Family Final Review Outline

Question 1

Marriage

Answer 1

Marriage is a civil contract that involves parties who are legally capable of consent, the exchange of mutual promises, and the imposition of rights and obligations.

A marriage contract cannot be modified or terminated without state intervention.

There are two types of marriage: ceremonial marriage and common-law marriage.

Question 2

Ceremonial Marriage

Answer 2

A ceremonial (or statutory) marriage requires that the parties
* obtain a license to get married and
* participate in a ceremony (i.e., solemnization).

Solemnization: The marriage must be performed in front of two or more witnesses and solemnized by a judge, official, or clergy member. The license must be filed with the appropriate government office.

Question 3

Marriage License Requirements

Answer 3

Marriage license issuance may be subject to requirements:
1) Age restrictions – Most states allow persons under 18 to marry with parental or judicial consent.
2) Waiting period – A state may impose a delay between application and marriage.
3) Medical testing – States may mandate tests but not condition issuance on results.
4) License expiration – Most states set an expiration date.

Question 4

License Not Issued When

Answer 4

A license will not be issued if:
* one party is already married
* the parties are too closely related
* the marriage is a sham
* either party cannot understand the act
* a party is under the influence of drugs or alcohol, or
* consent is lacking due to duress or fraud.

Same-sex marriage is permitted in all states.

Question 5

Common-Law Marriage

Answer 5

A common-law marriage requires:
1) Agreement that the parties are married
2) Cohabitation
3) Holding themselves out as married

The parties’ intent must be evidenced by words in the present tense (e.g., “we are married”).

Most states have abolished common-law marriage. If valid where contracted, it’s valid elsewhere.

Question 6

Annulment

Answer 6

Definition: An annulment voids a marriage and declares it was never valid.
It applies to void and voidable marriages.

Remedies: A party seeking annulment may request:
* equitable distribution,
* spousal support,
* child custody,
* spousal support,
* attorney’s fees, and
* related costs.

Children from annulled marriages are treated as marital children.

Question 7

Void Marriage vs. Voidable Marriage

Answer 7

Void Marriage:
* Treated as if it never occurred; no judicial decree required.
* Grounds: prior existing marriage, incest, mental incapacity.
* If a marriage is voided, a premarital agreement is still enforceable to the extent it prevents an inequitable result.

Voidable Marriage:
* Valid until dissolved by court.
* Grounds: age, impotence, intoxication, fraud/duress, lack of intent.
* Defenses: unclean hands, laches, estoppel.

Question 8

Putative-Marriage Doctrine

Answer 8

A person who in good faith believes in the validity of a ceremonial marriage may use the state’s divorce provisions even if the marriage is later declared void.

Question 9

Residency Requirement for Divorce

Answer 9

Most states require at least one party to be a resident of the state to file for divorce or legal separation.

Question 10

Grounds for Divorce

Answer 10

No-Fault: Marriage is irretrievably broken with no prospect of reconciliation. Must exist for a specified time.

Fault-Based Grounds: Include:
1) Adultery
2) Cruelty
3) Desertion
4) Habitual drunkenness
5) Bigamy
6) Imprisonment
7) Institutionalization for insanity

Defenses to Fault-Based Divorce must be affirmatively pleaded.
1) Justification
2) Unclean hands
3) Provocation
4) Consent
5) Connivance
6) Condonation
7) Collusion
8) Recrimination
9) Insanity

Question 11

Division of Property Systems

Answer 11

Community Property States: Equal split of marital property.
Equitable Distribution States (majority): Fair (not always equal) distribution based on circumstances.

Question 12

Marital vs. Nonmarital Property

Answer 12

Most states consider only property acquired during marriage as marital.
Some states use a “hotchpot” rule—all property subject to division. Nonmarital (CAGEE):
Conveyed before separation
Awarded for pre-marriage claims
Gift/inheritance (not between spouses)
Excluded by agreement
Encumbered before separation

Question 13

Factors in Equitable Distribution

Answer 13

Courts consider:
* length of marriage,
* prior marriages,
* age,
* health,
* earning potential,
* contributions (incl. homemaking),
* custodianship of children,
* economic status,
* value of separate property, and
* standard of living.

Question 14

Treatment of Specific Types of Marital Property

Answer 14

Subject to Equitable Distribution: Retirement/pension (if acquired during marriage)
* lost wages/medical costs
* post-separation property
* unexercised stock options.

