MEE Essentials: Family Law

Question 1

Common law marriage requirements

Answer 1

CACH

Capacity to enter marital agreement
Agree to be married
Cohabitate
Hold out to be married

Question 2

When is a marriage recognized?

Answer 2

Valid under law of place where it was contracted UNLESS violates strong public policy of state with most significant relationship to spouses and marriage

Question 3

Bigamy and saving doctrines

Answer 3

A bigamous marriage is void from the beginning UNLESS the two following measures are met
1) presumption most recent marriage is valid
2) removal of impediment (divorce of first marriage) renders subsequent marriage valid

Question 4

Which states recognize fault-based v. no-fault divorces?

Answer 4

No-fault: almost all. states

Fault-based: some

Annulment/other reasons can also end marriage

Question 5

Does biological parent generally have parenting rights?

Answer 5

YES, if involved in child’s life + best interest and welfare of child standard

Question 6

Best interest of the child factors

Answer 6

-wishes of child’s parents
-child’s primary caretaker
-mental/physical health of all parties
-interrelationship of child/parents
-stability
-presence of DV

Question 7

When can custody be modified?

Answer 7

Only when there is SUBSTANTIAL CHANGE IN CIRCUMSTANCES (usually must be unforeseen)

Question 8

Child support guidelines + rebuttable presumption

Answer 8

All states employ numerical guidelines and establish a rebuttable presumption that award resulting from guidelines is correct. The guidelines must be applied REGARDLESS of parents’ marital status.

Question 9

Child support guideline factors

Answer 9

-income and earnings of parents
-number of children and ages
-special needs of children

Question 10

When can modification of child support occur

Answer 10

-petitioner must show SUBSTANTIAL CHANGE IN CIRCUMSTANCES + good faith

-voluntary reduction of income likely insufficient

-high standard to overcome

Question 11

Can child support be modified retroactively?

Answer 11

NO, absent fraud or other compelling circumstances

Question 12

Relocation of child and parent

Answer 12

-Good faith + child’s best interest test
-must weigh impact on visitation for non-custodial parent

Question 13

Fit parent decisions

Answer 13

Decisions by a fit parent must be given SOME DEFERENCE (unless will jeopardize child’s health/safety)

Question 14

Does father have rights?

Answer 14

Biological fathers have rights BUT may need to exercise within time specified by state (e.g. 2 years)

Question 15

May a parent oppose an adoption by another?

Answer 15

When an INVOLVED parent demonstrates “full commitment to the responsibilities in parenthood,” can likely oppose adoption by another

Also entitled to NOTICE of proceedings

Question 16

Presumed best interest of child for custody

Answer 16

Biological parent presumed to have best interests in child

Question 17

Third party who wants to show parent is not fit

Answer 17

Must prove parent is UNFIT or that granting custody to parent would be HIGHLY DETRIMENTAL to child

Special weight to parent’s determination of child’s best interest

Question 18

Property division at divorce: marital property v. separate

Answer 18

Majority: marital property divided at divorce, but separate property remains property of owning spouse

Question 19

Marital property vs. separate property (majority approach)

Answer 19

Marital property: acquired during marriage

Separate property: before marriage, inheritance, or gift

Question 20

Do professional degrees count as marital property?

Answer 20

Majority: NO

Question 21

When is premarital agreement enforceable?

Answer 21

When VOLUNTARY, FAIR, and with FULL DISCLOSURE of assets

Child custody/support NOT enforceable if not in best interest of child

Question 22

Alimony types + factors

Answer 22

Temporary, permanent or lump sum

Factors: financial needs and resources, marital contribution, marital duration (sometimes: spousal misconduct)

Trial court has substantial discretion

Question 23

Modification of alimony + when it terminates

Answer 23

Only when substantial unanticipated change of circumstances

Usually terminates when spouse dies or gets remarried

Some states: cohabitation can reduce or terminate alimony

Question 24

Does court need jdx over both spouses to dissolve marriage?

Answer 24

NO, just need one spouse domiciled in forum state or long-term connection between one of the parties to the marriage

Question 25

Which court can issue property division order

Answer 25

ONLY when court has jdx over DEFENDANT SPOUSE

Question 26

What governs child support?

Answer 26

Uniform Interstate Family Support Act (UIFSA) governs child support, and has been adopted by all states

Question 27

Which state can modify child support order?

Answer 27

State that originally issued has EXCLUSIVE continuing jdx to modify if the child or parents remain in the state

Question 28

Child custody: what governs?

Answer 28

Uniform Child Custody Jurisdiction and Enforcement Act

Question 29

What courts have jdx over child custody? 3 tests

Answer 29

1) home state: where child has lived w caretaker for at least 6 months or since birth or if child has left state for less than 6mo so long as parent remains in state –> continuing exclusive jdx

2) significant connections test: if child has no home state, can be based on a) significant connections with child + a parent AND 2) “substantial evidence” relating to child custody in forum jurisdiction

3) emergency or default jurisdiction: applies if no other state has jdx

Question 30

When a marriage is intact and couple is still together, may a court intervene on behalf of a child due to 1) financial choices 2) failure to permit a child to participate in hobby 3) medical choices?

Answer 30

Financial choices: court CANNOT intervene in intact marriage UNLESS would danger welfare of child (being poor and unable to pay bills does not endanger welfare)

Recreational choices: Court CANNOT intervene

Medical choices: court CAN intervene and declare a child NEGLECTED if the parent’s choice causes SERIOUS HARM to child’s health

Question 31

Can extremist religion be a basis to prevent awarding a parent custody?

Answer 31

NO, unless beliefs would be DETRIMENTAL to child