Review

Question 1

What are the requirements for a valid common law marriage?

Answer 1

Capacity to enter into a marital contract;
agreement to be married;
cohabitation; and
holding out a relationship (CACH)

Question 2

When can a custody order be modified?

Answer 2

When there is a substantial change in circumstances that was unforeseen at the time of the initial judgment

Question 3

When are premarital agreements enforceable?

Answer 3

Generally valid and enforceable unless procured by fraud, duress, or coercion. Under UPAA, in writing & signed

Question 4

Under the UPAA, when are premarital agreements unenforceable?

Answer 4

If a) involuntary (fraud, duress, coercion; or b) unconscionable when executed and spouse was (i) not provided fair disclosure; (ii) did not waive disclosure in writing; or (iii) did not have knowledge

Question 5

What are the voluntariness factors for purposes of a valid marital agreement?

Answer 5

(1) presence of independent counsel; (2) length of time between agreement and wedding; (3) ability to understand agreement; & (4) other reasons (like pregnancy)

Question 6

Are premarital child custody and support agreements enforceable?

Answer 6

Maybe, but they are not binding. A court will apply a best interest of the child standard

Question 7

Are premarital spousal support agreements valid?

Answer 7

Depends on the state.

UPAA, permitted but not enforceable if it will make spouse eligible for public support without spousal support

Question 8

What is separate property?

Answer 8

1) property individually acquired before marriage;
2) gifts and bequests to individual during marriage;
3) property spouses agree to remain separate; &
4) passive appreciation of above-named property

Question 9

What is marital property?

Answer 9

All property acquired during the marriage, including

1) active appreciation caused by effort of spouse(s)
2) future expectancies even if payment will not be received until after marriage ends

Question 10

How do courts divide marital property?

Answer 10

Equitably. Fault is irrelevant, but economic misconduct is considered

Question 11

Can a property division award be modified?

Answer 11

No, unless there is an exceptional circumstance like fraud or duress

Question 12

What is the purpose of spousal support?

Answer 12

Maintain spouse’s standard of living and limit unfair economic effects of divorce

Question 13

What factors will a court consider when awarding spousal support?

Answer 13

1) financial resources;
2) time necessary for obtaining a job;
3) standard of living during marriage
4) duration of marriage
5) age, physical condition;
6) ability of spouse paying support

Question 14

Under the UIFSA, when may a court modify a child support order from another state?

Answer 14

1) court has jurisdiction; and

2) either (a) all parties no longer reside in issuing state, or (b) each party has consented in writing

Question 15

Child support order: which court has jurisdiction to modify?

Answer 15

The issuing court retains continuing, exclusive jurisdiction over an order if (a) state is still residence of one party; or (b) all parties consent

Question 16

When is relocation of a custodial parent allowed?

Answer 16

Permitted if (1) in good faith; and (2) in the best interest of the child

Question 17

Third-party custody rights

Answer 17

Must show the parent is unfit or that granting custody to the parent would be highly detrimental to the child. Must give special weight to parent’s determination of child’s best interest

Question 18

Which court may dissolve a marriage?

Answer 18

A court that has jurisdiction over at least one of the parties to the marriage

Question 19

Which court may issue a property division order?

Answer 19

Only the court with jurisdiction over the defendant spouse

Question 20

What is necessary to establish over a nonresident parent in order for a court to issue binding child custody and support orders?

Answer 20

The state must have personal jurisdiction over a nonresident parent (minimum contacts)

Question 21

What are the different tests for jurisdiction over child custody orders?

Answer 21

1) home state test
2) significant connections test
3) emergency or default jurisdiction

Question 22

What is the “home state” test?

Answer 22

A child’s “home state” has exclusive jurisdiction to modify a custody decree. A home state is where the child has lived for at least six consecutive months before the commencement of a proceeding.

Question 23

What is the “significant connections” test?

Answer 23

If a child has no home state, a state may exercise jurisdiction based on (1) significant connections with the child and at least one parent; and (2) substantial evidence relating to child custody is in the forum jurisdiction

Question 24

What is emergency jurisdiction?

Answer 24

It exists if no other state has jurisdiction over a child custody order

Question 25

Which Act governs child support?

Answer 25

UIFSA (Uniform Interstate Family Support Act)

Question 26

Which Act governs child custody?

Answer 26

UCCJEA (Uniform Child Custody Jurisdiction and Enforcement Act)

Question 27

Describe a parent’s constitutional parenting rights

Answer 27

A parent has a fundamental right to the care, custody, and control of their children.