Not Subject to Equitable Distribution: Professional degrees
* future interests
* Social Security
* pain & suffering damages

Jurisdictionally Split:
* Goodwill
* sick/vacation days.

Use timelines to track which property interests were acquired before, during, and after the marriage. For interests that accrue over time (e.g., retirement benefits), remember that only the portion that accrued during the marriage is marital property.

Question 15

Spousal Maintenance

Answer 15

Spousal maintenance (alimony) is awarded when one spouse cannot meet their own needs. It may be for a definite or indefinite time and cannot be discharged in bankruptcy. Factors include:
1) Financial resources
2) Earning potential
3) Standard of living
4) Time to become self-supporting
5) Length of marriage
6) Contributions
7) Age & health
8) Marital misconduct

Question 16

Types of Spousal Support

Answer 16

Lump Sum: Fixed, non-modifiable (except fraud)
Permanent: Lifetime, after long marriage (15+ yrs)
Limited Duration: Short marriage + need
Rehabilitative: Improve earning capacity (e.g., education)
Reimbursement: For sacrifices made
Palimony: Available in a few states for cohabitants

Question 17

Modification of Spousal Support

Answer 17

• Spousal support may be modified even when it is deemed permanent
• Allowed when there is a significant and continuing change in need or ability to pay
• A willful or voluntary reduction in income will not result in reduction of child-support payments
• Ends at death of spouse
• Usually ends at remarriage.
• Cohabitation may reduce support (varies by jurisdiction).
• Alimony pendente lite (during pendency of divorce proceedings) is not affected by cohabitation.
• Effect of retirement depends on jurisdiction

Question 18

Jurisdiction for Family-Related Matters

Answer 18

• Courts must have both:
  1) Subject matter jurisdiction
  2) Personal jurisdiction
• Residency req vary: 6 weeks–2 years.
• Matrimonial courts have equity powers.

Question 19

Divisible Divorce Doctrine

Answer 19

A nonresident respondent may challenge an ex parte divorce if:
1) Petitioner was not domiciled in the state 2) Petitioner left immediately after judgment

Question 20

Indigent Parties

Answer 20

Indigent litigants cannot be required to pay to access court. No right to counsel in divorce, but attorney’s fees may be awarded where appropriate at court’s discretion.

Question 21

Child Support Obligation

Answer 21

• Both parents—regardless of marital status—must support their unemancipated child until the child turns 18 (or longer in some states).
• Some states extend the duty through college or indefinitely if the child has physical or mental disabilities.
• A parent’s obligation may adjust as physical custody changes, but visitation cannot be denied for failure to pay.
• Parents may make agreements, but cannot contract away a child’s right to support.

Question 22

Nonmarital Children

Answer 22

Nonmarital children are entitled to support, government benefits, and inheritance from both parents.
A nonmarital child can inherit from the father if paternity is established. This may be proven by:
– Judicial decree
– Acknowledgement on birth certificate – Blood tests
– Statements from deceased family members
– Medical evidence

A time limit on paternity actions is unconstitutional unless the limit serves a significant interest and provides a reasonable opportunity to bring the action.

Question 23

Marital Presumption & Estoppel

Answer 23

A child born to a married woman is presumed to be the child of her husband. This presumption extends to artificial insemination when the husband consents and the procedure is performed by a physician.
A husband may be estopped from denying paternity when:
* He held himself out as the child’s father
* The mother relied on that representation
* The mother suffered economic detriment as a result

Question 24

Personal Jurisdiction Over Out-of-State Parent

Answer 24

A court may assert jurisdiction over an out-of-state parent under the Uniform Interstate Family Support Act (UIFSA). Jurisdiction is proper when:
– The parent is personally served in the state
– The parent consents
– The parent resided with the child in the state
– The parent caused the child’s presence in the state
– The parent provided prenatal expenses or support while in the state
– The child was conceived in the state
– The parent asserted paternity in the putative father registry
– Any other constitutional basis for PJ exists

Question 25

Amount of Child Support

Answer 25

Most states follow child support guidelines to determine the award. The amount is presumed correct, but a court may deviate if it states clear reasons. **Calculation Models**: * **Income-Shares Model** (majority rule): Child gets the same proportion of income as if parents lived together * **Percentage-of-Income Model**: Based on supporting parent’s income and number of children * **Melson Formula**: Based on income-shares model but accounts for the supporting parent’s basic needs

