Family Law

Question 1

Antenuptial (Premarital) Agreements

Answer 1

Premarital contracts are valid contracts that address the rights of the parties upon divorce or death. The marriage is sufficient consideration to support a premarital contract

Uniform Premarital Agreement Act (UPAA) - allows parties to make agreements about property and alimony, in the event of death or divorce:
- these agreements can cover the disposition of property in the event of death or divorce, etc.
- can waive spousal support (unless it renders the dependent spouse a public charge)
- court NOT bound by provisions regarding child custody and support

Requirements for Validity:
(1) the contract must be in writing and signed;
(2) agreement must be entered into voluntarily, meaning without fraud, duress, or overreaching
(3) there must be full and fair disclosure of the parties’ assets or proof that the party against whom the agreement is being enforced had independent knowledge of the assets
- under the UPAA, courts only examine this element if the agreement is unconscionable

Choice of Law
- premarital agreements often contain valid choice of law provisions
- if it does not have one, the agreement’s enforceability is governed by the law of the state where it was executed or the state with the most significant relationship to the parties

Question 2

Marriage Requirements

Answer 2

(1) License
(2) Ceremony with authorized officiant
(3) No legal impediment
- can’t be too closely related
- can’t be married to someone else (bigamy)
(4) Capacity to consent at ceremony
- parties must understand their actions and voluntarily agree to them - thus, someone under the influence of alcohol or drags may lack the mental capacity
- if one party is induced to marry because of fraud, duress, coercion, or force, the marriage may also be subject to attack
- Age is also a consideration - usually 18 - 16 or 17 usually needs parental consent

Question 3

Common Law Marriage

Answer 3

Elements (CACH - capacity, agreement, cohabitation, holding out)
(1) Consent to marry (which includes having capacity and a lack of legal impediments)
(2) Cohabitation
(3) Couple holding themselves out publicly as spouses

*CL marriage has been abolished in most states, but if a valid CL marriage is formed in one state, it will generally be regarded as valid even in those states that do not recognize it

Question 4

Property Rights During Marriage

Answer 4

During marriage, each spouse owns and controls the property in their own name, but title is not dispositive in the event of divorce

Tenancy by the Entirety
- in many states, if spouses take title to real estate jointly, a tenancy by the entirety is presumptively created
- includes right of survivorship
- one spouse cannot convey or encumber the property without the consent of the other spouse
- upon dissolution of the marriage, tenants by the entirety become tenants in common

Question 5

Obligation to Support During Marriage

Answer 5

During marriage, each spouse has an obligation to support the other
- the doctrine of necessaries can be used to make one spouse liable to third parties for the other spouse’s purchases for necessary expenses, such as food, clothing, and health care

Question 6

Annulment

Answer 6

An annulment is a backward-looking doctrine that declares a marriage invalid because an impediment that existed at the time of the marriage makes it legally void or voidable
- once an annulment decree has been entered, the parties are treated as though they were never married

Void Marriage
- a void marriage is invalid, an utter nullity, because it failed to meet the essential requirements for a legal marriage
- parties may walk away from a void marriage with no legal action (but an annulment action is usually brought to determine property distribution and child custody)
- any interested party may seek annulment of a void marriage, and the marriage is subject to collateral attack (in actions other than annulment actions) even after the death of one of the parties
EXAMPLES: Bigamy and too closely related
Bigamy - 2 marriage-saving doctrines for the new spouse:
(1) there is a presumption that the most recent marriage is valid, and
(2) if the prior marriage is later terminated by divorce, annulment, or death, continued cohabitation validates the second marriage under the UMDA and similar statutes

Voidable Marriage
- a voidable marriage is valid until declared null
- however, because of an impediment that existed at the time of the marriage, one of the spouses may bring an action to have the marriage annulled
- no collateral attacks are permitted
- typically, a voidable marriage occurs when some type of event or condition affects the adequacy of a party’s consent
- unlike void marriages, voidable marriages can be remedied (or ratified) by continued habitation after the removal of the impediment
Examples:
- nonage (voidable by underage spouse)
- incurable physical impotence (inability to have normal sexual relations)
- lack of capacity
- duress (ex: shotgun wedding)
- fraud (if it involves an essential element of marriage - ex: being able to have kids)

