Brainscape's Knowledge GenomeTM

Browse over 1 million classes created by top students, professors, publishers, and experts.


See full index

Rocking the Bar Exam > Family Law (Essay Only) > Flashcards

Family Law (Essay Only) Flashcards

You may prefer our related Brainscape-certified flashcards:
MBE flashcards
1
Q

What is the standard for child custody, support, and other issues relating to the child?

A

best interest of the child
OR
best interest and welfare of the child

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
2
Q

what is a marriage?

A

civil contract between two people

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
3
Q

divorce

what are the grounds for a no-fault divorce?

A

irretrievably broken / irreconcilable differences

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
4
Q

divorce

what does an equitable division of marital property at divorce require?

A

“just and fair” division NOT equal 50/50 division

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
5
Q

what is required for modification or termination of a marriage contract?

A

state intervention

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
6
Q

marriage

what is required for marriage (all types)?

A
  • both parties must have capacity to give consent
  • exchange of consideration –>
    mutual exchange of promises + impositions of rights and obligations that come with the marriage relationship
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
7
Q

marriage

what are the two major types of marriages?

A

ceremonial marriage + common law marriage

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
8
Q

marriage / ceremonial

what are the two major requirements of ceremonial marriages?

A

license + solemnization

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
9
Q

marriage / ceremonial

with ceremonial marriages, what s the age restriction (including an exception if any)?

A

most states: 18 years old
but can marry if under 18 with parental consent

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
10
Q

marriage / ceremonial

with ceremonial marriages, is there a waiting period?

A

yes, most states require one b/t when license is issued and marriage ceremony

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
11
Q

marriage / ceremonial

with ceremonial marriages, what is the rule for premarital medical testing?

A

some states require it
but results cannot be a condition for issuance of a marriage license

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
12
Q

marriage / ceremonial

with ceremonial marriages, when does a marriage license expire?

A

10 to 30 days after issuance

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
13
Q

marriage / ceremonial

with ceremonial marriages, when will a license NOT be issued? (4 ex)

A
  • party is already married to someone else
  • parties are too closely related
  • marriage is a sham
  • parties are incapcable of understanding the act of marriage (e.g., drugs, alc)
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
14
Q

marriage / ceremonial

with ceremonial marriages, what are the requirements for soleminzation?

A
  • at least 2 witnesses to the ceremony
  • officiant (e.g., judge, religious leader, political official)
  • marriage license must be filed with govt office
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
15
Q

marriage / ceremonial

what is a proxy marriage?

A

party has a stand-in at the ceremony b/c they can’t physically attend

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
16
Q

marriage / common law

what is a common law marriage?

A
  • estabished by custom and cohabitation
  • no license or solemization required
  • most states have abolished (some have grandfathered)
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
17
Q

marriage / common law

with common law marraiges, what are the requirements?

A

4 C’s

  • capacity to marry
  • consent
  • cohabitation
  • conduct
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
18
Q

marriage / common law

what is the requisite time period for a common law marriage?

A

trick! there isn’t one
cts will consider evidence like common children, joint debt, joint assets, bank accounts, etc.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
19
Q

marriage / common law

do states have to recognize common law marriages from other states?

A

yes, Full Faith and Credit Clause
Exception: state has strong PBPL against it

some states have minimum time period to be domiciled to establish common law marriage

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
20
Q

marriage / common law

what are the intent and capacity requirements for a common law marriage?

A
  • both parties need legal and mental capacity to enter into the common law marriage
  • parties must produce evidence of their present intent to enter the marraige
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
21
Q

what is a heartbalm action?

A

historical, no longer recognized

civil tort actions for money damages based on broken engagements or infidelity

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
22
Q

what is included in a heartbalm action?

A
  • breach of promise to marry
  • alientation of affection
  • seduction
  • criminal conversation
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
23
Q

what is invovled in the marriage relationship?

