdictions, there is a rebuttable presumption that the amount calculated pursuant to the child-support guidelines is correct. 42 U.S.C. § 667. Deviations, however, are permitted as the circumstances warrant. If the court determines that the amount set forth under the guidelines should be deviated from, it must set forth specific findings explaining and supporting the deviation, including the amount that would have been awarded under the application of the guidelines. If a parent is unemployed or underemployed, the court may impute an income to calculate the child-support award. Conversely, if the parent(s) earn a significant income far exceeding the needs of the child, the court may modify the award to provide solely for the child’s needs, but generously define the amount. Once a child-support award has been paid, the obligor is not permitted to monitor how the money is expended.

Question 41

Other Factors for Child Support

Answer 41

i) Ages of the children;
ii) Unusual needs and unusual obligations (e.g., special education);
iii) Support obligations of the parties;
iv) Assets of the parties;
v) Medical expenses outside of insurance coverage;
vi) Standard of living;
vii) Duration of marriage, for spousal support or alimony pendente lite; and
viii) Best interests of the child.

Question 42

Considering Medical Insurance

Answer 42

In most jurisdictions, the cost of providing medical insurance for the child is included in the child-support award, if either of the parents has access to insurance. If there is no insurance available, then the court may include provisions for the procurement and payment of insurance after consideration of the medical needs of the child, the cost of the coverage, and the availability of a plan to meet the child’s needs. Any premiums associated with the medical coverage shall be subtracted from the net income of the parent who is responsible for the payment.

Question 43

Modification of Child Support

Answer 43

• Retroactivity: Typically, a modification award is made retroactive to the date of service of the motion on the opposing party, but support obligations that have accrued prior to that date generally may not be modified.

VOLUNTARY REDUCTION OF INCOME: The amount of child support generally may not be reduced simply because of a voluntary reduction in the obligor’s pay. In these circumstances, the court will usually set child support obligations based on the obligor’s earning capacity, which is the amount that the person could realistically earn under the circumstances in consideration of the person’s age, mental health, and physical condition.

However, in some jurisdictions, a voluntary reduction of the obligor parent’s income may justify a reduction of child support obligations if certain conditions are met. All jurisdictions allowing a modification due to voluntary reductions in the obligor’s income require the obligor parent to show that the reduction was made in good faith and not for the purpose of depriving the child or punishing the custodial parent. Some courts require an additional finding that the child will not suffer a significant hardship from the modification.

Question 44

Termination of Support

Answer 44

A parent’s obligation to pay support usually ends when the child reaches the age of majority (typically 18 years of age). Some jurisdictions, however, have the authority to order support beyond the age of majority when the child is in college. An additional exception applies when an adult child is unable to support himself due to circumstances such as a mental or physical disability. In most jurisdictions, termination may also take place if the child marries, the parental rights are terminated, the child commences active duty in the military, or the parent or child dies. A court, however, does have the right to order that a parent obtain insurance on his life for the benefit of the children to provide future support after his death.

Additionally, support may be terminated if a child is emancipated before the age of majority. To be emancipated, a minor child must be established as a self-supporting individual beyond the sphere of influence of his parents or independent of parental control. The mere employment of the child does not, by itself, establish emancipation. Also, the birth of a child by an unemancipated child does not result in an automatic emancipation and termination of support. However, the support rights of an employable child are contingent on the compliance by the child with reasonable parental demands; an employable child who fails to comply risks loss of parental support.

Question 45

Jx for Modification of Support

Answer 45

Similar to the jurisdictional issues with child-custody orders, a state court may not modify an order of child support rendered by a court of continuing jurisdiction in another state unless the parties, including the child, no longer reside in that state or the parties expressly agree to permit another state to exercise jurisdiction. A court order that fails to adhere to this jurisdiction rule does not qualify for enforcement under the Full Faith and Credit Clause of the U.S. Constitution. 28 U.S.C. § 1738B(a) (Full Faith and Credit for Child-Support Orders Act); UIFSA § 205.

As with enforcement, a child-support order may be registered in another tribunal (e.g., order entered in Mississippi, but all parties moved to Minnesota and the order is then registered in Minnesota). It is important to note, however, that if an aspect of a child-support obligation may not be modified under the law of the state that first imposed the obligation, that aspect of the obligation may not be modified under the laws of any other state. UIFSA § 611, cmt. See also, C.K. v. J.M.S., 931 So. 2d 724 (Ala. Civ. App. 2005) (although the amount of child support may be modified, the length of the obligation may not be changed, as it is a nonmodifiable aspect of the original order); Wills v. Wills, 745 N.W.2d 924, 926–29 (Neb. Ct. App. 2008).

Question 46

Enforcement: Civil Contempt

Answer 46

Civil contempt requires compliance with a court order. An obligor with the ability to pay may be found in civil contempt and can be sent to jail and held until the amount owed is fully paid. Jurisdictions are currently split regarding whether the appointment of counsel is constitutionally required in civil contempt cases when the defendant is indigent.

