Family Law

Question 1

Requirements for Common Law Marriage

Answer 1

Most states have abolished common-law marriage. In jurisdictions that recognize common-law marriage, the proponent of the marriage must prove that the parties:

1. Cohabitated (i.e., lived together) for the statutory period;
2. Held themselves out as married; AND
3. Intended to be married.

Question 2

Will another state recognize a common-law marriage?

Answer 2

Most states will recognize a common-law marriage if it was validly obtained in a jurisdiction that permits common law marriage unless doing so contradicts a powerful public policy of the jurisdiction with the greatest interest in the marriage of the parties.

Question 3

Requirements for a valid Premarital Agreement

Answer 3

Most states will enforce a premarital agreement as a valid contract if it is:

1. In writing and signed by both parties;
2. Executed after full disclosure of the property and financial obligations of both parties; AND
3. Is entered into voluntarily

Question 4

What constitutes “voluntarily” when entering into a prenup?

Answer 4

Courts will consider the following factors to determine whether an agreement was voluntary:

1. The presence of independent legal counsel;
2. The length of time between the agreement and the marriage;
3. The sophistication of the parties;
4. The presence of other pressing reasons to proceed with the marriage (e.g., pregnancy)

Question 5

What does the Uniform Premarital Agreement Act (UPAA) provide?

Answer 5

The party against whom enforcement is sought must prove that the agreement was:

1. NOT voluntary; OR
2. Unconscionable when it was executed AND that he or she did not receive or waive fair and reasonable disclosure AND did not have, or reasonably could not have had an adequate of other’s assets and obligations.

Question 6

What is the mnemonic for a prenup?

Answer 6

Don’t F* With A Virgin Spouse

Disclosure

Fair and reasonable

Writing

Voluntary (no reasonable pressure)

Signed

Question 7

Will a court follow a prenup with concern to child custody?

Answer 7

No, most courts decide custody according to the best interest of the child at the time of the custody hearing, regardless of any premarital agreements.

Question 8

Will a court follow a prenup in concern of child support?

Answer 8

No, parents have an absolute obligation to support their children. A premarital contract CANNOT adversely affect a child’s right to support under any circumstance. Such agreements are NOT binding on the court and are unenforceable.

Question 9

Can a prenup speak to spousal support for during a marriage?

Answer 9

Premarital agreements that limit a spouse’s support during a marriage are generally void as against public policy.

Question 10

Can a prenup address spousal support for after a marriage?

Answer 10

In some jurisdictions, premarital agreements that limit a spouse’s support after the marriage ends are void as against public policy.

Under the Uniform Premarital Agreement Act, modification or elimination of spousal support is permitted so long as provisions do not make the former spouse eligible for public support (welfare).

Question 11

Can a federal court hear a marital action?

Answer 11

No, jurisdiction over marital action is vested solely in the state courts

Question 12

Which state has jurisdiction over annulments?

Does this include ex parte annulments?

Answer 12

Under the majority view, a state where either party is domiciled has jurisdiction to enter an annulment decree.

An annulment action where only one party is appearing before the court is allowed in the state where either party is domiciled

Question 13

Will another state recognize a divorce decree from another state?

Answer 13

Under the Full Faith and Credit Clause, a divorce validity granted in one state is entitled to full faith and credit in another state.

Question 14

When will a divorce be recognized as valid in another state?

Answer 14

If the petitioning party:

1. Was domiciled in the state that granted the divorce (regardless of whether that court had personal jurisdiction over the other spouse); AND
2. Provided adequate notice of the proceeding to the other spouse.

Question 15

What is considered separate property for purposes of divorce division?

Answer 15

1. All property acquired by either spouse BEFORE marriage;
2. All property acquired by a spouse during marriage by gift, bequest, devise or descent;
3. All property either spouse acquires with the proceeds of the spouse’s separate property; AND
4. All passive appreciation in the value of separate property

Question 16

Will a professional degree or license be susceptible to division at divorce?

Answer 16

No, but reimbursement may be available for any support provided by a spouse that contributed to the other spouses’ degree or license.

Question 17

How do courts distribute marital property equitably?

Answer 17

Courts have significant discretion in determining the equitable distribution of marital property at divorce.

Factors include:

1. The income, property, and liabilities of each party;
2. The duration of the marriage;
3. The obligations for support arising out of a prior marriage;
4. The lifestyle each spouse is accustomed to;
5. The contributions made by each spouse toward the accumulation of marital property (including contributions as a homemaker);

Question 18

Will “fault” contribute to how marital property is divided?

Answer 18

In most states, the marital “fault” of either spouse is NOT a factor considered in the division of marital property.

Question 19

Can child support be modified?

Answer 19

In most states, a child support order can only be modified when there is a substantial change in circumstances of either party making the prior order unreasonable.

Under the Uniform Dissolution of Marriage Act, a modification of child support is allowed only upon a showing of changed circumstances so substantial and continuing to make the terms unconscionable.

Question 20

When will a court not allow a modification of child support?

Answer 20

If the change in circumstances was anticipated or voluntary (e.g., voluntarily quitting a job to reduce income in order to pay less child support is usually not allowed)

Question 21

Which state controls child support and modifications?

Answer 21

The state that originally issued the child support order has continuing exclusive jurisdiction to modify the order so long as the state remains the residence of the obligee, child, or obligor.

Question 22

What determines who receives custody of the children?

Answer 22

Generally, courts determine child custody based on the best interest of the child.

A parent’s misconduct generally may NOT be considered unless it causes significant harm to the child.

Question 23

What factors will a court use to determine child custody and visitation?

Answer 23

1. The wishes of the parents, which, if the parents are fit, should be given special weight;
2. The wishes of the child;
3. The interaction and interrelationship of the child with parents;
4. The child’s adjustment to home & school;
5. The mental and physical health of the individuals involved;
6. Child’s preferences (if they’re over 12)

Question 24

What is the presumption for custody between a parent and a third party?

Answer 24

It is presumed that custody with the parent is in the best interest of the child.

Question 25

What is UIFSA?

Answer 25

The Uniform Interstate Family Support Act is to simplify the collection of child support or sometimes spousal support where the original support order was issued in one jurisdiction but the obligor or the child resides in another.

Question 26

What is UCCJEA

Answer 26

The Uniform Child Custody Jurisdiction and Enforcement Act determines the primary test for jurisdiction over child custody and visitation

Question 27

What is the primary test under UCCJEA?

Answer 27

At-Home Test

A child’s home state is the state in which the child lived with a parent (or an acting parent) for at least six consecutive months immediately before the commencement of the proceeding.

Question 29

What is the difference when determining if a lump sum or periodic support has been granted?

Answer 29

Lump-sum specifies a total amount while a periodic payment sets out payments with no grand total