Family Law and Conflict of Laws

Question 1

reqs for common law marriage

Answer 1

(1) agree they are married
(2) cohabit as spouses
(3) hold themselves out to the public as being married

Question 2

Basis for void marriage

Answer 2

(1) Bigamy
(2) Incest
(3) Mental Incapacity (one of the parties does not understand the nature of marriage)

Question 3

Basis for voidable marriage

Answer 3

1. age
2. impotence
3. intoxication (at the time of marriage)
4. fraud to the essentials of marriage (e.g. fake pregnancy)
5. Misrepresentation, duress, force
6. lack of intent to be married

Question 4

Parties who have a good faith belief (honest, objective, and subjective belief) that they are legally married…

Answer 4

Putative Spouses - Parties who have a good faith belief (honest, objective, and subjective belief) that they are legally married will be protected as if they are actually legally married (e.g., bigamy situations).

Question 5

Division of Assets

Answer 5

Community Property: 50/50

Marital Property: property acquired during marriage vs. brought into the marriage

Question 6

Non-marital property at common law

Answer 6

(1) acquired before marriage
(2) property both parties agree non-marital
(3) gifts, devises
(4) property acquired after parties separate (so long as not fruits of labor prior to separation) (note: some JXs require legal separation)

Question 7

Divorce Distribution: Professional Licenses and Education

Answer 7

-Majority: Not considered to be divisible property. (You don’t have to share it.)
-Minority: Recognize a professional license or degree to be divisible property.
-However, most jurisdictions allow for reimbursement for
contribution to receiving the license and education.

Question 8

Divorce Distribution: employment / pension benefits

Answer 8

-Depends on employment rules (If benefits were part of compensation for work performed during marriage then will be marital property. However, if “use it or lose it” rule is applied- probably not subject to division.)

Question 9

Divorce Distribution: personal injury awards

Answer 9

• Majority: Allocate these awards and treat some as marital property (lost wages) vs. separate property (pain and suffering).
• Minority (community property states): If the cause of action arises during marriage, all proceeds during the marriage are classified as marital property.

Question 10

Name of spousal support where no marriage (Marvin case)

Answer 10

palimony

Question 11

Burden for Modifying Spousal Support Award

Answer 11

Party who is seeking the change has the burden of establishing a “substantial change in circumstances” warranting modification. Not for a voluntary change in circumstances (e.g., quit job). Some jurisdictions look for a minimum of 10% difference in circumstances.

Question 12

Limits to Power of Ex Parte Divorce Ruling

Answer 12

Court may have sufficient jurisdiction to grant a divorce but lack such jurisdiction with respect to other divorce-related matters, such as child support, division of property, alimony, etc.

Question 13

Who can challenge Marital presumption that children born during the marriage are children of that marriage (+ rebuttals)

Answer 13

o Majority view: Only one of the spouses can challenge paternity.
o Minority view: A putative father can challenge
paternity.
o Rebuttals: impotence, sterility, or no access to the wife

Question 14

Reqs for Paternity by Estoppel (i.e. must pay support even if not father)

Answer 14

o Husband is required to pay child support if:

1. There has been a representation by him that he would pay child support
2. There was reliance on that representation
3. Wife/Mother and child would suffer economic detriment as a consequence of that reliance

Question 15

Name of federal act where states can exercise personal JX over parent residing in another state for support awards

Answer 15

Uniform Interstate Family Support Act

Question 16

Req. for modifying child support award

Answer 16

• substantial change in circumstances

- Voluntary unemployment or reduced wages may not be considered in various jurisdictions –> court will impute income

Question 17

UCCJEA meaning

Answer 17

Uniform Child Custody Jurisdiction and Enforcement Act

Question 18

UCCJEA: Initial Custody Determination (JX step 1)

Answer 18

Home State Jurisdiction: Subject matter jurisdiction depends on whether the child has been in the home state for 6 months or since birth

Question 19

UCCJEA: JX step 2

Answer 19

Significant Connection Jurisdiction - A state other than the home state can modify a child custody order if:

1. No other state has home state jurisdiction
2. The child and at least one parent have a significant connection with another state; and
3. There is substantial evidence and amount of time in the other state (e.g., care, school, family, or friends in the new state).

Question 20

UCCJEA: JX step 3

Answer 20

Default Jurisdiction:
o If there is no other state that has jurisdiction, then a state with significant or at least some connection can assert jurisdiction under those circumstances.

Question 21

UCCJEA: JX result

Answer 21

Exclusive Continuing Jurisdiction: Jurisdiction will continue with the home state until events arise terminating such jurisdiction (such as child establishing a new home state)

Question 22

test of relocation in custody cases

Answer 22

Balance test:
Balance (1) the fact that children benefit the most from having frequent contact with both their parents against (2) the fact that people have a right to move, travel, and seek employment (look to how far the move, age and needs of children, bonds, quality of life).

Question 23

Reqs for Invalidating Prenups

Answer 23

(1) No Full and Fair Disclosure
(2) Terms Not Fair and Reasonable, AND
(3) The Agreement Was Not Entered Into Voluntarily

Question 24

Adoption and Safe Families Act

Answer 24

A state can move to terminate parental rights when

child has been outside of the home without a relative for 15 months of the preceding 22 months.

