Family Law Set

Question 1

Which defence to a fault ground for divorce arises when the party seeking the divorce is also guilty of misconduct for which a divorce may be granted?

A Connivance

B Condonation

C Collusion

D Recrimination

Answer 1

D

Recrimination is a defense that arises when the party seeking the divorce is also guilty of misconduct for which a divorce may be granted. This offense may be pleaded to bar a suit for divorce, irrespective of the ground on which the suit was brought. Connivance is the willing consent by one spouse to the other’s misconduct and condonation asserts that while marital offenses may have occurred in the past, they were forgiven with full knowledge that they had been committed. Collusion is an agreement to simulate grounds for divorce, or an agreement not to bring up an existing or potentially existing defense.

Question 2

Under the UPAA, a court determining enforcement of a properly executed premarital agreement considers:

A Current financial needs of each party

B Voluntariness and unconscionability

C Current financial resources of each party

D each party’s contribution to the marriage

Answer 2

B

Under the UPAA, a court determining enforcement of a properly executed premarital agreement considers only two things: voluntariness and unconscionability. If an agreement was unconscionable when executed, the court will then consider whether the complaining party (i) was not provided fair and reasonable disclosure of the other party’s property or financial obligations; (ii) did not waive in writing such disclosure; and (iii) did not have, or reasonably could not have had, adequate knowledge of the other party’s property or financial obligations.

Question 3

Which of these is a feature of a voidable marriage?

A Parties may walk away from a voidable marriage without court order.

B Any interested party may seek annulment of a voidable marriage.

C A voidable marriage is deemed valid unless a spouse seeks to have it annulled.

D A voidable marriage is subject to collateral attack even after the death of one of the parties.

Answer 3

C

A voidable marriage is deemed valid unless a spouse seeks to have it annulled because of an impediment existing at the time of the marriage. This type of marriage cannot be attacked collaterally or by third parties. On the other hand, a void marriage is one that never existed for any purpose. Generally, parties may walk away form void marriages without a court order. Any interested party may seek annulment of a void marriage, and the marriage is subject to collateral attack even after death of one of the parties.

Question 4

What type of spousal support may be modified?

A A nominal periodic payment may be modified if there is an unanticipated change in circumstances.

B A lump sum payment may be retroactively reclaimed if the spouse later remarries.

C An award of no spousal support may be altered to give one spouse support if there is an unanticipated change in circumstances.

D All awards of spousal support are final and not subject to modification.

Answer 4

Courts retain the authority to modify a periodic spousal support award, whether permanent or rehabilitative, based upon a change in circumstances after the spousal support order is entered. If there is no award of spousal support in a divorce order or if a lump sum was ordered, there is no ongoing award to modify, and all future rights to spousal support are terminated. For that reason, nominal spousal support is frequently included in a decree, so that the right to future modification will be preserved.

Question 5

What is the primary jurisdictional test under the UCCJEA?

A The significant connection test.

B The substantial evidence test.

C The home state test.

D The best interest test.

Answer 5

C

The most important jurisdictional test is what state is the child’s “home state.” Under the UCCJEA, a court has jurisdiction to initially enter or to modify a child custody or visitation order if the state: (i) is the child’s home state, or (ii) was the child’s home state within the past six months and the child is absent from the state, but a parent or person acting as a parent (e.g., guardian) continues to live in the state. A court has jurisdiction to enter or modify a child custody or visitation order if no other state has home state jurisdiction or a court of the home state has declined to exercise jurisdiction and: (i) the child and at least one parent (or person acting as a parent) have a significant connection with the state, and (ii) substantial evidence is available in the state concerning the child’s care, protection, training, and personal relationships.

Question 6

For the purposes of determining jurisdiction under the UCCJEA, a child’s home state is the state in which:

A The child lived with a parent (or person acting as a parent) for at least 90 consecutive days immediately before the commencement of the proceeding.

B The child lived with a parent (or person acting as a parent) for at least 120 consecutive days immediately before the commencement of the proceeding.

C The child lived with a parent (or person acting as a parent) for at least 12 consecutive months immediately before the commencement of the proceeding.

D The child lived with a parent (or person acting as a parent) for at least six consecutive months immediately before the commencement of the proceeding.

Answer 6

D

For the purpose of determining jurisdiction under the UCCJEA a child’s home state is the state in which the child lived with a parent (or person acting as a parent) for at least six consecutive months immediately before the commencement of the proceeding.