Question 26

Additional Child Support Factors

Answer 26

Other considerations include: – Best interests of the child – Ages of children – Medical expenses not covered by insurance – Standard of living – Special education or unusual needs – Assets and obligations of the parents

Question 27

Modification of Child Support

Answer 27

Child support can be modified with a substantial and continuing change in circumstances affecting the child’s needs or the parents’ financial situation. – Voluntary income reduction usually does not justify a reduction – Modifications are typically retroactive to the date of the request

Question 28

Jurisdiction Over Modification

Answer 28

A court cannot modify a child support order from another state unless: 1) The child and both parents no longer reside in the issuing state, **OR** 2) The parties consent to allow a new state to modify Additionally, a nonmodifiable aspect of the order cannot be altered by any other state

Question 29

Termination of Child Support

Answer 29

Child support terminates upon: **A** – The child reaching the Age of majority **M** – The child Marries **P** – Parental rights are terminated **E** – The child is Emancipated **D** – The child or parent Dies (Mnemonic: **AMPED**)

Question 30

Enforcement of Support Orders

Answer 30

Nonpayment may result in: – Civil contempt (jail until paid) – Criminal contempt (jail sentence) – Other penalties: wage garnishment, tax refund interception, license suspension, credit reporting, asset seizure, attorney’s fees

Question 31

Interstate Enforcement (UIFSA)

Answer 31

When the obligor or child resides in another state, the original child support order can be registered and enforced in that state. – Only the issuing state may modify the order – The enforcing state ensures compliance

Question 32

Legal Custody vs. Physical Custody

Answer 32

**Legal custody** is the right to make major life decisions (e.g., education, healthcare, religion). **Physical custody** refers to the right to have the child reside with the parent and provide for daily care and control.

Question 33

Joint Custody (Legal and Physical)

Answer 33

Custody may be awarded jointly: – **Joint legal custody**: Both parents share decision-making authority. – **Joint physical custody**: Child divides time between parents (not always 50/50). *Joint custody requires that parents are willing and able to cooperate*.

Question 34

Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA)

Answer 34

The UCCJEA governs state jurisdiction for child custody and visitation to prevent conflicting orders and forum shopping.

Question 35

Jurisdiction (UCCJEA) (Home State > Signficant Connection > Appropriate Ties)

Answer 35

**(1)** A court has **home-state jurisdiction** if: – The child has lived in the state with a parent/guardian for at least **6 consecutive months** prior to the proceeding, OR – The state was the home state **within the past 6 months** and a **parent remains there**. – If the child is **under 6 months old**, the home state is where the child has lived since birth. **(2)** If no home-state jurisdiction exists, a court may have jurisdiction if: * The child and a parent have a **significant connection** to the state, **and** * Substantial evidence about the child’s care, protection, and relationships exists there. **(3)** If no state has home-state or significant-connection jurisdiction, a state with **appropriate ties** to the child may assert default jurisdiction.

Question 36

Exclusive Continuing Jurisdiction (UCCJEA)

Answer 36

The court that makes the initial custody determination retains exclusive jurisdiction until: – No party (parent or child) remains in the state, OR – The child no longer has a significant connection and substantial evidence is unavailable.

Question 37

Declining Jurisdiction (UCCJEA)

Answer 37

A court may decline jurisdiction if the **forum is inconvenient**. Relevant factors include: – History or risk of domestic violence – Time the child has resided outside the forum state – Distance between jurisdictions – Financial circumstances – Party agreements – Location of evidence – Court familiarity with the facts and ability to expedite the matter

Question 38

Temporary Emergency Jurisdiction (UCCJEA)

Answer 38

A court may exercise temporary emergency jurisdiction when a child is in danger and needs immediate protection. – If no custody order exists, the emergency order remains effective until a home-state court issues a determination.

Question 39

Enforcement of Out-of-State Custody Orders (UCCJEA)

Answer 39

Custody orders from another state may be: – Registered without an enforcement request – Enforced immediately after notice and expedited hearing – A warrant for custody may be issued if the child is in immediate danger or may be removed from the state

Question 40

Uniform Deployed Parents Custody and Visitation Act

Answer 40

This act protects military parents: – A parent’s deployment cannot be held against them in determining the child’s best interests – Allows for temporary custody arrangements and court approval of out-of-court agreements – Permanent orders during deployment are prohibited unless the deployed parent consents

Question 41

Best Interests of the Child Standard

Answer 41

Courts assess custody using the best interests and welfare of the child standard. – In contested cases, a guardian ad litem may be appointed to advocate for the child. **Relevant Factors**: – Child’s preferences (if of sufficient maturity) – Sibling placement – Domestic violence **Irrelevant Factors** (unless harmful): – Race – Religion – Parents’ sexual conduct

Question 42

Custody Between Parents

Answer 42

When custody is contested between parents, courts consider who was the primary caretaker during the marriage, separation, and before divorce. 🔹 There is no longer a maternal presumption.