Question 47

Enforcement: Criminal Contempt

Answer 47

Criminal contempt is a specific jail sentence imposed upon an obligor who willingly fails to pay the amount owed. When criminal contempt is sought by the court, the defendant is entitled to additional constitutional protections.

Question 48

Other sanctions

Answer 48

Courts may impose other sanctions, such as issuing judgments, intercepting tax refunds, credit bureau reporting, suspending the obligor’s driver’s license or occupational license, seizing property or assets, garnishing the noncomplying party’s wages, and ordering the payment of attorney’s fees. Additionally, the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA) permits the denial of a passport application when the noncustodial parent is more than $5,000 in arrears on his child-support obligation.

Question 49

Custody

Answer 49

• LEGAL CUSTODY: Legal custody is the right of a parent to make major decisions, as contrasted with everyday decisions, regarding the minor child. Typically, areas of health, education, and religion are encompassed.
• PHYSICAL CUSTODY: Physical custody is the right to have the child reside with a parent or guardian and the obligation to provide for routine daily care and control of the child. As with legal custody, physical custody may be shared by both parents under a joint custody arrangement.
• JOINT CUSTODY: Joint custody generally requires that the parents are both willing and able to cooperate with respect to the well-being of the child. Usually, joint custody is not imposed over the objections of one parent, but, even when it is, the arrangement must meet the best-interests-of-the-child standard.

Under a typical joint legal custody arrangement, neither parent has a superior right to make major decisions; instead, joint custody arrangements typically spell out a procedure for resolving conflicts. Joint legal custody is the outcome in the majority of cases. In fact, many jurisdictions have a statutory presumption in its favor.

Question 50

UCCJEA - Initial Custody determination JX

Answer 50

1. Initial Custody Determination (Home-State Jurisdiction)

A court has subject-matter jurisdiction to preside over custody hearings and either enter or modify custody or visitation orders if the state:

i) Is the child’s home state (the state in which the child has lived with a parent or guardian for at least six consecutive months prior to the custody proceeding, or since birth, if the child is less than six months old); or
ii) Was the child’s home state in the past six months, and the child is absent from the state, but one of the parents (or guardians) continues to live in the state.
2. Significant-Connection Jurisdiction

A court can enter or modify an order if (i) no other state has or accepts home-state jurisdiction, (ii) the child and at least one parent have a significant connection with the state, and (iii) there is substantial evidence in the state concerning the child’s care, protection, training, and personal relationships.

3. Default Jurisdiction

If no state has jurisdiction through home-state jurisdiction or substantial-connection jurisdiction, then a court in a state that has appropriate connections to the child has jurisdiction.

Question 51

UCCJEA - Modification of Custody Order

Answer 51

A court can enter or modify an order if (i) no other state has or accepts home-state jurisdiction, (ii) the child and at least one parent have a significant connection with the state, and (iii) there is substantial evidence in the state concerning the child’s care, protection, training, and personal relationships.

Question 52

UCCJEA: Exclusive-Continuing Jurisdiction

Answer 52

Courts that make the initial ruling in a custody case have exclusive jurisdiction over the matter until the court determines that:

i) The parties no longer reside in the state; or
ii) The child no longer has a significant connection to the state, and any substantial evidence connected to the child’s condition is no longer available in the state.

Question 53

When Courts Can Decline Jurisdiction (inconvenience + factors)

Answer 53

If a court has either initial or exclusive-continuing jurisdiction, the court may decline to exercise such jurisdiction if it finds the forum to be inconvenient after considering the following factors:

i) Whether domestic violence has occurred and is likely to continue in the future, and which state could best protect the parties and the child;
ii) The length of time the child has resided outside of the jurisdiction;
iii) The distance between the competing jurisdictions;
iv) The parties’ relative financial circumstances;
v) Any agreement of the parties regarding which state should assume jurisdiction;
vi) The nature and location of the evidence required to resolve the pending litigation, including the child’s testimony;
vii) The ability of each state’s court to decide the issue expeditiously and the procedures necessary to present the evidence; and
viii) The familiarity of each state’s court with the facts and issues in the pending litigation.

Question 54

Temporary Emergency Jurisdiction

Answer 54

A jurisdiction that does not otherwise have jurisdiction may obtain temporary emergency jurisdiction and enter an order if the child is in danger and requires immediate protection. If a prior custody order is in existence, then the court rendering the emergency order must allow a reasonable time period for the parties to return to the state of original jurisdiction and argue the issues at hand before that court. If there is no prior custody order, then the emergency order remains in effect until a decision is rendered by the child’s home state. If no future determination is made, then the emergency order continues in full force and effect.

Question 55

Enforcement of Another State’s Orders

Answer 55

A custody order from another state can be registered with or without a simultaneous request for enforcement. Typically, most jurisdictions require at least one certified copy of the order from the appropriate entity. The registering court can then grant any relief available for enforcement of the registered order.

Question 56

Expedited enforcement of a child-custody determination

Answer 56

The UCCJEA uses a process similar to habeas corpus. After a petition is filed, the respondent must appear in person at a hearing held on the first judicial day after service of the order or, if that date is impossible, on the first judicial day possible. The petitioner will be awarded immediate physical possession of the child unless:

i) The custody or visitation order was not registered; and
a) The issuing court did not have jurisdiction;
b) The order had been stayed or vacated; or
c) The respondent was entitled to notice, but notice was not given before the court issued the order for which enforcement is sought; or
ii) The order was registered and confirmed, but the order was stayed, vacated, or modified.

