MEE - Family Law

Question 1

*May a court grant divorce when it lacks jurisdiction over one spouse?

Answer 1

To establish jurisdiction over a divorce action, one of the parties must be a bona fide resident of the jurisdiction where the action is brought. States may set a minimum durational residency requirement before the action can be filed. Under the doctrine of dividable divorce, an ex party divorce generally can serve to grant only the divorce.

The plaintiff’s residence alone may be the basis for a state’s granting a divorce, regardless of whether there is personal jurisdiction over the defendant. There is a rebuttable presumption that the state granting the divorce is the bona fide domicile of the plaintiff.

Courts give full faith and credit to divorce decrees of the courts of a sister state if the sister state had proper jurisdiction and the decree is valid in the sister state.

Generally, to have a valid change of domicile, a party must move to the new location with the intent to remain there, regarding it as his home.

Question 2

*What is considered marital property?

Answer 2

In general, all property acquired during marriage is marital property unless it is acquired through gift, bequest, devise, or descent. When a gift is given to both parties, courts will look at the donor’s intent to determine whether they intended both parties to use the gift. Unless a particular wedding gift is only appropriate for the use of one spouse, wedding gifts should be classified as marital property.

All property acquired prior to marriage is considered separate property. The appreciation of value of separate property is also separate property. Property acquired through gift, bequest, devise, or descent is also separate property. Property accrued through the date of divorce is considered marital.

Marital fault generally is not a factor in division of property, unless it led to dissipation of assets. If a party gave a lover gifts from marital property, the value of those gifts will reduce that party’s equitable division of property negatively by 50% of the value of the gifts.

Question 3

*What is the purpose of spousal support and what types of spousal support are available?

Answer 3

The purpose of spousal support is to ensure an adequate income stream for the spouse whose economic dependency has resulted, at least in part, from the marital relationship.

The purpose of spousal support is not punitive, but to continue one spouse’s duty to the other arising out of the marriage.

It is against public policy to enforce a waiver of spousal support if it would leave a spouse dependent on the state.

Where a court grants an ex parte divorce, spousal support can be granted subsequent to the divorce decree to the spouse who was not subject to personal jurisdiction.

-Permanent spousal support is awarded to a spouse who has neither the resources nor the ability to be self-sustaining. Usually only awarded for long-term marriages.

-Rehabilitative alimony consists of periodic payments for limited period of time for spouse to gain skills or education necessary to become self-supporting.

-Reimbursement alimony awards a fixed sum to spouse who supported other spouse while latter obtained degree or license

Question 4

*What factors are considered in determining the amount of spousal support?

Answer 4

Some states will consider marital fault when awarding alimony. In others, alimony is not based on marital fault. The recent trend is to award less alimony than in the past because of the number of couples where both parties have valuable skills in the workforce.

When determining what type and how much support to award, the court considers: (1) the standard of living during the marriage, (2) the duration of the marriage; (3) the age and physical and emotional conditions of the parties; (4) the financial resources of each party (including how marital property was apportioned; (5) the contribution of each party to the marriage (including homemaking, child care, education, and career building of the party); (6) the time needed to obtain education or training to enable either party to find appropriate employment, where applicable; and (7) the ability of the payor spouse to meet his needs while paying spousal support.

Question 5

*Can the value of a professional license be divided during a divorce?

Answer 5

Most jurisdictions rule that neither a spouse’s earning capacity nor professional license on which it is based is distributable. This is because a license or degree has none of the usual attributes of property - it cannot be purchased, transferred, or inherited. Thus, it is not classified as marital property even when its attainment was through support of the other spouse.

Some jurisdictions have compensated supporting spouses for contribution in other ways - based on unjust enrichment, making supporting spouse’s contribution in the calculation of alimony, and awarding reimbursement alimony.

In a growing minority of states that hold that a license is subject to equitable distribution, a court may award a percentage of its value to the other spouse, usually in the form of additional marital property or as alimony.

Question 6

*How is child support determined?

Answer 6

Parents have an equal duty to support their children. This duty cannot be contracted away.

When a court calculates how much child support to award, it will look primarily to the monetary need of the children and the noncustodial parent’s ability to pay. Most states have adopted specific guidelines to make such a calculation more uniform. State guidelines usually dictate a formula based on the. number of children, their ages, any special needs of the children, and the parents’ incomes. In most states, the court may deviate from the guidelines but must make findings of fact justifying the deviation. Parents may also be ordered to purchase and maintain medical insurance for their children.