Question 43

Custody Between Parents and Third Parties

Answer 43

In custody disputes between a parent and a third party, the parent has a presumptive right to custody unless: 1) The parent is unfit, OR 2) Custody with the parent would be detrimental to the child.

Question 44

Parenting Time for Noncustodial Parents

Answer 44

A noncustodial parent is entitled to reasonable visitation, unless it would seriously endanger the child’s physical, mental, or emotional health. ➤ Restrictions may be imposed (e.g., supervision). ➤ Visitation may not be denied due to unpaid support. ➤ HIV status or cohabitation cannot be used to restrict visitation unless there is harm to the child.

Question 45

Third-Party Visitation Rights

Answer 45

Courts give special weight to a fit parent’s objection to third-party visitation. Visitation may be granted to: – Stepparents who acted in loco parentis – Grandparents (if in child’s best interests) – Unwed biological fathers who demonstrate a commitment to parenting

Question 46

Parental Consent for Medical and Religious Decisions

Answer 46

Parents generally have the right to make decisions regarding a child’s medical care and religious upbringing, regardless of marital status. – Parental consent is not required in an emergency. – The court may limit decisions to protect the child’s health, safety, or to prevent a significant social burden (e.g., contagious illness).

Question 47

Enforcement of Child Custody Orders

Answer 47

Failure to comply with a custody order may result in: – Compensatory visitation – Attorney’s fees – Court costs – Fines – Jail time ➤ Tort damages may be awarded for time the child was wrongfully withheld.

Question 48

Use of Habeas Corpus in Custody Enforcement

Answer 48

Habeas corpus is generally not available for custody or visitation disputes, except when a parent has legal but not physical custody. ➤ Courts may allow suits in equity to enforce custody orders and prevent wrongful withholding of the child.

Question 49

Interstate Enforcement of Child Custody Orders

Answer 49

Custody and visitation orders are enforced between states under the **Full Faith and Credit Clause**, if registered in the new state. ➤ A new court cannot modify the order unless: 1) The original court declines jurisdiction, AND 2) The new court has jurisdiction and gives sufficient notice to the parties.

Question 50

Modification of Custody or Visitation Orders

Answer 50

Courts may modify a custody or visitation order if there is a substantial change in circumstances and modification is in the child’s best interests. ➤ Violation of an existing order is a relevant factor.

Question 51

Relocation of Custodial Parent with the Child

Answer 51

A custodial parent may relocate if the move is for a **legitimate** and r**easonable purpose** and **does not prejudice the child’s welfare**. Courts consider: – Relationship with nonrelocating parent – Child’s age and needs – Impact on visitation – Relocating parent’s motives – Benefits to the parent and child – Efforts to promote ongoing parenting

Question 52

Effect of Custodial Parent’s Cohabitation

Answer 52

Cohabitation with a nonmarital partner is not a basis for custody modification unless it negatively impacts the child.

Question 53

Parental Consent for Medical and Religious Decisions

Answer 53

* Parents generally have the right to make decisions about their child’s medical care and religious upbringing, regardless of marital status. * A court may limit parental decisions to protect the child’s health, safety, or to prevent a significant social burden (e.g., contagious illness). (*Parental consent is not required in an emergency.*)

Question 54

Types of Marital Agreements

Answer 54

There are three primary types of marital agreements: – **Premarital** (or prenuptial) agreements – **Separation** agreements – **Property settlement** agreements

Question 55

Premarital (Prenuptial) Agreements

Answer 55

A premarital agreement is made before marriage and becomes effective upon marriage. – A valid marriage is sufficient consideration. – Must expressly reference divorce to apply in divorce proceedings. – Unenforceable as to child support or custody provisions. – Most states apply the law of the state with the most significant relationship to the agreement and marriage.

Question 56

Separation Agreements

Answer 56

Entered into after separation but before divorce, these agreements may address: – Property division – Spousal support – Child support – Child custody and visitation ➤ Typically merged into the final divorce decree. If not merged, enforceable under contract law. ➤ Child-related terms can be modified if not in the child’s best interests.