Question 57

Warrant for child custody

Answer 57

The court may issue a warrant, upon a petitioner’s request, for the petitioner to take physical possession of a child if it finds that the child is likely to suffer serious physical injury or be removed from the state.

Question 58

UCCJEA Law Enforcement

Answer 58

The UCCJEA allows any law-enforcement official to take any lawful action to enforce a custody order or obtain the return of a child (i) if the official believes that the person holding the child has violated a criminal statute, or (ii) if requested to do so by a court of law.

Question 59

Uniform Deployed Parents Custody and Visitation Act

Answer 59

The Uniform Deployed Parents Custody and Visitation Act (UDPCVA), enacted in 2012, integrates with the UCCJEA but applies specifically to parents who are also service members. Among other things, the UDPCVA provides that when imminent deployment is not an issue, courts cannot use a parent’s deployment as a negative factor in determining the best interests of the child. The act also sets out a procedure for out-of-court custody agreements, sets guidelines for temporary custody, and prohibits entry of permanent custody orders before or during deployment without the service-member parent’s consent.

Question 60

Parental Kidnapping Prevention Act (PKPA)

Answer 60

he PKPA, despite its name, applies not only to parental kidnapping cases, but also to civil interstate custody disputes, including visitation rights. Under the Supremacy Clause of the U.S. Constitution, the PKPA takes precedence over any conflicting state law. See, e.g., Murphy v. Woerner, 748 P.2d 749 (Alaska 1988). The PKPA discourages forum shopping between states and allocates the powers and duties between states when a child-custody dispute arises. 28 U.S.C. § 1738A. If a jurisdiction fails to follow the PKPA’s rules regarding jurisdiction, which are substantially similar to the UCCJEA rules (see § IV.B., Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), supra), the order of the noncompliant jurisdiction is not entitled to full faith and credit.

The International Parental Kidnapping Crime Act (IPKCA) prohibits a parent from taking a child outside the United States and obstructing the other parent’s physical custody of the child. The Hague Convention requires the return of a child wrongfully taken or retained in a foreign country, and it allows the custodial parent to file suit. The exception to this is if bringing the child back into the country would expose the child to grave physical or psychological harm.

Question 61

Best-Interests-of-the-Child Standard

Answer 61

Many courts consider who the primary caretaker of the child was during the marriage and the separation, and prior to the divorce, as factors in determining who should have custody.

1. Race or Religion

In most jurisdictions, the courts cannot use race or religion as factors in determining custody.

2. Parents’ Sexual Conduct

In many, but not all, jurisdictions, courts may not consider the parents’ prior sexual conduct, including gay or lesbian relationships, in making a custody decision, unless it can be determined that the conduct of the parent has or will have a negative effect on the child.

3. Third-Party Rights

Legal parents are presumptively entitled to custody of their children in cases against third parties, including grandparents or stepparents, unless it can be established that the legal parent is unfit or that awarding custody to the legal parent would be detrimental to the child.

If a natural parent has had little or no contact with a child, or if the child has lived with the third party for an extended period of time, then courts have employed the terms “parent by estoppel” and “de facto parent” to get around the presumption.

A minority of the jurisdictions apply the best-interests-of-the-child standard in all custody cases, even those between a parent and a third party. However, such a standard may run afoul of a parent’s constitutional rights

4. Child’s Preference

Most courts will consider the wishes of the child if the court can determine that the child has sufficient maturity to express a preference. Although age is not the sole factor in determining whether a child should be consulted, it is considered by the court. If children are consulted, then the court evaluates the reasons behind the preference.

5. Guardian Ad Litem

In a highly contested child-custody case, legal counsel may be appointed for the child. This attorney’s duty is to advocate for the child’s preferences and act on her behalf. The attorney’s fees are usually paid by the parents.

6. Siblings

Courts traditionally avoid separating siblings from each other in order to maintain stability and promote sibling relationships.

7. Domestic Violence

Nearly every jurisdiction requires the court to consider the presence of domestic violence between the parties when awarding custody. Some jurisdictions have created rebuttable presumptions in favor of the nonabusive spouse.

Question 62

Visitation

Answer 62

Generally, the noncustodial parent is allowed reasonable visitation (or “parenting time”) with a minor child. Because parents have a constitutional right to have contact with their children, the denial of visitation is unusual and typically only an issue when it would seriously endanger a child’s physical, mental, or emotional health. The court will, however, place restrictions on the exercise of visitation, such as supervised parenting time or a denial of overnight visits. The parents, by agreement, usually determine the time, place, and circumstances of the visitation. If the parties cannot agree on the circumstances, then the court will determine the particular circumstances surrounding the parenting time.

