Family Law MEE

Question 1

Marriage

Answer 1

Civil Contract

• Parties must be legally capable of consent
• Marriage contract cannot be modified or terminated without state intervention

Question 2

Ceremonial (statutory) marriage

Answer 2

—the parties must obtain a license and participate in a ceremony

1. License
   * Requirements:
   o Need capacity to marry—minimum age restrictions; parental consent for young
   o Waiting period between date of license application and date of issuance or ceremony
   o Medical testing—state can mandate testing, but cannot condition a license on the results
   o Expiration date—most states impose an expiration date on a marriage license

• When not issued
  o One party is married to someone else
  o The parties are too closely related
  o The marriage is a “sham”
  o The parties are incapable of understanding the nature of the act
  o One or both parties is under the influence of drugs or alcohol
  o A party lacks consent due to duress or fraud
• Same-sex marriage is permitted in all states; all states and the federal government must recognize a same-sex marriage legally entered into in another state

2. Solemnization (ceremony) * The ceremony must be performed in front of two or more witnesses
   * A judge, political official, or member of the clergy must solemnize a marriage

Question 3

Common law marriage

Answer 3

1. Requirements—the parties agree they are married, cohabit as married, and hold themselves out to the public as married
2. Recognition of common-law marriages—only CO, DC, IA, KS, MT, RI, TX, UT * Under conflict-of-law principles, a marriage that is valid under the law of the place in which it was contracted is valid elsewhere unless it violates a strong public policy
3. Legal/Mental capacity—of age, not too closely related, understands nature of the act
4. Intent—must be evidenced by words in the present tense (e.g., “we are married”)

Question 4

Heartbalm Action

Answer 4

a civil suit for money damages based on the damage to a jilted party’s reputation; abolished in most states

Question 5

Annulment

Answer 5

voids a marriage and declares it as having never been valid

1. Void marriage—treated as if it never happened; does not need to be judicially dissolved; not legally recognized for any purpose * Prior existing marriage o The later marriage is void; some states allow the marriage to become valid if one party had a good-faith belief that the marriage was valid and the impediment is removed o Rebuttable presumption of validity of the latest marriage * Incest—a prohibition on marriage between related persons * Mental incapacity—a person who is unable to understand the nature of the marriage contract (e.g., duties and responsibilities) lacks the capacity to marry
2. Voidable marriage—valid until a judicial decree dissolves the marriage * Grounds—age, impotence, intoxication, fraud, duress, or lack of intent
3. Equitable distribution of property in annulment—a party may request an equitable distribution of property, spousal support, child support, custody, attorney’s fees, and other costs related to the dissolution of the marriage
4. Children—children of an annulled marriage are considered marital children
5. Defenses
   * Void marriage—the only defense is to deny the existence of the impediment that makes the marriage void; removing the impediment makes the marriage voidable
   * Voidable marriage—equitable defenses of unclean hands, laches, and estoppel are recognized
6. Putative marriage/spouse doctrine—a 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

Question 6

Divorce and Separation Residency Requirement

Answer 6

most states require at least one party to be a resident

Question 7

No-fault Grounds for Divorce

Answer 7

o Marriage is irretrievably broken and there is no prospect of reconciliation

o Irreconcilable differences must exist for a specific period of time prior to the filing of the divorce action

Question 8

Fault Grounds for Divorce

Answer 8

o Adultery—it must be shown that the spouse had the opportunity and the inclination to commit adultery; usually proven by circumstantial evidence

o Cruelty—the plaintiff must demonstrate a course of conduct by the other party that is harmful to the plaintiff’s physical or mental health and the makes continued cohabitation between the parties unsafe or improper

o Desertion—results when one spouse voluntarily leaves the marital home with the intent to remain apart on a permanent basis; does not apply if the parties separate by mutual consent

o Habitual drunkenness—frequent intoxication that impairs the marital relationship

o Bigamy—when one party knowingly entered into a prior legal and existing marriage before entering into the current marriage

o Imprisonment—of one spouse for a specified period of time

o Institutionalization for insanity—with no reasonable prospect of discharge or rehabilitation

Question 9

Defenses to fault-based divorce

Answer 9

must be affirmatively pleaded

• Recrimination, unclean hands, connivance, condonation, collusion, provocation, insanity, consent, justification, religion

Question 10

Community property

Answer 10

AZ, CA, ID, LA, NV, NM, TX, WA, and WI

• Most community property states require equal division of marital property

Question 11

Equitable distribution

Answer 11

most states

• The objective of an equitable distribution system is a fair distribution of marital property, not necessarily an equal division