Question 57

Property Settlement Agreements

Answer 57

Entered into before the divorce decree, these agreements settle the couple’s economic issues. – Enforceable unless fraudulent or unconscionable. – Cannot include child custody or support provisions that override the child’s best interests.

Question 58

Enforceability of Marital Agreements and Uniform Premarital Agreement Act (UPAA)

Answer 58

A marital agreement is enforceable if: 1) It is in **writing** 2) **signed** by the party to be charged 3) There was **full and fair disclosure** of financial status at the time of execution 4) The agreement is **fair and reasonable** 5) The agreement was entered into **voluntarily** Under the UPAA (adopted by about half of U.S. jurisdictions), the agreement is unenforceable if the challenger proves: 1) The agreement was involuntary, OR 2) It was unconscionable when executed and the party: * did not receive or waive fair and reasonable disclosure, and * lacked or couldn’t have reasonably known the other party’s financial obligations/assets

Question 59

Impoverished Spouse Exception

Answer 59

A marital agreement may be set aside if it would leave one spouse woefully impoverished, such that the spouse would become dependent on the state.

Question 60

Modification and Limits in Marital Agreements

Answer 60

✅ A no-modification provision in a marital agreement that prevents modification of property rights, including spousal support, is permitted. ❌ But a provision that prevents the modification of child support is unenforceable.

Question 61

Voluntary Termination of Parental Rights (for Adoption)

Answer 61

Voluntary termination occurs when biological parents give up their parental rights over a minor child and consent to the child’s adoption. – A child who is 14 years or older must consent to the adoption. – An unwed father who fails to register with a state registry:    * Waives his right to notice of the adoption, and    * Irrevocably implies his consent to the adoption if no relationship with the child exists.

Question 62

Involuntary Termination of Parental Rights

Answer 62

Only a court may involuntarily terminate a person’s parental rights. This typically occurs: – As part of an abuse, neglect, or dependency case, or – When consent to adoption is unreasonably withheld. Additional grounds may include: * Abandonment * Abuse of a sibling * Termination of parental rights over another child

Question 63

Legal Effects of Adoption

Answer 63

* Adoptive parents have all the rights and responsibilities of biological parents. * An adopted child has all the rights and responsibilities of a biological child. * Adoptions generally cannot be dissolved, except in limited cases (e.g., undisclosed mental or physical illness). * In most states: No visitation is allowed between the adoptee and biological parents. * Some states allow visitation with a nonparent (e.g., stepparent) where a substantial relationship exists and visitation is in the child’s best interests.

Question 64

Uniform Parentage Act (UPA) and Assisted Reproduction

Answer 64

The Uniform Parentage Act (UPA) provides uniform rules for establishing parentage. It has been adopted by nine states. **Assisted Reproduction**: – The woman who gives birth is the child’s mother, unless a gestational agreement provides otherwise. – The husband of the mother is presumed to be the child’s father. **Gestational Surrogacy Agreements**: – The gestational mother (and her spouse, if any) relinquishes all parental rights and obligations. – The intended parents must petition the court for approval. – A child born to the surrogate within 300 days of assisted reproduction is presumed to be the product of the assisted reproduction.

Question 65

Definition of Domestic Violence

Answer 65

To qualify as domestic violence, a person must be: – In a relationship with the victim – A member of the household, or – A family member – Domestic violence usually involves a continuum of behavior, but a single episode may qualify. – It typically involves physical abuse, not mental or emotional abuse. Every jurisdiction provides for **civil relief** through a protective order. ➤ The process includes: 1) An ex parte order granting limited relief, followed by 2) A hearing on a petition for permanent relief The court may issue an injunctive order that: – Prohibits further abuse or contact – Grants exclusive possession of a shared residence – Addresses child custody and/or support ➤ Violation of the order may result in criminal penalties.

Question 66

Termination of Parental Rights by the Court

Answer 66

A court may **terminate** parental rights when it is in the **best interests of the child**. Grounds include (but are not limited to): * Abandonment * Neglect * Failure to support * Infliction of serious harm

Question 67

Medical Decision-Making by Minors

Answer 67

– A child over a certain age may consent to medical treatment. – A child may obtain birth control or treatment for a sexually transmitted disease without parental consent.

Question 68

Emancipated Minors

Answer 68

An emancipated child has all the rights and obligations of an adult. The child’s parents have no duty to support them.