Children of Annulled Marriage
- the children of an annulled marriage are marital children - support and custody issues are handled in the same way as in a divorce action

Spousal Support
- generally NOT awarded in annulment actions

Division of Property
- courts attempt to place the parties in their pre-marriage position, and usually give each party that property to which they have legal or equitable title

Question 7

Divorce Jurisidiction

Answer 7

To have jurisdiction over a divorce, only ONE of the parties needs to be domiciled in the jurisdiction
- most states set a minimum residency period (for example, 90 days)
- it is possible for multiple states to have jurisdiction over a divorce, and multiple cases could proceed until one court renders a judgment causing the other to lose subject matter jurisdiction

*To determine financial issues (like property rights and support), the court must have personal jurisdiction over the defendant

Question 8

Grounds for Divorce

Answer 8

No-Fault Divorce
- most states allow spouses to get a divorce without regard to showing marital fault
(1) Both spouses agree that the marriage is irretrievably broken (also referred to as irreconcilable differences) - this is a form of bilateral no-fault divorce
(2) the spouses have been living apart for a specified and continuous period of time (can be bilateral or unilateral) - time period can range from 90 days to 18 months
(3) Both spouses agree they are now incompatible and can no longer be married (bilateral)

Fault Grounds:
(1) Adultery
- generally, the filing spouse presents circumstantial evidence of opportunity and inclination - corroboration is often required
(2) Willful desertion (or abandonment)
- requires an unjustified departure from the marital home for a specified period with no intent to return
(3) extreme physical or mental cruelty
(4) voluntary drug addiction or habitual drunkenness commencing after the marriage
(5) Insanity

Question 9

Legal Separation

Answer 9

An order of legal separation does not terminate the marriage, but the parties can have all of their rights regarding property, spousal support, custody, and child support adjudicated in this proceeding
- if the court permanently divides marital property, then any after acquired property is separate property

Question 10

Property Division - Majority Approach

Answer 10

Equitable Division of Marital Property
- each spouse takes their separate property, and the court only divides the property acquired during marriage

Two-Step Process
(1) Classification: determine what is marital property and what is separate property
(2) Division: make an equitable division of the marital estate no matter how the property is titled

Note
- equitable division does NOT necessarily mean equal
- property distribution decrees are NOT modifiable

Question 11

Separate Property

Answer 11

Generally, in a divorce, each spouse takes their separate property:
(1) property owned BEFORE marriage
(2) property acquired by gift or inheritance
(3) property acquired in exchange for separate property
(4) income and appreciation of separate property
(5) pain and suffering awards
(6) personal damages (for example, future medical expenses or future lost wages)
(7) property acquired after an order of legal separation that includes a final disposition of property

Question 12

Marital Property

Answer 12

Marital property is all other property acquired during the marriage
(1) property acquired DURING marriage
(2) earnings
(3) employment benefits, pensions, and stock options
- majority rule is that these are marital property even if they will not be exercised or vested until after the divorce
(4) Lost wages
- many states hold that if a cause of action for lost wages due to personal injury accrues between the date of the marriage and final separation, then the proceeds from the settlement or award are marital assets subject to distribution
(5) Reimbursement for medical bills incurred and paid with marital property
(6) recovery for damages to marital property

Question 13

Special Issues in Classification or Property

Answer 13

Property that Changes Character
- separate property may become marital property through either:
(1) Commingling (classic ex: bank account)
- the separate property is inextricably intertwined with marital property or with separate property of the other spouse to the extent that it can no longer be traced
(2) Transmutation
- the separate property is treated in a way that evidences an intention for the property to be marital property (for example, placing separate property in the names of both spouses)