A

many duties and benefits
provides a right to privacy for the marital or family relationship under the Cons

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
24
Q

what is solmnization?

A

ceremony

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
25
Q

what are the three ways to terminate a valid marriage?

A
  • annulment
  • divorce (dissolution)
  • death
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
26
Q

annulment

what is an annulment?

A

voids a marriage and declares it as having never been valid

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
27
Q

annulment

what are the two ways to annul a marriage?

A
  • void marriage
  • voidable marriage
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
28
Q

annulment

what is a void marriage?

A

“as if it never happened”
ANY party can seek it (parent, guardian, 3p)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
29
Q

annulment

what is a voidable marriage?

A

marriage is valid until a judicial decree dissolves the marriage

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
30
Q

annulment

what are the grounds for a void marriage?

A
  • prior existing marriage (bigamy)
  • incest
  • mental capacity (must be lucid at the moment of the marriage contract)
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
31
Q

annulment / void marriage

with a void marriage annulment, what happens if there is bigamy?

A

later marriage is void
burden is on the person trying to prove the first marriage

EXCEPTION: some states allow marriage to become valid if one party had a good faith belief that the marriage was valid and the impediment is removed (punative spouse doctrine!)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
32
Q

what are the grounds for a voidable marriage?

A
  • age
  • impotence (EXCEPTION: other party knew about the impotence prior to the marriage)
  • intoxication (EXCEPTION: parties continue to cohabitate after the marriage –> ratification)
  • fraud, misrepresentation, duress, coercion, force
    fraud must go to the “essence of the marriage” and be at the time of the marriage, not about future facts
    must cease living together once the fraud is discovered
  • lack of intent (like a sham marriage), but can’t be annulled if consummated

impotence = helplessness

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
33
Q

what is the difference between a void marriage and voidable marriage?

A

void marriage - doesn’t require judicial degree, will not be legally recognized for any purpose, any party (incl. 3p) can seek it

voidable marriage - requires judicial decree, valid until one of the parties seeks annulment

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
34
Q

what is the effect of annulment?

next steps after annulment

A
  • either party can seek spousal support
  • can still seek equitable distribution of marital property
  • can seek child support if child born within that marriage
  • cts try to put parties in the same position as before the marriage
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
35
Q

what is the effect of the annulment on the children?

A

they are considered marital children (legitimate)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
36
Q

annulment / void marriage

what are the defenses to annulment for a void marriage?

A

only defense is deny the impediment that makes the marriage void

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
37
Q

annulment / voidable marriage

what are the defenses to annulment for a voidable marriage?

A

equitable defenses of unclean hands, laches, estoppel

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
38
Q

what is the putative marriage / putative spouse doctrine?

A

equitable remedy

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 to be void

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
39
Q

what is the definition of divorce?

A

legal dissolvement of a marriage

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
40
Q

with divorce, what is the residency requirement in most states?

A
  • at least one party must be a resident of that state
  • length of residency may vary based on whether hte couple married in that state and/or grounds for divorce happened in that state
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
41
Q

what are the two grounds for divorce?

A

no-fault and fault divorce

most states recognize only no-fault divorce

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
42
Q

what is the standard for no-fault divorce?

A

marriage is “irretrievably broken”
also called irreconcilable differences
no prospect of reconciliation
some states require parties to be separated for a period of time before seeking
one spouse can’t prevent hte dissolution b/c they want to reconcile

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
43
Q

why would someone file a fault-based divorce instead of no-fault?

A

fault divorces can be used to determine support (alimony)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
44
Q

what are the grounds for fault-based divorce?

A
  • adultery
  • cruelty / inhumane treatment
  • desertion / abandoment
  • habitual drunkenness (some states)
  • bigamy
  • imprisonment
  • indignity (most states do NOT recognize)
  • insitutionalization for insanity
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
45
Q

in a fault-based divorce, what is adultery?

A

charging spouse had opportunity + inclination by the other spouse

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
46
Q

in a fault-based divorce, what is cruelty?

