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Bar Exam: Attack Outline > Family Law (MEE) > Flashcards

Family Law (MEE) Flashcards

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1
Q

Ceremonial (statutory) Marriage

A

Parties must (i) obtain a license and (ii) participate in a ceremony

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2
Q

License Requirements

A
  • Need capacity to marry
  • Most states require both parties to be 18+ (but most states allow marriage if party is under 18 provided party has parental consent)
  • Waiting period between date of license application and date of issuance or ceremony
  • Medical testing: State can mandate testing, but cannot condition a license on the results
  • Expiration date: Most states impose expiration date on marriage license
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3
Q

When will a marriage license NOT be issued?

A
  • Prior marriage: One party is married to someone else
  • Incest or Consanguinity: Parties are too closely related
  • Marriage is a “sham“/fraud
  • Parties are incapable of understanding nature of the act of marriage (e.g., substances render a party incapable or a lack of consent due to fraud or duress)
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4
Q

Solemnization Requirements

A
  • 2+ witnesses to the ceremony
  • Most states require an officiant (e.g., judge, person of clergy, political official)
  • Marriage license must be filed with appropriate government agency
  • Proxy marriage: Some states allow a party to have a stand-in for them at the ceremony
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5
Q

Common-Law Marriage

A
  • Requirements: Parties (i) have capacity to marry, (ii) agree they are married, (iii) cohabit as married, and (iv) hold themselves out to the public as married
  • Intent: Must be evidenced by words in the present tense
  • Conflict of Laws: Marriage that is valid under law of place in which it was contracted is valid elsewhere under Full Faith & Credit Clause unless it violates a strong public policy
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6
Q

Ways to terminate a marriage

A
  • Annulment
  • Divorce
  • Death
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7
Q

Situations in which a marriage is void

A
  • Prior existing marriage: Second marriage will be void. Burden is on the person who is trying to prove the first marriage. Rebuttable presumption of validity of the latest marriage.
  • Incest: Parties are too closely related by blood (consanguinity) or by marriage (affinity).
  • Mental incapacity: A person who is unable to understand the nature of the marriage contract lacks the capacity to marry. Must be lucid for moment of marriage contract.
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8
Q

Situations in which a marriage is voidable

A
  • Age: Any party who is under age of marriage consent and who did not seek parents’ consent can ask for an anulment. Parent of minor child can also seek annulment. If underage party reaches age of majority and continues to cohabitate with spouse, can no longer seek annulment.
  • Impotence: Naturally and incurably impotent, unless party knew prior to marriage
  • Intoxication: Either party was incapable of contracting due to alcohol/drugs, unless parties continue to cohabitate after marriage
  • Fraud, misrepresentation, durress, coercion, force: Fraud in existence at time of marriage that goes to essence of marriage. Parties must immediately cease living together once fraud is discovered. Insufficient grounds include lying about wealth, poor morals, bad habits, etc.
  • Lack of intent: Parties acted with no intention to be married, unless marriage has since been consumated.
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9
Q

Jurisdiction to Hear Divorce Dispute

A
  • Court must have both subject-matter jurisdiction and personal jurisdiction.
  • Subject-matter jurisdiction: Most states have residency requirements to establish subject-matter jurisdiction: at least one party must be a resident of the state, but length of residency requirement varies
  • Personal jurisdiction: Court may not exercise personal jurisdiction unless the defendant has minimum contacts with state in which court sits and exercise of jurisdiction would be fair and reasonable.
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10
Q

Divisible/Ex Parte Divorce

A
  • Court has PJ over one party but does not have PJ over the other party
  • Court grant grant an ex parte divorce (i.e., deterimine marital status only)
  • Court without PJ over one of the spouses cannot issue orders on property division, spousal support, or child custody or support
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11
Q

No-Fault Divorce

A
  • Marriage is irretrievably broken
  • Irreconcilable differences must exist for a specific period of time prior to filing of divorce action
  • One spouse who desires to reconcile cannot prevent dissolution
  • Most states have abolished traditional defenses to divorce
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12
Q