Improvement of Separate Property
- when separate property is improved by the use of marital funds or the effort of a spouse, courts generally hold that the property remains separate property, but the most jurisdictions grant the marital estate of the nonowning spouse reimbursement for the value added to the separate property
- an increase in value due to market factors would remain separate property

Property Acquired Before Marriage but Paid for After
- courts are split, but the majority view is that property should be apportioned between separate and marital estates in proportion to the contribution of separate and marital funds to pay for the property

Pensions
- the portion of a pension earned during a marriage is marital property subject to distribution

Professional License or Degree
- a professional license or degree is not distributable property
- however, to avoid unfair results, some jurisdictions use alimony to compensate supporting spouses for their contribution during the other spouse’s education or training

Question 14

Special Issues in Classification or Property

Answer 14

Property that Changes Character
- separate property may become marital property through either:
(1) Commingling (classic ex: bank account)
- the separate property is inextricably intertwined with marital property or with separate property of the other spouse to the extent that it can no longer be traced
(2) Transmutation
- the separate property is treated in a way that evidences an intention for the property to be marital property (for example, placing separate property in the names of both spouses)

Improvement of Separate Property
- when separate property is improved by the use of marital funds or the effort of a spouse, courts generally hold that the property remains separate property, but the most jurisdictions grant the marital estate of the nonowning spouse reimbursement for the value added to the separate property
- an increase in value due to market factors would remain separate property

Property Acquired Before Marriage but Paid for After
- courts are split, but the majority view is that property should be apportioned between separate and marital estates in proportion to the contribution of separate and marital funds to pay for the property

Pensions
- the portion of a pension earned during a marriage is marital property subject to distribution

Question 15

Equitable Division

Answer 15

Once the court identifies and values the marital property, the court will make an equitable - not necessarily equal - division. The trial court is given a great deal of discretion, and the court’s division of property is not subject to modification once the divorce is final.
Factors considered in dividing the property include:
(1) the age, education, background, and earning capabilities 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, their vocational skills, and employability
(5) the source of 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, alimony
(11) each party’s opportunity to acquire future income and assets
(12) each party’s contribution to the acquisition or enhancement of the existing marital assets
- the contribution of a nonworking spouse is just as important as the contribution of the earning spouse
(13) each party’s contribution as a homemaker to the family unit
(14) economic fault (that is, whether either party has dissipated marital property)

*NOTE: marital fault is NOT considered

*Courts can divide the property in kind (actually dividing the assets) or by contribution (awarding assets to one spouse and money to the other)

Question 16

Alimony - Generally

Answer 16

Alimony (also known as spousal support or maintenance) is paid to an economically dependent spouse.
- it may be awarded while the parties are still married, during the divorce proceeding, or as part of the divorce decree
- some states consider marital fault in awarding spousal support, but other states do not
- trial court is vested with great discretion in awarding alimony

Question 17

Types of Alimony

Answer 17

(1) Permanent Periodic Spousal Support
- support is paid regularly (ex: monthly) to support a spouse who has neither the resources nor the ability to be self-sustaining
- duration = indefinite
- modification: can be increased, decreased, or terminated upon proof of substantial change of circumstances

(2) Lump Sum
- fixed amount payable either all at once or via series of payments (this is often the present value of permanent periodic support)
- duration = specified time period (can be payable in installments or in a lump sum)
- modification: NONE

(3) Rehabilitative Support
- consists of periodic payments for a limited time to enable a spouse to gain skills to become self-supporting
- it can be awarded along with permanent periodic or lump sum alimony
- example: rehabilitative alimony to one former spouse of $1,000 per month for 36 months to gain education or skills
- duration = for specified time period, unless modified by court
- modification: can be increased, decreased, or terminated upon proof of substantial change of circumstances

(4) Reimbursement Spousal Support
- occasionally awarded to a spouse who supported the other spouse while the latter obtained a professional license or degree
- it can be awarded along with permanent periodic or lump sum alimony
- example: the sum of $20,000 as repayment for the supporting spouse’s contribution to the increased education provided to the other spouse
- duration = for specified period of time; can be payable in installments or in a lump sum
- modification: NONE
*NOTE: this is a fixed sum award based on the amount of the supporting spouse’s contribution, not the value of the professional license or degree