1. Third Parties

In some situations, third parties, such as grandparents, stepparents, or gay or lesbian nonbiological co-parents, may seek parenting time. Visitation is sometimes granted to stepparents and same-sex nonbiological co-parents, but it is typically limited to those cases in which they have acted in loco parentis with the child prior to the divorce. Absent such a relationship, there are no protected rights of a stepparent or nonbiological co-parent to have ongoing contact with the child(ren) after divorce or death of the natural parent.

a. “Special weight” to a fit parent’s decision

A fit parent has a fundamental right to the care, custody, and control of his children. Troxel v. Granville, 530 U.S. 57 (2000). Troxel requires that state courts must give “special weight” to a fit parent’s decision to deny nonparent visitation; “special weight” has been held to mean a very significant deference.

b. Grandparent visitation

Although the majority of jurisdictions have statutes regarding grandparent visitation, they differ among states and often do not guarantee the right to visit. In Troxel, the Supreme Court specifically implicated a fit parent’s fundamental right to the care, custody, and control of the children in relation to grandparent visitation. Courts examining the request of grandparents for visitation will focus on the decision of the fit parents, statutory factors, and what is in the best interests of the child.

c. Unwed biological father

An unwed biological father has a substantive due process right under the U.S. Constitution to have contact with his child. However, this right exists only when the father demonstrates a commitment to the responsibilities of parenthood (e.g., participation in child-rearing or providing financial support). Lehr v. Robertson, 463 U.S. 248 (1983). In addition, many states have imposed a two-year limit on the establishment of paternity by an unwed biological father. Further, if the mother is married to another man and refuses to join in a paternity petition, then a state may preclude the purported biological father from pursuing the paternity petition. Michael H. v. Gerald D., 491 U.S. 110 (1989).

2. Sexual Relationship or Cohabitation

Courts are unlikely to restrict visitation because of a parent’s cohabitation with another or a parent’s sexual relationship unless the cohabitation has an adverse impact on the children. Although jurisdictions differ in their handling of gay and lesbian relationships, the majority of jurisdictions do not prohibit overnight visitation unless the opposing parent can demonstrate a specific danger to the child’s physical or emotional health.

3. HIV/AIDS

Courts cannot deny visitation merely because a parent has HIV/AIDS. North v. North, 648 A.2d 1025 (Md. App. 1994).

4. Interference

Interference or refusal to comply with a visitation order may be remedied by a change in custody or by contempt proceedings.

Question 63

Enforcement of Child Custody

Answer 63

1. Sanctions

A party seeking enforcement of child-custody and visitation orders can request assistance through the court system. The court hearing the case may impose a variety of sanctions, including compensatory visitation, attorney’s fees, court costs, fines, and jail time. Tort damages may also be awarded to a parent for the period of time that the child is wrongfully out of the parent’s custody. In most states, a party cannot be denied parenting time for his failure to pay child support, or based merely on a child’s wishes.

2. Habeas Corpus Proceedings

Although not available for child-custody disputes or visitation rights, a habeas corpus proceeding is a way in which a person who claims to have custody of a child, but who does not have physical custody of the child, can be heard by the court. In addition, during these proceedings, many jurisdictions will revisit the issue of which placement is in the best interests of the child.

Less limiting than habeas corpus is a suit in equity action, which enjoins conduct in violation of a custody order. The current trend has been to use suits in equity over habeas corpus proceedings.

3. Enforcement of Foreign Decrees

Custody and visitation orders between states are enforceable under the Full Faith and Credit Clause if the other state’s decree has been registered in the state seeking enforcement (see § IV.B.7., Enforcement of Another State’s Orders, supra). Generally, a local court cannot modify an out-of-state decree, unless (i) the foreign court declines jurisdiction and the local court has proper jurisdiction, and (ii) the out-of-state party is given sufficient notice of the hearing in the local court.

Question 64

Modification of Custody

Answer 64

Once a custody order has been entered, absent relocation, a state retains subject-matter jurisdiction to modify the order while the child remains a minor. The majority of jurisdictions apply a change-in-circumstances standard, requiring some substantial and unforeseen change since the issuance of the prior order. Some jurisdictions have also applied time barriers before an application for modification can be filed absent consent or endangerment. The purpose behind requiring time barriers or a substantial change in circumstances is to promote stability in the child’s life. The violation of a child visitation order does not automatically change who is designated as the custodial parent; it is a factor to consider in modification of an order. The failure to pay child support is not a basis on which to withhold visitation or modify an existing child-custody order.

Question 65

Relocation

Answer 65

If the custodial parent is proposing to relocate with the minor child, and the relocation will significantly impair the noncustodial parent’s ability to see the child under the court-ordered visitation schedule, then it will almost always constitute a substantial change in circumstances warranting a modification. Note that prior to discussing the modification, if any, the court must provide the custodial parent with permission to relocate after applying the below factors.