Grounds for Fault-Based Divorce

A
  • Adultery: Must show (i) opportunity and (ii) inclination by other spouse
  • Cruelty: Must demonstrate course of conduct by other party that is (i) harmful to plaintiff’s physical (sometimes mental) health that (ii) makes continued cohabitation between parties unsafe/improper. Cannot be just a one-time incident.
  • Desertion: One sposue voluntarily leaves marital home without cause or consent from other spouse, with intent to remain apart on a permanent basis. Can have a constructive desertion when one spouse is forced out.
  • Habitual Drunkenness: Frequent intoxication that impairs marital relationship.
  • Bigamy: One party knowingly entered into a prior legal and existing marriage before entering into current marriage.
  • Imprisonment: Of one spouse for a specified period of time.
  • Indignity: One spouse exhibits negative behavior to other that renders that spouse’s condition intolerable and life burdensome.
  • Institutionalization: If one spouse is confined to a mental institution and there is no reasonable prospect of discharge or rehabilitation.
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13
Q

Defenses to Fault-Based Divorces

A
  • Must be afffirmatively pleaded when asserted
  • Recrimination: Both spouses commit marital wrongful act of like conduct
  • Unclean Hands: Plaintiff’s own behavior is in question
  • Connivance: Complaining spouse gave consent to participate in marital wrong.
  • Condonation: Spouse forgave for whatever wrongful act other spouse did. Spouse must have knwoledge of wrongful act and must resume marital relations.
  • Collusion: Both parties have conspired to fabricate grounds for divorce
  • Provocation: Misconduct of respondent is due to something other spouse is doing
  • Insanity: One spouse does not know and cannot understand difference betwen right and wrong
  • Consent: Consent to desertion or adultery
  • Justification: One spouse leaves home because of other’s misconduct
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14
Q

Community Property

A
  • Most community property states require equal division of marital property
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15
Q

Equitable Distribution

A
  • Objective of an equitable distribution system is a fair distribution of marital property, taking into consideration all of the circumstances between the parties.
  • In most states, all property acquired during marriage is marital property and subject to equitable distribution.
  • Factors: Length of marriage; prior marriages; age, health, earnings, earning potential, liabilities, and needs of both spouses; contributions to education; income, medical needs, retirement of both spouses; homemaking and child-rearing services; value of separate property; reduction in valuation in marital property by one spouse; standard of living; economic circumstances of each spouse at time of divorce; custody of any minor children
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16
Q

Marital Property

A
  • All property acquired during the marriage
  • Burden of proof on party asserting property is nonmarital
  • Increases in value of separate property resulting from either spouse’s efforts is considered MP
  • Increases due to MP funds is also considered MP
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17
Q

Nonmarital Property

A
  • Property acquired before marriage
  • Property excluded by parties’ valid agreement
  • Property acquired by gift or inheritance (except for gifts between spouses)
  • Property a party has sold or conveyed for value in good faith before date of final separation
  • Property mortgaged or encumbered in good faith before final separation
  • Any award or settlment payment receieved for a COA or claim that accrued before marriage
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18
Q

Treatment of specific types of marital property
* Professional licsenses/degrees
* Retirement or pension benefits
* Personal injury claim proceeds/workers’ compensation
* Goodwill
* Accumulatd sick/vacation days
* Expectancy interest in property
* Social Security benefits
* Post-separation property
* Unexercised stock options

A
  • Professional licsenses/degrees: Not a property interest but can affect alimony
  • Retirement or pension benefits: MP if acquired during marriage
  • Personal injury claim proceeds/workers’ compensation: Some states find if COA accrued during marriage, proceeds or award are MP. Other states allocate proceeds/award between MP and SP. Damages for pain/suffering/disability are SP of injured spouse. Consortium losses are SP of non-injured spouse. Awards for lost wages, loss of earning capacity, and medical expenses are split according to proportion attributable to time during marriage.
  • Goodwill: Reputation and clientele of a professional practice is MP
  • Accumulated sick/vacation days: States split on classification
  • Expectancy interest in property: Not distributable
  • Social Security benefits: Not subject to equitable distribution
  • Post-separation property: Can be MP
  • Unexercised stock options: MP if acquired during marriage
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19
Q

