MEE Family Law

Question 1

What are the requirements for a valid antenuptial agreement (premarital)?

Answer 1

(1) Writing and signed;
(2) Entered into voluntarily, meaning without fraud, duress, or overreaching;
(3) Full and fair disclosure of the parties’ assets or proof that the party against whom the agreement is being enforced had independent knowledge of the assets.

Question 2

What is are the requirements, in general, for a valid marriage?

Answer 2

(1) License
(2) Ceremony with Authorized Officiant
(3) No Legal Impediments to Marriage (parties cannot be siblings, decedents, ascendents, and no bigamy)
(4) Capacity to Consent

Question 3

What are the elements of a common law marriage?

Answer 3

(1) Consent to marry, which includes having capacity and a lack of legal impediments;
(2) Cohabitation;
(3) The couple holding themselves out publicly as spouses.

Question 4

What is the duty to support in a marriage? What is the relevant doctrine?

Answer 4

The “doctrine of necessaries” can be used to make one spouse liable to third parties for the other spouse’s purchases for necessary expenses, such as food, clothing, and health care.

Also, principles of agency may require that one spouse be held liable to a third party for the other spouse’s authorized purchases.

Question 5

What is a bigamous marriage? What does that make the marriage?

Answer 5

If either party has a living spouse, the marriage is void.

A void marriage is invalid, an utter nullity, because it failed to meet the essential requirements for a legal marriage.

Question 6

What is loss of consortium?

Answer 6

A loss of consortium claim is a legal action that compensates a spouse or family member for the loss of companionship and support caused by a severe injury or death

Question 7

What are the grounds for an annulement (void)?

Answer 7

Void
(1) Bigamy or Polygamy
(2) Consanguinity (too closely related)

Question 8

What are the grounds for an annulement (voidable)?

Answer 8

Voidable
(1) Nonage (underage, no consent)
(2) Incurable Physical Impotence
(3) Lack of Capacity
(4) Duress
(5) Fraud (that affects an essential element of a marriage)

Question 9

What are the jurisdiction requirements for a divorce?

Answer 9

To have jurisdiction over a divorce, only one of the parties needs to be domiciled in the jurisdiction. Most states set a minimum residency period.

Two lawsuits can happen in different courts at the same time.

Question 10

What does it mean that divorce is an In Rem Action?

Answer 10

The divorce itself is viewed as an In Rem Action. The filing spouse’s domicile alone may be the basis for granting the divorce; personal jurisdiction over the defendant spouse is not needed.

Question 11

What are the grounds for a “no-fault divorce”?

Answer 11

(1) Both spouses agree that the marriage is irretrievably broken (bilateral);
(2) The spouses have been living apart for a specified and continuous period of time (bilateral or unilateral);
(3) Both spouses agree they are now incompatible (bilateral).

Question 12

What are the fault grounds for divorce?

Answer 12

(1) Adultery (opportunity and inclination);
(2) Willful Desertion (this requires an unjustified departure from the marital home for a specified period with no intent to return);
(3) Extreme Physical or Mental Cruelty;
(4) Voluntary drug addiction or habitual drunkenness commencing after the marriage;
(5) Insanity.

Question 13

What are the three general approaches to property division at divorce?

Answer 13

(1) Community property: All property acquired during the marriage is deemed owned one-half by each spouse, and all property brought into the marriage or acquired by gift or bequest is separate property

(2) Equitable division of all property: The court divides all property owned by either spouse, whether acquired before or after the marriage

(3) Equitable division of marital property: Each spouse takes their separate property, and the court only divides the property acquired during the marriage.

The third approach is the most common.

Question 14

What is marital property?

Answer 14

(1) Property acquired during the marriage;
(2) Earnings;
(3) Employment benefits, pensions, and stock options;
(4) Lost wages;
(5) Reimbursement for medical bills incurred and paid with marital property;
(6) Recovery for damages to marital property.

Question 15

What is equitible vs. equal in property division? What does the court consider?

(DO NOT NEED TO LIST FACTORS, JUST BE FAMILIAR, courts are given a great deal of discretion).

Answer 15

Property division is EQUITIBLE not EQUAL. Make things fair…

*The age, education, background, and earning capabilities of both parties
*The duration of the marriage, and whether there were any prior marriages
*The standard of living during the marriage
*The present incomes of both parties, their vocational skills, and employability
*The source of the money used to purchase the property
*The health of the parties
*The assets, debts, and liabilities of the parties
*The needs of the parties
*The child custody provisions
*Whether the distribution is in addition to, or in lieu of, alimony
*Each party’s opportunity to acquire future income and assets
*Each party’s contribution to the acquisition or enhancement of the existing marital assets
*Each party’s contribution as a homemaker to the family unit
*Economic fault (that is, whether either party has dissipated marital property)

Question 16

What are some special issues in property division?

Answer 16

(1) Commingling (mixing funds);
(2) Transmutation (seperate can become marital, based on intent);
(3) Improving Seperate Property (marital estate will get reimbursed).

Question 17

What are the four types alimony? Can there be more than one type awarded?