Question 7

*How is child support enforced?

Answer 7

Under the full faith and credit for child support orders act, full faith and credit must be given to another court’s child support order if the court had jurisdiction over the matter and the parties, and the parties had reasonable notice and an opportunity to be heard. For full faith and credit to be granted , there must have been proper jurisdiction for the judgment and the judgment must have been on the merits, and the judgment final. Child support orders do not meet this definition because they are modifiable at any time. However under the Full Faith and Credit for Child Support Act, full faith and credit must be given to another court’s child support order if: (1) the court had jurisdiction over the matter and the parties, and (2) the parties had reasonable notice and an opportunity to be heard.

Question 8

*How is child support modified?

Answer 8

The uniform Interstate Family Support Act, once a state with proper jurisdiction issues a support order, the court of another state is limited to enforcing the original order, unless all parties no longer reside in the issuing state or the parties agree in writing that the non issuing court may assert jurisdiction to modify the order.

Child support is modifiable based on a substantial change of circumstances affecting the needs of the children or ability of the parents to pay. Courts will consider various material changes in (1) employment, (2) growth of the children, (3) income, (4) inflation, (5) retirement, and (6) disabling illness in deciding whether to modify a support order.

Generally, an obligor’s self-induced reduction in income cannot be used to obtain a downward modification of support unless it is made in good faith.

Child support cannot be modified retroactively.

Question 9

**May courts order educational support after age 18?

Answer 9

Many courts have ordered continuing child support past the age of 18 if the child remains a full-time student. However, all parents - whether married or divorced - may terminate this additional support to employable children who disobey reasonable parental requests. In some states, parties may negotiate to pay for college expenses as part of a support order, in which case support will be owed by the obligated parties.

Question 10

*How is child custody determined?

Answer 10

Courts will determine issues of child custody based on the interests of the children. Factors courts consider in determining whether joint custody is appropriate include: (1) the fitness of both parents; (2) whether the parents agree on joint custody; (3) the parents’ ability to communicate and cooperate concerning the well-being of the children; (4) the children’s preference (depending on their age >12 years old); (5) the level of involvement of each parent in the children’s lives; (6) the geographic proximity of the parents’ homes; and (7) the effect joint custody will have on the children’s psychological development. (need 5 times from this list for credit)

Courts often award custody to the parent who has been the primary caregiver. Courts are not bound by child custody provisions in a premarital agreement.

Question 11

*How is child visitation established?

Answer 11

The strong public policy to promote the relationship between the child and both parents requires that when an award of physical custody is made to one parent, the other parent is given reasonable visitation rights. Once custody is decided, the parties generally agree to a visitation schedule, or if unable to agree, the court will impose one. Visitation schedules depend on factors such as the age of the child and geographical proximity. With these factors in mind, the court will determine the amount and kind of visitation that is in child’s best interest. Visitation orders may now included visitation time on the phone or computer.

Question 12

*How is child custody determined when one of the parties is a nonlegal parent?

Answer 12

In a custody dispute between a parent and a non parent, courts give great weight to the interests of the parent. Thus in such situations, custody does not turn on the child’s best interests alone. The prevailing view is that a parent has the right to custody over a non parent, absent voluntary relinquishment, unless it is shown that the parent is unfit.

A presumption of a husband’s paternity can be rebutted by preponderance of the evidence in some states and by clear and convincing evidence in others.

Many states have ruled that when a child has been left with a third party to rear, the biological parent has lost the right to rear the child, and the best interests test should apply.

Question 13

*How may a court establish jurisdiction over a child custody dispute?

Answer 13

Under the Uniform Child Custody Jurisdiction and Enforcement Act, a state may exercise jurisdiction if it is the home state of the child at the time the proceedings began or within six months of the proceedings and a parent still resides in the jurisdiction. A child’s home state is the state in which the child lived with a parent, or a person acting as a parent, for at least six consecutive months before commencement of the proceeding.

The court that made an initial custody determination has continuing, exclusive jurisdiction over the matter until that court determines that: neither the child nor the parents continue to reside in the state, or the child no longer has a significant connection with the state and substantial evidence related to the child’s care, protection, training, and personal relationships is no longer available in the state.

Under the UCCJEA, a court has temporary emergency jurisdiction if it is necessary in an emergency to protect the child because the child or her siblings or a parent is subjected to or threatened with mistreatment or abuse.

Question 14

*How may a court modify a child custody order?