Modification of a Property Division Award

A
  • Once a property division occurs, it is non-modifiable.
  • Changes in circumstances after divorce are not considered once the property division award is entered because the property division is based on the parties’ assets at the time of divorce.
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20
Q

Spousal Support Factors

A
  • Financial resources, including property to be awarded in divorce
  • Child support
  • Spouse’s earning potential
  • Other spouse’s ability to pay support
  • Spouse’s standard of living
  • Time to find employment or complete any education or training necessary for a job
  • Length of marriage (short: 7 years; medium: 7-15 years; long: 16+ years)
  • Contributions to marriage (particularly those that enhanced the earning potential of the other spouse)
  • Age and physical and mental health of each spouse
  • Marital misconduct
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21
Q

Types of spousal support

A
  • Lump sum: Fixed amount; cannot be modified in absence of fraud
  • Permanent: Typically awarded only when marriage was of long duration (15+ years)
  • Limited duration: Typically awarded when marriage was of short duration, but there is still an economic need for support
  • Rehabilitative: To enhance and improve earning capacity of economically dependent spouse for a limited time until spouse receives education or employment
  • Reimbursement: To compensate a spouse for financial sacrifices made during marriage that resulted in reduced standard of living to secure enhanced standard of living in the future (rarely granted)
  • Palimony: Support provided by one unmarried cohabitatant to another after the dissolution of a stable, long-term relationship (only available in a few states)
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22
Q

Modification of Spousal Support

A
  • Party seeking modification has burden of establishing a significant and continuing change in circumstances in needs of dependent spouse or financial abilities of obligor that warrant modification
  • Willful or voluntary reduction in income: No reduction in support paymenets
  • Death of spouse: Terminates support
  • Remarriage: If receiving spouse remarries, support may be terminated. If paying spouse remarries, court may modify support.
  • Cohabitation: If receiving spouse cohabits with someone who is not family, spousal support may be modified (not automatic)
  • Retirement: Effect depends upon jurisdiction
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23
Q

Nonmarital children’s right to support

A
  • Cannot be denied child support, governmental benefits, or wrongful-death claims
  • May inherit from father’s estate so long as paternity is established
  • Nonmarital child may become marital child if: (i) parents marry after birth of nonmarital child, (ii) father consents to putting name on child’s birth certificate, (iii) father holds himself out to be father, or (iv) judicial decree
24
Q

Marital Presumption

A
  • Child born to a married woman is presumed to be child of woman’s husband.
  • Varies by state whether a wife can deny that her husband is the father. In some states, wife is estopped from denying husband’s paternity. Other states allow wife to present evidence her husband is not the father, and still other states will exclude evidence if not in best interest of child.
25
Q

Paternity by Estoppel

A

Husband who is not the biological father may be estopped from denying duty to pay child support if:
* (i) Husband promised to provide for child,
* (ii) Wife relies on that promise; and
* (iii) The wife would suffer economic detriment from relying on that promise

26
Q

Personal Jurisdiction Over Out-Of-State Parent for Child Support

A

Court obtains PJ pursuant to a long-arm provision in the Uniform Interestate Family Support Act (UIFSA).