A

requires course of conduct, not one-time incident
only some states allow emotional abuse, physical harm only generally
must make cohabitaiton unsafe or improper

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
47
Q

in a fault-based divorce, what is desertion?

A

one spouse (1) voluntarily leaves the home (2) without cause or consent from other spouse (3) with intent to remain away permanently

constructive desertion: some states also include when one spouse forces the other one out and there is fear of harm if they return

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
48
Q

in a fault-based divorce, what is habitual drunkenness?

A

frequent habit of getting drunk causes impairment in the marriage

alcoholism is not a requirement

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
49
Q

in a fault-based divorce, what is bigamy?

A

one party knowingly entered into a prior legal and existing marriage before entering into the current marriage

in most jurisdictions, its grounds for annulment + grounds for divorce

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
50
Q

in a fault-based divorce, what is imprisonment?

A

if for a specified period of time

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
51
Q

in a fault-based divorce, what is indignity?

A

one spouse exhibits negative behavior to the other that renders that spouse’s condition intolerable and their life burdensome

most states do NOT recognize as basis for at-fault divorce

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
52
Q

in a fault-based divorce, what is institutionalization?

A

spouse’s insanity or serious mental condition results in spouse being (1) confined to a mental institution for a specified time (2) prior to the commencement of the divorce (3) with no reasonable prospect of discharge or rehab

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
53
Q

what is the difference between annulment and divorce?

A

annulment - voids a marriage as if it had never been valid

divorce - dissolvement of a marriage

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
54
Q

what are the defenses to a fault-based divorce?

A

must be affirmatively plead

  1. recrimination - both spouses commit a marital wrongful act of like conduct
  2. unclean hands - common when plaintiff’s own behavior is in question
  3. connivance - complaining spouse has given consent to participate in the marital wrong
  4. condonation - party forgives, must have knowledge of the wrongful act and resume martial relations after that knowledge
    at common law, once misconduct is forgiven, it can’t be used as grounds for at-fault divorce
  5. collusion - both parites conspired to fabricate grounds for divorce
  6. provocation - misconduct is due to something the other spouse is doing
  7. insanity
  8. consent - consent to desertion or adultery
  9. justificiation
  10. religion - FAILS in all jurisidctions
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
55
Q

what are the requirements for mediation?

A

(1) neutral court-appointed mediator who is unbiased
(2) mediator cannot be connected with either party
can assist with child support, custody, visitation, parenting time, etc.

parties submit settlement agreement to court

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
56
Q

once a dissolution is granted, what happens next?

A

most states require a certain period of time to lapse before the divorce is finalized

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
57
Q

what are the two ways to divide property?

A

community property
equitable distribution (most states)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
58
Q

what is a community property division?

A

presumes equal distribution of marital property

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
59
Q

what is an equitable distribution?

A

focus on fair and just distribution of marital property, not necessarily in equal division

most states

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
60
Q

in general, what property is considered martial property?

A
  • all property acquired during the marriage
  • NOT prop acquired before marriage
  • NOT gifts and inheritance (except gifts b/t spouses)
  • NOT prop acquired after separation
  • NOT prop excluded via valid agreement
  • NOT any award/settlement payment from a cause of action before the marriage, regardless of when payment was received
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
61
Q

when separating property, who has the burden of proof?

A

party asserting property is non marital

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
62
Q

are gifts between spouses marital property?

A

yes

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
63
Q

are increases in the value of separate property considered marital property?

A

yes - resulting from either spouse’s efforts

improvement due to marital property funds is also marital property

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
64
Q

is property acquired before the marriage martial property?

A

no

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
65
Q

are professional licenses/degrees martial property?

A

not a property interest that can be distributed
may affect spousal support or distribution of asserts

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
66
Q

is property that a party has sold or granted or conveyed for value martial property?

A

no, if in good faith before date of final separation

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
67
Q

what factors are considered for distribution of marital property?

