Family Law

Question 1

Common-Law Marriage Elements

Answer 1

1. Elements

o Capacity: mental and legal capacity to marry
o Present agreement both parties must intend to presently be married
o Cohabitation: the parties must live together
o Holding out a marital relationship to the community: hold themselves out as “spouses”

Note 1: Most states do not recognize common law marriage

(mnemonic=CACH)
capacity to enter into a marital contract, a present agreement to be married,
cohabitation, and holding out a marital relationship.

Question 2

Recognition of marriage:

Answer 2

a marriage valid under the law of the place in which it was contracted will be valid elsewhere unless it violates a strong public policy of the state that has the most significant
relationship to the spouses and the marriage

Question 3

Grounds for no-fault divorce

Answer 3

o Every jurisdiction has a unilateral no-fault ground for divorce, requiring neither fault nor consent of the other spouse.

o Generally requires that the marriage be irretrievably broken with no prospect of reconciliation (often using the term “irreconcilable differences”)

o No attempt at reconciliation required

Question 4

Separation, is it required in all states, does it require both spouses to agree?

Answer 4

o Some states require a minimum period of separation before a divorce will be granted.
o The separation does not have to be agreed to by both spouses.
o A spouse can unilaterally move out and start the separation period

Question 5

Duties of a Mediator in Marriage mediation for divorce/separation, and possible effect of misconduct of mediator

Answer 5

Duties include that the mediator must:
 Be impartial and disclose any conflicts of interest he may have;
 Clearly explain and control the mediation process and ensure that the parties have the
information to make an informed decision; and
 Not coerce or improperly influence a party to make a decision

Mediator misconduct may be grounds for not enforcing a
separation agreement or a property settlement.

Question 6

Division of Property at divorce: Community property

Answer 6

MINORITY (dont need to know states)
o Only used in nine states: Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin
o Generally requires an equal division of the marital property

Question 7

Division of Property at Divorce: Equitable distribution

Answer 7

Equitable distribution
o Majority rule
o Requires an equitable, or fair distribution of all marital property, not necessarily an equal
50/50 division
o Takes into consideration all of the circumstances between the parties

Question 8

What is separate Property?

Answer 8

SP includes assets acquired during marriage by gift, descent, or devise. SP also includes anything acquired before marriage

Question 9

What is marital Property?

Answer 9

MP is all property/assets acquired during marriage by any means other than gift, descent, devise.

Question 10

Can separate property become marital property?

Answer 10

SP can be transformed into MP if marital funds or efforts by owner-spouse enhance its value/or build equity during marriage.

Example 2: A spouse purchases a house before marriage, making the house Separate Property. After marriage, the spouse uses Marital Property funds to pay the mortgage on the house. At divorce, the other spouse is entitled to a
share of the value of the home

Question 11

Marital property: Future retirement/pension benefits:

Answer 11

If a spouse works during the marriage and creates
or earns profits or benefits that will not be received until after divorce, the profits will
be considered MP.

Question 12

Professional licenses/degrees as marital property

Answer 12

Most courts do not treat these as MP, but may award

reimbursement for a spouse’s actual contribution to educational and living expenses.

Question 13

Personal injury claim proceeds as marital Property

Answer 13

There are two approaches to personal injury awards,
and you should discuss both:

• Approach 1: If the cause of action accrues during marriage, even if the spouses are separated, all proceeds are treated as MP

• Approach 2: Damages are divided between MP and SP by type
o Compensatory damages (e.g., pain, suffering, disability) are SP of the injured spouse
o Consortium loss damages are SP of the non-injured spouse
o Lost wages, lost earning capacity and medical expenses are MP

Question 14

Is a property division award in a divorce modifiable?

