family law

Question 1

breach of promise to marry claim & available damages

Answer 1

claim against someone who broke a promise to marry.

most states do not allow this claim.

actual damages for lost deposits, costs relating to the wedding.
damages for loss of reputation, mental anguish.
punitive damages may be available

Question 2

claim for gifts in contemplation of marriage

Answer 2

claim for a return of the gift because it was given on the condition that the marriage take place

Question 3

are courts bound by child support or custody provisions in a premarital agreement?

Answer 3

no, in all states. in some states they are void & violate public policy and in others they must be reviewed by the court to verify the terms are in child’s best interest.

Question 4

requirements for valid premarital agreement

Answer 4

all states require

-a signed writing
-entered into voluntarily (no fraud, duress, overreaching)
-full and fair disclosure of parties’ assets or parties must have independent knowledge (under UPAA majority rule this analysis is only required if terms unconscionable)

Most courts consider representation of both parties by counsel and will be less likely to find agreement unfair

some courts consider whether economic provisions of the agreement are fair and reasonable

Question 5

requirements for a valid marriage

Answer 5

1) license

2) expiration of waiting period between license and ceremony

3) ceremony with authorized officiant (typically judges, religious personnel)

4) no legal impediments to marriage

5) capacity to consent at time of ceremony- must understand nature of actions & be voluntary

Question 6

when is capacity to consent lacking?

Answer 6

a party is under 18, a party is 16 or 17 and parents do not consent, a party is under influence of drugs or alcohol, fraud, duress

Question 7

if some of the procedural requirements for a license are lacking, will that invalidate the marriage?

Answer 7

No, there would have to be another element of valid marriage lacking

Question 8

common law marriage

Answer 8

not recognized in most states. requirements:

1. consent to marry- capacity + no legal impediment
2. cohabitation
3. both parties hold themselves out publicly as spouses

Question 9

marriage by estoppel

Answer 9

when a marriage is not valid and the parties acted in good faith, a spouse can use this remedy if there is a need for support

in some states this gives a spouse by estoppel all the rights of a properly married spouse

Question 10

presumption of tenancy by the entirety

Answer 10

if a spouse takes title to real estate jointly, most states will presume a tenancy by the entirety

Question 11

is the manner of title conclusive in determining who should get the property in the event of divorce?

Answer 11

no, but some presumptions may arise based on the way title is held (ex: TBE)

ex: 1 spouse putting property in his name during marriage will not make that spouse entitled to all the property

Question 12

spousal obligation to support each other during marriage

Answer 12

one spouse will be liable to third parties for the other spouse’s purchases if implicitly or explicitly authorized by the spouse

Also liable for spouses purchases of food and clothing, as well as medical expenses under the doctrine of necessaries

Question 13

spousal abuse order

Answer 13

all states allow a battered spouse to seek a protective order against the violent spouse

can be granted ex parte (w/o notice to violent spouse)

duration varies based on the state

Question 14

tortious interference with marriage- alienation of affection

Answer 14

most states do not allow these claims. if available must show:

-spouses genuinely loved each other
-love and affection was alienated or destroyed
-a third party caused the diversion of affection of one spouse away from the other so that the other spouse is deprived of a marital relationship

can be adultery but could be critical in-laws

Question 15

criminal conversation

Answer 15

cause of action against a third person when 1) there is a valid marriage and 2) one spouse has sexual relations with the third person

most states don’t allow these claims

Question 16

annulment

Answer 16

a declaration that a marriage was invalid because of an impediment existing at time of marriage. it treats the parties as though they were never married.

the party seeking annulment will either need to prove it is void or voidable

Question 17

void marriage

Answer 17

the marriage is null and void, even without a court declaration, because it lacked one of the essential elements of marriage

can be collaterally attacked by a third party such as the IRS, insurance companies, heirs in intestacy or probate proceedings

examples: one spouse is a bigamist or the spouses are too closely related. in some states, being underage.

Question 18

can a void marriage be validated?