Answer 14

Under the Parental kidnapping Prevention Act, a state may not modify a custody order if one of the parties continues to reside in the issuing state and, under that state’s laws, the court continues to have and does not decline jurisdiction. All the non-issuing state may do is enforce the existing custody order of the other issuing state.

Removal of a child from the jurisdiction is a substantial, material change of circumstances warranting modification of the custody order. The courts will follow the best interest of the child standard in fashioning a custody and visitation schedule.

Question 15

*May a court divide marital property if it does not have jurisdiction over both spouses or property?

Answer 15

Generally, a court cannot determine out-of-state property rights or rights to support unless it has jurisdiction over both parties. In an ex part divorce, the court can grant the divorce but cannot award spousal support or divide out-of-state property.

If a court has jurisdiction over both spouses, then such disputes over property can be resolved.

Question 16

*Are both spouses’ consent required for a divorce to be granted?

Answer 16

Most states offer no-fault divorces that provide for the dissolution of a marriage, without regard to marital fault. No-fault divorces may be granted upon a showing that the marriage is irretrievably broken and that the parties have been living separate and apart for a specified period of time.

Question 17

*Is property titled in one spouse’s name subject to division at divorce?

Answer 17

Courts have authority to order an equitable distribution of all marital property no matter how title is held. All assets acquired during marriage are deemed marital property, unless acquired through gift, bequest, devise, or descent. If property is acquired before the marriage, but paid for after marriage with marital funds, most courts will apportion the property between separate and marital interests in proportion to the contribution of separate and marital funds used to pay for the property.

Question 18

*Are premarital agreements enforceable?

Answer 18

In determining the enforceability of a premarital agreement, either the law of the state with the most significant relationship to the parties and the transaction or the law of the state where the agreement was executed will be applied. The court will look at the specific contacts with each jurisdiction and consider several policy-oriented principles, including the justified expectations of the parties and the interests of the jurisdictions involved.

Under the Uniform Premarital Agreement Act, a court determining enforcement of a properly executed premarital agreement considers only two things: Voluntariness and unconscionability. A premarital agreement is unenforceable if the the party against whom enforcement is sought proves (1) that they did not act voluntarily, or (2) that the agreement was unconscionable when elected and, before execution, the party was not provided fair disclosure of the other party’s finances, did not waive such disclosure in writing, and did not have adequate knowledge of the other party’s property or financial obligations.

Entry into the marriage is sufficient consideration. Parties must act in good faith due to a relationship of trust. A court will not leave a party poor or subject to requiring governmental assistance programs.

Premarital agreements regarding child custody and child support are unenforceable.

Question 19

*What is a common law marriage or cohabitation agreement and how does it play into divorce?

Answer 19

Courts generally may not split couple’s property unless they were married or had a valid cohabitation agreement. Any marriage validly entered will be recognized by other states.

The basic requirements to establish a common law marriage are: capacity, exchange of consent, cohabitation, and holding out publicly of living together as spouses. For sufficient holding out, courts look to conduct such as using a common last name, opening a joint bank account, and telling others in the community that they consider themselves married. Upon divorce courts divide assets based on the doctrine of equitable distribution used in noncommon law marital divorces.

Contracts between unmarried cohabitants will be enforced if sexual relations are not the only consideration for the contract.

Question 20

*What is the doctrine of equitable distribution during a divorce?

Answer 20

Courts consider several factors when dividing marital property. Equitable distribution considers : the earning capacity of each party, duration of marriage, standard of living during marriage, source of money used to purchase marital assets, parties’ health and needs, custody of minor children, each party’s contribution to the marriage.

Property distribution in a divorce decree is not modifiable, even if there is a substantial change in circumstances.

Some states are community property states in which each spouse owns 50% of the property acquired during marriage.

Question 21

**What is an adoption?

Answer 21

An adoption creates a new and permanent legal relationship between a child and the adoptive parents. While all the parties to the adoption must consent, consent cannot be withdrawn after a decree of adoption is entered.

Question 22

**What rights does an unwed father have towards adopted children?

Answer 22

Generally, a child may not be adopted without consent from both biological parents. Whether consent of unwed father is needed depends on his involvement with the child. If an unwed father demonstrates commitment to parenthood by participating in child rearing, relationship between the father and child is protected by due process. Factors considered with respect to father’s involvement include: (1) whether the parents lived together (or whether father visited regularly); (2) whether father admitted paternity; (3) whether father paid child support; and (4) whether father had any responsibility for supervision, education, protection, or care of child (need at three items from this list for credit).