Answer 14

o A property division is not modifiable after the fact because it is based on the parties’ assets
at the time of divorce.

o Changes in the parties’ circumstances after divorce do not affect the award

Question 15

The factors that are considered when deterring support award for alimony/spousal maintenance

Answer 15

The majority of jurisdictions consider various factors when determining the support award.
These factors include:
o Financial resources of both parties
o Standard of living during marriage
o Time it will take for receiving spouse to find employment
o Length of marriage
o Contributions to marriage
o Age and health of both parties
o Marital misconduct (only in some states)

Question 16

Permanent alimony vs limited duration alimony vs rehabilitative support vs reimbursement alimony

Answer 16

o Permanent alimony is an award for the remainder of the dependent spouse’s life (generally only appropriate after long marriages).

o Limited-duration alimony is typically awarded when the marriage was of short duration (making permanent alimony inappropriate).

o Rehabilitative support (recently tested) is for a limited period of time, such as until the spouse receives education or employment.

o Reimbursement alimony (recently tested) compensates a spouse for financial sacrifices
made during the marriage that resulted in a reduced standard of living to secure an
enhanced standard of living in the future

Question 17

What is required for there to be a modification of spousal support

Answer 17

o In general, spousal support may be modified.

o The party seeking modification of spousal support has the burden of establishing a significant change in circumstances that warrants the modification.

o A party’s voluntary reduction in income will generally not reduce support payments.

o A court may consider new obligations that arise for the spouse who is paying support.

Question 18

Does marriage end spousal support?

Answer 18

In most jurisdictions, if the receiving spouse remarries, then spousal support may be terminated.

Question 19

Duty of Support during marriage of Spouse

Answer 19

In most jurisdictions, spouses have a duty to support each other equally under family expense statutes.

If a creditor provides a “necessary” item (such as medical care) to one spouse, it can sue the other spouse for payment if the purchasing spouse does not pay

Question 20

Jurisdictional issues, Divisible divorce and what lack of PJ causes on the division of stuff/awards

Answer 20

A court hearing a family-related dispute must generally have both subject-matter jurisdiction and personal jurisdiction.

• A state court may grant a divorce to one spouse, even if it does not have personal jurisdiction over the other spouse.

• However, if there is no personal jurisdiction over the absent spouse (see UIFSA), the state does
not have jurisdiction to address property division, spousal support, or child support.

Exam Tip 3: Look for situations when spouses now live in separate states, and a spouse who has met a residency requirement in one state wants a divorce or support from the other spouse. These situations often trigger this issue.

Question 21

Child’s right to support from parent

Answer 21

o Both parents are legally required to support their minor children.
o Parents cannot bargain away child-support payments and cannot agree to any release or
compromise that would negatively affect the child’s welfare

Question 22

When will a court enforce a division based on a pre-marital agreement

Answer 22

A court will enforce a premarital agreement so long as it is

1) voluntarily made,
2) substantively fair, and
3) if full disclosure of assets and obligations was made.

A court will not, however, enforce a premarital agreement regarding child custody or support if it is not in the best
interest of the child.

Question 23

Uniform Interstate Family Support Act (UIFSA) what does it do

Answer 23

The UIFSA governs when a state has personal jurisdiction over an out-of-state parent in an action to establish or enforce child support, or establish paternity.

o A court will be found to have personal jurisdiction over an out-of-state parent in various situations, including when the out-of-state parent:

 Is personally served within the state or consents to jurisdiction;

 Resided with the child in the state in the past; or

 Engaged in sexual intercourse in the state, and the child may have been conceived by that act of intercourse (recently tested).

governs child support. This Act has been adopted by all states. Once an order is registered, it may be enforced by any state. The state that originally issued a child support order has continuing exclusive jurisdiction to modify that order if the state remains the residence of the obligee, the child, or the obligor, and at least one of the parties does not consent to the jurisdiction of another forum

Question 24

Factors when determining the Child Support award

Answer 24

Child-support awards are typically based on income received by the obligor (paying) parent.

Most jurisdictions have adopted an income-shares model, which uses the combined net income of both parents to determine the child support amount.

o Other factors may include:
 Best interests of child
 Age
 Special needs
 Assets of both parties
 Standard of living during marriage

Editor’s Note 2: All jurisdictions have adopted child support guidelines. There is a rebuttable presumption that the amount calculated pursuant to the child support guidelines is correct, but if the court decides to deviate from that
amount, the court will consider other factors in determining the amount and set forth specific findings explaining and supporting the deviation

Question 25

Modification of Child Support, burden of proof, and prospectively vs retroactive

Answer 25

o In general, child support modifications are permissible when there is a substantial change in circumstances regarding the child’s needs or the parents’ financial situation.

o The party seeking the modification of child support bears the burden of showing a substantial change in circumstances.

o Circumstances may include a parent’s change in occupation, remarriage of a parent, or an increase or involuntary decrease in income by either parent.

