Family Law

Question 1

Ceremonial marriage

Answer 1

1. Consent: both parties agree
2. Capacity: parties are legally capable of consent
3. Compliance with legal formalities: license & ceremony
   -License
   ◦ Age—meet minimum age requirement (usually 18 years old) or have parental consent
   ◦ Waiting period between the license and ceremony
   ◦ Premarital medical testing required by some states but results cannot block issuance
   ◦ Expiration date—most jurisdictions impose expiration date on a marriage license
   ◦ Not issued when:
   (i) a party is married to someone else
   (ii) parties are too closely related
   (iii) parties entered into marriage as a sham
   (iv) parties are incapable of understanding nature of the act
   -Ceremony—most jurisdictions require solemnization by an officiant with two witnesses
   present
4. Same-sex marriage
   -Same-sex couples may marry in all states
   -All states and the federal government must recognize a same-sex marriage legally entered into in another state

Question 2

common law marriage

Answer 2

-Consent: both parties must agree they are presently married
-Capacity: both parties must have the capacity to consent (i.e., old enough and not too closely related)
-Cohabitation: the parties must live together
-Holding out: both parties must hold themselves out as married in public

Conflict of laws: A marriage (including a common law marriage) valid in one state will be valid in another state unless it violates a strong public policy of the other state.

A valid marriage, including common-law marriage, can be terminated only by annulment, divorce, or death.

*need a divorce to officially divorce, can’t just separate

Question 3

Putative Marriage

Answer 3

• Most jurisdictions have adopted the putative marriage doctrine.
• Arises when an innocent party participated in a ceremonial marriage and believes in good faith that the marriage is valid, but they later discover that there was an impediment to the marriage (e.g., the other spouse was still legally married to someone else)
• The innocent party is considered a “putative spouse”
• Allows the party to seek legal remedies like spousal support and property distribution

Putative marriage: division of property
Putative spouses may be entitled to an equitable distribution of property that would have been classified as marital property had the parties been legally married.

Question 4

annulment

Answer 4

voids a marriage as if it never validly formed

Void: a marriage null from its inception due to specific grounds; no judicial decree required

(1) Bigamy—already legally married to another; Enoch Arden statute can make the marriage voidable if the parties in good faith but incorrectly believed the previous spouse died & some jurisdictions then require a divorce proceeding from the previous spouse

(2) Incest—all states restrict marriages by blood relationships and nearly half bar marriages between first cousins

(3) Incapacity—one party lacks the ability to understand the nature of the marriage contract

Voidable marriage: a marriage valid until declared void after a challenge by either party; judicial decree required
-Grounds include nonage, impotence, intoxication, fraud, misrepresentation, duress, coercion, force, or lack of intent
-Validation—voidable marriages can be validated once the impediment is removed, e.g., underage spouse stays in marriage after reaching age of consent

Property distribution: a party seeking annulment may request an equitable distribution of property and in some states, spousal support; once completed, the property distribution may not be modified

Question 5

Limited Divorce “divorce from bed and board”

Answer 5

Recognized in most states and used by some for religious or medical reasons; the parties live apart and remain legally married but the court can resolve support and property issues

Question 6

divorce & separation
-fault & no-fault
-separation
-mediation

Answer 6

No-fault divorce
o Every jurisdiction has a no-fault ground for divorce.
o The typical standard is irreconcilable differences.

Fault-based divorce (can defend)
o Fault-based grounds for divorce typically include adultery, cruelty, desertion, etc.
o Cruelty—arises as a fault-based ground if there is physical abuse
*In most states, the fact that a divorce is granted on a fault ground, such as adultery, is not a factor in the distribution of property.
*Marital misconduct may be taken into account in many states in determining spousal support. The weight marital misconduct is given in determining alimony is dependent on the jurisdiction.

Separation: Before divorce, some states require parties to separate for a period of time (e.g., one year).

Mediation: Sometimes parties are required to engage in mediation as part of the separation and divorce process.
- The mediator must follow a code of conduct:
- Be impartial and disclose any conflicts of interest they might have (e.g. pre-existing relationship with a party)
- Clearly explain the process and make sure the parties have all the information required;
- Control the mediation proceedings (e.g. address signs of domestic violence or threats); and
- Not coerce or improperly influence a party to make a decision.

Question 7

Division of Property at Divorce

Answer 7

Community property
o Only nine states: Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin
o Generally requires an equal division of the marital property

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

Question 8

Marital Property and Separate Property

Answer 8

MP is equitably divided between spouses, but SP generally remains the property of the owning spouse.

SP includes:
- Assets acquired during marriage by gift, descent, or devise; and
- Anything acquired before marriage.

