MEE Family Law Rules

Question 1

Marriage & Limitations on Who Can Marry w/ Exceptions and Defenses

Answer 1

Age
Bigamy/Polygamy not allowed
Cosanguity not allowed (too close of a relationship)
Capacity: Courts will look @ mental capacity

Exceptions/Defenses:

• Removal of the impediment: Under the UMDA the parties can show a removal of the impediment
• Presumption of invalidity: last marriage is presumed valid.

Question 2

Requirements to Marry

Answer 2

License: from the government is required
Solemnization: from a clergy member is OK
Consent/State of mind requirements: courts will look to mental & physical state of mind. Was the person under the influence of drugs/alcohol? Do the parties have the mental state of mind to enter into a marriage?

Question 3

Common Law Marriage

Answer 3

Has been abolished in most states. Doesn’t require the legal requirements or formalities. Only need to show:
Consent: both parties have to consent to the marriage and be aware of the arrangement
Cohabitation: both parties have to be living together
Hold themselves as a couple living together in public: must show to the public that they are a couple / married.

Though most states have banned common law marriage, if a marriage takes place in a state that allows common law marriage, the marriage will be valid in other states.

Question 4

Premarital Agreements

Question 5

Full Faith and Credit

Answer 5

A marriage that is valid according to the laws of the state in which it is contracted will be recognized in every other jurisdiction, unless the marriage is deemed to violate public policy of the forum state.

Question 6

Rights of Unmarried Co-Habitants

Answer 6

In most states, a child born in wedlock does not need to establish paternity to recover from the father. However, a child born out of wedlock generally must establish paternity before he or she can recover from the father.

Further, the rights of each parent to participate in the child’s upbringing and the obligation to pay for it must often be established by either agreement or an action to establish paternity.

Question 7

Children

Answer 7

Parents have the responsibility to make decisions and to perform other parental functions necessary for the care and growth of their minor child.

STANDARD: best interests of the child

The relationship between child & parent should continue to be fostered unless it is not in the best interests of the child

Question 8

Best Interests of the Child

Answer 8

The best interests of the child are served by a residential schedule that maintains a child’s emotional growth, health and stability, physical care, with emphasis given to the strength of the relationship between child and each parent.

The court seeks stability for the child. The court seeks protection of the child from physical, mental, or emotional harm.

Question 9

Permanent Parenting Plan / Child Custody

Answer 9

A permanent parenting plan allocates parenting responsibilities, including the residential schedule and decision-making authority

Question 10

Primary Residential Placement

Answer 10

The court must name one parent the primary residential parent for purposes of federal laws that seek a custodial parent. This nomination does not affect the rights and responsibilities of the parents in the Parenting Plan.

Question 11

Residential Schedule

Answer 11

A residential schedule sets forth where the child shall reside during the school year, holidays, vacation, and special occasions.

Question 12

What factors does the court consider for children’s placement?

Answer 12

• each parent’s historical involvement in meeting the children’s day to day needs,
• strength of the relationship with each parent
• the physical and emotional stability each parent can provide
• harmful behaviors of the parents

Question 13

Dispute Resolution

Answer 13

In order to reduce judicial intervention, the plan must include a specific process for resolving disputes before returning to court. This can be waived if there’s a history of domestic violence.

Question 14

Child’s Input

Answer 14

A child’s input regarding residential placement is a factor that may be considered, but it is not controlling. Some states have an age of discretion at which a child can choose to live with one parent or another

Question 15

Restrictions on Contact With Children

Answer 15

Restrictions on contact with the children can be limited if it is in the best interests of the child

Question 16

Restrictions on Decision Making

Answer 16

A parent’s involvement may be limited if he has willfully abandoned the children for a period of time; has refused to perform parental functions; has abused a child or has a history of domestic violence

Question 17

Non-Parent Visitation

Answer 17

Nonparent may not petition for visitation with a child unless an existing case relating to a parenting plan is open. Some states have grandparent rights. non-parent can petition for third party custody. (in loco parentis situations)

Question 18

Modification of Parenting Plan

Answer 18

can modify, but need to demonstrate adequate change or substantial change in child/parent situation.

Question 19

Relocation

Answer 19

Some states have a relocation statute that sets forth notice requirements for a primary residential parent who seeks to relocate with the child. Court looks @ factors to determine whether the move should be allowed:

• relative strength of relationship between child and other family
• disruption of relationships
• reasons for relocation / good faith
• age, stage, needs of child
• quality of life and benefits of child in new location

Question 20

Failure to Comply with Parenting Plan

Answer 20

• failure to comply doesn’t discharge parent from duty or court order.
• Parent cant withhold child support in retaliation of other parent’s failure to follow the plan.
• remedy is to seek enforcement of the court order / modification

Question 21

Child Support Calculations

Answer 21

• only look @ direct parents’ income
• standard calculation + deviations + healthcare + other expenses + travel + post-secondary educational support
• Court can grant downward or upward deviation

Question 22

Post-secondary education

Answer 22

Not required. Courts will look at ability of parents to contribute, ability of child, intent, education of parents

Question 23

Child Support Adjustment/Modification

Answer 23

• can be reviewed every 2 years by statute, or upon agreement (annually).
• no retroactive changes

Question 24

Paternity requirements / rules

Answer 24

• assumed to be man’s child if they are married
• child must be born in marriage or within 300 days after marriage is terminated.
• presumed to be natural father if he and mother marry and he acknowledges paternity in a writing filed with registrar or agrees to be on birth certificate

Question 25

Adoption/Guardian ad litem

Answer 25

• natural parent must consent in writing to the adoption
• any parent must be served notice of an adoption proceeding.
• adoptee shall be the child, legal heir, and lawful issue of the adoptive parent, entitled to all rights & privileges, including the right of inheritance
• guardian ad litem can be appointed whenever the court feels it is necessary.