1. Relocation

The law regarding whether a parent can modify a custody order and relocate with a minor child is diverse. Some jurisdictions consider the relevant facts, but they place the predominant weight on the best interests of the child. See, e.g., Pollock v. Pollock, 889 P.2d 633, 635 (Ariz. Ct. App. 1995). Other jurisdictions apply a presumptive right to relocate with the child, provided that the rights and welfare of the child are not prejudiced. More often, the custodial parent seeking relocation bears the burden of demonstrating that the relocation is for a legitimate and reasonable purpose, as opposed to restricting the noncustodial parent’s visitation. See, e.g., Conn. Gen. Stat. 46b–56d. Some states, however, will place the burden of proof on the parent objecting to the relocation, typically the noncustodial parent, to demonstrate that the move will not serve the child’s best interests or that the move would also cause harm to the child. See, e.g., Pennington v. Marcum, 266 S.W.3d 759, 768–69 (Ky. 2008).

Provided that a legitimate purpose for the move can be ascertained, the trend of the courts is to permit the custodial parent and child to relocate. An application to relocate, however, should be made in advance of the relocation, and it must be based on anticipated present facts, not speculative ones. See, e.g., Arthur v. Arthur, 54 So. 3d 454 (Fla. 2010). Applications made after the relocation has taken place are often highly criticized by the court. Among the factors considered by the various jurisdictions are the following:

i) The nature, quality, and involvement with the child of the parent who is not seeking relocation;
ii) The age and needs of the child and the impact that the proposed relocation will have on that development, including any special needs of the child;
iii) The ability to preserve the relationship with the nonrelocating parent and the child through visitation arrangements;
iv) The child’s preference, if the child is of sufficient maturity;
v) Whether the parent seeking relocation has any history of promoting or preventing parenting time with the nonrelocating parent;
vi) Whether the relocation will enhance the quality of life of the child and the parent seeking relocation;
vii) The reasons each parent has in requesting or opposing the relocation; and
viii) Any other factors that affect the best interests of the child.

It is important to note that the applicable standards may be even more restrictive when the parents share joint custody of the minor child.

In those jurisdictions, the standard is often more protective of the parent who is not seeking the relocation. Mediation can often be useful in assisting with resolving child-custody issues.

Question 66

Effect of cohabitation on custody

Answer 66

Some states permit a hearing to consider a change in custody when the custodial parent is living with a nonmarital partner. However, a change in custody is generally not granted unless there is a showing that the cohabitation is having an adverse effect on the child.

Question 67

Parental Consent

Answer 67

In certain circumstances, such as for medical procedures, parental consent must be obtained. This policy holds regardless of the parents’ marital status. A doctor who performs surgery on a minor child without parental consent is liable in tort. There are some exceptions to this general rule, such as in the case of an emergency, when time is of the essence. Some states may permit an exception to the general rule of consent when the child is older or deemed mature, or when the medical concern is related to public health, such as the treatment of a venereal disease.

1. Religious Beliefs

At times, the parent’s religious beliefs can conflict with what may be in the child’s best interests. Often seen in cases in which medical treatment contradicts religious beliefs, the court can intervene, under the theory of parens patriae, to protect a child when necessary medical care is needed to prevent serious harm to the child’s health. Prince v. Massachusetts, 321 U.S. 158, 170 (1994) (“Parents may be free to become martyrs themselves. But it does not follow they are free…to make martyrs of their children.”). In those situations, a child can be declared neglected and the medical treatment ordered.

In some states, there are exemptions to the finding of abuse or neglect that permit the state to order the requisite medical care without finding the parent at fault. Such action by the court is typically taken only when the medical treatment is life-threatening and only after the court balances the risks and benefits of the medical treatment. The home state has jurisdiction if it has been the home state of the child within the six months prior to the beginning of the custody proceeding.

2. Upbringing

A parent has a right to raise her child as she sees fit. Wisconsin v. Yoder, 406 U.S. 205 (1972). This right of parents extends to decisions relating to the religious upbringing of a child.

Question 68

MARITAL AGREEMENTS

Answer 68

1. Premarital Agreements

A premarital (also known as “prenuptial” or “antenuptial”) agreement is a contract made before the marriage, typically containing terms that relate to division of property or spousal support in the case of a divorce and at death. As with any contract, consideration is required. A valid marriage is sufficient consideration for a premarital agreement.

Many jurisdictions have held that a premarital agreement must expressly state its applicability to divorce proceedings. Additionally, clauses relating to child custody and support are unenforceable. Adopted in 26 jurisdictions, the Uniform Premarital Agreement Act (UPAA) is a uniform law that relates specifically to these types of contracts and imposes the same standards that are discussed below at § V.B., Validity of Marital Agreements. Individual states have amended this act in various ways throughout the years, resulting in the 2012 enactment of the Uniform Premarital and Marital Agreements Act (UPMAA). The act applies the same standards and requirements for both marital agreements and premarital agreements. As of this printing, two states, Colorado and North Dakota, have enacted the UPMAA.

When there is an issue as to which state’s law will govern whether a premarital agreement is enforceable, most states apply the law of the state with the most significant relationship to the agreement and the subsequent marriage. Some states apply the law of the state where the agreement was executed.

2. Separation Agreement

Separation agreements are made between spouses who are planning for divorce. These agreements can define property division, spousal support, child support, custody, and visitation. The court generally will enforce spousal maintenance and property division provisions so long as the agreement is not unconscionable or based on fraud. Provisions related to child support and custody, on the other hand, are modifiable by the court if the initial terms are not in the best interests of the child. These agreements are generally merged into the final judgment for divorce, as long as they are based on full and fair disclosure. When no merger occurs, enforcement is based on contract law rather than judgment enforcement.