Question 7

When analysing the constitutionality of a government action based on a distinction of marital and non marital children, the action will be stricken unless it is:

A Rationally related to a legitimate governmental interest.

B Substantially related to an important governmental interest.

C Necessary to achieve a compelling governmental interest.

D Narrowly tailored to achieve a compelling governmental interest.

Answer 7

B

Distinctions drawn between marital and nonmarital children are almost always suspect under the Equal Protection Clause. When analyzing the constitutionality of a government action based on such a classification, the courts will apply the immediate scrutiny standard and strike the action unless it is substantially related to an important governmental interest.

Question 8

Which of the following marriages would most likely be deemed valid?

A A marriage where one of the parties maintains a prior undissolved marriage to a person living in another state.

B A marriage between adopted siblings.

C A marriage between two individuals below the legal minimum age who have obtained judicial approval.

D A marriage between two individuals who do not live together, but have consented to enter into a marriage relationship and publicly hold themselves out as being married in a state that recognizes common law marriage.

Answer 8

C

Most states require persons to be a minimum age, usually 18, before they can legally consent to be married, but some states will allow marriages of parties below the specified age if there is judicial approval. A marriage where either party has another living spouse is void. Marriages where the parties are too closely related are also prohibited. Many states prohibit marriages by siblings, whether related by blood, by marriage, or by adoption. A valid common law marriage requires cohabitation.

Question 9

Which defence to a fault ground for divorce asserts that while marital offences may have occurred in the past, they were forgiven with full knowledge that they had been committed?

A Connivance.

B Condonation.

C Collusion.

D Recrimination.

Answer 9

B

The defense of condonation asserts that while marital offenses may have occurred in the past, they were forgiven with full knowledge that they had been committed. Resumption of marital relations after the forgiveness is the key element of this defense. Connivance is the willing consent by one spouse to the other’s misconduct and collusion is an agreement to simulate grounds for divorce, or an agreement not to bring up an existing or potentially existing defense. Recrimination is a defense that arises when the party seeking the divorce is also guilty of misconduct for which a divorce may be granted.

Question 10

What is commingled property?

A Separate property that has become marital property because it has been inextricably mixed with marital property.

B Separate property that has been treated in a way that evidences an intention for the property to be marital property.

C Separate property that can be traced into marital property.

D Separate property that has been improved by the use of marital funds.

Answer 10

A

Commingled property is separate property that has become marital property because it has been inextricably mingled with marital property or with the separate property of the other spouse. Commingling does not occur if the separate property can be traced into the new product. Some jurisdictions hold that transmutation occurs when separate property is treated in a way that evidences an intention for the property to be marital property so that it becomes marital property. When separate property is improved by the use of marital funds or the effort of the nonowning spouse, courts generally hold that the property remains separate property, but most jurisdictions grant the marital estate or the nonowning spouse reimbursement for the value added to the separate property.

Question 11

A party who acted in good faith in entering a marriage that was subsequently declared invalid is a known as a:

A Common law spouse.

B Quasi-spouse.

C Proxy spouse.

D Putative spouse.

Answer 11

D

The putative marriage doctrine enables a court to provide equitable relief to a party who acted in good faith in entering a marriage that was subsequently declared invalid. A putative spouse may acquire the rights of a legal spouse, including rights to alimony and property, when the marriage is invalidated. However, it is generally held that the rights of a putative spouse may not supersede a legal spouse’s rights, and the court must use equity in apportioning their rights to alimony and property.

Question 12

Which of the following is true regarding state of mind requirements to enter into a valid marriage?

A Capacity is determined after the marriage ceremony has taken place.

B The parties must intend to enter into the marriage relationship.

C If one party fraudulently induces the other party to enter the marriage, the marriage is automatically invalid.

D Someone under the influence of alcohol lacks the mental capacity to enter into a valid marriage.

Answer 12

B

For a marriage to be valid, the parties must, of their own free will, intend to enter into the marriage relationship. If one party uses fraud, duress, coercion, or force to induce the other party to enter the marriage, the marriage is not automatically invalid, but the validity of the marriage is subject to attack. Someone under the influence of alcohol or drugs does not necessarily lack the capacity to enter into a valid marriage, so again the marriage is not automatically invalid, but it may later be subject to attack. Capacity is determined at the time the marriage ceremony takes place, not after it has taken place.