A
  • length of marriage
  • whether any prior marriages
  • economic circumstances of each spouse
  • health, earnings, age, earning potentail, liabilites, needs
  • contirbutions to education or career advancement of other spouse
  • needs for future acquisitions
  • value of any separate property
  • custodianship of any minor children
  • standard of living
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
68
Q

are retirement or pension benefits considered marital property?

A

yes if acquired during the marriage
looks at present value not FV of pension

for pensions, part that accrued prior to the marriage is nonmarital, but part during the marriage is marital

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
69
Q

what are the two approaches for determining if personal injury claim proceeds are marital property?

A
  • marital property approach - if cause of action occurred during marriage, it’s marital property even if proceeds received later
  • separate and marital allocation - depends on nature of award
    pain and suffering, disability award –> separate, prop of injured spouse
    lost wages, income, med expenses –> marital property
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
70
Q

are consortium claims marital property?

A

separate property of the non-injured spouse

compensates spouse for decline of marriage from personal injury claim

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
71
Q

is the goodwill of a business considered marital property?

A

yes if developed during the marriage

must be part of the biz and independent of the idv

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
72
Q

are accumulated sick and vacay days marital property?

A

split juris, depends on how/when accrued

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
73
Q

are social security benefits marital property?

A

not subject to equitable distribution

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
74
Q

are unexercised stock options marital property?

A

if acquired during the marriage, yes even if exercised after divorce

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
75
Q

what are the tax consequences of equitable distribution?

A

transfer b/t divorcing spouses is not taxed as income
transferee’s basis in property is same as transferor’s basis

76
Q

is modification allowed for a property division?

A

nope
change in circumstances are not considered, but may impact spousal or child support obligations

77
Q

is marital misconduct considerd in spousal support?

A

generally not a factor

78
Q

can spousal support/maintenance be modified?

A

yes, even if it was originally permanent

79
Q

if a party wants to modify spousal support, what do they have to show?

A

party seeking modification has the burden of showing a significant change in circumstances in (1) the needs of the recipient OR (2) financial abilities of the payor

80
Q

what situations may lead to a modification of spousal support? can spousal support be modified or terminated when once of these situations arises?

A
  • death - usually stops
  • remarriage
  • cohabitation - doesn’t auto end it
  • retirement - stops or modifies it depending on jurisdiction
81
Q

spousal support

if the payor remarries, what happens to the spousal support?

A

court may modify

82
Q

spousal support

if the recipient remarries, what happens to the spousal support?

A

court may terminate

83
Q

what type of jurisdiction does a court need for family law determination?

A

personal + subject matter jurisdiction

84
Q

typically, how long does child support last?

A
  • kid reaches age 18
  • kid reaches age 19 if in high school full time
  • longer if child’s physical or mental condition requires it
  • through a college degree
85
Q

are child support and visitation rights connected?

A

nope, entirely separate

86
Q

who has the right to receive child support? can it be bargained?

A

the child, parents can’t bargain it away

87
Q

historically, were non marital children entitled to child support?

A

not entitled to it

88
Q

currently, are non marital children entitled to child support?

A

yes, entitled to child support, govt benefits, death benefits, inheritance rights

89
Q

how can non marital kids become martial kids?

A
  • if parents marry after birth of non marital child
  • father consents to putting his name on birth certificate
  • father holds himself out to be the father OR
  • judicial decree
90
Q

what happens once paternity is established?

A

rights to custody and visitation and duty to support

91
Q

what evidence can be used to establish paternity?

A
  • blood tests ordered by the court
  • prior statements regarding paternity by dead family members
  • medical testimony on teh probability or improbability of conception
  • defendant’s acknowledgment of paternity
92
Q

what is the time limit on filing a paternity claim?

A

trick question! no time limit, it would violate Equal Protection Clause

93
Q

when may a husband who is not the bio father be estopped from denying his duty to pay child support?