MP is all property or assets acquired during marriage by any means other than gift, descent, devise (e.g. wages earned during marriage)

While married, each spouse has full management rights of his or her earnings and a court may not overrule the spending decisions of a spouse if the other spouse objects.

In most states, marital property continues to accrue while the parties are separated and until a final divorce decree is entered.

SP can be transformed into MP if marital funds or efforts are used to increase its value or build equity.

Title—Taking title in one spouse’s name is not conclusive.

Question 9

Specific types of marital property
-Future retirement/pension benefits
-Professional licenses/degrees
-Personal injury claim proceeds

Answer 9

Future retirement/pension benefits: If a spouse works during the marriage and creates or earns profits or benefits that will be paid out after divorce, the profits will be considered MP.

Professional licenses/degrees: Most courts do not treat degrees as MP
* The non-degree earning spouse would not be compensated for the value of the degree.
* But that spouse could seek reimbursement for contribution to educational and living expenses.

Personal injury claim proceeds—If the cause of action accrues during marriage (i.e., spouse is injured during marriage):

Approach 1: All proceeds are treated as MP
Approach 2: Damages are divided between by type:
o Compensatory (e.g., pain, suffering, disability) are SP of the injured spouse
o Consortium damages are SP of the non-injured spouse
o Lost wages, lost earning capacity, and medical expenses are MP (divided equitably)

Question 10

Modification of a property division award

Answer 10

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

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

Question 11

Spousal Support

Answer 11

Spousal support (i.e., maintenance or alimony) is the obligation of one party to provide the other party with financial support.

Most jurisdictions consider various factors when determining the support award, including:
o Financial resources of both parties
o Standard of living during marriage
o Time it will take for receiving spouse to find employment or finish education
o Length of marriage
o Contributions to marriage
o Age and health of both parties
o Marital misconduct such as adultery (only in some states)

Question 12

Types of Spousal Support

Answer 12

(1) Permanent alimony
- An award for the remainder of the dependent spouse’s life
- Typically, only appropriate after long marriages
- Primarily used when one spouse remained out of the workforce to take care of the home or children

(2) Limited-duration alimony
- Typically awarded when the marriage was of short duration

(3) Rehabilitative support
-A limited period of time, such as until the spouse receives education or employment (e.g. for a period of 4 years while a dependent spouse attends college, at which point the support obligation will automatically terminate).

(4) Reimbursement alimony
-Compensates a spouse for financial sacrifices made during the marriage that resulted in a reduced standard of living in order to secure an enhanced standard of living in the future (e.g. a spouse worked two minimum wage jobs and did not pursue a higher degree during marriage so that the other spouse could go to school and obtain an advanced degree or professional license. The working spouse may receive reimbursement alimony due to her past contribution to the marriage).

Question 13

Modification of spousal support

Answer 13

In general, spousal support can be modified, even when it has been declared to be “permanent.”

The party seeking modification has the burden of establishing a significant and continuing change in circumstances that warrants the modification.

• If the spouse that’s paying support voluntarily reduces their income, generally a court will not reduce their obligation to the receiving spouse.
• But if the paying spouse incurs new obligations, then a court may consider modification (if spouse remarries and has kids, court may lower amount).

If the receiving spouse remarries, then most jurisdictions will terminate the spousal support.

Question 14

Support during marriage

Answer 14

Spouses have a duty to support each other equally under family expense statutes.

This spousal support obligation is limited by the common law doctrine of nonintervention, which disallows judicial intervention in an intact family. Courts have relied on the nonintervention principle to deny a support petition when the couple is living together.

If a creditor provides a “necessary” item to one spouse, it can sue the other spouse for payment if the purchasing spouse does not pay.

Question 15

Jurisdiction for Divorce

Answer 15

Generally, a court must have both subject matter jurisdiction and personal jurisdiction to decide a family law dispute.

Ex-Parte/Divisible Divorce: A state court may grant a divorce to one spouse if she is domiciled in the state, even if it does not have personal jurisdiction over the other spouse.

States are required to give full faith and credit to divorce decrees issued in other states.

The court can grant the divorce to one party, but it does not have jurisdiction to address property division, spousal support, or child support, unless there is PJ over the out-of-state spouse.

Question 16

Child Support

Answer 16

Child’s right to financial support from parents
- Both parents are legally required to support their minor children.
- Parents cannot bargain away child-support payments in premarital or settlement agreement.
- Visitation rights cannot be denied for nonpayment of support.

Paternity
- Questions may arise as to the identity of a child’s father.
- Once identity and paternity are established, the child’s father has rights to custody and visitation, but he is also under a duty to support the child.
- A child born during marriage is presumed to be of the marriage
- A paternity action is allowed only before the child reaches the age of 18

Question 17

Uniform Interstate Family Support Act (UIFSA)

Answer 17

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.

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; or
- 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.