Question 13

Which of the following is not a basic requirement for the creation of a valid common law marriage?

A An exchange of consents between two people.

B A relationship of at least seven years.

C Holding out publicly of living together as spouses.

D Cohabitation.

Answer 13

B

There is no specific length of time required to establish a common law marriage. The basic requirements for the creation of a valid marriage at common law are: (i) an exchange of consents between two people, (ii) cohabitation, and (iii) a holding out publicly of living together as spouses.

Question 14

Under the UPAA, parties to a premarital agreement may contract to:

A Marry.

B Eliminate spousal support.

C Eliminate child support.

D Determine a child custody arrangement upon which the court will be bound.

Answer 14

B

Under the UPAA, parties to a premarital agreement may contract with respect to the modification or elimination of spousal support, but may not contractually modify or eliminate child support. Generally, premarital contracts between prospective spouses are valid, however this is not true for contracts to marry. Although the UPAA does not explicitly bar agreements regarding child custody, the traditional rule is that a child custody provision cannot bind a court.

Question 15

Which of the following grounds make a marriage voidable?

A Bigamy.

B Abuse.

C Lack of mental capacity.

D Consanguinity.

Answer 15

C

Lack of mental capacity makes a marriage voidable. A voidable marriage is valid unless one spouse seeks to have it annulled because of an impediment that existed at the time of the marriage. Valid grounds for the finding of a voidable marriage are: (i) nonage; (ii) lack of physical capacity; and (iii) lack of mental capacity. A void marriage, on the other hand, is one that never existed for any purpose and that any interested party may seek to attack on the following grounds: (i) bigamy or polygamy; and (ii) consanguinity or affinity. Abuse is not a valid ground for finding a marriage voidable.

Question 16

Which of the following is not a fault ground for divorce?

A Adultery.

B Irreconcilable differences.

C Desertion.

D Extreme cruelty.

Answer 16

B

Irreconcilable differences is a basis for divorce without regard to marital fault. Generally, dissolution of marriage is authorized on a showing that the marriage is irretrievably broken, that the parties have been living separate and apart for a specified period of time, or on grounds of incompatibility. Traditional divorce laws allowed divorce only upon proof of marital fault grounds, as defined in the state statute. Typical fault grounds include adultery, desertion, extreme mental or physical cruelty, voluntary drug addiction or habitual drunkenness, and insanity. Some states retain fault grounds as an alternative basis for divorce in addition to newer no-fault grounds.

Question 17

Which of the following generally is not a factor considered by courts in dividing marital property at divorce?

A The duration of the marriage.

B Each party’s contribution as a homemaker to the family unit.

C Tax consequences of the division.

D Provisions for the custody of minor children.

Answer 17

C

Tax consequences of the division generally are not a factor courts consider when dividing marital property. Property division is not considered a taxable event. Provisions for the custody of minor children; the duration of the marriage; and each party’s contribution as a homemaker to the family unit are all examples of factors courts generally do consider in dividing marital property at divorce.

Question 18

A majority of the states hold that _______ are not marital property subject to equitable distribution at divorce.

A Pensions.

B Professional degrees.

C Stock options earned during marriage.

D Lost wages from personal injury actions that accrued before final separation.

Answer 18

B

A professional license or degree is not distributable property, according to a majority of jurisdictions. However, some jurisdictions have compensated supporting spouses for their contribution during the other spouse’s training or education in other ways. Pensions are considered marital property subject to distribution. Thus, the portion of a pension that was earned by one party during the years the marriage existed can be divided by the court in an equitable fashion. The majority rule is that stock options earned during the marriage are marital property even if they will not be exercised until after the divorce. If a cause of action for personal injury accrues between the date of marriage and the final separation, the proceeds from the settlement or award are marital assets subject to equitable distribution no matter when they are paid. States may distinguish between awards for lost wages, which generally are considered marital property, and compensation for pain and suffering, which may be deemed separate property.

Question 19

Periodic spousal support generally terminates if either spouse _____:

A Remarries.

B Dies.

C Moves out of the court’s jurisdiction.

D Experiences a significant change in income.

Answer 19

B

Periodic spousal support generally terminates upon the death of either spouse, or the remarriage of the recipient spouse. Spousal support awards can be enforced out of state, so support generally does not terminate just because either party leaves the jurisdiction. A significant change in income might be grounds for the modification of a spousal support award, but would not always terminate support.

