Family Law

Question 1

Factors for spousal support

Answer 1

Standard of living during marriage, duration of marriage, age and physical and emotional conditions of parities, financial resources of parties, contribution of each party to marriage, time needed find employment, ability to pay or to meet needs

Question 2

Purpose of spousal support

Answer 2

Ensure adequate income stream for spouse whose economic dependency resulted from the Marital relationship

Question 3

Does fault matter in spousal support?

Answer 3

Some states consider it and reduce accordingly

Question 4

When will permanent spousal support be granted

Answer 4

When Spouse has neither resources nor ability to be self-sustaining

Question 5

Child support formula factors

Answer 5

Child support based on monetary need and ability to pay. Factors include # children, ages, special needs, and parents’ income.

Question 6

When deviate from child support formula

Answer 6

When court finds facts justifying deviation

Substantial change

Question 7

Divorce court jurisdiction

Answer 7

One party needs to be a bona fide resident. States could have minimum durational residency.

Question 8

Wedding gift is marital property?

Answer 8

Depends on the intent of the donor

Question 9

When marriage void/premarital gifts/contracts restraining marriage

Answer 9

Fraudulent inducement to marry
(Void from time invalidated by court)
Premarital gifts- trad (only return if at fault), modern (return regardless)
Contracts restraining/promoting marriage - fundamental right so disfavored. Partial May be valid

Question 10

Limitations on who should Marry

Answer 10

Bigamy - marriage savings doctrines (presumption of validity and removal impediment)
UDMA - NOT marry ancestors/descendants, Siblings, uncles, nieces
Minors - parental consent or judicial approval
Incapacity (voidable) fraud (voidable if material)

Question 11

Marriage requirements

Answer 11

Marriage license
Solemnized by ceremony by authorized clergyman or judge AND
Consent - some benefits (trad) usual obligations (modern)

Question 12

Common law marriage elements

Answer 12

Capacity, agreement to be married, cohabitation, holding out as Marital relationship

Will recognize UNLESS doing so contradicts a powerful public policy of jur. W greatest interest

If on line, look if court is predisposed not to recognize it

Cohabitation agreement another way - enforced if sexual telecoms not the only consideration

Question 13

Enforce premarital contracts when

Answer 13

In writing and signed by both parties
Executes after full disclosure
Voluntary (independent counsel, length of time between agreement and marriage, sophistication if parties, presence of other pressuring reasons)

Under uniform premarital agreement act — prove NOT voluntary OR unconscionable when executed AND did not receive or waive fair disclosure AND did not have (or reasonably ) adequate knowledge of other assets/obligations

Unconscionable determined at time of agreement (economically independent)

Question 14

Do premarital agreements control child custody?

Answer 14

NO, most courts decide best interest of child regardless of agreement

Question 15

Do premarital agreements prevent child support? What about spousal?

Answer 15

NO, parents have an absolute obligation. Not binding and unenforceable

during marriage - spousal support limit is void against public policy

After marriage - some void. UPAA allows as long as spouse is not forced to go on welfare

Question 16

Prop rights during Marriage

Answer 16

Common law - husband. Today - both spouses retain full rights to their own prop

Question 17

Necessaries doctrine

Answer 17

Common law - woman buy on credit for necessities and husband pay FMV
Today- both spouses liable to creditors for necessaries

Question 18

Annulment

Answer 18

Judicial declaration marriage never existed.
If void or voidable
Ratification is a defense (only for voidable)

Question 19

No fault divorce

Answer 19

Min duration separation, irreconcilable differences

Question 20

Jurisdiction issues for divorce

Answer 20

State courts!
Annulment (one party domiciled)
Divorce - FULL FAITH AND CREDIT CLAUSE. Valid in any state where party is domiciled (bona fide resident) AND adequate notice
Divisible divorce - NO juridicyin over out of state prop without PJ both spouses

Question 21

Prop division.

Answer 21

Need PJ both spouses. (In state prop exception)

Divide pursuant to state law (categorize then equatable distribution)

Question 22

Prop division categorization

Answer 22

Separate - BEFORE, gift, bequest, devise, or descent, proceeds acquired by separate prop, passive appreciation of separate prop
Marital - generally all acquired during marriage, ACTIVE appreciation, professional degrees NOT marital prop but reimbursement okay

Question 23

Divorce distribution factors

Answer 23

Income, property, liabilities
Duration marriage
Lifestyle accustomed to
Lifestyle
Contributions to marriage
NO FAULT

Question 24

Spousal support UDMA

Answer 24

UDMA - unable support/lack resources OR custodian of child that would make inappropriate to work

Question 25

Child support issues

Answer 25

Education expenses - child may lose is fail to follow reasonable instructions Rebuttable presumption the formula is proper Duration - until age of majority or emancipated

Question 26

Modification

Answer 26

Substantial change making prior order unreasonable (UDMA requires unconscionable) State originally issued is EXCLUSIVE jurisdiction

Question 27

Child custody factors

Answer 27

Best interests of child Factors: needs of child to have meaningful relationships, ability and willingness, interaction, adjustment, health, intention relocate principal residence, wished child

Question 28

Visitation

Answer 28

Usually granted UNLESS seriously endanger the child’s well-being Third party: substantial relationship with child AND best interests (great weight to patents wishes)

Question 29

Moving

Answer 29

Good faith and child’s best interests Some courts BALANCE

Question 30

Mediation

Answer 30

Some courts require. Agreement must be set aside for misconduct

Question 31

Rights of unmarried cohabitants

Answer 31

Economic - express agreements generally enforceable as long as not against public policy, implied in fact (commingle funds), equitable remedies (resulting trust, constructive trust, quantum meruit) Children - Uniform Parentage Act ( established WHEN effective acknowledgment of paternity UNLESS acknowledgement challenged, valid adoption, OR adjudication) Presumption - during Marrisye or 300 days after, during invalid marriage, or holds out child as his own

Question 32

Legitimation

Answer 32

Legal action brought by biological father to establish rights - assumed parental responsibilities AND established substantial relationship Or by marriage

Question 33

Adoption

Answer 33

Statutory procedure. Generally, consent BOTH parents required. Unwed - consent father only required if assumed parental responsibility AND no notice unless took steps Challenge - fraud, duress or fail to comply with statutory formalities Revocation - there approaches (not, by court, up until final adoption)

Question 34

Medical procedures on child

Answer 34

Need consent UNLESS emergency, public health concerns, age of child Parens patrie - state can intervene needed care (narrowly interpreted) - life threatening, and weigh risks and benefits of treatment

Question 35

Statutes

Answer 35

FFCCSOA- full faith and credit child support orders act UIFSA- uniform interstate family support act (serve as initiating tribunal to enforce or modify the order in another state) PKPA- parental kidnapping prevention act (may not modify order if parent still lives in issuing state) UCCJEA- uniform child custody jurisdiction and enforcement act (continuing exclusive jurisdiction UNTIL neither parent lives in state, or child no longer has significant connection with state) 6mo home rule UPA - uniform Parentage act (spouse of married women pregnant from artificial insemination) unless within 2 years say he did not consent