Question 12

Marital Property

Answer 12

• Most states—all property acquired during marriage o Some states—all property owned by either spouse (“hotchpot” approach) * Burden of proof on party asserting property is nonmarital
• Nonmarital property—i.e., separate property: o Property acquired before the marriage o Property excluded by the parties’ valid agreement o Property acquired by gift or inheritance (except for gifts between spouses) o Any award or settlement payment received for a cause of action or claim that accrued before the marriage, regardless of when the payment was received
• Factors for distribution of marital property—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

Question 13

Professional licenses/degrees

Answer 13

—not a property interest, but can affect alimony

Question 14

Retirement or pension benefits

Answer 14

—marital property if acquired during the marriage

Question 15

Personal injury claim proceeds/workers’ compensation award

Answer 15

o Some states—if the cause of action accrued during marriage, the proceeds or award are marital property

o Other states—allocate the proceeds or award between martial property and separate property
 Damages for pain/suffering/disability—separate property of the injured spouse
 Consortium losses—separate property of the non-injured spouse
 Awards for lost wages, loss of earning capacity, and medical expenses— typically split between marital and separate property based on the portion of the award attributable from the time of the accident to the end of the marriage (marital property), and the portion attributable to loss of wages or medical expenses after the termination of the marriage (separate property)

Question 16

Goodwill

Answer 16

the reputation and clientele of a professional practice is considered marital property in some states

Question 17

Accumulated sick and vacation days

Answer 17

states split on classification, timing

Question 18

Expectancy interest in property

Answer 18

not distributable

Question 19

Social Security benefits

Answer 19

not subject to equitable distribution

Question 20

Post-separation property

Answer 20

—can be marital property (most states)

Question 21

Unexercised stock options

Answer 21

—marital property if acquired during marriage

Question 22

Tax consequences of equitable distribution

Answer 22

• Transfer of property between divorcing spouses is tax-free
• Transferee’s basis in property—same as transferor’s basis

Question 23

Property Division Modification

Answer 23

—not permitted; the property division is based on the parties’ assets at the time of the divorce

Question 24

Spousal maintenance (alimony)

Answer 24

one spouse’s monetary obligation to provide the other spouse with support in the form of income; it is awarded if the recipient cannot provide for his own needs

Question 25

Alimony Factors

Answer 25

—typically include financial resources, including property to be awarded in the divorce, child support, spouse’s earning potential, and other spouse’s ability to pay support; spouses’ standard of living; time to find employment or complete any education or training necessary for a job; length of marriage; 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

Question 26

Alimony Lump Sum

Answer 26

a fixed amount; cannot be modified in the absence of fraud

Question 27

Permanent Alimony

Answer 27

—an award for the remainder of the dependent spouse’s life (unless certain circumstances occur); typically awarded only when the marriage was one of long duration (15 years or more)

Question 28

Limited Duration Alimony

Answer 28

typically awarded when the marriage was of short duration, but there is still an economic need for support

Question 29

Rehabilitative Alimony

Answer 29

—to enhance and improve the earning capacity of the economically dependent spouse; limited period of time, such as until spouse receives education or employment

Question 30

reimbursement alimony

Answer 30

—to compensate a spouse for financial sacrifices made during the marriage that resulted in a reduced standard of living to secure an enhanced standard of living in the future (rarely granted)

Question 31

Palimony

Answer 31

support provided by one unmarried cohabitant to another after the dissolution of a stable, long-term relationship (available in only a few states)

Question 32

Modification of Spousal Support

Answer 32

The party seeking modification typically has the burden of establishing a significant and continuing change in circumstances in the needs of the dependent spouse or financial abilities of obligor that warrant the modification

• Willful or voluntary reduction in income—no reduction in support payments
• Death of spouse—terminates support
• Remarriage—if the receiving spouse remarries, support may be terminated
• Cohabitation—if the receiving spouse cohabits with someone who is not family, then spousal support may be modified if the recipient spouse’s need for the support decreases as a result of the cohabitation (not automatic)
• Retirement—effect depends upon jurisdiction

Question 33

Support during marriage

Answer 33

—necessaries doctrine (both spouses)/family expenses law

Question 34

Child’s Right to support

Answer 34

• Both parents, regardless of marital status, are legally required to support their minor children; respective obligations of support are adjusted as physical possession of a child changes between parents
• Visitation rights cannot be denied for nonpayment of support
• Parents can enter into private agreements regarding child support payments, but they cannot agree to any release or compromise that would negatively affect the child’s welfare