A
  • husband promised to provide for the kid
  • wife relies on that promise AND
  • wife would suffer economic detriment from relying on that promise
94
Q

through which statute does the court obtain personal jurisdiction over an out-of-state parent?

A

Uniform Interstate Family Support Act (UIFSA)

95
Q

child support

what sources of income are factored into calculating child support?

A
  • wages
  • dividends
  • interest
  • capital gains
  • rental income
  • retirement benefits
  • social security income
96
Q

child support

what are the two methods of calculating child support?

A

income shares model (majority)
percentage of income model

97
Q

child support

how do you calc child support under income shares model?

A

child receives same proportion of parental income as if parents continued to live together

98
Q

child support

how do you calc child support under percentage of income model?

A

determines minimum amount of child support using % of supporting parent’s net income, determined by number of kids being supported

99
Q

child support

can a court deviate from the child support guidelines in its calculation?

A

yes, but must specific why it is deviating + provide support

100
Q

child support

do most jurisdictions include medial insurance / expense in a child support award?

A

yes

101
Q

child support / modification

can child support be modified? if so, what is the standard?

A

yes in most jurisdictions

requires a substantial change in circumstances of (1) child’s needs or (2) parents’ financial situtation

102
Q

child support / modification

what is considered a substantial change in circumstances?

A

10%+ change in amount owed

burden on party seeking modification

103
Q

child support / modification

if child support is modified, can it be applied retroactively?

A

yes, retroactive to date of service of the motion for modification

104
Q

child support

when does child support terminate?

A
  • child reaches age of majority
  • ct might extend if still in HS, disability, goes to college
  • child marries
  • child emancipates
  • termination of parental rights
  • child dies
  • NOT child gives birth
105
Q

child support / modification

what are the two ways to move jurisdiction?

A
  • agreement of the parties
  • the parents and child don’t live in the “court of continuing jurisdiction”
106
Q

child support / taxes

can the paying parent deduct child support from their income?

A

nope

107
Q

child support / taxes

can the receiving parent deduct child support from their income?

A

nope

108
Q

child support / taxes

can the parent paying for medical expenses deduct those from their income?

A

yep

109
Q

child support / enforcement

what are the ways to enforce child support awards?

A
  • civil contempt
  • criminal contempt
  • wage garnishment
  • withholding tax refunds
    etc.
110
Q

child support / enforcement

what is the standard for criminal contempt?

A

failure to pay is willful

111
Q

What does the Uniform Interstate Family Support Act (UIFSA) do?

A

simplifies the collection from one state to another
allows child support order to be enforceable in a second state

112
Q

custody

what is the definition of legal custody?

A

right to make major life decisions for the child - health, education, religion

113
Q

custody

what is the definition of physical custody?

A

right to make everyday decisions for daily care and control of the child

114
Q

custody

what is the definition of joint custody?

A

both parents must be willing and able to cooperate with respect to the wellbeing of the child

joint legal custody - neither parent has a superior right to make major decisions
joint physical custody - doesn’t necessarily require 50/50 time sharing

115
Q

custody / UCCJEA

what is the purpose of the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA)?

A

prevent forum shopping for child custody and visitation
determines which state can have jurisdiction, change it, or decline it
court must have SMJ

116
Q

custody / UCCJEA

what are the five types of jurisdiction in order of priority?

A
  1. initial custody determination / home state jurisdiction
  2. significant connection jurisdiction
  3. default jurisdiction
  4. temporary emergency jurisdiction
  5. exclusive continuing jurisdiction
117
Q

custody / UCCJEA

when does a court have initial custody determination / home state jurisdiction?

A

home state - where child lived with parents for 6 consecutive months

if child has moved, home state can still have jurisdiction if (1) it was the home state within past 6 months and (2) parent/guardian still lives there

118
Q

custody / UCCJEA

when does a court have significant connection jurisdiction?