An unwed father has no right to block adoption if not actively involved with the child or found to be an unfit parent.

The child of a married woman is presumed to be the marital child of the father.

Question 23

*What is a settlement agreement and how may a former spouse invalidate a settlement agreement?

Answer 23

A settlement agreement is an agreement entered into during marriage, before issuance of divorce decree, in which parties resolve economic issues. Settlement agreements are governed by general contract law. Most states require full and fair disclosure by the parties. Most states also require a settlement agreement to be fair and entered into voluntarily without undue influence.

An agreement may be set aside when spouse’s fraud, duress, or coercive behavior results in unfair agreement. When parties use independent counsel, the is a decreased chance of the agreement being overturned.

Question 24

*How is paternity established for a child born from artificial insemination of a wife by donor sperm during a legal marriage?

Answer 24

Under the Uniform Parentage Act, the spouse of a woman who bears a child through assisted reproduction is the child’s legal parent, unless within two years after learning of the child’s birth he commences an action in which it is determined that he did not consent to the assisted reproduction.

Question 25

*Does a minor have the capacity to consent or deny medical treatment or religious participation?

Answer 25

Children are treated differently from adults under the law because of their immaturity. Generally, parental consent is required before medical treatment can be administered to a person under the legal age of capacity, usually 18. Some states have laws enabling minors to give valid consent to abortions, to obtain birth control, and to consent to treatment for sexually transmitted diseases.

The constitutional right to privacy gives parents the right to decide issues concerning care, custody, and control over their children. Parents’ decisions on behalf of their child are to be given deference. The court may not override a parent’s authority, just because it would have decided an issue differently. A court can override the withholding of parental consent for medical treatment only if withholding treatment would cause irremediable injury to the child.

So long as there is no indication that the parents’ religious practices are placing the child in harm’s way, the child must obey his parents’ wishes.

Question 26

*What is the husband-wife tort immunity?

Answer 26

Under the traditional view, one spouse could not sue another in tort for personal injury. However, most states have abolished intefspousal tort immunity. Either spouse may now maintain a tort action against the other.

Question 27

*What is the parent-child tort immunity?

Answer 27

A majority of states have abolished parent-child tort immunity. States generally grant parents broad discretion in the exercise of parental authority or supervision.

Question 28

**What is loss of consortium?

Answer 28

In most jurisdictions, either spouse can recover for the loss of the other’s consortium or services due to injuries resulting from a defendant’s tortious conduct, whether the defendant’s conduct was intentional, negligent, or based on strict liability.

Question 29

*How does the tort of Negligent Infliction of Emotional Distress play into family law?

Answer 29

To succeed in a claim for negligent infliction of emotional distress, a plaintiff must prove that she (1) suffered some physical injury from the distress, and (2) was in the target zone or zone of danger at the time of defendant’s negligence.

In a substantial minority of jurisdictions, the zone of danger standard has been rejected in favor of a foreseeability standard. In these states, recovery is permitted as long as (1) the plaintiff and the person injured by the defendant are closely related; (2) the plaintiff was present at the scene of the injury; and (3) The plaintiff personally observed or perceived the event. While some of these jurisdictions also allow for recovery for severe emotional distress even in the absence of physical injury, almost all of them require a marital or family relationship for the first element.

Question 30

*May a parent relocate after marriage if it affects visitation rights of the other parent?

Answer 30

Many courts recognize that in today’s mobile society it is unreasonable to deny a custodial parent the right to pursue opportunities that require relocation. These courts allow relocation if it is in the children’s best interests, is motivated by a benefit to the family, and is not intended to deprive the noncustodial parent of visitation.

Question 31

**Are a biological father’s due process rights violated if he only has two years to establish paternity?

Answer 31

Substantive due process rights are derived from the due process clause of the fourteenth amendment of the constitution. The cause guarantees that state and local laws will be reasonable and not arbitrary. Where a law limits a fundamental right, strict scrutiny will be applied and the law will be upheld only if it is necessary to promote a compelling or overriding interest. Parents generally have a fundamental right to make decisions concerning the care, custody and control of their children. This right can extend to an unwed biological father. However, the SC has held that an unwed father obtains protection under the Due Process Clause only if he demonstrates a commitment to his parenting responsibilities and participates in child rearing.

Question 32

*What rights does a biological father have if the mother of their child is married to another man at the birth of the child?