Question 35

Nonmarital Children

Answer 35

• Cannot be denied child support, government benefits, or wrongful-death claims
• May inherit from their father’s estate so long as paternity is established
• Paternity can be established via judicial decree or other means such as when the father consents to being named on the birth certificate or acknowledges that he is the child’s father

Question 36

Evidence to establish paternity:

Answer 36

o Blood tests ordered by the court

o Prior statements regarding paternity by deceased family members

o Medical testimony on the probability or improbability of conception

o Defendant’s acknowledgment of paternity

Question 37

Time limit on filing paternity petition

Answer 37

unconstitutional unless there is a reasonable opportunity to pursue such an action and the limit is substantially related to the government’s interest in restricting such an action

Question 38

Marital presumption

Answer 38

—a child born to a married woman is the child of that woman and her husband

Question 39

Paternity Estoppel

Answer 39

—a husband who is not the biological father of his wife’s child may be estopped from denying his obligation to pay child support when:

o There is a representation by the husband that he would provide for the child

o The wife relied on his representation, and

o The wife suffered an economic detriment as result of the reliance

Question 40

Paternity - Personal Jurisdiction over an out-of-state parent

Answer 40

A court obtains personal jurisdiction over an out-of-state parent pursuant to a long-arm provision in the Uniform Interstate Family Support Act (UIFSA)

Question 41

Amount of child support

Answer 41

—based on child-support guidelines

• Determination of parental income typically includes income from any source

Question 42

Methods of calculating child support

Answer 42

• Income-shares model—a child should receive the same proportion of parental income as if the parties continued to live together (most states)
• Percentage-of-income model—determines the minimum amount of child support by using a percentage of the supporting (i.e., noncustodial) parent’s net income, determined by the number of children supported

Question 43

Deiations from child support guidelines

Answer 43

• Rebuttable presumption that the amount calculated pursuant to the child-support guidelines is correct
• If the court decides to deviate from the amount set forth under the guidelines, it must set forth specific findings explaining and supporting the deviation
• Once a child-support award has been paid, the obligor is not permitted to monitor how the money is expended
• The cost of providing medical insurance for the child is included in the child-support award (most states)

Question 44

Modification of Child Support

Answer 44

• Standard—a substantial change in circumstances regarding the child’s needs or the parents’ financial situation that is expected to be continuing
• Most jurisdictions—no reduction for voluntary reduction in the obligor’s pay

Question 45

Termination of Child Support

Answer 45

• Child reaches the age of majority (e.g., 18 years of age), child marries, parental rights are terminated, or the child or parent dies
• Extensions—child in college, disabled adult child who is unable to support himself
• A parent can be required to buy life insurance on his life for the child’s benefit
• Support may be terminated if a child is emancipated before the age of majority

Question 46

Jurisdiction for modification of child support

Answer 46

• A court may not modify a child support order rendered by a court with continuing jurisdiction in another state unless the parties (including the child) no longer reside in that state or the parties expressly agree to permit another state to exercise jurisdiction
• If an aspect of a child-support obligation may not be modified under the law of the state that first imposed obligation, that aspect of the obligation may not be modified under the laws of any other state

Question 47

Tax consequences of child support

Answer 47

—not income to recipient; not deductible by payor

Question 48

Civil contempt (child support)

Answer 48

an obligor with the ability to pay may be found in civil contempt and can be sent to jail until the amount owed is fully paid

Question 49

Criminal contempt (child support)

Answer 49

a jail sentence may be imposed upon an obligor who willingly fails to pay the amount owed

Question 50

Other sanctions for child support

Answer 50

interception of tax refund, report to credit bureau, suspension of driver’s/occupational license, seizure of assets, garnishment of wages, ordering payment of attorney’s fees

Question 51

Enforcement of child support awards in other jurisdictions

Answer 51

• Modification and enforcement of interstate child support is governed by the Uniform Interstate Family Support Act (UIFSA)
• UIFSA applies when the obligor or child resides in a jurisdiction different from the one in which the original order was issued
• Once an order is registered in another state, it is enforceable in the same manner and to the same extent as a child-support order issued by the original state
• Only the issuing state may modify the original support order; the other state’s responsibility is simply to enforce the order

Question 52

Legal Custody

Answer 52

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

Question 53

Physical custody

Answer 53

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

Question 54

Joint Custody

Answer 54

Parents must both 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—does not necessarily require 50-50 time-sharing arrangement