Question 18

Amount of child support

Answer 18

All jurisdictions have adopted child support guidelines (most use an income-shares model).

The guidelines are presumed to provide the correct amount, but courts may deviate based on specific factors:
- Best interests of child
- Age of the child
- Special needs
- Assets of both parties
- Standard of living during marriage

Question 19

Child support modification

Answer 19

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

The party seeking the modification of child support bears the burden of showing a substantial change in circumstances and that change is expected to be continuing, rather than temporary. (e.g. change in occupation, remarriage, increase or involuntary decrease in income)

Voluntary reduction in income—if in good faith, the court may reduce the amount owed; if done to deprive the child or punish the parent in bad faith, the court might not reduce the obligation.

If a man discovers that he is not the father of the child, some states will terminate the child support order, while others may continue the support obligation.

Timing of modification:
- A court will only modify child support amounts prospectively, from the date of the motion moving forward (future payments).
- A court will not reduce the amount of child support retroactively (will not reduce amounts owed prior to the date of the motion).

Question 20

Termination of child support

Answer 20

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

Some jurisdictions have the authority to order support beyond the age of majority when the child is in college (subject to reasonable parental demands)

Question 21

Jurisdiction over existing child support obligations (modification & enforcement)

Answer 21

Modification:
- 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.

Enforcement:
- If a receiving parent moves to a new state, they may register a child support order in the new state, which will give full faith and credit to the support order.
- The new state can then enforce the support order (but only the initial issuing state may modify the order).

Question 22

Child Custody

Answer 22

Legal custody is the right of a parent to make major decisions regarding the child (e.g., health, education, religion).

Physical custody is the right to have the child reside with a parent or guardian and the obligation to provide routine daily care and control of the child.

Joint custody both parents are 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 23

Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA)

Answer 23

The purpose of the UCCJEA is to dictate which court has jurisdiction to decide child custody and visitation.

1. Initial custody determination (home-state jurisdiction): a court has subject-matter jurisdiction if it is:
   - 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
   - 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.
   - *A court can decline jurisdiction if the party has wrongfully removed a child from another state.
2. Significant-connection jurisdiction (if home-state jurisdiction is not met): a court can enter or modify an order if:
   - No other state has or accepts home-state jurisdiction;
   - The child and at least one parent have a significant connection with the state; and
   - There is substantial evidence in the state concerning the child’s care, protection, training and personal relationships.
3. Exclusive-continuing jurisdiction: courts that make the initial ruling in a custody case have exclusive continuing jurisdiction over the matter until the court determines that:
   - Both parties no longer reside in the state; or
   - 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 24

Best Interests of the Child Standard for Custody

Answer 24

The Supreme Court has held that a fit parent has a fundamental right to the care, custody, and control of his children and state courts must give “special weight” to a fit parent’s decisions on care, custody, and control.

Primary-Caretaker: Many courts consider who the primary caretaker of the child was during the marriage, separation, and prior to the divorce.

Child’s Preference: Courts will consider the wishes of an older child if sufficiently mature and will consider the child’s reasoning.

Race or religion: Courts generally will not use race or religion in determining custody. unless such religious practices would be detrimental to the child.

Third party rights: Grandparents, stepparents ,etc. may wish to have custody
- Legal parents are presumptively entitled to custody of their children, unless it can be established that the legal parent is unfit or it would be detrimental to the child.
- If a natural parent has had little or no contact with a child, or if the child has lived with the third party for an extended period of time, then courts have employed the terms “parent by estoppel” and “de facto parent” to get around the presumption.

Question 25

Visitation and Parenting Time

Answer 25

Generally, the noncustodial parent is allowed reasonable visitation with a minor child.

Parents have a constitutional right to visitation with their children.
- A court may deny visitation if contact would seriously endanger a child’s physical, mental, or emotional health.

Unwed biological father—has a substantive due process right to have contact with the child, but only when the father demonstrates a commitment to the responsibilities of parenthood (e.g., participation in child rearing or providing financial support)
-if no commitment to child then no right. If an unwed father whose child has a presumed father can be completely foreclosed from unilaterally establishing his paternity, then a two-year statute of limitations is certainly constitutional.

Third Parties (grandparents, stepparents, etc.)—visitation is typically limited to cases in which they have acted in loco parentis with the child prior to the divorce.

Question 26

Modification of Custody Order & Relocation

Answer 26

The home state (or significant connection state) has exclusive continuing jurisdiction.

The parent seeking modification must show a substantial change in circumstances.

Relocation:
If the custodial parent is proposing to relocate with the minor child in a way that impairs the noncustodial parent’s ability to visit the child, they must show a legitimate and reasonable purpose.

In determining whether to modify the custody order, the 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 27

Premarital Agreements

Answer 27

A contract made before the marriage.