A

(1) no other state is the home state,
(2) child and at least one parent have significant connections to the new state AND
(3) substantial evidence in that state concerning the child

119
Q

custody / UCCJEA

when does a court have default jurisdiction?

A

(1) no court has home state juris
(2) no court has significant connection juris AND
(3) court in a state that has appropriate connections to the child

120
Q

custody / UCCJEA

when does a court have temporary emergency jurisdiction?

A

(1) child is in danger AND
(2) child requires immediate protection

121
Q

custody / UCCJEA

temporary emergency jurisdiction: what happens if there is a prior custody order in existence?

A

new ct must allow time for the parties to return to that prior ct to argue the issues

122
Q

custody / UCCJEA

temporary emergency jurisdiction: what happens if there is NOT a prior custody order in existence?

A

emergency order stays in place until home state changes it

123
Q

custody / UCCJEA

when does a court have exclusive continuing juris?

A

court that made the initial rulings in the custody case continue to have jurisdiction until
(1) parties no longer reside in that state OR
(2) child no longer has significant connection to the state AND No substantial evidence of the child’s condition continues to be available in the state

124
Q

custody / UCCJEA

when can courts decline jurisdiction?

A

new home state or court of exclusive continuing jurisdiction can decline when the forum is no longer convenient

factors

  • when domestic violence occurred
  • length of time child has resided outside of the juris
  • distance b/t competing juris
  • agreement of the parties
  • parties’ relative financial circumstances
  • nature and location of evidence that is relevant
    etc.
125
Q

custody / UCCJEA

how does a court enforce another state’s order?

A
  • registration of another state’s order - get a certified copy, register it with the new ct, new court can grant relief
  • expedited enforcement of child custody determination
  • warranty for child custody (physical possession)
  • law enforcement
126
Q

custody / standard

what is the standard for child custody?

A

“best interests and welfare of the child”

127
Q

custody / standard

what is the primary factor to be considered?

A

who was the primary caretaker during the marriage and separation, prior to divorce?

128
Q

custody / standard

can race be considered?

A

no

129
Q

custody / standard

can religion be considered?

A

no (typically)

130
Q

custody / standard

can past sexual conduct be considered?

A

typically no

UNLESS it has a negative impact on the child

131
Q

custody / standard

can domestic violence be considered?

A

yes, most juris require it

presumption in favor of the non-absuive parent (rebuttable)

132
Q

custody / standard

can the child’s preference be considered?

A

only if the child is of sufficient maturity

133
Q

custody / standard / 3p rights

legal parents presumptively get parental responsibility UNLESS

A
  • deemed unfit
  • detrimental to the child OR
  • parent has terminated those rights
134
Q

custody / standard / 3p rights

parent vs. grandparent/step parent - who gets the child?

A

the parent if they are fit

EXCEPTION: parent by estoppel (de facto parent) - child was living with a 3p for an extended period of time

135
Q

visitation

do parents have a right to visitation?

A

yes, constitutional right to see their child
visitation must be in the best interest of the child

136
Q

visitation

when is non-custodial visitation denied?

A

rare
only if it would “seriously endanger” the child

137
Q

visitation

can 3p get visitation rights?

A

generally no protected rights
typically limited to individuals who acted in loco parentis

138
Q

visitation

are grandparents required to get visitation?

A

not guaranteed in any state

if denied, its will look at the fit parent’s decision, conditions in the statute, and best interest of the child

139
Q

visitation

does an unwed bio father have rights?

A

right to substantive due process

must demonstrate a commitment to parenting responsibilities

140
Q

can a court deny visitation for failure to pay child support?

A

no, these are separate

141
Q

visitation / modification

can visitation be modified? what is the standard?

A

yes

“change in circumstances” must be substantial and unforeseen at time the final judgment was entered

142
Q

visitation / modification

what happens if one parent relocates?

A

some states place most weight on best interests of child
other states give relocating parent the presumptive right to relocate as long as child’s welfare is not prejudiced

relocating parent has the burden to demonstrate a “legitimate and reasonable purpose”

143
Q

parental consent

is parental consent required for medical procedures?