Question 55

Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) Purpose

Answer 55

—to prevent jurisdictional disputes with courts in other states on matters of child custody and visitation

Question 56

UCCJEA initial custody determination

Answer 56

home state jurix

• A court has subject-matter jurisdiction to preside over custody hearings and either enter or modify custody or visitation orders if the state:

o Is the child’s home state (the state in which the child has lived with a parent or guardian for at least six consecutive months prior to the custody proceeding, or since birth, if the child is less than six months old), or

o Was the child’s home state in the past six months, and the child is absent from the state, but a parent (or guardian) continues to live in the state

Question 57

UCCJEA significant-connection jurisdiction

Answer 57

a court can enter or modify an order if:

• No other state has or accepts home-state jurisdiction
• The child and at least one parent have a significant connection with the state, and
• There is substantial evidence in the state about the child’s care, protection, training, and personal relationships

Question 58

UCCJEA default jurisdiction

Answer 58

—if no state has jurisdiction through home-state or substantialconnection jurisdiction, court in state with appropriate connections to child has jurisdiction

Question 59

UCCJEA exclusive-continuing jurisdiction

Answer 59

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

Question 60

UCCJEA when court can decline jurisdiction

Answer 60

—if court has either initial or exclusive-continuing jurisdiction, it may decline to hear case if it finds forum to be inconvenient

Question 61

UCCJEA temporary emergency jurisdiction

Answer 61

child in danger, requires immediate protection

• If there is no prior custody order, an emergency order remains in effect until a decision by the child’s home state

Question 62

UCCJEA enforcement of another state’s orders

Answer 62

• Registration of another states’ order—need not be accompanied by enforcement request
• Expedited enforcement of a child-custody determination—a hearing is held on the first judicial day after service of the order (or on the first possible judicial day)
• Warrant for child custody—if the child is likely to suffer serious physical injury or be removed from the state

Question 63

best-interests-of-the-child standard

Answer 63

Standard for determining child custody—“best interests and welfare of the child”

• Between parents—the primary-caretaker during the marriage, separation, and prior to the divorce is a factor
• Race, religion—cannot be used as factors in determining custody
• Parents’ sexual conduct—a factor only if the parent’s conduct has or will have a negative effect on the child
• Third-party rights
  o Parents presumptively entitled to custody of their children in cases against third parties
  o Exceptions—the legal parent is unfit or parental custody would be detrimental to the child
• Child’s preference—taken into account if the child is of sufficient maturity
• Guardian ad litem—a court-appointed attorney to advocate for the child’s preferences and act on her behalf
• Siblings—generally not separated from each other
• Domestic violence—almost always a factor
  o Some states have created rebuttable presumptions in favor of the nonabusive spouse

Question 64

Third party visitation

Answer 64

• A fit parent has a fundamental right to the care, custody, and control of his children; the parent’s decisions regarding third-party visitation must be given special weight
• Visitation is sometimes granted to stepparents and same-sex nonbiological co-parents o Typically limited to individuals who acted in loco parentis with the child prior to the divorce
• Grandparent visitation—subject to the special weight given to a fit parent’s decision
• Unwed biological father—has a fundamental right to have contact with his child if he demonstrates a commitment to the responsibilities of parenthood

Question 64

Noncustodial parent visitation (parenting time)

Answer 64

allowed reasonable visitation (or “parenting time”) with a minor child

• Denial of visitation only when it would seriously endanger a child’s physical, mental, or emotional health
  o Restrictions (e.g., supervision, denial of overnight visits) may be imposed
• Sexual relationship or cohabitation—can be a basis for a restriction only if there is an adverse impact on the child
• A parent cannot be denied visitation due to a failure to pay child support

Question 65

Child Custody Enforcement

Answer 65

1. Sanctions—e.g., compensatory visitation, attorney’s fees, court costs, fines, jail time

• Tort damages awarded to parent for the period of time that the child is wrongfully out of the parent’s custody

Question 66

Child custody modification

Answer 66

change-in-circumstances standard (most states)

1. Relocation—may be permitted if there is a legitimate and reasonable purpose for the move

Question 67

Child custody termination

Answer 67

—a child-custody order terminates upon the child reaching the age of majority

1. Death of custodial parent—the surviving parent is usually awarded custody of the child

Question 68

Parental Consent to Medical Care

Answer 68

Parental consent must be obtained regardless of the parents’ marital status except in the case of an emergency

• A parent’s religious beliefs can be overridden by a court to prevent serious harm to the child