Question 25

Conflict of Laws: Traditional Approach

Answer 25

o As soon as a legally significant event occurs, a legal right becomes vested under the laws of the state where it occurred.
o A right vests when the last act takes place that is necessary to give the plaintiff a cause of action.
o Where a legal right vested – Apply the law of that place.

Question 26

Conflict of Laws: Governmental Interest Analysis

Answer 26

1. Determine Which States are Interested
   - false conflict: apply law of interested state
   - true conflict: apply law of the forum
   - no conflict: apply law of forum state
2. Distinguish b/w Loss Shifting & conduct regulating
   - loss shifting: interest if would benefit domiciliary
   - conduct regulating: interest where conduct happens or if domiciliary injured

Question 27

Establishing new domicile

Answer 27

“mind and behind”

Question 28

Conflict of Laws: Most Significant Relationship (2d Restatement) [name 3 clusters of 7 factors]

Answer 28

1) Promoting the relevant policies of the forum and other interested states
2) systemic interests: Certainty, uniformity, predictability, and simplicity (CUPS)
3) Protecting the justified of the parties – applies to planned transactions, not unplanned transactions.

Question 29

Exception to Choice of Law Clause Validity

Answer 29

Validity of a contract cannot be resolved solely by the parties’ choice of law.

Question 30

Traditional Approach for Conflicts of Law in Ks

Answer 30

o If there is no effective choice-of-law clause in the contract, the traditional approach calls for courts to apply the law of the place where the legally significant event occurs.
o Generally, the place of contracting will govern issues of contract formation, interpretation, and validity, because that is the last act necessary to create a contractual right.

Question 31

Conflict of Laws w/r/t Marriage: Traditional Approach

Answer 31

The validity of a marriage is governed by law of the place where the marriage was celebrated (i.e. where ceremony took place)

Exception: If the marriage violates a particularly strong public policy of the domicile of either party, the courts may refuse to recognize it (e.g., incestuous marriage, polygamy, etc.).

Question 32

Conflict of Laws w/r/t Marriage: First Restatement

Answer 32

Distinguishes b/w validity of marriage and incidents of marriage

Incidents of marriage issues are determined by the law of the place where those incidents are sought to be exercised.

Question 33

Conflict of Laws w/r/t Marriage: Second Restatement

Answer 33

A marriage that was valid where it was celebrated will be valid everywhere, unless it violates public policy of the state with the most significant relationship with the parties at the time of marriage.

Question 34

Conflict of Laws w/r/t Marriage: Property

Answer 34

Immovable properties are governed by the whole law of the state where the land is located.

Movable properties are governed by the law of the state where the couple was domiciles at the time the property was acquired.

Community property remains community property, even if the property is moved to a non- community property state.

If marital funds or property are used by one spouse to acquire property in another state, the property that is acquired has the same character as the funds used to acquire it.

Question 35

Conflicts: Damages

Answer 35

First Restatement: Treats as substantive issues, but statutory damage caps are considered procedural.

Second Restatement: Governed by the law of the state with the most significant relationship to the issue
• However, a damage cap is a loss-shifting rule to protect defendants. Thus, under interest analysis, a state will generally apply its own damage caps only to protect a defendant from that state.

Question 36

Conflicts: States of Limitaitons

Answer 36

First Restatement: Considered procedural unless the statute of limitations is inextricably bound up with a substantive underlying right, in which case they are considered substantive.

Second Restatement: Generally, forum applies its own statute of limitations if it would bar the claim. If it would permit the claim, it should apply unless:
• Maintenance of the claim would serve no substantial purpose / interest of the forum; and
• The claim would be barred under the statute of limitations of a state having a more significant relationship with the issue.

Question 37

The Klaxon Rule

Answer 37

A federal district court in a diversity case must apply the choice-of-law rules of the state in which it sits.

Question 38

Constitutional Limitations on Choice of Law

Answer 38

A state may apply its own substantive law to an issue only if the state has a significant contact or a significant aggregation of contacts with the issue such that application of its own law is neither arbitrary nor fundamentally unfair.
o This rule enforces both the Due Process Clause and the Full Faith and Credit Clause.

Question 39

Factors in Determining the Amount of Spousal Support

Answer 39

1. Duration of the Marriage
2. Contribution
3. Standard of Living
4. Age & Health (mental/physical)
5. Financial resources (education, assets, earning capacity, earning potential)
6. Future Needs (debt obligations, children, etc.)
   AND
7. Fault/marital misconduct (not the general rule)
8. Time to reintegrate into the work place

Question 40

Factors in Determining equitable distribution:

Answer 40

1. Duration of the marriage
2. Contribution
3. Standard of Living
4. Age & Health (mental/physical)
5. Financial resources (education, assets, earning capacity, earning potential)
6. Future needs (debt obligations, children, etc.)
   AND
7. Separate property and assets (prior to coming into the marriage)
8. Child custody and spousal support

Question 41

Factors in Determining Child Support

Answer 41

Finances:
-  Support currently provided
- Available assets
Children:
- Age of children
- Number of children
- Special needs children
- Medical expenses
- Standard of living currently provided
- Best Interests if the Child (but see 3 pony rule)