Answer 18

under the UMDA and some states’ law, if the impediment is removed (a bigamist’s spouse dies, or bigamist gets divorced from spouse 1), the marriage can be validated in some states if the parties continue to cohabit after the removal of the impediment

some states require the parties to get married after the impediment is removed

Question 19

voidable marriage

Answer 19

valid until declared invalid. reasons invalid:

1) in most states, under age and did not get parental consent
2) lack of capacity
3) duress
4) fraud as to an essential element of marriage (ability to have kids, willingness to have sex)
5) inability to have normal sexual relations

Question 20

presumption of valid marriage

Answer 20

all states presume that the most recent marriage is valid. Challenger must overcome with strong evidence.

Question 21

defenses to annulment- voidable marriage

Answer 21

ratification- for a voidable marriage, cohabiting or holding oneself as married after the removal of the impediment

estoppel
laches
(But these two are very similar to ratification)

Unclean hands, but majority of courts don’t allow

Question 22

effect of annulment

Answer 22

marriage set aside as if never existed

Court will issue child support and custody orders

some states allow spousal support to be awarded and some don’t

courts divide the property to place the parties in as close to the pre-marriage position as possible

Question 23

jurisdiction for annulment action

Answer 23

the state with domicile of either party has jurisdiction

some states provide jurisdiction to courts of the state where the ceremony occurred

Question 24

jurisdiction for divorce

Answer 24

only one party needs to be domiciled in the state where the divorce action is brought

most states set a minimum residency requirement before divorce can be filed

Question 25

can two different courts hear a divorce case? special rules for child support?

Answer 25

yes, but the first court to render a judgment will make the other court's lawsuit moot if child support is involved: 1) must file 2nd case before 1st case answer is due 2) 2nd case's petitioner must object to jurisdiction in 1st case 3) 2nd state must be child's home state

Question 26

no fault divorce

Answer 26

a divorce action that does not allege any marital fault in the pleadings can be bilateral or unilateral

Question 27

no fault divorce grounds

Answer 27

marriage irretrievably broken spouses are now incompatible Parties living separate and apart for required time period (longer if divorce is unilateral, I.e. only supported by one party)

Question 28

fault based grounds

Answer 28

adultery willful desertion extreme physical or mental cruelty (pattern or practice of emotional abuse) voluntary drug addiction starting after marriage habitual drunkenness starting after marriage insanity

Question 29

defenses to no fault divorce

Answer 29

marriage not irretrievably broken parties are not incompatible spouses have reconciled one spouse might claim reconciliation restarts the clock for having to live separately, so that parties haven't met the required time frame

Question 30

defenses to fault divorce

Answer 30

collusion- agreement to lie to get a divorce or not to raise a valid defense connivance - one spouse has previously willingly consented to acts that would be adultery (ex: open marriages) condonation- forgiveness of marital offenses with full knowledge of the wrongs recrimination- person seeking divorce is guilty of misconduct

Question 31

legal separation action

Answer 31

parties do not invalidate their marriage but file a lawsuit that: -divides property -makes orders for spousal support or child support -makes child custody orders

Question 32

property division approaches upon divorce

Answer 32

community property equitable division of all property owned by each spouse regardless of when it was acquired most states use equitable division of property acquired during marriage & each spouse keeps their separate property

Question 33

are property distribution decrees modifiable?

Answer 33

no

Question 34

separate property

Answer 34

all real or personal property owned by a spouse before marriage assets included in retirement accounts in exchange for SP property acquired in exchange for SP property acquired by gift property acquired by inheritance property acquired after an order of legal separation that includes disposition of property

Question 35

if a spouse uses their separate property to buy other property, how is that property classified?

Answer 35

it is separate property

Question 36

if a spouse's separate property produces income during the marriage, how is that classified?

Answer 36

it is separate property

Question 37

how are lawsuit damages classified?

Answer 37

pain and suffering- separate property in some states but in most its marital property if the cause of action accrued between date of marriage and final separation personal damages (future lost wages, future medical expenses)- marital property in most states as long as coa accrued between date of marriage and final separation

Question 38

marital property-generally and specific things

Answer 38

property acquired during the marriage other than separate property. includes: earnings employment benefits, bonuses, pensions, stock options earned during marriage lost wages in a cause of action that arose during marriage reimbursement for medical bills paid with marital property recovery for damages to marital property

Question 39

commingled assets

Answer 39

* marital & separate property inextricably intertwined and impossible to trace a purchase or payment to SP or MP * becomes MP ex: depositing wages during marriage in a bank account that had separate property funds in it

Question 40

transmutation

Answer 40

treating separate property in a way that shows an intent for it to become marital property (for example, putting title to property in both spouses' names) creates a presumption that it is marital property. can be rebutted.