Question 26

Premarital Agreements

Answer 26

are contracts
consideration is marriage
requires: writing, voluntariness, full & fair disclosure of all assets.

courts will look at: were the terms unconscionable? was the other party represented by counsel.

courts like to enforce premarital agreements. can be modified/revoked w.o. considerations.

child custody provisions are not binding

Question 27

Property & Support Rights & Responsibilities

Answer 27

Each spouse controls his/her own separate property acquired prior to marriage.

Any property acquired jointly is tenancy by the entirety. Post divorce can become tenants in common.

Support – both spouses are to support eachother

Doctrine of necessities; one spouse may be liable to creditors for necessities that other spouse owns.

Question 28

Annulment

Answer 28

Occurs when marriage is void/voidable
Grounds for annulment:
1) bigamy
2) consanguinity
3) non-age
4) incurable physical impotence
5) capacity

spousal support: can be given during the process of annulment but typically courts like to stay away from granting spousal support post-annulment.

property division: courts like to put parties back in the same position that they were prior to the marriage.

Question 29

Divorce

Answer 29

Traditionally, states used to require proof of “fault” to acquire a divorce. Some states retain “fault” based divorces, but all states offer no-fault divorces.

Grounds for divorce:

1. Irretrievably Broken
2. Living Separately - for 6 months or more
3. Incompatibility

Defenses: There are defenses to divorce in some states, but courts will not force a marriage if one party wants a dissolution.

Separation: legal separation does not terminate the divorce. Separation proceedings can involve property, support, and child custody. Can request a full divorce after legal separation and a passage of time

Question 30

Jurisdiction over Annulment and Divorce

Answer 30

Jx is granted to the states
Jx can exist where one or both parties are domiciled
Jx can also be given to the state where the parties entered into the marriage.

Question 31

Divorce

Answer 31

Residency Requirement: one or both parties must live in the states. Some states have a minimum duration requirement to prevent forum shopping

Question 32

Marriage vs. Marital Porperty

Answer 32

A court does not have jurisdiction over marital property disputes unless it has jx over both parties.

Question 33

Division of Property & Approach

Answer 33

Equitable Distribution: each spouse takes their separate property; courts divide property acquired during the marriage equitable. Equitable distribution doesn’t necessarily mean 50/50

Community Property: each spouse keeps their separate property - property acquired prior to marriage or by gifts/ inheritance; everything acquired during the marriage gets split 50/50.

How do courts do this?
They categorize marital property & separate property
Find a potential equitable division of the property

Question 34

Categorizing Property (Separate vs. Marital Property)

Answer 34

Courts must look at separate property and marital property.

Separate property typically includes: any property acquired before marriage, gifts/inheritance, any appreciation due to the passage of time (market increase)

Marital Property: theory is that the efforts of the marriage contributed to this. Any property acquired during the marriage, pensions, wages, any appreciation due to marital efforts.

Question 35

Distribution of Property

Answer 35

Courts will consider several factors when determining how to divide property equitably including:

• wealth, vocational/educational skills, employability
• length of marriage
• standard of living during the marriage
• child custody provisions
• health of the parties
• needs
• obligations prior to marriage
• contributions to the marital property

fault is not a consideration.
look at the facts and employ the facts in any question that asks for a distribution of property.

Question 36

Spousal Support

Answer 36

Can be awarded if a party’s separate property is insufficient for maintenance.

Purpose: to help support those spouses who were financially dependent or interdependent due to the marriage.

Discretion: Courts hold discretion on spousal support; typically a test of totality o the circumstances.

Factors that courts look to:

• financial resources of both parties
• contributions of finances to child care / custody, expenses, contributions during the marriage, standard of living during the marriage, need of the party, the spouse’s ability to obtain employment, the ability of the payor to meet their own financial needs.

Payment: can be a lump sump, short-term, or long term.

Question 37

Child Support

Answer 37

Both parents have a duty to provide for child. Typically a formula that takes many factors into account including number of children, parents’ income, ages, health needs, special needs (if any).

Duration: Emancipation // age of majority (usually 18 or 19) // Some states may require college support payments

Independent Visitation Rights: Separate from obligation to pay child support / can’t deny visitation

Jurisdiction: jx based on if child or atleast one party is residing in the state // exclusive modification by that jx unless all parties move out of state (full faith and credit)

Question 38

Child Custody & Visitation Rights

Answer 38

Types of Custody:

1) Legal
2) Physical
3) Joint: a) not necessarily 50/50, b) child can split time

Question 39

Factors when determining custody

Answer 39

parents wishes
childs wishes
willingness and ability of the parent
child’s adjustment

Question 40

Visitation Rights

Answer 40

one party has sole custody
the other parent DOES have visitation rights, exception: unless the court determines that one of the parents is a danger.

Question 41

Non parent visitation rights

Answer 41

1) substantial relationship with child
2) best interest of the child
3) fit parent does not object.

Question 42

Modification of Support & Custody

Answer 42

Typically requires a substantial change in circumstances

Spousal support can be modifiable if there is a substantial change in circumstances that was not foreseeable.

Self-induced changes: typically & generally will not be accepted for modification purposes.

Child support: similar rules as spousal support, can be modifiable, but the courts look at the following factors: a) child’s needs, b) the ability of the parent to pay

Child Custody Modification: Difficult, but must show substantial change in the circumstances // look at the best interests of the child.

Question 43

Contracts between unmarried cohabitants

Answer 43

can be upheld; exceptions: sex cannot be a consideration. Courts can look at conduct of implied contracts.