Family Law and Conflicts

Question 1

May gifts made in contemplation of marriage be returned?

Answer 1

Yes.

Question 2

What are the requirements to marry?

Answer 2

Parties must (i) be a minimum age, (ii) not be too closely related, (iii) be of opposite sex, (iv) have capacity to consent, (v) not have a prior undissolved marriage to a living spouse.

Question 3

What are the procedural requirements for marriage?

Answer 3

License plus solemnization (ceremony performed by judicial officer/member of clergy)

Question 4

State of mind requirement to marry

Answer 4

Parties must understand actions and voluntarily agree

Question 5

What is a common law marriage?

Answer 5

(i) Exchange of consents between two people with capacity, (ii) cohabitation, (iii) holding out publicly of living together as husband and wife.

Question 6

What is one thing that is NEVER binding on a court when present in a premarital contract?

Answer 6

Child custody provisions. In some states they are void, while in others they are subject to judicial review.

Question 7

What four things are required for premarital contracts to be enforceable?

Answer 7

(i) Agreement entered voluntarily
(ii) Contract must be in writing and signed by party to be charged,
(iii) Both parties must make a fulland fair disclosure of their financial worth, and
(iv) Economic provisions must be fair and reasonable

Question 8

What is an annulment?

Answer 8

A declaration that a marriage is invalid because there was an impediment at the time of the marriage. Once decreed, parties treated as though never married.

Question 9

What are grounds for a VOID marriage?

Answer 9

(1) Bigamy or polygamy
(2) Consanguinity
(3) Nonage (some states)

IF THE IMPEDIMENT IS REMOVED, THE MARRIAGE BECOMES VOIDABLE

Question 10

What are grounds for a VOIDABLE marriage?

Answer 10

(1) Nonage (some states)
(2) Incurable physical impotence
(3) Lack of capacity (mental incompetence, duress, fraud involving the essentials of marriage)

Question 11

What is a no-fault divorce?

Answer 11

Requires a showing that (i) the marriage is irretrievably broken; and/or (ii) the parties have been living apart for a specified time. The only defense to a no-fault divorce is to deny the existence of one of the above grounds.

Question 12

What are the usual fault grounds for divorce?

Answer 12

(1) Adultery
(2) Willful desertion for a specified time
(3) Extreme physical or mental cruelty
(4) Voluntary drug addiction or habitual drunkenness
(5) Spouse’s mental illness

Question 13

What are the defenses to fault grounds for divorce?

Answer 13

Collusion – agreement to simulate grounds for divorce.

Connivance – willing consent by one spouse to other spouse’s misconduct.

Condonation – forgiveness of marital offense w/ full knowledge of commission plus resumption of marital relations.

Recrimination – other party also guilty of something.

Question 14

What are the jurisdictional requirements for a divorce?

Answer 14

To have jurisdiction over the divorce itself requires only that one spouse be domiciled in the forum state. To have jurisdiction over spousal support, property rights, etc., the court must have personal jurisdiction over the defendant.

Question 15

What is the “equitable division of marital property”?

Answer 15

Each spouse takes his separate property and the court divides the property acquired during the marriage.

Factors considered:
(1) Age, education, background, and earning capacities of both parties,
(2) Duration of marriage, whether prior marriages,
(3) Standard of living during marriage
(4) Present incomes, vocational skills, and employability
(5) Source of money used to purchase property
(6) Health of parties
(7) Assets, debts, and liabilities of parties
(8) Needs of parties
Etc. etc. etc. (see page 11 in Conviser)

Property divisions are NOT MODIFIABLE

Question 16

Factors considered in determining spousal support:

Answer 16

(i) Duration of marriage and standard of living established during,
(ii) Age, physical/emotional condition of parties,
(iii) Financial resources of the parties
(iv) Contribution of each party to the marriage,
(v) Time needed for the party seeking support to obtain training necessary to find appropriate employment
(vi) Ability of payor spouse to meet his needs while paying spousal support

Question 17

Types of spousal support

Answer 17

Permanent periodic – paid regularly

Rehabilitative support – periodic payments for a limited time to enable spouse to become self-supporting

Lump sum – nonmodifiable, fixed amount payable either all at once or broken down into a series

Reimbursement – awarded in minority of jurisdictions to spouse who supported the other while latter obtained a professional license or degree. Fixed sum, not modifiable nor terminable, based on amount of contribution, not value of degree

Question 18

When does spousal support terminate?

Answer 18

Periodic spousal support terminates upon death of either spouse or remarriage of recipient spouse. In some states, if recipient spouse cohabits with another person of opposite sex.

Lump sum support is not modifiable and survives death of either spouse.