Question 18

Factors to be Considered when Awarding Alimony (Spousal Support)

Answer 18

The court has great discretion in awarding as much spousal support as necessary for the maintenance of the requesting spouse - factors to be considered include:
(1) the standard of living established during the marriage
(2) the duration of the marriage**
(3) the age and physical and emotional condition of the parties
(4) the financial resources of the parties**
(5) the contribution of each party to the marriage**
(6) the time needed for the party seeking support to obtain the training necessary to find appropriate employment
(7) the ability of the payor spouse to meet their needs while paying spousal support**
(8) marital fault**

More broadly, the two primary considerations are the needs of the claimant and the ability of the other spouse to pay
- start answer to question about alimony with this!!

Question 19

Termination of Spousal Support

Answer 19

Periodic spousal support terminates upon the remarriage of the recipient or the death of either spouse
- most jurisdictions would also terminate spousal support if the recipient spouse begins cohabitating with someone in a marriage-like relationship

*Lump sum and reimbursement support is NOT modifiable and survives the death of either spouse

Question 20

Tax Consequences of Spousal Support

Answer 20

Under current law, spousal support is not a taxable event
- for divorce or separation instruments executed before 2019, spousal support payments are deductible by the payor and are income to the recipient unless the instrument is modified to follow the current rule

Question 21

Separation Agreements

Answer 21

A separation agreement is an agreement entered into after marriage under which the parties agree to live apart and resolve economic issues (that is, spousal support, property division, and child support) and custody rights.
- To be enforceable:
(1) the agreement must be voluntary,
(2) there must have been a full and fair disclosure by both parties, and
(3) there must be consideration
- consideration for the agreement is found in the mutual promises of the parties

*in a separation agreement, parties can waive alimony or property division and parties can agree on custody and child support
- BUT, the court is NOT bound by the parties’ contract concerning children (will be enforced by the court only if they are in the child’s best interest)

Modification
- if the divorce decree states that the separation agreement is “merged” into the decree, or if the specific provisions of the agreement are repeated in the decree, the whole agreement assumes the status of a court judgment, is enforceable as such, and can be modified by the court
- if the agreement is NOT merged in this way, it retains its separate character as a contract and is enforceable as such
- Child support and custody provisions can always be modified if it is in the best interest of the child

Question 22

Child Support - Generally

Answer 22

Both parties share equally a duty to support their children
- in general, parents must pay for their children based on:
(1) their ability to pay, and
(2) the needs of the child

Support and Visitation
- the child support obligation is independent of the noncustodial parent’s visitation rights
- visitation cannot be withheld because of failure to pay child support
- a parent could be denied visitation, but still be required to pay child support

Duration of Child Support - the duty to support a child ceases upon:
(1) the child reaching the age of majority (18)
(2) death of child
(3) emancipation of child (removal of the disabilities of minority)
(4) termination of parental rights
*Child support may be indefinite for a severely disabled child

Question 23

Jurisdiction over Child Support Orders

Answer 23

The Uniform Interstate Family Support Act (UIFSA), which has been adopted by all 50 stated, provides methods for enforcement and guidelines for modifications of support orders issued in another state

Original Jurisdiction
- original jurisdiction to enter a child support order is proper where the FIRST petition under UIFSA is filed
- another state can exercise jurisdiction only if:
(1) the second petition is filed before the time to answer the first has expired;
(2) the petitioner objected to jurisdiction in the first action; and
(3) the second state is the child’s home state

Jurisdiction to Enforce
- the court that initially issued the order has jurisdiction to enforce, and UIFSA helps parties enforce orders in other states
- another state can enforce a child support order in 2 ways:
(1) Direct enforcement
- allows the obligee (person receiving CS) to mail the order to the obligor’s out-of-state employer, automatically triggering withholding unless there is a timely objection
(2) Registration
- UIFSA also provides for registration of a support order with another state
- child support order from State A is simply registered in State B, and then the order is subject to enforcement in State B