Question 41

improvement of separate property

Answer 41

repairs or modifications to separate property using marital funds or due to efforts of a spouse most states still treat the property as separate property most states grant reimbursement to the other spouse for value added by the improvement paid for with marital funds or thru spouse's efforts

Question 42

if a property appreciates due to market factors, is the increase marital or separate property?

Answer 42

it is separate property

Question 43

if property is acquired before marriage but paid off during marriage how is it classified?

Answer 43

most states apportion between marital and separate property, in proportion to the funds contributed by separate property and the funds contributed by marital property some states will still treat it as separate property and will allow marital estate reimbursement

Question 44

pensions- classification

Answer 44

portion earned during marriage is marital property, and that amount is divided between the spounses

Question 45

professional license or degree

Answer 45

not distributable marital property in most states some states offer reimbursement spousal support to reimburse a spouse if they paid for the education or training or worked to support the couple some states make supporting the other spouse during education a factor in considering whether a spouse gets alimony a minority of states will award the spouse their equitable share of the degree

Question 46

in divorce, what is marital fault relevant to?

Answer 46

it may be the grounds for divorce proceeding it is not considered in division of property unless it is economic fault taking money away from marital estate it may be considered in alimony awards

Question 47

alimony

Answer 47

award paid to an economically dependent spouse

Question 48

types of alimony

Answer 48

1 permanent periodic support 2 lump sum 3 rehabilitative spousal support 4 reimbursement

Question 49

permanent periodic support

Answer 49

support that is paid regularly (monthly, quarterly) to support a spouse who does not have the resources or ability to be self-sustaining generally younger people with ability to become educated and get experience do not get this described as x per month/ quarter with NO GRAND TOTAL can be increased, decreased, or terminated when there is a substantial change of circumstance

Question 50

lump sum alimony

Answer 50

described as a total amount to be paid can be paid once, or can be paid periodically is not modifiable

Question 51

rehabilitative alimony

Answer 51

periodic payments for limited time to enable spouse to gain training or skills to support self with NO GRAND TOTAL is modifiable

Question 52

reimbursement spousal support

Answer 52

spousal support award for a specific period of time to reimburse a spouse who supported the other while they obtained a professional license or degree *this is only available in a minority of states no modification. can be awarded on top of other types

Question 53

factors considered when awarding alimony

Answer 53

support needed by dependent spouse, and ability of other spouse to pay, including following subfactors: -standard of living during marriage -duration of marriage -age and physical and emotional condition of the parties -financial resources -contribution each spouse made to marriage -time needed for party seeking support to obtain training needed for employment -payor spouse's needs **marital fault in some states is a bar but in most it is not considered**

Question 54

modification of spousal support

Answer 54

periodic spousal support can be modified if substantial change of circumstance (voluntary change of career to drop income does not count)

Question 55

termination of spousal support

Answer 55

periodic spousal suport terminates on: remarriage of supported spouse death of either spouse most states will also terminate if cohabitation in a marriage-like relationship can be proven

Question 56

are payments of alimony income?

Answer 56

no as a result of 2019 change in law. pre-2019 it was income to receiving spouse and deductible by the paying spouse

Question 57

separation agreements

Answer 57

entered into after marriage. parties agree to: - live apart -resolve economic issues like child support, custody, property division, spousal support in most states, enforceable if: -voluntary - there was a full and fair disclosure by both parties -defenses to enforcement include fraud, duress, undue influence

Question 58

is a court bound by a waiver of spousal support in a separation agreement?

Answer 58

if it is merged into the divorce decree or if provisions of it are repeated in the divorce decree, treated as part of judgment and court is able to modify it if circumstances change if the divorce decree only references it and does not incorporate or repeat the terms the contract controls and can be enforced as a contract

Question 59

is a court bound by waiver of child support or provisions about child custody in a separation agreement?

