Family Law

Question 1

Antenuptial Agreements (A.K.A. Prenuptial or Premarital Agreement) - What are the requirements for an enforceable prenuptial agreement? + Remember Duress Requirement + Requirements for Financial Disclosure

Answer 1

A spouse may successfully challenge an antenuptial agreement if:

1) it is IN WRITING and SIGNED by both parties,
2) the agreement was VOLUNTARY (not entered into under duress) (MUST BE PHYSICAL threat), or
3) adequate FINANCIAL DISCLOSURE

Financial disclosure will be ADEQUATE if (1) the party entering into the agreement MADE FINANCIAL DISCLOSURE at the time the agreement was entered into, (2) the challenging party had KNOWLEDGE of financial assets, OR (3) there was WAIVER OF DISCLOSURE

Question 2

Antenuptial Agreements: What if there is a provision for child care/support?

Answer 2

These provisions are always subject to JUDICIAL REVIEW and MODIFICATION at the time of a subsequent divorce

Question 3

Getting Married: Common Law Marriage - Portability

Answer 3

If someone enters into a common law marriage in a different state and moves to PA, they will have a valid marriage in PA

Question 4

Ways to Terminate a Marriage (Describe Their Differences)

Answer 4

1) Annulment (a ground that arose BEFORE the marriage occurred)
2) Divorce (a ground that occurred AFTER the marriage)

Question 5

Termination of Marriage: Annulment - Void v. Voidable

Answer 5

Void: The marriage never legally took place, making an annulment OPTIONAL (i.e. for clarity of annulment and to resolve any collateral issues) AND cannot be waived by the parties

Voidable: The marriage did take place, but there is grounds for an annulment AND can be waived

Question 6

Termination of Marriage: Grounds for Void Marriage + Remember Rule for Missing Spouse

Answer 6

1) Bigamy or Polygamy
2) Incest (ancestors, descendants, lineal relatives, or first cousins)
3) Lack of Mental Capacity or Intent

Remember: A spouse is PRESUMED DEAD if they have been missing for 7 YEARS (or decree of presumed death can occur sooner)

Question 7

Termination of Marriage: Grounds for Voidable Marriage + Remember Age Requirements + Remember Implied Waiver + Remember Lying About Finances

Answer 7

1) Either party under the age of 18 (OK if 16 or older with consent of 1 parent, OK if under 16 with judicial consent),
2) Under the influence of drugs or alcohol during marriage ceremony, AND annulment is brought within 60 days of ceremony,
3) Duress, fraud (misrepresentation or concealment of essential aspect of marriage), or coercion, OR
4) Incurable physical incompetence

Remember: You have impliedly waived annulment by continuing a marriage after annulment reason is over

Remember: Lying about finances IS NOT GROUNDS for annulment

Question 8

Divorce: When does PA have jurisdiction to hear a divorce case? + Remember if a spouse seeks economic remedies

Answer 8

In general, one spouse MUST be a PA domiciliary AND a resident of the state for at least 6 months (only works for ending marriage, not solving property)

Remember: A spouse seeking economic remedies from the other, he or she NEEDS PERSONAL JURISDICTION over the other spouse

Question 9

Divorce: Grounds for Divorce - Fault Based + Remember Desertion Elements + Remember Imprisonment Time

Answer 9

1) Adultery (consensual),
2) Bigamous Marriage,
3) Cruel and Barbarous Treatment,
4) Desertion (willful, malicious, without cause, continuous for one year),
5) Imprisonment (2 or more years),
6) Indignities (e.g. constant verbal abuse),
7) Insanity or Serious Mental Disorder (institutionalized for 18 months, and no cure for another 18 months)

Question 10

Divorce: Fault Based Grounds for Divorce Defenses - Condonation Elements

Answer 10

A waiver, requiring (i) knowledge of misconduct, (ii) forgiveness of misconduct, and (iii) resumption of marital relations

Question 11

Divorce: Fault Based Grounds for Divorce Defenses - Connivance

Answer 11

Enticing the spouse into the misconduct that is now being alleged for divorce

Question 12

Divorce: Fault Based Grounds for Divorce Defenses - Recrimination

Answer 12

The spouse seeking divorce has “unclean hands,” or otherwise also is at fault for divorce

Question 13

Divorce: Fault Based Grounds for Divorce Defenses - Provocation

Answer 13

Spouse seeking divorce instigated the fault for divorce

Question 14

Divorce: Fault Based Grounds for Divorce Defenses - Insanity + Remember Grounds for Divorce

Answer 14

A spouse can be acquitted for acts (i.e. indignities) if they are insane

Remember: Will not help with actually being divorced, however, because that can be grounds if it meets elements (18 months before and 18 months after filing)

Question 15

Divorce: No-Fault Divorce - Bilateral Elements

Answer 15

(i) Both parties consent, (ii) marriage is irretrievably broken, and (iii) 90 days have elapsed from the date of the commencement of the action

Question 16

Divorce: No-Fault Divorce - Unilateral Elements + Remember Definition of Separate and Apart