Jurisdiction to Modify**
- the court that issues the controlling child support order has continuing and exclusive jurisdiction to modify it
- the role of a court in another state is only to enforce the original order, unless no party resides in the issuing state or the parties consent to jurisdiction elsewhere

Question 24

Modification of Child Support Awards

Answer 24

Child support is modifiable based on a substantial and continuing change of circumstances affecting the needs of the child or the ability of the parent to pay, such as changes in employment, the growth of the child, inflation, income, retirement, or disabling illness
- a voluntary reduction in income will not be a ground for modification

*Under the federal Full Faith and Credit for Child Support Orders Act (FFCCSOA), full faith and credit must be given to the child support orders of a court in another state.

*Past due installments of support cannot be retroactively modified

Question 25

Enforcement of Awards (Child Support & Alimony)

Answer 25

Child support awards and alimony may be enforced by holding the nonpaying party in contempt of court (usually civil contempt, but may be criminal if failure to pay is willful)
- other sanctions include interception of the noncomplying parent’s tax refund, forfeiture of a range of licenses, seizure of real estate, attachment of wages, and an order to pay attorneys’ fees

Question 26

Child Custody - The Uniform Child Custody Jurisdiction and Enforcement Act - Purposes

Answer 26

The purposes of the UCCJEA are to avoid jurisdictional disputes regarding child custody and visitation, promote interstate cooperation, and facilitate the interstate enforcement of custody and visitation orders

Question 27

UCCJEA - Initial Custody Determination

Answer 27

Primary Test - Home State Jurisdiction
- a court has jurisdiction to initially enter or modify a child custody or visitation order if the state:
(1) is the child’s home state; or
- child’s home state = state in which the child lived with a parent for at least 6 consecutive months immediately before the commencement of the proceeding
(2) was the child’s home state within the past 6 months and the child is absent from the state, but a parent or person acting as a parent continues to live in the state

When “Home State” Rule does NOT Apply
- a court has jurisdiction to enter or modify a child custody or visitation order if no other state has or accepts home state jurisdiction and:
(1) the child and at least one parent (or person acting as a parent) have a significant connection with the state, and
(2) substantial evidence concerning the child is available in the state

Question 28

UCCJEA - Modification of Existing Decree

Answer 28

The issuing court has continuing exclusive jurisdiction

Another court can only exercise jurisdiction if:
(1) no child or parent continues to reside in the issuing state, OR
(2) the child no longer has a significant connection with the issuing state and substantial evidence relating to the matter is no longer available in that state
-*only the issuing state can decide if this second test is met

Question 29

UCCJEA - Declining Jurisdiction / Temp Emergency Jurisdiction

Question 30

Child Custody Generally

Answer 30

Custody of a minor can mean legal custody (the right to make major decisions affecting the child’s life) or physical custody (actual possession and control of the child). Joint custody can mean either joint legal custody, joint physical custody, or both

Question 31

The Best Interest of the Child Standard

Answer 31

The standard applied in awarding custody and visitation is the best interests of the child

Factors considered in making that determination usually include:
(1) the wishes of the parents (note: parents have a constitutionally-protected right to care, custody, and control of their children)
(2) Child’s preference (preferences of children under 8 are generally not considered, but preferences over the age of 12 are given great weight)
(3) Child’s relationship with parents, siblings, and others involved with parents
(4) Child’s adjustment to home, school, and community
(5) Parties’ mental and physical health
(6) who has been the child’s primary caregiver

*The trial court is vested with a great deal of discretion to determine custody and visitation
- in most states, preference cannot be shown to one parent because of gender or financial ability

Question 32

Modification of Custody Decrees

Answer 32

Custody orders are always modifiable - the burden of proof is on the party seeking change
- generally, custody awards will be modified only if there has been a substantial and material change in circumstances affecting the child’s well-being
-**As always, the child’s best interest is the overriding concern

Question 33

Visitation / joint custody stuff

Question 34

Termination of Parental Rights