Answer 32

Under the common law, the child of a married woman is presumed to be the marital child of her husband, and the SC has held that the state’s interest in protecting the marital family is sufficiently strong to override any interest that an extramarital father might have in establishing paternity, even if the result is that such a father is completely foreclosed from establishing his paternity.

Question 33

**How much weight does a parent have in determining the visitation rights of a 3rd party?

Answer 33

The SC 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 merely because they believe that a better decision could have been made or that visitation would be in the best interest of the child.

Question 34

**May spousal support that terminates upon a subsequent marriage be reinstated after the subsequent marriage ends?

Answer 34

Spousal maintenance generally terminates upon the remarriage or cohabitation of the recipient spouse. However, if the subsequent marriage is annulled due to violability, the maintenance may continue.

While some courts will permit reinstatement with the equities strongly favor the former recipient, most courts will refuse to revive maintenance payments that were terminated by a later-annulled marriage in order to protect the payor spouse’s interest in the certainty of the termination of his obligation.

Question 35

*When may a marriage be annulled?

Answer 35

Annulment may be sought when a marriage is voidable. A marriage may be voidable based upon fraud if there is a misrepresentation as to the essentials of the marriage. Misrepresentations that are considered to go to the essentials of marriage include misrepresentations as to the ability or willingness to engage in sexual relations or bear children, misrepresentations as to the paternity of an unborn child, misrepresentations as to the existence of a sexually transmitted disease or drug addition, and misrepresentations as to the party’s religious beliefs.

Question 36

**When is a marriage void due to bigamy?

Answer 36

In every state, if either party to the marriage has another living spouse, the marriage is bigamous and therefore void. A void marriage is a nullity and no subsequent act can ratify the marriage. However, in some states, if the impediment is later removed and the relationship continues, the marriage becomes valid.

Question 37

**What property does a spouse own and control before and after marriage?

Answer 37

Each spouse owns and controls their own property both before and during marriage. Because a spouse has full management rights with respect to their earnings, a court may not overrule the spending decisions of a spouse based on her partner’s conclusion that those decisions are ill-advised. As the mother and father live in an intact household in a non-community property state, the father has no management powers with respect to the mother’s earnings.

Question 38

**What a is the mutual support obligation during marriage?

Answer 38

Marriage creates support obligations on the part of both spouses. Principles of agency may require that one spouse be held liable to a third party for the other spouses purchases, if those purchases were expressly or impliedly authorized. Additionally, regardless of agency authority, one spouse may be liable for necessaries (food, clothing, medical care) purchased by the other spouse. However, this is available only to a creditor who has already provided goods or services. Such a creditor has not power to obtain an order altering a spouse’s future spending. Nor would this allow one spouse to enjoin expenditures by the other. Future because the internal affairs of a family cannot be regulated by the courts due to the right to familial privacy, a spouse who disagrees with his partner’s spending decisions may not obtain an order requiring a different spending pattern or obtain a support award.

Question 39

**When may the government intervene in family decision making?

Answer 39

Only when the decision at issue endangers the wellbeing of a child or another family member incapable of protecting his own interests.

American courts have consistently treated disputes of intact families as private matters that should be resolved at home, and have refused to decide disputes between children and parents.

Question 40

**What is the putative spouse doctrine? And what rights to spouses have to property in a split when no marriage exists?

Answer 40

This 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. But the court may use equity in apportioning the claimants’ rights to alimony and property in the interests of justice.

Some states allow distribution of marital property in an action declaring the nullity of a marriage.

Lastly, parties who cohabit for substantial periods of time, but do not marry will be entitled to share the other persons property in the event of a breakup. In the absence of an express contract, courts of some states often grant an equitable trust, or quantum merit (recovery in quasi-contract for valuable services).

Question 41

**What is a defacto parent?

Answer 41

A de facto parent is a person who has assumed the role of a parent on a day-to-day basis, taking on parental obligations and responsibilities. The duration of the relationship between the adult and the child must have been long enough for them to develop strong bond. A de facto parent may acquire standing to seek visitation rights even if the natural parent opposes visitation.

Parents of a child generally have a duty to support the child at least to age 18. When a defacto parent consents to act as a parent and the child’s interests would be harmed by termination of the parental relationship, the defacto parent will be estopped from halting his parental responsibilities.

However, in recent years, a number of courts have placed greater emphasis on the interests of erroneously identified fathers, and there is a trend toward the enactment of paternity disestablishment legislation.