Family Law

Question 1

Overview

Answer 1

Family law encompasses all of the law relating to spouses, parents, and children. Most of the law in this area concerns getting married, dissolving marriage, dividing property, and the custody and support of children. Marriage is a legal union of two individuals. Marriages that are invalid due to an impediment at the time of the marriage can be annulled, and valid marriages can be dissolved by either a fault-based or no-fault divorce. When a marriage is dissolved, the court will divide the couple’s property and determine whether to award any form of spousal support. Property division orders typically are final, but spousal support awards normally can be modified if there is a substantial change of circumstances. If the spouses have children, the court will decide issues of child custody and visitation based on the best interest of the child. Child support may be awarded using a formula based on the number of children, their ages and special needs, and the parents’ incomes. Child support, like spousal support, can be modified if there is a substantial change of circumstances.

Question 2

GETTING MARRIED - Who May Marry?

Answer 2

1. Both parties must be of a minimum age (usually 18, although sometimes younger with parental or judicial approval)
2. The parties must not be too closely related
3. Both parties must have capacity to consent (the ability to comprehend and volun- tarily agree)
4. Both parties must not have a prior undissolved marriage to a living spouse

Question 3

GETTING MARRIED - What Are the Procedural Requirements for a Marriage?

Answer 3

1. License

2. Solemnization

Question 4

GETTING MARRIED - What Are the Requirements for a Common Law Marriage?

Answer 4

1. An exchange of consents between two people with capacity
2. Cohabitation (no specified time is required)
3. A holding out publicly of living together as spouses

Question 5

GETTING MARRIED - What Are the Requirements for an Enforceable Premarital Contract?

Answer 5

1. The agreement must be entered into voluntarily
2. The contract must be in writing and signed by the party to be charged
3. Both parties must make a full and fair disclosure of their financial worth
4. The economic provisions must be fair and reasonable

Question 6

TERMINATION OF MARRIAGE - What Are Some Grounds for Annulment of a Marriage?

Answer 6

1. Bigamy or Polygamy (void)
2. Consanguinity (void)
3. Nonage (void or voidable depending on state law)
4. Incurable physical impotence (voidable)
5. Mental incompetence (voidable)
6. Lack of assent (voidable)
7. Duress (voidable)
8. Fraud involving the essentials of marriage (voidable)

Question 7

TERMINATION OF MARRIAGE - What Are the Requirements for a No-Fault Divorce?

Answer 7

1. The marriage is irretrievably broken (irreconcilable differences or incompatibility)
2. The parties have been living apart for a specified time

Question 8

TERMINATION OF MARRIAGE - What Are Some Typical Fault Grounds for Divorce?

Answer 8

1. Adultery
2. Willful desertion for a specified time
3. Extreme physical or mental cruelty
4. Drug addiction or habitual drunkenness
5. Mental illness

Question 9

TERMINATION OF MARRIAGE - What Are Some Traditional Defenses to Fault Grounds?

Answer 9

1. Collusion (an agreement between the spouses to simulate grounds for divorce or to forgo raising a valid defense)
2. Connivance (the willing consent by one spouse to the other spouse’s misconduct)
3. Condonation (the forgiveness of marital offenses with full knowledge of their commission)
4. Recrimination (the party seeking the divorce is also guilty of misconduct for which a divorce may be granted)

Question 10

TERMINATION OF MARRIAGE - Where Is an Action for Divorce Proper?

Answer 10

1. Jurisdiction is proper in a state if a party is a bona fide resident of the state
2. Venue is in the county in which the spouses usually reside
3. As long as one of the parties was domiciled in the state that granted the divorce, the decree is recognized as valid in all other states
4. Provisions of the decree relating to property rights, spousal support, child support, etc., are given full faith and credit only if the court had personal jurisdiction over the defendant

Question 11

TERMINATION OF MARRIAGE - What Are the Approaches to Dividing Property Upon Divorce?

Answer 11

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 owned by either spouse, whether acquired before or after the marriage
3. Equitable division of marital property (most common)

Question 12

TERMINATION OF MARRIAGE - What Is Marital Property?

Answer 12

1. Marital property is all property acquired by either spouse during the marriage except:
   a. Property acquired through gift, bequest, devise, or descent
   b. Property acquired in exchange for property that a spouse owned before the marriage or acquired through gift, bequest, devise, or descent
   c. The income from or appreciation of property that a spouse owned before the marriage or acquired through gift, bequest, devise, or descent, unless either spouse contributed to the property’s increase in value
2. Separate property may become marital property if it is inextricably mingled to the extent that it can no longer be traced or is treated in a way that evidences an inten- tion for the property to be marital property

Question 13

TERMINATION OF MARRIAGE - What Factors Might a Court Consider in Dividing Property?