A

YES
doctor is liable in tort if performs without parental consent

exceptions:

  • emergency
  • child is older and mature
  • public health issues
144
Q

marital agreements

what are the three types of marital agreements?

A
  • premarital agreements
  • separation agreements
  • property settlement agreements
145
Q

marital agreements / pre-nup

what is a premarital agreement? what is consideration?

A

contract b/t prospective spouses

considerate is a valid marriage

146
Q

marital agreements / pre-nup

is a premarital agreement enforceable with child custody and child support?

A

not enforceable

147
Q

marital agreements / pre-nup

what is the choice of law?

A

most courts use state with the most significant relationship to the agreement and the marriage

148
Q

marital agreements / post-nup

what is a separation agreement?

A

planning for ultimate divorce
enforceable as long as there is no fraud or unconscionable aspect

149
Q

marital agreements / post-nup

can a separation agreement cover child support and custody?

A

yes, can include these

150
Q

marital agreements / post-nup

what is the relationship between a separation agreement and final decree of divorce?

A

separation agreement is merged into the final decree

151
Q

marital agreements / post-nup

what happens in enforcement if the separation agreement is NOT merged into the final decree of divorce?

A

enforcement is based on breach of contract

152
Q

marital agreements / property settlement agreement

what is the purpose of a property settlement agreement?

A

settle and finalize the economic issues between the parties to an impending divorce

153
Q

marital agreements / property settlement agreement

when is a property settlement agreement enforceable?

A

enforceable as long as there is no fraud or unconscionability

154
Q

marital agreements

what is required for a marital agreement?

A

DR. FIVS

  1. full _d_isclosure of assets and debts
  2. _r_easonable and _f_air terms
  3. _v_oluntary
  4. _i_n writing AND
  5. _s_igned
155
Q

marital agreements

what is required to invalidate a martial agreement under the UPAA?

A

burden on party trying to invalidate
clear and convincing evidence standard

(1) agreement was involuntary OR
(2) unconscionable when executed
(a) spouse did not waive fair and reasonable disclosure AND
(b) spouse didn’t/couldn’t have had adequate knowledge of other’s assets and debts

156
Q

marital agreements

what is the result if a marital agreement is invalidated under UPAA?

A

marriage is voided

premarital contract is enforceable only if it will avoid an inequitable result

157
Q

how is property divided between unmarried cohabitants without an express contract?

A

equitable distribution of property to avoid unjust enrichment

158
Q

adoption

what is the definition of adoption?

A

(1) prior parent-child relationship is terminated and (2) new parent-child relationship is created

159
Q

domestic violence

does domestic violence include physical, emotional, and mental abuse?

A

typically only physical

160
Q

domestic violence

what is the relationship required between the perpetrator and victim?

A

perpetrator has to be in a relationship with the victim or a family / household member

161
Q

domestic violence

what type of behavior is required?

A

continuum of behavior, single episode generally doesn’t qualify

162
Q

domestic violence

what is the most common relief?

A

injunctive order

no contact order

163
Q

domestic violence / injunctive order

what is the two-step process?

A
  1. ex parts order with limited injunctive relief (TRO) AND
  2. notice to defendant + hearing for permanent order
164
Q

are children able to convey property and enter into contracts?

A

yes
except wills

165
Q

what happens after a child is emancipated?

A

(1) no longer a minor
(2) has duties and obligations of a adult
(3) parents no longer have a duty to support the now-emancipated child

166
Q

are increases in investments due to market apprecation marital property?

Family Law Practice Question

A

nope, if not the result of spousal efforts or contributions

167
Q

are awards recieved after sepration but before divorce considered marital property?

Family Law Practice Question

A

most states say it is marital property

168
Q

What is the rule for jurisdiction for a modification of child support?