27
Q

Uniform Interstate Family Support Act

A

Grounds under UIFSA to obtain PJ over out-of-state parent for child support:
* Personal service on defendant-parent;
* Consent of defendant-parent
* Past residency with child in the state
* Past residency in the state while providing child support
* Defendant directed child to reside in the state
* Defendant egnaged in act of conception in that state that resulted in the child’s birth
* Defendant asserted parentage via the putative father registry maintained by the state
* Any other basis consistent with the federal and state constitution for exercising PJ

28
Q

Amount of child support

A
  • Determination of parental income typically includes income from any source
  • Methods of calculating support: (i) Income-shares model and (ii) Percentage-of-income model
  • Rebuttable presumption that amount calculated pursuant to child-support guidelines is correct
  • Deviations from child support guidelines: Court must specify why it is deviating
  • Most important consideration: best interests of the child
29
Q

Income-shares model

A
  • Employed in majority of jurisdictions
  • Method: (i) Add both incomes, (ii) determine amount of child support based on total income, and (iii) allocate responsibility respective to each person’s net income.
30
Q

Percentage-of-income model

A
  • Used in minority of jurisdictions
  • Uses a percentage of the non-custodial parent’s income
  • Determined by the number of children who are being supported
31
Q

Modification of Child Support

A
  • Requires a substantial change in circumstances to warrant a modification
  • Substantial change: Typically 10% change or more in amount owed
  • Burden is on party seeking modification
  • Change is retroactive to date of service of motion for modification
  • A party cannot voluntarily reduce income and then seek modification, except if change was made in good faith and there is no hardship to the child
32
Q

Termination of Child Support

A
  • Child reaches 18 years of age, child marries, parental rights are terminated, child or parent dies, child is emancipated
  • Extensions: Child in high school full-time (19 years), child in college (21 years), disabled adult child who is unable to support himself
33
Q

Jurisdiction to Modify Child Support Order under UIFSA

A
  • A court may not modify a child support order rendered by a court with continuing, exclusive jurisdiction in another state unless the parties (including the child) (a) no longer reside in that state, or (b) the parties expressly agree to permit another state to exercise jurisdiction.
  • Parties may register order in another tribunal, but if an aspect of the order is non-modifiable in State 1, then it is non-modifiable in State 2.
34
Q

Jurisdiction to Enforce Child Support Order under UIFSA

A

If order is registered in second state, it is enforceable from first state, but only original state may modify order unless an exception applies.

35
Q

Legal Custody

A

The right of a parent to make major decisions about the child’s life (e.g., health, education, religion)

36
Q

Physical Custody

A

The right of a parent to have the child reside with the parent and the obligation to provide for routine daily care and control of the child

37
Q

Joint Custody

A
  • Parents must both be willing and able to cooperate with respect to wellbeing of the child
  • Joint Legal Custody: Neither parent has a superior right to make major decisions
  • Joint Physical Custody: Does not necessarily require 50-50 time sharing arrangement
38
Q

Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA)

A
  • Purpose: Prevent jurisdictional disputes with courts in other states on matters of child custody and visitation
  • Under UCCJEA, court must have subject matter jurisdiction. Once they have subject matter jurisdiction, they can exercise exclusive continuing jurisdiction.

Types of Subject Matter Jurisdiction (in order of priority):
* Home-State Jurisdiction
* Significant-Connection Jurisdiction
* Default Jurisdiction
* Temporary Emergency Jurisdiction

39
Q

Home State Jurisdiction

A

A court has SMJ to preside over custody hearings and enter/modify custody or visitation orders if the state:
* Is the child’s home state (state in which child has lived with a parent/guardin for at least six consecutive months prior to custody proceeding, or since birth if child is less than six months old), or
* Was child’s home state in past six months, and child is abent from state, but a parent/guardian continues to live in the state

Note: Can decline case if court finds forum is inconvenient, based on totality of circumstances.

40
Q

Significant-connection Jurisdiction

A

Court can enter or modify an order if:
* No other state has or accepts home-state jurisdiction
* Child and 1+ parent have a significant connection with the state, and
* There is substantial evidence in state about child’s care, protection, training and personal relationships

Note: Can decline case if court finds forum is inconvenient, based on totality of circumstances.

41
Q

Default Jurisdiction

A

If no state has jurisdiction through home-state or substantial connection jurisdiction, court in state with appropriate connections to child has jurisdiction.