Answer 13

1. The age, education, background, and earning capacities of both parties
2. The duration of the marriage, and whether there were any prior marriages
3. The standard of living during the marriage
4. The present incomes of both parties, and their vocational skills and employability
5. The source of the money used to purchase the property
6. The health of the parties
7. The assets, debts, and liabilities of the parties
8. The needs of the parties
9. The child custody provisions
10. Whether the distribution is in addition to, or in lieu of, spousal support
11. Each party’s opportunity to acquire future income and assets
12. Each party’s contribution to the acquisition of, or enhancement of the value of, the existing marital assets
13. Each party’s contribution as a homemaker to the family unit
14. Whether either party has dissipated marital property

Question 14

TERMINATION OF MARRIAGE - What Factors Might a Court Consider in Awarding Spousal Support?

Answer 14

1. The duration of the marriage and the standard of living established during the marriage
2. The age and physical and emotional condition of the parties
3. The financial resources of the parties
4. The contribution of each party to the marriage
5. The time needed for the party seeking support to obtain the training necessary to find appropriate employment
6. The ability of the payor spouse to meet his needs while paying spousal support
7. Marital fault (only in some states)

Question 15

TERMINATION OF MARRIAGE - What Are Some Types of Spousal Support?

Answer 15

1. Permanent periodic spousal support—paid regularly (e.g., monthly) to support a spouse who has neither the resources nor the ability to be self-sustaining
2. Rehabilitative spousal support—periodic payments for a limited time to enable a spouse to gain skills to become self-supporting
3. Lump sum payment—nonmodifiable, fixed amount payable either all at once or broken down into a series of payments
4. Reimbursement spousal support—awarded to a spouse who supported the other spouse while the latter obtained a professional license or degree

Question 16

CHILD CUSTODY - What Court Has Jurisdiction to Hear a Custody Case?

Answer 16

1. In all states, divorce courts are authorized to make custody awards
2. State statutes determine which other state courts have jurisdiction to hear child custody cases
3. As between two states, the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”) controls
   a. The most important jurisdictional test is what state is the child’s “home state”
   b. 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 immediately before the commencement of the proceeding (if the child is less than six months old, the home state is where the child has lived since birth)
   c. In determining whether the six-month test is met, temporary absences are disregarded
   d. A court has jurisdiction to initially enter or to modify a child custody or visitation order if the state (i) is the child’s home state, or (ii) was the child’s home state within the past six months and the child is absent from the state, but a parent or person acting as a parent (e.g., guardian) continues to live in the state

Question 17

CHILD CUSTODY - How Will Custody Be Determined?

Answer 17

1. The standard to be applied in awarding custody is the best interest of the child
2. Factors considered in making this determination include the wishes of the parents; the preferences of the child (especially if the child is over age 12); the child’s adjust- ment to home, school, and community; and the mental and physical health of all of the parties
3. Custody orders are always modifiable if there is a substantial or material change in circumstances

Question 18

CHILD CUSTODY - How Will Visitation Be Determined?

Answer 18

1. It is a strong policy of the law to promote the relationship between the child and both parents by ensuring both parents have reasonable visitation rights—absolute denial of visitation is rare
2. A custodial parent may not withhold visitation from a noncustodial parent because of a failure to pay support
3. Courts presume that a fit parent’s decision regarding third-party visitation is in the child’s best interest, and this decision must be given deference
4. Removal of the child from the jurisdiction may be considered a violation of the visita- tion provisions of the custody order

Question 19

PARENTAGE - How Is Parentage Established?

Answer 19

1. Most statutes provide that any child is the lawful child of his mother
2. Statutes often provide that a child is also the lawful child of his father if:
   a. The parents were married at the time of the child’s birth
   b. The parents were married after the child’s birth (some states additionally require the father’s acknowledgment)
   c. The father holds the child out as his biological child
   d. The father consents to be named on the birth certificate
   e. The father has acknowledged paternity (some states require certain formalities; e.g., writing, oath)
   f. There is a judicial decree establishing paternity (limited in some states to suits during the father’s lifetime)
3. A if the child is receiving support from the state
   paternity suit may be brought by the child’s mother, the child, or by state agencies

Question 20

PARENTAGE - What Are the Steps of an Adoption?

Answer 20

1. The first step is termination of the biological parents’ rights
   a. Consent of the child’s biological parents generally is required
   b. Consent is not required if parental rights are terminated in another proceeding (e.g., for neglect, abuse)
   c. Consent may be waived if the court determines that it is being unreason- ably withheld against the best interest of the child (e.g., if the child has been abandoned)
   d. Consent of the father of a nonmarital child may not be required if he has not established a relationship with the child
2. The second step is creation of a new legal parent-child relationship