3. Property-Settlement Agreement

The purpose of a property-settlement agreement is to settle the economic issues of the marital estate. It is entered into by the parties before a divorce decree is issued. As with a separation agreement, a court generally will enforce spousal maintenance and property division provisions so long as the agreement is not unconscionable or based on fraud.

Question 69

Validity of Marital Agreements

Answer 69

A premarital agreement is enforceable if there has been full disclosure, the agreement is fair and reasonable, and it is voluntary. The agreement must be in writing and signed by the party to be charged. The agreement may be amended or revoked after the marriage, provided both parties sign a written agreement to that effect. The burden of proving its invalidity is by clear and convincing evidence. The UPAA requires that the party against whom enforcement is sought prove (1) involuntariness or (2) that the agreement was unconscionable when it was executed, that she did not receive or waive fair and reasonable disclosure, and she “did not have, or reasonably could not have had, an adequate knowledge” of the other’s assets and obligations. UPAA § 6(a). Voluntariness, fairness, and asset disclosure are relevant to enforceability in all jurisdictions, even in states that have not adopted the UPAA. However, in non-UPAA jurisdictions, courts can refuse to enforce on any ground.

If the marriage is voided, a premarital contract is enforceable only if it will avoid an inequitable result.

1. Full Disclosure

Premarital agreements must provide full disclosure of financial status, including income, assets, and liabilities of all parties. Disclosure is an important consideration to the court, as it demonstrates that each party exercised a meaningful choice when they agreed to the terms of the contract. Absent full disclosure, a court will generally refuse to enforce the agreement.

2. Fair and Reasonable

To determine if a premarital contract’s terms are reasonable, the courts consider the parties’ wealth, age, and health. Courts will look at both whether the agreement is fair both procedurally and substantively. An agreement obtained by fraud, duress, or undue influence may be set aside as procedurally unfair. When a mediator participates in the creation of a settlement agreement, misconduct by the mediator (e.g., bias toward one spouse) can give rise to grounds for setting aside the agreement. If a confidential relationship between the spouses exists, then the burden of proving the fairness of the agreement or the absence of undue influence may be placed on the dominant spouse. Courts may also look at the terms of the agreement itself to see if they are so unfair as to be unconscionable.

Most courts evaluate fairness at the time of execution of the contract, and a minority of jurisdictions will evaluate it at both the time of execution and the time of enforcement.

The current trend is for courts to enforce contractual agreements that may not be fair as long as there has been fair disclosure.

3. Voluntary

The parties must enter into the contract voluntarily (i.e., free of fraud, duress, or misrepresentation). Courts consider factors such as time-pressure, the parties’ previous business experience, and the opportunity to be represented by independent counsel.

A party’s insistence on the agreement as a condition to marriage is not considered duress.

EXAM NOTE: Be sure to discuss whether procedural fairness exists if one party was not independently represented. Address the question of voluntariness by discussing whether the individual was both informed of her right to counsel and given the opportunity to consult counsel.

4. Impoverished Spouse

Even if a valid agreement has been voluntarily executed and it meets the test for reasonableness, fairness, and full disclosure, the agreement may be set aside if its result winds up leaving one spouse woefully impoverished to the extent that he becomes dependent on the state (i.e., welfare). It is irrelevant if abrogation of the exact terms of the agreement results.

5. Modification of Marital Agreements

Although a court may uphold a provision in a marital agreement that prevents modification of property rights, including spousal support, a court may always modify child-support provisions in a marital agreement even if the agreement states that no modifications may be made.

Question 70

Agreements Between Unmarried Cohabitants

Answer 70

1. Cohabitation Agreements

Contracts between unmarried persons are invalid if the only consideration is sexual relations. Agreements in which other consideration, such as full-time companionship or cooking, is exchanged for financial support will generally be enforced. These contracts may be express, regarding earnings or property rights, or implied. However, courts are less likely to enforce an implied contract.

2. Property Division Between Unmarried Cohabitants

When there is no express contract, courts will generally provide for equitable distribution of property based on a resulting trust, constructive trust, or quantum meruit theory to avoid unjust enrichment.

Question 71

Adoption

Answer 71

1. Termination of a Natural Parent’s Rights

For an adoption to be valid, the parental rights of the biological parents must be terminated. For those rights to be terminated, one of the following circumstances must occur.

a. Voluntary termination

The biological parents may voluntarily give up their rights as parents of the minor child and consent to the child’s adoption by the adoptive parents.