42
Q

Temporary Emergency Jurisdiction

A
  • If child is in danger, requires immediate protection, and there is no prior custody order
  • An emergency order remains in effect until a decision by child’s home state
43
Q

Exclusive-continuing jurisdiction

A

A court that makes initial ruling has exclusive jurisdiction until parties no longer reside in state, or child no longer has significant connection to state.

44
Q

Best-interests-of-the-child standard

A
  • Primary factor: Who was the primary caretaker during marriage and separation, prior to divorce
  • Race and religion: Not factors
  • Third-party rights: Legal parents presumptively get parental responsibility, unless: (i) they are deemed unfit, (ii) it is detrimental to the child, or (iii) parent has terminated rights
  • Child’s preference: May be considered if child is of sufficient maturity
  • Siblings: Courts avoid separating silings
  • Domestic violence: Rebuttable presumption in favor of non-abusive parent
45
Q

Visitation Rights for Noncustodial Parent

A
  • Parents have a constitutional right to be allowed reasonable visitation with a minor child
  • Denial of visitation only when it would seriously endanger a child’s physical, mental or emotional health, but restrictions may be imposed
  • Parent cannot be denied visitation due to a failure to pay child support
  • Sexual relationship or cohabitation: Can be a basis for restriction only if adverse impact on child
46
Q

Visitation Rights by Third Parties

A
  • Fit parent has a fundamental right to care, custody and control of children; parent’s decision regarding third-party visitation must be given special weight
  • Visitation sometimes granted to stepparents, grandparents, or nonbiological co-parents but typically limited to individuals who acted in loco parentis prior to divorce
47
Q

Visitation Rights for Unwed Biological Fathers

A

Has a fundamental right to have contact with his child if he demonstrates a commitment to the responsibilities of parenthood

48
Q

Modification of Child Custody Order

A
  • Most states use “change in circumstances” standard: change in circumstances must be substantial and** unforeseen** at time final judgment was entered
  • Modification must be in best interest of the child
  • Relocation: May be permitted if there is a legitimate and reasonable purpose for move. Court will weigh any factor that affects the best interest of the child, including potential involvement of the non-relocating parent with the child; age and needs of the child; ability to preserve the relationship with the non-moving parent; child’s preference, etc.
49
Q

Premarital Agreements

A

A premarital agreement is enforceable if:
* Full disclosure of financial status of each party at time of execution
* Agreement is **fair **and reasonable: Procedural and substantive fairness
* Agreement is voluntary: Consider time pressure and opportunity to be represented by independent counsel
* Must be in writing and signed by party to be charged

Note: Valid marriage is adequate consideration.

50
Q

Uniform Premarital Agreement Act (UPAA)

A

Requires party against whom enforcement of premarital agreement is sought to prove:
* Involuntariness; or
* Agreement was unconscionable when executed and she: (i) did not receive or waive fair and reasonable disclosure; and (ii) did not have, or reasonably could not have had, adequate knowledge of other’s assets and obligations.

51
Q

Modification of Marital Agreements

A
  • Provision that prevents modification of property rights, including spousal support, is permitted
  • Provision that prevents modification of child support is not enforceable
52
Q

Conflict of Laws with Premarital Agreements

A

When determining the validity of a premarital agreement, states will apply the law of either:
* (i) State in which agreement was executed; or
* (ii) State with most significant relationship to parties and transaction.

53
Q

Separation Agreement

A
  • Can define property division, spousal support, child support, custody, and visitation
  • Generally merged into final judgment for divorce or else governed by contract law.
  • May be invalidated in part or in whole if a party can show unconscionability or fraud
54
Q

Property-settlement agreement

A
  • Can settle economic issues; etnered into by parties before a divorce decree is entered
  • Enforceable so long as there is no fraud and no unconscionability
55
Q

Domestic Violence

A
  • Physical abuse (not emotional or mental abuse)
  • Relationship: Must be in a relationship with victim or a household or family member
  • Generally requires a continuum of behavior, but a single episode may qualify
  • Most common relief is an injunction (i.e., a no contact order, violation of which can lead to fines or imprisonment)

Bar Exam: Attack Outline (2 decks)

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