Answer 17

(1) Permanent Periodic Spousal Support ($2,000/mo);
(2) Lump Sum ($36,000, at a rate of $1,000/mo);
(3) Rehabilitative Spousal Support (to support finishing their degree, etc.);
(4) Reimbursement Spousal Support (reimburse for a finished degree, like a law degree).

Yes, there can be more than one type awarded.

Question 18

How is alimony determined?

Answer 18

Very similar to division of property. Needs of claimant spouse and ability of other spouse to pay. (Also standard of living, duration of marriage, etc.)

Question 19

When does alimony terminate?

Answer 19

(1) Recipient remarries;
(2) Death of either spouse;
(3) Recipient spouse cohabitates.

Question 20

What makes a seperation agreement enforceable?

Answer 20

To be enforceable, the agreement must be voluntary, there must have been a full and fair disclosure by both parties, and there must be consideration. Consideration for the agreement is found in the mutual promises of the parties.

Question 21

What is the court not bound to follow in a seperation agreement?

Answer 21

The court is not bound by the parties’ contract concerning children. The court can do what is in the child’s best interest.

Question 22

When does child support end?

Answer 22

• The child reaching the age of majority (usually 18).
• Death of child.
• Emancipation of child.
• Emancipation is the removal of the disabilities of minority. After emancipation, the child is considered an adult. (Most states consider married minors to be emancipated)
• Termination of parental rights.

Question 23

How is the jurisdiction over child support orders governed? Who has jurisdiction over time?

Answer 23

The Uniform Interstate Family Support Act (“UIFSA”) provides methods of enforcement and guidelines for modifications of support orders issued in another state.

The court that issues child support has continuing and exclusive jurisdiction.

Question 24

What is the standard for modifying child support?

Answer 24

Child support is modifiable based on a substantial and continuing change of circumstances affecting the needs of the child or the ability of the parent to pay, such as changes in employment, the growth of the child, inflation, income, retirement, or disabling illness.

A voluntary reduction in income will not be a ground for modification.

Question 25

What is the purpose of the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”)?

Answer 25

To avoid jurisdictional disputes regarding child custody and visitation, promote interstate cooperation, and facilitate the interstate enforcement of custody and visitation orders.

Question 26

How is initial child custody determined?

Answer 26

Primary Test—Home State Jurisdiction (where the child has been for 6 months).

When “Home State” Rule Does Not Apply… (1) The child and at least one parent (or person acting as a parent) have a significant connection with the state; and (2) Substantial evidence concerning the child is available in the state.

Question 27

The issuing court has CONTINUING EXCLUSIVE jurisdiction over child custody. Another state can only exercise jurisdiction if:

Answer 27

(1) No child or parent (or persons acting as parents) continues to reside in the issuing state; or
(2) The child no longer has a significant connection with the issuing state and substantial evidence relating to the matter is no longer available in that state.

Question 28

What is the general standard (test) to determine child custody?

Answer 28

The Best Interest of the Child Standard ★

Some factors include…
(1) The wishes of the parents (Note: Parents have a constitutionally protected right to care, custody, and control of their children.)
(2) Child’s preference (Preferences of children under the age of 8 are generally not considered, but preferences of children over the age of 12 are given great weight. Questioning of the child typically occurs in the judge’s chambers.)
(3) Child’s relationship with parents, siblings, and others involved with parents.
(4) Child’s adjustment to home, school, and community.
(5) Parties’ mental and physical health.
(6) Who has been the child’s primary caregiver.

Question 29

What types of custody are available?

Answer 29

(1) Joint Custody
(2) Sole Custody
(3) Custody to a Nonparent

Question 30

How are child custody decrees modified?

Answer 30

Custody orders are always modifiable. The burden of proof is on the party seeking the change.

Modified only if there has been a substantial and material change in circumstances affecting the child’s well-being.

Question 31

How does the Full Faith and Credit Clause effect family law?

Answer 31

States must recognize final divorce and property division decrees (and child custody decrees) from other states.

Question 32

What level of scrutiny is applicable to non-marital children?

Answer 32

Intermediate Scrutiny (that is, they must be substantially related to an important governmental interest).

Question 33

How can a child be considered the child of an un-wed father?

Answer 33

• The parents married after the child’s birth
• The father holds the child out as his biological child
• The father consents to be named on the birth certificate
• The father formally acknowledges paternity or
• There is a court order establishing paternity

Question 34

What are some of the grounds for involuntary termination of parental rights?

Answer 34

• Infliction of serious physical harm on the child, including sexual abuse
• Abandonment
• Neglect or deprivation (failure to meet minimum standards of care)
• Failure to provide support without justifiable cause
• Mental illness or retardation so severe as to make the parent incapable of caring for the child
• Parental unfitness (conduct by the parent that seriously harms the child physically or psychologically)

Question 35

What are the requirements for an adoption?

Answer 35

(1) Termination of Natural Parents’ Rights
(2) Creation of New Parental Rights

Question 36

What is the right to family privacy?

Answer 36

Families have the right to privacy in their homes and freedom from governmental interference in their domestic affairs. Parents have authority to make decisions about most matters concerning the upbringing of their child, but certain state interests (for example, prevention of abuse and neglect, compulsory education) take precedence over parental autonomy.