Question 20

Child support payments:

A May go on indefinitely if the child is severely disabled.

B Terminate if the custodial parent remarries.

C Are includible in the income of the custodial parent.

D Must be paid before the noncustodial parent can exercise visitation rights.

Answer 20

A

The duty to pay child support may go on indefinitely if the child is severely disabled and, as a result, has no capacity to be self-supporting as an adult. The duty to support a child generally ceases upon the child’s death or emancipation by age (usually age 18) or marriage, or upon termination of parental rights. Child support does not terminate if the custodial spouse remarries. For tax purposes, child support payments are neither includible in the income of the custodial parent nor deductible by the payor parent. A noncustodial parent’s obligation to pay child support is independent of visitation rights, as visitation is primarily for the benefit of the children. Thus, the custodial parent generally cannot deny visitation rights to a noncustodial parent who fails to make child support payments.

Question 21

Under the UIFSA, if there are two child support orders in two different jurisdictions, which state law will control?

A The law of the child’s home state.

B The law of the noncustodial parent’s home state.

C The law of the state in which the child support order was first entered.

D The law of the custodial parent’s home state.

Answer 21

A

If there are two child support orders in two different jurisdictions, the law of the child’s home state controls. The parents’ home states and the timing of the orders do not determine which state’s law will control.

Question 22

Provided that there was full and fair disclosure and that the agreement was entered into voluntarily and is essentially fair, a court will be bound by a separation agreement with respect to what provisions?

A Spousal support payments and property division.

B Child custody and child support payments.

C Child support payments and spousal support payments.

D Property division and child custody.

Answer 22

A

As long as the requirements are met, provisions relating to property and spousal support will be enforced by a court. Provisions relating to child custody and support are treated differently. A court will not enforce child custody and support provisions that are not in the child’s best interest. Even if the court decides to go along with these provisions, the award of custody and support is always subject to modification by the court.

Question 23

Generally speaking, will a custodial parent be permitted to move to another state with the child?

A Yes, if the move is motivated by a benefit to the custodial parent, and not by a desire to frustrate the other parent’s visitation rights.

B Yes, the custodial parent has the absolute right to make all decisions affecting the child’s life.

C No, because the initial court has exclusive continuing jurisdiction over the matter.

D No, unless the noncustodial parent approves of the move.

Answer 23

A

Most states allow a custodial parent to move to another jurisdiction with the child as long as it is motivated by a benefit to the custodial parent and not merely by a desire to frustrate visitation rights. Even if the noncustodial parent is against the move, courts generally will not unduly restrict the residence of the custodial parent. However, removal of the child from the jurisdiction may be considered a violation of the visitation provisions of the custody order. Therefore, it is advisable to have the custody order modified for this purpose before the custodial parent and child move to another state. Under the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”), the court that made the initial child custody or visitation determination has exclusive continuing jurisdiction over the matter until the court determines that: (i) neither the child nor the child’s parents (or persons acting as parents) continue to reside in the state; or (ii) the child no longer has a significant connection with the state (e.g., a close relationship with a parent who lives in the state), and substantial evidence relating to the child’s care, protection, training, and personal relationships is no longer available in the state. Therefore, a court could retain jurisdiction over the matter even if the custodial parent and child move out of state, if the other parent remains in the state.

Question 24

Generally, the consent of the child’s biological parents is required for an adoption, in what instance is consent not necessary?

A The parent is imprisoned on a felony conviction.

B The court determines consent is being unreasonably withheld against the best interest of the child.

C The parent has been required to complete substance abuse rehabilitation.

D The court determines that an alternate willing parent is more fit to parent than the biological parent.

Answer 24

B

The requirement of parental consent may be waived if the court determines that it is being unreasonably withheld against the best interest of the child. This waiver occurs most often when the parent has deserted or abandoned the child. The nonconsenting parent is entitled to notice of the adoption proceeding and an opportunity to be heard. Consent is also not necessary if the parental rights were previously terminated. A parent’s imprisonment or substance abuse alone is not enough to waive consent to an adoption. The constitutional right to privacy includes the rights of parents to decide issues concerning the care, custody, and control of their children. The court does not have general discretion to determine a more fit parent.