Typically contains terms that govern division of property or spousal support upon divorce of death

Clauses relating to child custody and support are unenforceable.

Agreement must be in writing and signed by the party to be charged.

A premarital agreement is enforceable if:
(1) There has been full disclosure;
(2) The agreement is fair and reasonable; and
(3) It was voluntarily entered into.

Uniform Premarital Agreement Act (UPAA)—to argue an agreement is unenforceable, must show at least one of the following:
- Involuntariness (fraud, duress, coercion); or
- Unconscionability when executed and lack of reasonable knowledge or disclosure of the other’s assets and obligations.

Voluntary
- 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.
- A party’s insistence on an agreement as a condition to marriage does not make it involuntary

Fair and reasonable (Unconscionability)
- Procedural Fairness: The court will look for factors such as duress, undue influence, misconduct by a mediator, and whether the party had independent representation.
- Substantive Fairness: The courts will also consider the fairness of the terms themselves.
- Most courts evaluate fairness at the time of execution of the contract (a minority of jurisdictions will also evaluate it at the time of enforcement).
* The current trend is for courts to enforce contractual agreements that may not be fair as long as there has been fair disclosure.

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

Question 28

Separation Agreements

Answer 28

Made between spouses who are planning for divorce to define property division, spousal support, child support, custody, and visitation.

Terms related to children are always modifiable by the court if necessary for the best interests of the child.

Generally merged into the final judgment for divorce.

May be invalidated in part or in whole if a party can show unconscionability or fraud

Question 29

Property Settlement Agreements

Answer 29

Settle the economic issues of the marital estate

Entered into by the parties before a divorce decree is issued

May be invalidated in part or in whole if a party can show unconscionability or fraud

Question 30

Conflict of Laws for Premarital Agreements

Answer 30

When determining the validity of a premarital agreement, states will apply the law of either:
- The state in which the agreement was executed; or
- The state with the most significant relationship to the parties and transaction.

Question 31

Adoption

Answer 31

Statutory legal action in which the previous parent-child relationship is terminated and a new parent-child relationship is established

Legal effects of adoption:

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

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

Generally, an adoption may not be dissolved, although some states have permitted dissolution in limited circumstances, (e.g., discovery of an undisclosed mental or physical illness).
- In evaluating dissolution claims, courts typically consider the length of the relationship, the child’s needs, and the parent’s motives.

Question 32

Unwed fathers’ rights

Answer 32

Unwed fathers have substantive due process rights under the U.S. Constitution if they have shown commitment to being a parent.
-Includes the right to object to the termination of parental right by an adoption

A putative father registry 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 33

Limits on parental authority

Answer 33

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

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.

States are permitted, under their police powers, to require vaccinations and refuse admission to public schools for students who fail to receive them. These statutes do not violate parental rights.

Question 34

termination of parental rights

Answer 34

only a court can terminate a parent’s fundamental right to take care of his/her child and only after taking procedural measures to promote family reunification; biological parents may voluntarily give up their parental rights

parental rights cannot be terminated without clear and convincing proof of abuse, abandonment, neglect, incapacity, abuse of a sibling, termination of rights over a sibling, or proof a child has been placed outside the home (not with a relative) for 15 of the past 22 months

Question 35

reproductive technology and adoption alternatives

Answer 35

Uniform Parentage Act (UPA): adopted by some states, the act defines rules covering assisted reproduction, IVF, and surrogacy
-Assisted reproduction is implanting an embryo or fertilizing an egg without intercourse
-Maternity is determined by the woman who gives birth, even if she has no biological connection with the child; the husband (if any) of the woman giving birth is presumed to be the father unless he brings an action within two years to establish lack of consent; the sperm or egg donor is not considered the parent of the prospective child

Surrogacy (gestational agreement): when a woman carries a pregnancy as a substitute for the intended parents who agree to parent the child; consent of all parties is required
-Agreements are not recognized in many states
-States that recognize gestational agreements require court approval, home study of the parents, expenses and medical care of the surrogate, and reasonable payment to the surrogate

Question 36

domestic violence protection

Answer 36

by statute, all states provide protection in the form of injunctive relief against physical violence committed against a household or family member

Procedure: the applicant must obtain an ex-parte order for temporary relief (e.g., temporary restraining order), and after notice and a hearing may be granted permanent injunctive relief

Relief: in addition to an order prohibiting defendant’s further abuse and contact with the victim, the protection may include exclusive possession of the residence for a time, child custody, and support

Question 37

non-biological father child support

Answer 37

Additionally, a husband who is not the biological father of his wife’s child may be estopped from denying his obligation to pay child support. The husband may be required to pay child support when: (i) there is a representation by the husband that he would provide for the child; (ii) the wife relied on his representation; and (iii) the wife suffered an economic detriment as a result of that reliance.