family law essay workshop sheet

Question 1

Common law marriage elements

Answer 1

1) Capacity
2) present agreement
3) cohabitation
4) holding out a marital relationship

Question 2

Putative marriage

Answer 2

innocent party participated in a ceremonial marriage and believe in good faith that the marriage is valid but later discovers impediment

Question 3

MP or SP – future retirement/pension benefits

Answer 3

if spouse works during marriage and creates or earns profits or benefits paid out after divorce, profits considered MP

Question 4

MP or SP –professional license

Answer 4

not MP but spouse can seek reimbursement for contribution to educational and living expenses

Question 5

MP or SP – personal injury claim proceeds

Answer 5

if cause of action accrues during marriage,

Approach 1: all proceeds MP

Approach 2: damages divided by type
- compensatory (SP of injured)
- consortium damages are SP of non injured spouse
- lost wages, lost earning capacity, medical expenses = MP

Question 6

modification of property division award

Answer 6

property division is not modifiable after the fact because it is based on the parties’ assets at the time of divorce

Question 7

spousal support factors

Answer 7

• financial resources of both parties
• standard of living during marriage
• Time it will take for receiving spouse to find employment or finish education
• Length of marriage
• Contributions to marriage
• Age and health of both parties
• Marital misconduct such as adultery (only in some states)

Question 8

types of spousal support

Answer 8

permanent alimony, limited duration alimony, rehabilitative support, reimbursement alimony

Question 9

can spousal support be modified?

Answer 9

yes, even if permanent

Question 10

modification of spousal support standard

Answer 10

significant and continuing change in circumstances warrants the modification

Question 11

jurisdiction re: divorce, property division, spousal support, child support

Answer 11

Divorce can be granted when PJ just to one party, but other issues require PJ over out-of-state spouse

Question 12

uniform interstate family support act

Answer 12

enables PJ over out of state parents to establish child support or paternity

• Is personally served within the state or consents to jurisdiction; or
• Resided with the child in the state in the past; or
• Engaged in sexual intercourse in the state, and the child may have been conceived by that act of intercourse.

Question 13

amount of child support factors

Answer 13

• best interests of the child
• age of the child
• special needs
• assets of both parties
  -standard of living during marriage

Question 14

how to modify child support

Answer 14

show substantial change in circumstances regarding the child’ s needs or the parents’ financial situation

Question 15

voluntary reduction in income on child support obligation

Answer 15

if done in good faith, court may reduce the amount owed

Question 16

timing of child support modification

Answer 16

court will only modify child support amounts prospectively, from the date of the motion moving forward

Question 17

termination of child support obligation

Answer 17

parent’s obligation to pay support usually ends when the child reaches the age of majority

Question 18

jurisdiction for modification of Child support award

Answer 18

under the UIFSA, the state that issued initial child support order has continuing exclusive jx to modify the child support order

UNLESS
1) parties and child no longer reside in the state
2) parties expressly agree to permit another state to exercise jx

Question 19

enforcement of child support obligations

Answer 19

if a receiving parent moves to a new state, they may register a child support order in the new state, which will give full faith and credit to the support order.

new state can enforce but only the initial state can modify

Question 20

define: legal custody

Answer 20

right of a parent to make major decisions regarding the child (health, education, religion)

Question 21

define: physical custody

Answer 21

right to have the child reside with parent/guardian and the obligation to provide routine daily care and control of the child

Question 22

define joint custody

Answer 22

both parents are willing and able to cooperate with respect to the wellbeing of the child, typically neither parent has a superior right to make major decisions

Question 23

Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) PURPOSE

Answer 23

dictate which court has jurisdiction to decide child custody and visitation.

Question 24

UCCJEA order

Answer 24

home state jx > significant connection..

initial has exclusive continuing jx

Question 25

define home state jx:

Answer 25

- is child's home state - was the child's home state in the past six months, and the child is absent but a parent lives there

Question 26

define significant connection jx

Answer 26

court can enter or modify an order if - no other state has or accepts home-state jx - the child and at least one parent have a significant connection with the state - substantial evidence in the state concerning the child's care, protection, training, personal relationships

Question 27

exclusive continuing jx

Answer 27

courts that make the initial ruling have exclusive continuing jx until parties no longer reside or child no longer has significant connection

Question 28

best interest of the child standard

Answer 28

primary caretaker, child preference, maybe third party rights NOT considered: race or religion

Question 29

visitation rights of unwed biological father

Answer 29

has a substantive due process right to have contact with the child, but only when the father demonstrates a commitment to the responsibilities of parenthood (e.g., participation in child rearing or providing financial support)

Question 30

If the custodial parent is proposing to relocate with the minor child in a way that impairs the noncustodial parent’s ability to visit the child, they must show a

Answer 30

legitimate and reasonable purpose

Question 31

in determining whether to modify the custody order, courts consider

Answer 31

 The best interests of the child  The relationship of the non-relocating parent with the child  Age and needs of the child  The child’s preference  The quality of life of relocating parent and child

Question 32

prenup is enforceable if

Answer 32

(i) There has been full disclosure; (ii) The agreement is fair and reasonable; and (iii) It was voluntarily entered into.

Question 33

Uniform Premarital Agreement Act (UPAA)—to argue an agreement is unenforceable, must show at least one of the following:

Answer 33

Involuntariness (fraud, duress, coercion); or Unconscionability when executed and lack of reasonable knowledge or disclosure of the other’s assets and obligations.

Question 34

factors courts consider for voluntariness re prenup

Answer 34

time pressure, independent counsel. insistence on agreement as condition to marriage does not make it involuntary

Question 35

unconscionability parts for prenup

Answer 35

procedural substantive minority will also evaluate it at the time of enforcement

Question 36

property settlement agreement

Answer 36

settles the economic issues of the marital estate

Question 37

how to invalidate property settlement agreements

Answer 37

may be invalidated in part of in whole if a party can show unconscionability of fraud

Question 38

conflict of laws for validity of premarital agreement

Answer 38

1) where agreement was executed 2) state with most significant relationship

Question 39

limits on parental authority

Answer 39

A parent has a right to make decisions about how to raise child (e.g., religion), but courts may intervene in the best interest of the child.

Question 40

limits on parental authority re: necessary medical care

Answer 40

courts can intervene to protect a child, can require vaccinations and refuse admissions to public schools for students who fail to receive them