1) Consent of unwed fathers a) Consent by failure to register

Some jurisdictions have created adoption registries for the purpose of determining the identity and location of putative fathers and providing notice in the event of an adoption. A putative father’s failure to register within a statutorily prescribed period of time constitutes a waiver of his right to notice of the adoption and irrevocably implies his consent to the adoption. See, e.g., In Re J.D.C., 751 N.E.2d 747 (Ind. App. 2001); Robert O. v. Russell K., 604 N.E.2d. 99 (N.Y. Ct. App. 1992). Termination in this fashion typically applies only to cases in which the father and child never developed a relationship. A situation in which the child is a newborn gives the unwed father a constitutional right to have an opportunity to develop a quality relationship with the child.

b) Limitations on the right to object

The right of an unwed father to object to an adoption may be denied if the father does not demonstrate a commitment to the responsibilities of parenthood, but it cannot be denied if such a commitment has been made. Quilloin v. Walcott, 434 U.S. 246 (1978); Caban v. Mohammed, 441 U.S. 380 (1979).

2) Consent of the prospective adoptee

In most jurisdictions, the prospective adoptee must consent to his adoption if he is over 14 years of age; some jurisdictions lower the age to 12 years.

3) Withdrawal of consent

Prior to a final decree of adoption, the parents’ consent to adoption may be withdrawn with court approval. After the final decree is entered, however, no withdrawal of consent is allowed.

b. Involuntary termination

Unlike with consensual termination of parental rights, only a court can involuntarily terminate one’s constitutional right to parent a child. The involuntary termination of parental rights typically occurs as part of an abuse, neglect, or dependency case after the state has intervened and made attempts to rectify the situation. Also, if consent is unreasonably withheld, then the court will waive such consent.

1) Requirements

Each jurisdiction provides the statutory grounds and requirements for termination of parental rights. They can include abandonment, incapacity, abuse of a sibling, termination of parental rights over a sibling, and abuse and neglect of the child over a period of time. Additionally, under the Adoption and Safe Families Act, a state can move for termination of parental rights when the child has been placed outside of the home and not with a relative for 15 of the past 22 months, provided certain reunification attempts have been made by the state.

Because the termination of parental rights has constitutional implications, it is considered an extreme remedy. The standard for determining whether termination is appropriate is clear and convincing evidence.

2) Adoption

Some jurisdictions also apply the traditional law of adoption, which permits an adoption upon the finding that a parent has abandoned the parent-child relationship. Jurisdictions vary on the use of a subjective versus objective test. When an objective standard is applied, the key is whether the parent has failed to act in a way that indicates a commitment to maintaining the parent-child relationship (e.g., visitation and support). When a subjective standard is applied, the key is whether the parent subjectively intended to abandon the parent-child relationship; objective evidence of a parental loss of interest in the relationship is insufficient.

c. Approval of adoption

After a thorough investigation regarding the fitness of the adoptive parents, the courts either approve or deny the adoption. The investigation may be waived if the adoptive parents are close family members of the child.

Question 72

Legal Effects of Adoption

Answer 72

Once an adoption takes place, the adoptive parents have all of the rights and responsibilities that the biological parents would have had (e.g., support, custody, visitation, and inheritance), and the adopted child has all of the rights and responsibilities that a biological child would have had (e.g., intestate rights in the adoptive parents’ estate). As the adoptive parents stand in the shoes of the adoptee’s biological parents, the vast majority of jurisdictions will not permit visitation between the adoptee and her biological parents. A few states do authorize visitation between an adoptee and a nonparent, typically a stepparent, but only when there is a substantial relationship between the child and nonparent, and the visitation is in the child’s best interests.

Generally, an adoption may not be dissolved, although some states have permitted dissolution in limited circumstances, such as the discovery of an undisclosed mental or physical illness. In evaluating dissolution claims, courts typically consider the length of the relationship, the child’s needs, and the parent’s motives.

Question 73

Assisted Reproduction

Answer 73

The UPA defines “assisted reproduction” as implanting an embryo or fertilizing a woman’s egg with a man’s sperm without sexual intercourse. UPA § 102. This may include in vitro fertilization, when fertilization occurs outside the woman’s body, and the fertilized egg is then implanted into the woman’s uterus. The donor is the man or woman who produces the sperm or egg used in assisted reproduction, but who is not considered the parent of the prospective child. Maternity is determined by the woman who gives birth to the child, unless a gestational agreement states otherwise. UPA § 201. Likewise, the husband of the woman who is determined to be the mother of the child is the child’s father, unless the husband pursues an action to declare that he did not consent to the assisted reproduction. This action must commence within two years after the husband learns of the birth of the child. UPA §705. If either the egg donor or sperm donor dies before implantation of the embryo, or before conception, that donor is not a parent of the resulting child, unless a writing by the deceased party states otherwise. UPA §707.

Question 74

Gestational (Surrogacy) Agreement

Answer 74

Sometimes used interchangeably with the term “surrogacy,” a gestational agreement is one in which a woman, known as the gestational mother or surrogate, agrees to carry a pregnancy, either through artificial insemination or by surgical implantation of a fertilized embryo, as a substitute for intended parents who cannot conceive. The intended parents are the individual or individuals who provide the egg or sperm of one or both of them used to implant into the surrogate. The intended parents agree to be the parents of the resulting child, with all the rights and obligations of parenthood. This agreement involves the gestational mother, and her husband if she is married, giving up all parental rights and obligations to the child being conceived.