 A court will only modify child support amounts prospectively.

 A court will not reduce the amount of child support retroactively.

Question 26

How does child support terminate

Answer 26

o A parent’s obligation to pay support usually ends when the child reaches the age of majority (typically 18 years of age).

o Some jurisdictions have the authority to order support beyond the age of majority when the child is in college.

o Reasonable parental demands (recently tested): An employable child’s right to support is contingent on compliance with reasonable parental demands; an employable child who fails to comply, even if attending college, risks loss of parental support

Question 27

Jurisdiction over Existing Child Support Obligations

Answer 27

 Under the UIFSA, the state that issued the initial child support order has continuing

exclusive jurisdiction to modify the child support order.
 Exceptions:

• The parties (both parents) and the child no longer reside in the state; or
• The parties expressly agree to permit another state to exercise jurisdiction.

Question 28

Enforcing Child Support orders

Answer 28

Under the UIFSA, the receiving parent may register a child support order from one state in another non-issuing state

 The non-issuing state can then enforce the support order.

Question 29

Child custody types

Answer 29

Having custody (i.e., control) of a child can mean having legal custody or physical custody, or both. 
Either or both of these types of custody can be shared under a joint custody arrangement.

• Legal custody is the right of a parent to make major decisions regarding the child.
• Physical custody is the right to have the child reside with a parent or guardian and the obligation to provide for routine daily care and control of the child.
• Joint custody generally requires that the parents are both willing and able to cooperate with respect to the wellbeing of the child; typically, neither parent has a superior right to make major decisions

Question 30

Initial custody determination (home-state jurisdiction elements

Answer 30

The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) applies. This is divided into a few tests, one of which is this one:

A court has subject-matter jurisdiction to preside over custody hearings and either enter or modify custody or visitation orders if the state is:

o The child’s home state and has been the home state for a period of six months or since birth, if the child is less than six months old; or

o Was the child’s home state in the past six months, and the child is absent from the state,but one of the parents still lives there

The home state test: The “home state” has exclusive jurisdiction to modify a custody decree. A
“home state” is a state where the child has lived with a parent or a person acting as a parent for
at least six consecutive months immediately before the commencement of the child custody
proceeding. A home state continues to have exclusive jurisdiction to issue a custody order for
six months after a child leaves the state, so long as a parent, or person acting as a parent, still
lives in the home state.

Question 31

Child custody order: The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), Significant-connection jurisdiction

Answer 31

The significant connections test: 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) the existence of “substantial evidence” relating to child custody in the forum jurisdiction.

A court can enter or modify an order if:
o No other state has or accepts home-state jurisdiction;
o The child and at least one parent have a significant connection with the state; and
o There is substantial evidence in the state concerning the child’s care, protection, training
and personal relationships.

Question 32

Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA, Exclusive-continuing jurisdiction

Answer 32

Courts that make the initial ruling in a custody case have exclusive jurisdiction over the matter until the court determines that:

o Both parties no longer reside in the state; or

o The child no longer has a significant connection to the state, and any substantial evidence connected to the child’s condition is no longer available in the state.

Question 33

What is the standard used for determining child custody?

Answer 33

Best Interests of the Child Standard

Courts will consider the wishes of an older child if the court can determine that the child has sufficient maturity to express a preference. The court will look at the child’s reasoning behind her preference.

• Race or religion: Courts generally will not use race or religion in determining custody.
• Third party rights: Legal parents are presumptively entitled to custody of their children in cases against third parties, including grandparents or stepparents

Question 34

Visitation and Parenting Time, and unwed biological fathers visitation rights

Answer 34

Generally, the noncustodial parent is allowed reasonable visitation (or “parenting time”) with a minor child.

o Parents have a constitutional right to have contact with their children.