Question 69

Parental Consent - Upbringing

Answer 69

a parent has a right to raise her child as she sees fit, including decisions relating to the child’s religious upbringing; however, parental decisions may be limited to protect the health/safety of the child or if there is a significant social burden (e.g., contagious illness)

Question 70

Types of Marital Agreements

Answer 70

1. Premarital agreement—a valid marriage is sufficient consideration * Many states—a premarital agreement must expressly state its applicability to divorce
2. Separation agreement * Can define property division, spousal support, child support, custody, and visitation * Generally merged into the final judgment for divorce or else governed by contract law
3. Property-settlement agreement * Can settle economic issues; entered into by parties before a divorce decree is issued

Question 71

Validity of Marital Agreements

Answer 71

1. In general
   * A premarital agreements is enforceable if:
   o Full disclosure of financial status of each party at the time of execution
   o Agreement is fair and reasonable, and
   o Agreement is voluntary

• Must be in writing and signed by the party to be charged
• UPAA requires the party against whom enforcement is sought to prove:
  o Involuntariness; or
  o That the agreement was unconscionable when executed and she:
   Did not receive or waive fair and reasonable disclosure; and
   Did not have, or reasonably could not have had, adequate knowledge of the other’s assets and obligations.

2. Modification of marital agreements
   * Provision that prevents modification of property rights, including spousal support— permitted
   * Provision that prevents modification of child support—not enforceable

Question 72

Agreements between unmarried cohabitants

Answer 72

1. Cohabitation agreements—a contract between unmarried persons is invalid if the only consideration is sexual relations; otherwise, generally enforceable
2. Property division between unmarried cohabitants—equitable property distribution to avoid unjust enrichment (e.g., resulting trust, constructive trust, or quantum meruit)

Question 73

Voluntary Termination of Parental Rights

Answer 73

—the biological parents give up their parental rights of the minor child and consent to child’s adoption by the adoptive parents

o Unwed father  Consent by failure to register—constitutes a waiver of the right to notice of the adoption and irrevocably implies his consent to the adoption  Right to object can be denied if the father does not demonstrate a commitment to the responsibilities of parenthood

o Prospective adoptee must consent to his adoption if he is over 14 years of age

Question 74

Involuntary termination of parental rights by court

Answer 74

o Typically occurs as part of an abuse, neglect, or dependency case, or when consent to an adoption is unreasonably withheld

o Includes abandonment or abuse of sibling, termination of parental rights over a sibling

o Adoption and Safe Families Act—a state can move for termination of parental rights when the child has been placed outside of the home and not with a relative for 15 of the past 22 months, provided certain reunification attempts have been provided by the state

o Some states—an adoption is permitted if a parent has abandoned the parent-child relationship  Objective test—parent has failed to act in a way that indicates a commitment to maintaining the parent-child relationship  Subjective test—parent subjectively intended to abandon the parent-child relationship

Question 75

Legal effects of adoption

Answer 75

• Adoptive parents have all of the rights and responsibilities of the biological parents; adopted child has all of the rights and responsibilities of a biological child
• Most states—no visitation is permitted between the adoptee and her biological parents

Question 76

Uniform Parentage Act

Answer 76

adopted by nine states

1. Assisted reproduction
   * Maternity is determined by woman who gives birth to child
   * Husband of woman who is determined to be the mother of the child is the child’s father
2. Gestational (surrogacy) agreement—all parties must enter voluntarily
   * Intended parents agree to be parents of the resulting child
   * Agreement must make provisions for proper medical care
   * Agreement may not limit the right of the gestational mother to make healthcare decisions
   * Consideration to the gestational mother must be reasonable
   * Agreement may be terminated for cause by any of the parties, or by the court, prior to the gestational mother’s pregnancy
   * Agreement not approved by court is unenforceable

Question 77

Domestic Violence

Answer 77

1. Perpetrator of violence—must be in a relationship with the victim or a household or family member; generally requires a continuum of behavior, but a single episode may qualify
2. Relief granted—an injunctive order prohibiting defendant’s further abuse of and contact with victim; can also include exclusive possession of residence, child custody, and support
3. Process—ex parte order with limited relief, followed by a hearing, after notice to defendant, on petition for permanent relief; violation of order can trigger criminal penalties

Question 78

Rights and obligations of children

Answer 78

1. Right to consent to medical care
   * May consent to medical treatment if over certain age
   * May obtain abortion, birth control, treatment for sexually transmitted disease without parental consent
2. Liability for torts/criminal acts—children judged by more moderate standard
3. Emancipation—child has all the duties and obligations of an adult; parents have no duty to support