All parties involved must petition the court for approval of the agreement. The court must have jurisdiction, which continues until the resulting child is six months old, and the appropriate government agency must perform a home study of the intended parents to determine their fitness. All parties must have entered the agreement voluntarily and made provisions for the proper medical care associated with the surrogate agreement. The agreement may not limit the right of the gestational mother to make healthcare decisions concerning herself or the embryo she is carrying. Consideration to the gestational mother, if any has been promised, must be reasonable. The agreement may be terminated for cause by any of the parties, including the court, prior to the gestational mother becoming pregnant. An agreement that is not approved by the court is not enforceable.

Once the court approves the agreement, a child born to the surrogate mother within 300 days after the assisted reproduction is presumed to be the product of the assisted reproduction. A subsequent marriage of the gestational mother has no effect on the validity of the agreement. The intended parents must file a notice of the child’s birth for the court to declare them to be the legal parents.

It is important to note that in many of the states that have adopted legislation regarding assisted reproduction, gestational agreements are not given effect.

Question 75

“Frozen Embryo” Issues

Answer 75

A “frozen embryo” is the result of in vitro fertilization that is cryogenically preserved. Issues concerning ownership and parentage are complex and continue to be unresolved. Additional problems surface when one of the individuals who provided the egg or sperm dies, or the individuals get divorced. Absent an agreement, the decision as to whether or not transplantation will take place is made by weighing the interests of the parties. Ultimately, resolution of these issues may turn on whether the embryo is classified as a person or as property.

Question 76

Domestic Violence

Answer 76

Every jurisdiction has some type of statute granting civil relief to victims of domestic violence. Although each jurisdiction has its own definition of what constitutes domestic violence, the definitions typically focus on physical abuse, as opposed to mental or emotional abuse.

1. Scope of Statute

Virtually every jurisdiction requires that the perpetrator of the violence be in a relationship with the victim or be a household or family member. Jurisdictions differ, however, on the scope of coverage. Most states include spouses, former spouses, children, unmarried parents of a common child, and household or family members. Some jurisdictions also cover dating relationships. See, e.g., N.J.S.A. 2C:25-19d. These statutes tend to focus on a continuum of behavior, but depending on the level of violence, a single episode may qualify for court protection.

2. Relief Granted

The major relief granted under most of the statutes is an injunctive order prohibiting the defendant’s further abuse of and contact with the victim. It can, and typically does, include exclusive possession of the residence for the period of time, child-custody and parenting time, and support. In most jurisdictions, the application for a protective order is a two-step process. The applicant must obtain an ex parte order with limited injunctive relief, followed by a hearing, after notice has been given to the defendant, for a permanent order. The duration of the order depends on the jurisdictional statute and ranges for a period of one year to an indefinite length of time. The penalties for violating a protective order are criminal in nature and range from a fine to imprisonment.

EXAM NOTE: In bar exam questions, a typical example of the relief obtained by a protective order is that the defendant not abuse the petitioner and have no contact with her.

Question 77

Rights and Obligations of Children

Answer 77

Children are provided with special rights and limitations compared to adults. These distinctions are meant to protect children as well as provide them with expanded rights when necessary. In many cases, as with property and contracts, children may convey property or enter into contracts as minors, but upon the age of majority, they have the option of disaffirming the transaction. Conversely, a child does not have the capacity to make a valid will.

1. Right to Consent to Medical Care

A child’s rights regarding medical care vary depending on the age of the child and the medical procedure. Children over a certain age may be able to provide the consent needed for treatment. Otherwise, parental consent is almost always necessary before a child can receive emergency medical treatment, even though the state may override the parent’s failure to consent when the child’s life is at risk. Nevertheless, in nonemergency situations, minors are allowed to consent to abortions, receive treatment for sexually transmitted diseases, and obtain birth control without the consent of their parents.

2. Liability for Torts and Criminal Acts

Generally, children are judged by a more moderate standard than adults when determining the liability for tortious behavior. Criminal acts, as well, generally are limited to adjudication in juvenile courts under juvenile laws. The purpose of this difference is to provide the child with supervision and rehabilitation. Usually, the decision regarding the extent of punishment is dependent on the age of the child; the younger the child, the more likely the court will show leniency.

3. Emancipation

In a few situations, a child no longer lives with his parents and is self-supporting. In such a case, the child may petition the court for a decree of emancipation. This means that the child is no longer considered a minor in the eyes of the law and therefore has all the duties and obligations of adulthood. Parents no longer have a duty to support him, and in fact, some jurisdictions require the child to support the parents in later years. Married minors are also considered to be emancipated in most states.

4. Limits on Parental Authority

A parent’s authority over his child is not absolute. Laws are in place to protect children from harm, whether or not that harm is intentional. Child abuse and neglect laws, as well as compulsory school attendance statutes, are in place to ensure that a child is well taken care of and supervised appropriately. As has been discussed, the state may terminate parental rights despite parents’ constitutional right to raise their children when it is in the best interests of the child. Grounds for termination include abandonment, neglect, failure to support, or inflicting serious harm, among others. The state must prove these allegations by clear and convincing evidence because of a parent’s right to due process.