• Unwed biological fathers (recently tested): An unwed father has a substantive due process right to have contact with his child, but only when the father demonstrates a commitment to the responsibilities of parenthood (e.g., participation in child rearing or providing financial support).

Question 35

Modification of Custody Order, burden to meet, and factors considered

Answer 35

The burden is on the parent seeking modification to establish that the modification is warranted. Most jurisdictions require a substantial change in circumstances to modify the custody order.

1. Relocation (recently tested)
   o In most jurisdictions, the custodial parent seeking relocation bears the burden of demonstrating that the relocation is for a legitimate and reasonable purpose, as opposed to restricting the noncustodial parent’s visitation

In determining whether to modify the custody order and allow the parent to relocate, court will consider various factors, including:

 The best interests of the child
 The relationship of the non-relocating parent with the child
 Age and needs of the child
 The child’s preference
 The quality of life of relocating parent and child

Question 36

Child Custody and support clauses in pre-nups

Answer 36

Clauses relating to child custody and support are unenforceable.

Question 37

When is a pre-nup unenforceable ?

Answer 37

A premarital agreement is enforceable if there has been full disclosure, the agreement is fair and reasonable, and it is voluntary

THEREFORE
o Under the Uniform Premarital Agreement Act (UPAA), to make an agreement unenforceable, a party must show at least one of the following:

 Involuntariness (fraud, duress, coercion); or

 Unfairness or unreasonableness together with lack of reasonable knowledge ordisclosure.

Question 38

Voluntary under pre-nup agreements

Answer 38

 Parties must enter into the contract voluntarily (i.e., free of fraud, duress, or coercion)

 Courts consider factors such as time-pressure and the opportunity to be represented by independent counsel.

Exam Tip 5: The parties need not actually seek legal representation to make the agreement voluntary

Question 39

Fair and reasonable under pre-nup agreements

Answer 39

 The court will look for factors such as duress, undue influence, misconduct by a mediator, and whether the party to be charged had independent representation.

 The courts will also consider the fairness of the terms themselves.

 Most courts evaluate fairness at the time of execution of the contract, and a minority of jurisdictions will also evaluate it at the time of enforcement.

Editor’s Note 7: The current trend is for courts to enforce contractual agreements that may not be fair as long as there has been fair disclosure.

Question 40

Full disclosure under pre-nup

Answer 40

 Premarital agreements must provide full disclosure of financial status, including income,
assets, and debts of all parties.

Question 41

Separation agreements and property-settlement agreements

Answer 41

o Separation agreements are made between spouses who are planning for divorce to define
property division, spousal support, child support, custody, and visitation.
o Separation agreements may be invalidated in part or in whole if a party can show
unconscionability or fraud

o The purpose of a property-settlement agreement is to settle the economic issues of the
marital estate. It is entered into by the parties before a divorce decree is issued.
o Property settlement agreements may be invalidated in part or in whole if a party can show
unconscionability or fraud

Question 42

When determining the validity of a premarital agreement, states will apply the law of either:

Answer 42

o The state in which the agreement was executed; or

o The state with the most significant relationship to the parties and transaction.

Question 43

Unwed fathers’ rights

Answer 43

o Unwed fathers have protections under the 14th Amendment Due Process Clause if they have shown commitment to being a parent.

 Includes the right to object to the termination of his parental right by an adoption

o Some states maintain a putative father’s registry that allows unwed fathers to register themselves as the father of a child.

 If registered, the father will receive notice and a hearing before rights are terminated

Question 44

Legal effects of adoption

Answer 44

o Adoptive parents have all the rights and responsibilities that biological parents would have had.

o An adopted child has all the rights and responsibilities that a biological child would have had.

Question 45

Limits on parental authority

Answer 45

o A parent has a right to make decisions about how to raise child, including religion, but courts may intervene in the best interest of the child.

o If medical treatment contradicts a parent’s religious beliefs, courts can intervene to protect a child when necessary medical care is needed to prevent serious harm to the child’s health

Question 46

Rights of a parent when another person wants to adopt a child

Answer 46

an involved parent who
demonstrates a “full commitment to the responsibilities of parenthood” will likely be able to
successfully oppose an adoption petition by another and is entitled to notice of such
proceedings.