Question 25

Under the full faith and credit clause, an ex party divorce:

A Is invalid unless both parties are under the jurisdiction of the court.

B Both dissolves the marriage and settles the parties’ money rights.

C Settles the parties’ money rights, but does not dissolve the marriage.

D Dissolves the marriage, but does not settle the parties’ money rights.

Answer 25

D

An ex parte divorce dissolves the marriage, but does not settle the parties’ money rights. Under the Full Faith and Credit Clause, binding effect must be given to any divorce granted in the plaintiff’s domicile, notwithstanding the fact that the other spouse was not subject to the jurisdiction of the court. Although an ex parte divorce dissolves the marriage, it generally does not affect the monetary rights of the nonresident party. If the court does not have personal jurisdiction over a party, it cannot validly impose an alimony or child support obligation against that party, nor can it make any division of property in which that party has an interest (unless the property was located in the jurisdiction).

Question 26

The law creates both disabilities and privileges for those under age 18. A child is generally unable to:

A Convey property, with the ability to disaffirm the conveyance upon reaching the age of majority.

B Make her own will.

C Enter into a contract, with the ability to disaffirm the contract before reaching the age of majority.

D Be held liable for her own torts.

Answer 26

B

Children cannot make valid wills. A child may own and convey property, but the child can disaffirm the conveyance upon reaching the age of majority. Children are generally liable for their own torts, but may be judged by a more lenient standard than that used for adults. A child may enter into and enforce contracts, but the child may disaffirm her contracts at any time before reaching the age of majority or within a reasonable time thereafter.

Question 27

When it comes to grandparent visitation:

A The judge’s determination overrides a fit parent’s decision to disallow grandparent visitation.

B A parent’s determination as to the appropriateness of grandparent visitation is given very little weight.

C When a fit parent is opposed to the requested visitation, the parent’s due process rights in the care, custody, and control of her child take precedence.

D The best interest of the child standard is always controlling.

Answer 27

C

The Supreme Court has held that a fit parent’s determination as to the appropriateness of third-party (e.g., grandparent) visitation must be given “special weight.” In situations where a fit parent is opposed to the requested visitation, the parent’s due process rights in the care, custody, and control of her child take precedence over the best interest of the child standard. A judge may not override a fit parent’s decision regarding third-party visitation merely because he feels a “better” decision could be made or visitation would be in the best interest of the child.

Question 28

Which of the following annulment actions could not properly be brought before a court in most states?

A A grandmother’s action to annul her granddaughter’s bigamous marriage.

B A father’s action to annul his son’s marriage because his son was mentally incompetent at the time the marriage took place.

C A woman’s action to annul her marriage because her husband is incurably physically impotent.

D A brother’s action to annul his sister’s marriage to their uncle.

Answer 28

B

A marriage may be voidable and annulled because a party was incapable of consenting to the marriage, but since only one of the spouses may bring an action to annul a voidable marriage, it is improper for the man’s father to bring this action. If either party to the marriage has another living spouse (i.e., bigamy), the marriage is void. Since any interested party may seek to annul a void marriage, it is proper for the woman’s grandmother to do so. Most states consider marriages where the parties are too closely related to be void, so it is proper for the brother of a woman that marries her uncle to seek an annulment. Marriages where one party is incurably physically impotent are considered voidable, and one of the parties to the marriage may bring suit to have the marriage annulled. However, if the plaintiff spouse knew or should have known of the impotence before the marriage, the annulment will be denied. Likewise, if the plaintiff spouse continued to cohabit with the impotent spouse long after learning of the condition, the marriage could be deemed ratified.

Question 29

What factor is given the most weight in determining whether a third party is granted visitation rights with a child?

A A fit parent’s determination whether visitation with the third party is appropriate.

B The court’s determination of the best interest of the child.

C The closeness of the relationship between the child and the third party.

D The third party’s willingness to engage in substantive visits with the child.

Answer 29

A

Although the standard used to determine whether a third party should be granted visitation is whether visitation is in the best interest of the child, the Supreme Court has held that, as long as a parent is fit, that parent’s determination as to the appropriateness of third-party visitation must be given special weight. A judge may not override a fit parent’s decision regarding visitation merely because she feels a better decision would be in the best interest of the child. The closeness of the relationship with the third party and the third party’s willingness to engage in substantive visits are not controlling factors in determining third-party visitation.