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MEE Family Law > Rules > Flashcards

Rules Flashcards

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1
Q

What is the standard courts apply when determining whether to modify a child custody order?

A

Change in circumstances, requiring some substantial and unforeseen change since the issuance of the prior order

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1
Q

When does a court’s exclusive continuing jurisdiction end?

A
  1. The parties no longer reside in the state; or
  2. The child no longer has a significant connection to the state
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2
Q

What is the only defense to a claim that the marriage is void?

A

Deny the existence of the impediment that voided the marriage, which makes the marriage voidable

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3
Q

Why might a court set aside a valid agreement that has been voluntarily executed and meets the test for reasonableness, fairness, and full disclosure?

A

If it would leave on spouse woefully impoverished to the extent that they become dependent on the state

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4
Q

When may a court deviate from the child support guideline, and how?

A

Deviations are permitted as the circumstances warrant. The court must set forth specific findings explaining and supporting the deviation, including the amount that would have been awarded under the guidelines

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5
Q

What are the requirements for common-law marriages?

A
  1. Agree they are married
  2. Cohabitate as married
  3. Hold themselves out in public as married
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6
Q

What is the effect of cohabitation on spousal support?

A

If the receiving spouse cohabitates with a non-family member, then spousal support may be modified if the cohabitation results in reduced need

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7
Q

What evidences the intent to enter into a common-law marriage?

A

Words in the present tense, but a court may accept cohabitation or reputation as evidence. Cohabitation alone is insufficient and words of intent to marry in the future do not reflect present intent.

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8
Q

How can a valid marriage be terminated?

A

Annulment, divorce, or death

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9
Q

How may a court provide for equitable distribution of property between unmarried cohabitants when there is no express contract between the parties?

A

A court will generally provide equitable distribution based on a resulting trust, constructive trust, or quantum meruit theory to avoid unjust enrichment

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10
Q

What are the instances in which a marriage license will not be issued?

A
  1. One of the parties is married to someone else
  2. The parties are too closely related
  3. The marriage is a sham
  4. The parties are incapable of understanding the nature of the act
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11
Q

What are the requirements for a marriage license?

A
  1. Meet the minimum age requirements
  2. Fulfill the waiting period
  3. Complete premarital testing
  4. Marry before the expiration date
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12
Q

Which Act provides a court with personal jurisdiction over an out of state parent to establish or enforce child support or to determine parentage?

A

UIFSA

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13
Q

What issues may a mediator assist with in terminating a marriage?

A

A neutral court-approved mediator assists both parties with spousal and child-support issues, as well as custody and visitation rights

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14
Q

What are the fault grounds for divorce?

A
  1. Adultery
  2. Cruelty
  3. Desertion
  4. Habitual drunkenes
  5. Bigamy
  6. Imprisonment
  7. Indignity
  8. Institutionalization
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15
Q

What is the purpose of adoption registries?

A

To determine the identity and location of putative fathers and providing notice in the event of an adoption. Failure to register constitutes a waiver of the putative father’s right to notice and implies his consent.

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16
Q

What are the factors courts typically consider when awarding spousal maintenance?

A
  1. Financial resources
  2. Standard of living
  3. Time for spouse to find employment or training
  4. Length of marriage
  5. Contributions to marriage
  6. Age and health of the parties
  7. Marital misconduct
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17
Q

What is marital property and what are the six common exceptions to marital property?

A

Marital property is all property acquired during the marriage.

Exceptions:
1. Property acquired before marriage
2. Property excluded by a valid agreement between the parties
3. Property acquired by gift or inheretence
4. Property a party has sold, granted, or conveyed in good faith for value prior to separation
5. Property to the extent it has been mortgages or otherwise encumbered in good faith and for value prior to separation
6. An award or settlement payment received for any claim that accrued prior to marriage

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18
Q

Which method of property division considers the marriage a partnership and typically requires an equal division of marital property?

A

Community property

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19
Q

What is the scope and purpose of permanent alimony?

A

Scope - For the remainder of the spouse’s life

Purpose - Compensate the spouse for either their lost earning capacity or benefit conferred to the other spouse during marriage. Typically only available in long-duration marriages

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20
Q

Under the UCCJEA, what is the test to determine if a court has home state jursidiction?

A
  1. Is the child’s home state (state in which child has lived 6 months, or since birth if child is under 6 months)
  2. Was the child’s homes state in the past 6 months, and the child is absent from the state, but one of the parents continues to live in the state
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21
Q

When may a separation agreement be invalidated?

A

In whole or in part if the court makes a finding of fraud or unconscionability

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22
Q

Under the doctrine of equitable estoppel, a husband may be required to pay support for his wife’s child even when he is not the biological father when which requirements are met?

A
  1. A representation by the husband that he would provide for the child
  2. The wife relied on his representation
  3. The wife suffered an economic detriment as a result of the reliance
23
Q

What is the amount of child support typically based on?

A

Income from any source, including wages, interest and dividends, rental income, and any other income received

24
Q

What evidence may be used to determine paternity?