Essay 3407

A

UIFSA!

state court does not have jurisdiction to modify an order of child support rendered by a court of another state if the original state has continuing, exclusive jurisdiction

unless parties, including the child, no longer reside in that state or the parties expressly agree to another state’s jurisdiction

169
Q

what is the rule for jurisdiction of a modification of property settlement related to divorce?

Essay 3407

A

domestic relations issue

court may exercise personal jurisdiction over an individual if that person is voluntarily present in the state and served with process while there

170
Q

can a state retroactively modify child support?

Essay 3407

A

only for the time period where the cause of action is pending but NOT before the date of service

171
Q

if a parent voluntarily changes their employment, what is likely to happen with a modification of child support request?

Essay 3407

A

reduction in income alone isn’t sufficient proof of substantial changes in circumstances

cts will consider earning capacity and other factors around the change

172
Q

divorce / jurisidiction

how do states determine SMJ for a divorce?

Essay 5385

A

most states use residency requirements

173
Q

what is a divisible divorce?

Essay 5385

A

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, without personal jurisdiction over the other spouse

174
Q

what factors do courts consider when looking at separation agreements?

incl when deciding if premartial agreement is voluntary

Essay 288

A
  • time pressure
  • relative business experience of each party
  • oppy to be represented by independent counsel
175
Q

“state law does not allow for reimbursement alimony” –> what is this asking about? what is reimbursement alimony?

Essay 288

A

reimbursement alimony is like someone trying to obtain spousal support based on actions in the past (like dropping out of college to work so they other spouse can go to law school)

176
Q

what are the types of spousal support?

Essay 288

A
  • lump sum
  • permanent - typically only if marriage is of long duration (15+ years)
  • limited duration
  • rehabilitate - limited period of time like until the spouse receives education or employment
  • reimbursement
177
Q

tip

“Will State B recognize a common law marriage contracted in State A? State A recognizes common law marriage, but State B does not.”

what is this asking about?

Essay 2207

A

Conflict of Laws! Apply traditional vested rights and most significant relationship test

178
Q

fundamental rights of fit parents

Essay 297

A

fundamental right to the care, custody, and control of his children

179
Q

can a state intervene and terminate parental rights?

Essay 2689

A
  • if it is in the best interests of the child
  • if it would endanger the welfare of the child
  • grounds for termination include failure to support
180
Q

Necessities doctrine

Essay 2689

A

creditor may sue either spouse for payment of necessities, but may be required to seek payment first from incurring spouse

only creditor, not the other parent, can use

181
Q

parenting decisions

Essay 2689

A

parent has a right to raise their child as they see fit

182
Q

theory of parens patriae

Essay 2689

A

court can intervene to protect a child when medical treatment contradicts religious belief and such treatment is required to prevent serious harm to child’s health

child can be declared neglected and medical treatment ordered

183
Q

rule statement queen!

whether court can exercise PJ over parent under long arm statute, does this violate parent’s rights under DP 14th

NCBE Essay July 2021

A

A custody determination may only be made through the exercise of personal jurisdiction.

A custody award based solely on the domicile of the child is not entitled to full faith and credit.

Due process demands some act by which the defendant purposefully avails himself of the privilege of conducting activities within the forum state before that state may exercise long-arm jurisdiction.

184
Q

which laws govern child custody contests

Essay July 2021

A

federal Parental Kidnapping Prevention Act + Uniform Child Custody Jurisdiction and Enforcement Act

PKPA and UCCJEA

185
Q

rule statement queen!

whether state court has SMJ over child support award

NCBE Essay July 2021

A

UIFSA governs SMJ over interstate child support disputes. UIFA utilizes a home state jurisdictional rule that establishes priority among competing child support orders.

UIFSA’s home-state rule does not preclude a state from issuing a support order when another
state is the child’s home state.

Rocking the Bar Exam (16 decks)

Brainscape helps you reach your goals faster, through stronger study habits.
© 2024 Bold Learning Solutions. Terms and Conditions