Answer 16

(i) Marriage is irretrievably broken, and (ii) parties have lived SEPARATE and APART for a period of at least ONE YEAR

Remember: Separate and apart means COMPLETE CESSATION of any and all COHABITATION, whether living in the same residence or not

Question 17

What is the approach used in dividing property upon divorce? + Steps in the process

Answer 17

Equitable distribution of marital property

Steps: 1) Go through every asset owned by the couple and categorize the property, and 2) apply equitable principles to distribute property

Question 18

Equitable Distribution: Classifications of Property + Remember Separate Property Definition Before Marriage and After Marriage

Answer 18

1) Spouse A’s separate property,
2) Spouse B’s separate property, and
3) Marital property

Remember: Separate property of the spouse is ANY asset acquired by that spouse PRIOR to the marriage

After marriage, any GIFT or INHERITANCE made in the name of one spouse is their separate property OR property bought or acquired after separation

Question 19

Equitable Distribution: Marital Property Definition + Exceptions + Remember Title in One Spouse’s Name

Answer 19

Marital property is ALL PROPERTY acquired by EITHER spouse during the marriage and ANY INCREASE in value of nonmarital/separate property

Remember: Even if the title is in one spouse’s name, the property acquired during marriage is considered marital property

Question 20

Equitable Distribution: Special Cases for Defining Marital or Separate Property - Personal Injury/Workers Comp Distribution

Answer 20

A personal injury distribution is considered when the CAUSE OF ACTION AROSE, not when money was received

Question 21

Equitable Distribution: Special Cases for Defining Marital or Separate Property - Professional or Educational Licenses

Answer 21

Not a marital asset, BUT if a spouse helped fund education, he or she can ask for reimbursement

Question 22

Equitable Distribution: What factors might a court consider in dividing property? + Remember what is never considered?

Answer 22

• Length of marriage
• Any prior marriage of either party
• Age, health, station, current income, job skills
• Opportunity for future income
• Standard of living

Remember: A court WILL NOT consider marital misconduct (i.e. having an affair)

Question 23

Alimony: What factors might a court consider in awarding alimony? + Remember Marital Misconduct

Answer 23

Similar to dividing property after a divorce, these include:

• Relative earnings
• Expected inheritances
• Standard of living
• Capabilities of self-supporting

Remember: Unlike dividing property at divorce, marital misconduct IS A FACTOR in deciding alimony payments

Question 24

Alimony: Modification of Alimony Awards

Answer 24

Either party may petition the court for a modification, and to prevail they must show a SUBSTANTIAL CHANGE IN CONDITIONS

Question 25

Alimony: Automatic Termination Events

Answer 25

Alimony will automatically terminate on either the death of either party OR remarriage of the recipient (or cohabitation with another)

Question 26

Alimony: How to get money if a spouse is not paying

Answer 26

A court has the power to attach and use assets to satisfy the obligation (e.g. bank accounts, personal property, or real estate)

Question 27

Child Support: Presumption of Father

Answer 27

Courts presume the husband of a mother who has a child is the legitimate father of the child

Question 28

Child Support: Modification

Answer 28

Modification will be allowed by courts in instances where a payer receives a windfall, payer loses his job, or other significant event affecting income/payment

Question 29

Child Support: Termination

Answer 29

Occurs when child turns 18 (unless physically disabled), or upon death of one of the parents

Question 30

Child Custody: What court has jurisdiction to hear a custody case? + Remember Uniform Statute for Child Support

Answer 30

The state of the child’s “home,” meaning the state in which the child lived with a parent or guardian for AT LEAST 6 consecutive months immediately before the proceeding

Remember: All states have adopted a uniform statute allowing judgments of child support to be enforced across state lines

Question 31

Child Custody: How will custody be determined? + Tip BIC

Answer 31

The standard to be applied in awarding custody is the BEST INTEREST of the CHILD

Question 32

Child Custody: How will visitation be determined? + Remember Removal of Child from Jurisdiction

Answer 32

A court has a strong policy to promote the relationship between the child and both parents by ensuring both parents have reasonable visitation rights - absolute denial is very rare

Remember: Removal of child from the jurisdiction may be considered a violation of the visitation provisions of the custody order

Question 33

Child Custody: Who has standing of child custody that is also not a parent?

Answer 33

You can only have standing if you are not a parent if: 1) you are a grandparent/great grandparent AND the child has lived with you for 1 year, OR 2) some other person that stands IN LOCO PARENTIS (acting as a parent with consent of parent)

Question 34

Child Custody: What standard must a non-parent show a court to receive custody of a child?

Answer 34

A non-parent must show by CLEAR AND CONVINCING evidence that the child would benefit more by being placed with him or her

Question 35

Parentage: Termination of Parental Rights - Voluntary v. Involuntary

Answer 35

Voluntarily: Put a child up for adoption

Involuntary: Petition filed by either parent against the other parent, state adoption agency, or legal guardian, claiming (i) abandonment for 6 months or more, (ii) abuse or neglect, (iii) unknown parents identity