A
  1. Blood tests
  2. Prior statements by deceased family members
  3. Medical testimony on the probability of conception
  4. Defendant’s acknowledgement of paternity
  5. In some states, physical resemblence
25
Q

What are the defenses to a claim that the marriage is voidable?

A
  1. Estoppel
  2. Laches
  3. Unclean hands
26
Q

What is an interlocutory decree?

A

This represents the period of time between when a divorce is initially granted and when it is finalized. During this time, neither spouse can marry

27
Q

Under what conditions can spousal support be modified?

A

When the moving party can establish a significant and continuing change in circumstances in the needs of the dependent spouse or the financial abilities of the obligor to pay

28
Q

What choice of law approach do most states use in deciding which state’s law will govern enforcement of a premarital agreement?

A

The significant relationship test, which applies the law of the state which the most significant relationship to the agreement and marriage

29
Q

Under the UPAA, what must a party prove to invalidate a marital agreement?

A
  1. Involuntariness; or
  2. The agreement was unconscionable when executed, the party did not receive full and fair disclosure, and the party did not have adequate knowledge of the other’s assets and obligations
30
Q

How does a party modify a property division award?

A

They don’t, it was based on the parties’ assets at the time of divorce

31
Q

While property division clauses are enforceable in a premarital agreement, what clauses are generally unenforceable?

A

Child support and child custody

32
Q

When may a child become emancipated?

A

When the child is self-supporting and beyond the sphere of influence of his parents

33
Q

What are the grounds for a voidable marriage?

A
  1. Age
  2. Impotence
  3. Intoxication
  4. Fraud, misrepresentation, duress, coercion, or force
  5. Lack of intent
34
Q

How are child support and spousal support orders enforced?

A

Typically through civil contempt, income withholding, or tax refund withholding

35
Q

What is the most important standard in determining child custody?

A

The best interests and welfare of the child

36
Q

How are child custody and visitation orders enforced?

A

Through the courts, who can impose a variety of sanctions including compensatory visitation, attorneys fees, court costs, fines, and jail time. Tort damages may also be available.

37
Q

Which defense to divorce accounts for a spouse forgiving the marital misconduct?

A

Condonation, which applies when the spouse knew of the misconduct and resumed relations with the guilty party

38
Q

What are the requirements for a marital agreement to be enforceable?

A
  1. Full disclosure
  2. Fair and reasonable
  3. Voluntary
  4. In writing
  5. Signed by the party to be charged
39
Q

What action does not sever marital ties but allows the court to determine spousal support and property division?

A

A limited divorce, which allows the parties to live apart.

40
Q

What is the name of the agreement made between spouses planning for divorce, and what happens to this agreement upon divorce?

A

A separation agreement, which is generally merged into the final judgment for divorce so long as they are based on full and fair disclosure

41
Q

When may an unwed father be prevented from objecting to an adoption?

A

If he does not demonstrate commitment to the responsibilities of parenthood

42
Q

What Act applies to interstate custody disputes, including visitation rights, as well as parental kidnapping cases?

A

PKPA

43
Q

What is the most important requirement for a marital contract?

A

Full disclosure, absent which a court will generally refuse to enforce. The modern trend is to enforce unfair agreements so long as there was full disclosure.

44
Q

What kind of support is available to an unmarried cohabitant in a minority of jurisdictions?

A

Palimony, available only when the parties have lived together in a stable, long-term relationship

45
Q

Consent is a defense to which two grounds for divorce?

A

Desertion and adultery

46
Q

When does the obligation to pay child support end?

A

Age of majority or emancipation in all jurisdictions, but this may be continued indefinitely if the child is incapable of self-support.

In some jurisdictions, through college so long as the child complies with reasonable parental demands

47
Q

Who has jurisdiction to modify a child support order?

A

The court with continuing and exclusive jurisdiction, unless the parties and child no longer live there or the parties expressly agree to permit another state to exercise jurisdiction

48
Q

How does marital fault play into a property division award?

A

In most states, it is not a factor. However, dissipation of marital property may be considered

49
Q

How it marital misconduct considered in determining spousal support?

A

It is considered in many states, but the weight depends on the jurisdiction. Some jurisdictions may use it as a factor, while others give it preclusive effect.

50
Q

When may a child support order be modified?

A

When there is a substantial change in circumstances regarding the child’s needs or the parents’ financial situation, and that change is expected to be continuing

51
Q

What are the typical types of spousal support?

A
  1. Lump sum
  2. Permanent
  3. Limited duration
  4. Rehabilitative
  5. Reimbursement
  6. Palimony
52
Q

What are the grounds for a void marriage?

A

Bigamy, incest, and mental capacity

53
Q

What custody arrangement is the outcome in a majority of child custody cases and even the statutory presumption in many juridsictions?

A

Joint physical custody, not necessarily meaning 50/50 time sharing

54
Q

What type of alimony is meant to enhance and improve the earning capacity of the economically dependent spouse?

A

Rehabilitative alimony, granted for a limited period of time

54
Q

What is the rule for the special weight given to a fit parent’s decision regarding their children?

A

A fit parent has a fundamental right to the care, custody, and control of his children. Courts must give special weight to a fit parent’s decision to deny nonparent visitation

MEE Family Law (1 decks)

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