Question 19

How are child support awards calculated?

Answer 19

Formula based on number of children, their ages, special needs, parents’ incomes.

Question 20

What is the Full Faith and Credit for Child Support Orders Act?

Answer 20

It says that full faith and credit must be given to the child support orders of a court in another state.

Question 21

How are spousal support and child support obligations enforced?

Answer 21

By holding the nonpaying party in contempt of court. Other sanctions include: a judgment, seizure of real estate, attachment of wages, order of payment of attorney’s fees.

Question 22

What is the Uniform Interstate Family Support Act?

Answer 22

Provides methods for enforcement and guidelines for modifications of support orders issued in another state.

Income w/holding may be mailed to (i) obligor’s out of state employer, automatically triggering w/holding unless timely objection, or (ii) the support enforcement agency in the obligor’s state. Can also register a support order with a sister state.

Question 23

What about modifying a support order under the UIFSA?

Answer 23

Generally, court that issues the controlling child support order has continuing and exclusive jurisdiction to modify it. Role of court in other state is ONLY TO ENFORCE, unless (i) parties no longer reside in issuing state, or (ii) the parties consent in a record to the nonissuing court’s assertion of jurisdiction to modify the order.

Question 24

What must a separation agreement have to be enforceable?

Answer 24

It must be entered into voluntarily, and there must have been a full and fair disclosure by both parties.

Provisions relating to property and spousal support will be enforced by court. Child custody and support provisions will be enforced only if they are in child’s best interests.

Question 25

What is the Uniform Child Custody Jurisdiction and Enforcement Act?

Answer 25

Its purpose is to avoid jurisdictional disputes, promote interstate enforcement of custody and visitation orders.

Primary Test: A court has jurisdiction to initially enter or modify a child custody or visitation order if state (i) is the child’s home, or (ii) was the child’s home state within the past six months and the child is absent from the state, but a parent or person acting as a parent continues to live in the state. A child’s home state is the state in which the child lived with a parent (or one acting as) for at least six consecutive months immediately before the commencement of the proceeding, disregarding temporary absences.

Question 26

How long does the jurisdiction of a court last when it has jurisdiction under the UCCJEA?

Answer 26

The court that made the initial child custody or visitation determination has exclusive continuing jurisdiction over the matter until the court determines that (i) neither the child nor the child’s parents (or acting as) continue to reside in the state, or (ii) the child no longer has a significant connection w/ the state and substantial evidence relating to the matter is no longer available in the state.

Question 27

What is the standard applied in awarding custody and visitation?

Answer 27

The best interests of the child.

Factors include: child’s wishes; parents’ wishes; child’s relationship w/ parents, siblings, and others; child’s adjustment to home, school, and community; physical and mental health of individuals involved.

If child over 12, ask him.

Question 28

Factors considered when determining whether to grant joint custody:

Answer 28

(1) Fitness of both parents;
(2) Whether parents agree on joint custody;
(3) Parents’ inability to communicate/cooperate concerning child’s well being,
(4) Child’s preference;
(5) Level of involvement of both parents in child’s life;
(6) Geographic proximity of both homes;
(7) Similarity or dissimilarity of homes;
(8) Effect of award on child’s psych development
(9) Parents’ ability to physically carry out the order

Question 29

Standard for terminating parental rights

Answer 29

Grounds for termination must be proved by clear and convincing evidence. Grounds include: infliction of serious harm on child, including sexual abuse; abandonment; neglect or deprivation; failure to provide support w/o justifiable cause; mental illness or retardation; etc. etc.

Question 30

What is adoption?

Answer 30

The legal proceeding terminating the relationship between the child and his biological parents (if necessary) and establishing a new relationship between the child and his adoptive parents.

Question 31

What jurisdiction is required for adoption?

Answer 31

Most state have Uniform Adoption Act. Under UAA, the court has jurisdiction if (i) child lived in state w/ parent or someone acting as parent for 6 months before proceeding; (ii) the prospective adoptive parent lived in the state for 6 months before proceeding and substantial evidence concerning the child’s care is available in the state; (iii) the agency etc. etc. (see page 23-24).

Question 32

Procedural considerations in adoption case

Answer 32

Consent of natural parents (may be waived if unreasonably w/held), consent of adoptee, withdrawal of consent, investigation and court approval, payment of money prohibited, confidentiality of adoption proceedings (records sealed)

Question 33

When does a child support obligation terminate?

Answer 33

(1) When minor reaches age of majority,
(2) Upon minor’s emancipation, or
(3) If there is a termination of parental rights.

Jurisdictions differ over whether the duty ends upon death of obligor parent (many states say it does not – majority says it does)