Family Law Rules

Question 1

Voluntariness under Marital Agreement

Answer 1

Entering into a contract voluntarily generally means there was no fraud, duress, or misrepresentation. Courts consider factors such as time-pressure, the parties’ previous business experience, and the opportunity to be represented by independent counsel. A party’s insistence on the agreement as a condition to marriage is not considered duress.

Question 2

Appreciation to non-marital Prop

Answer 2

Whether the appreciation in nonmarital property will be subject to equitable distribution will depend on whether the appreciation can be attributable to spousal labor.

Question 3

Determining Divorce Property Distribution

Answer 3

Courts consider a number of factors in determining the equitable distribution of marital property. Some of the relevant factors in this case include the length of the marriage, the age, health, earning potential, and needs of both spouses, the value of separate property, the spouses’ standard of living, and economic circumstances of each spouse at the time of divorce.

Question 4

Ceremonial Marriage

Answer 4

Need a License and Solemnization

For the License, need capacity, a waiting period, and sometimes medical testing (but can’t be conditioned).

For Solem, need performed in front of two or more witnesses and a judge or someone like that solemnize the marriage.

Question 5

Common law marriage

Answer 5

Not really used anymore. Need agreement to be married, cohabit as married, and hold themselves out to the public as married.

Also, need intent to marry.

Question 6

Personal Injury Claims and Divroce

Answer 6

some states just look to when the action accrued but other do a more complicated formula

Those other states say pain/suffering is separate P. Consortium losses are separate P. BUT awards for los wages, loss of earning capacity, and medical are split between SP and MP based on portion award for time during marriage and portion for time after marriage.

Question 7

Divorce Property

Answer 7

CANNOT MODIFY

Question 8

Modification of Alimony

Answer 8

Party seeking mod has burden of showing significant change in circumstances in needs of dependent spouse or financial abilities of obligor that warrant modification.

Voluntary reduction usually isn’t enough. remarriage and cohabit are important here.

Question 9

Estoppel of Non-father child support

Answer 9

husband who is not bio father may be estopped from denying obligation to pay child support IF rep by husband that he would provide, wife relies on this, AND wife suffered economic detriment as result of this reliance.

Question 10

Modification of Child Support

Answer 10

Need a substantial change in circumstances regarding the child’s needs Or the parents’ financial situation.

Voluntary reduction usually isn’t enough.

Generally, the OG jx state is the only state to modify unless the parties do not live there anymore OR they expressly agree to permit another state to modify.

If part of an order is fixed in State OG, then new state can’t modify the fixed part.

Sub change is 10% or more in amount owed. Burden on party seeking the modification.

Question 11

Enforcement of Child Support (UIFSA)

Answer 11

The Uniform Interstate Family Support Act (UIFSA) governs interstate child support. Register OG order in new state and it is enforceable the same way as OG state.

Only OG state can modify the original support order, new state just enforces it.

Question 12

Unconscionability

Answer 12

A contract is unconscionable when it is so unfair to one party that no reasonable person in the position of the parties would have agreed to it. The contract or part of the contract at issue must have been offensive at the time it was made. Unconscionability may also be applied to prevent unfair surprise.

Question 13

Traditional Father Child Relations

Answer 13

Traditionally, courts have been loath to modify an established parent-child relationship, citing the child’s best interest as reason to deny admission of evidence of non-paternity or to deny a motion to disestablish paternity.

Question 14

Income Shares vs Percentage of income models

Answer 14

Income shares is what most states do, stating kid should receive same proportion of parental income as if parties continue to live together

Percentage of income model is less used. Percentage of noncustodial parent’s net income, determined by number of kids supported.

Question 15

Uniform Child Custody Jx and enforcement Act (UCCJEA)

Answer 15

To prevent jx issues for custody and visitation.

Continuum of jx.

Home State jx is highest form. Can enter and modify orders if home state, meaning kid and parent lived their for 6 months prior to proceeding or since birth. Also if kid leaves and a parent is still there, i think.

Significant connection jx is next. Can enter or modify is no home state and kid and a parent has significant connection to state AND sub evidence in state about child’s like life.

Then if none of that, default jx. Appropriate connections with kid.

the entering court is exclusive power to modify until the connection to forum is broken.

Also can be temp emergency jx if needed or no home state yet entered.

Enforcement is just registration? I think.

Question 16

Stn for child custody

Answer 16

Best Interests and welfare of child

Best interests and welfare of child

Best interests and welfare of child.

Question 17

Unwed Bio Father

Answer 17

Usually has fundamental right to visitation IF he demonstrates a commitment to the responsibilities of parenthood.

Question 18

Modification to Custody and Visitation

Answer 18

Change in circumstances stn usually. Relocation may be permitted if there is a legitimate and reasonable purpose for the move.

Question 19

Validity of Marital Agreements

Answer 19

premarital agreement cool IF

Full disclosure of financial status of each party at execution
Agreement is fair and reasonable, AND
Agreement is voluntary.

In Writing and Signed by party to be charged.

UPAA requires party against whom enforcement is sought to prove

Involuntariness OR that agreement was unconscionable when executed AND did not receive or waive fair and reasonable disclosure AND did not have or reasonably could have had adequate knowledge of other’s assets and obligations.

High standard.

Can’t prevent modifications of child support.

Question 20

Adoption

Answer 20

Can be voluntary or involuntary. Unwed father has to register as father or else doesn’t need consent to adoption. Also then can waive consent if father does not demonstrate a commitment to the responsibilities of parenthood.

Question 21

Adoption and Safe Families Act

Answer 21

If child outside of home or relative’s home for 15 of past 22 months, and state has tried reunification attempts, then state can move for term of parental rights.

Question 22

Uniform Parentage Act (UPA)

Answer 22

only adopted by 9 states but covers assisted reproduction, surrogacy, domestic violence, and rights and obligations of children.

Surrogacy provisions here are important.

Question 23

Void Marriage

Answer 23

Does not require judicial dissolve. Never recognized. Any party can seek annulment.

Incest, mental incapacity, prior existing marriage.

Question 24

Voidable marriage

Answer 24

Valid until spouse seeks annulment. Requires a judicial decree.

Question 25

Jx

Answer 25

Courts generally need both personal and subject matter jx to enter or modify alimony. Usually need some kind of residency requirement. If only has this over one party, can grant divorce but can’t rule property, alimony, or child support.

Question 26

UIFSA Jx SJM

Answer 26

Modification of child support orders is governed by the Uniform Interstate Family Support Act (UIFSA). Under UIFSA, a 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. This rule applies unless the parties, including the child, no longer reside in that state or the parties expressly agree to another state’s jurisdiction

Question 27

Marital Property JX

Answer 27

State courts have subject matter jurisdiction over domestic relations issues. A petition to modify a property settlement related to divorce is a domestic relations issue. Unlike child support, UIFSA does not apply to divorce related property disputes so those jurisdictional rules do not limit the state’s jurisdiction. The court may exercise personal jurisdiction over an individual if that person is voluntarily present in the state and served with process while there.

Question 28

Child Support Modification Language

Answer 28

Generally, a state may prospectively modify a child support order when there is a substantial change in circumstances regarding the child’s needs or the parent’s financial situation. The parent requesting the modification has the burden of showing a substantial change in circumstances such as a significant decrease in income. However, when a parent voluntarily changes his employment, a reduction in income alone is not sufficient proof of substantial changes in circumstances. The courts will consider the parent’s earning capacity and other factors surrounding the change before deciding whether to modify the support order.