Answer 59

no, court can modify if in best interest of child

Question 60

if parties are not married but live together, how can the court divide property?

Answer 60

look to contract law and consideration other than sex (that will make it invalid) look for oral agreements or implied agreements based on conduct

Question 61

parental duty to support a child

Answer 61

parents must support their child based on their ability to pay and needs of the child

Question 62

duration of child support

Answer 62

ends when the child reaches age of majority, dies, or is emancipated OR when parental rights are terminated -in some states, if a kid is 18 and still in high school, support can be ordered to continue until high school graduation. -special needs' children child support can be indefinite.

Question 63

Uniform Interstate Family Support Act

Answer 63

law in all 50 states that allows enforcement (and sometimes modification ) of support orders issued in another state

Question 64

methods of enforcing child support orders

Answer 64

direct enforcement by mailing the order to the payor's employer registering a child support order with another state

Question 65

continuing and exclusive jurisdiction of issuing family court

Answer 65

the court that issued the support order will have sole authority to modify it, unless no party lives in that state or parties consent to another state's jurisdiction

Question 66

modification of child support

Answer 66

can be modified when there is a substantial and continuing change of circumstances

Question 67

enforcing child support orders

Answer 67

holding nonpaying party in contempt (civil or criminal) intercepting federal tax refund forfeiture of medical / law / professional license garnishment of wages seizure of real estate

Question 68

Uniform Child Custody Jurisdiction and Enforcement Act

Answer 68

promote interstate enforcement of custody orders

Question 69

court with jurisdiction to award initial order of custody- general rule & exception

Answer 69

generally the child's home state if no other state has home state jurisdiction, or will accept it, a court other than the home state jurisdiction can exercise jurisdiction if 1) the child and at least one parent have a significant connection with that state and 2) there is substantial evidence about the child available in that state

Question 70

child's home state

Answer 70

the state where the child lived with a parent for at least 6 consecutive months right before the proceeding started OR a state that was child's home state in the last 6 months where a parent or guardian continues to live

Question 71

why would a court refuse to exercise jurisdiction if it has it?

Answer 71

-it determines it is an inconvenient forum and another state is more appropriate -the party seeking jurisdiction has engaged in wrongful conduct (took child from another state and kept them there long enough)

Question 72

emergency jurisdiction

Answer 72

when a state exercises jurisdiction because it is necessary to avoid child abuse or because the child has been abandoned

Question 73

types of custody

Answer 73

legal custody- right to make major decisions affecting child's life physical custody- actual possession and control of the child joint custody- joint legal custody, joint physical custody, or both sole custody- only one parent gets custody

Question 74

standard in awarding custody or visitation rights to parents & factors

Answer 74

the best interest of the child** -parents' wishes -child's preference if over 8 (where to live and who they prefer) -child's relationship with parents, siblings, others involved w/ parents -child's adjustment to home and school life -mental and physical health of parents and child -who has been child's primary caregiver -geographic proximity of the parents

Question 75

areas where court has a lot of discretion

Answer 75

custody visitation property distribution spousal support child support

Question 76

custody to a nonparent

Answer 76

court will only do this if the parent is proven to be mentally unfit or has abused or neglected the child

Question 77

visitation

Answer 77

only an issue when sole custody is given to one parent. the parent without custody is allowed to visit the child, and denial is very rare visitation rights may be limited (order may require supervision) if visitation may put child at risk of harm

Question 78

nonparental visitation

Answer 78

most states limit to situations where parents have divorced, died, or separated but some allow it even when above situations are not the case child has a strong relationship with this third party- has to be in best interest of child! parental wishes will be given great weight if they oppose and are fit

Question 79

parental wishes on nonparent visitation

Answer 79

wishes are constitutionally protected and must be given special weight, can't override parent's wishes even if in best interest of child

Question 80

modification of custody decree

Answer 80

must be a substantial and material change in circumstance that affects the child's well-being

Question 81

remedies for violation of custody decree

Answer 81

habeas corpus petition contempt (criminal or civil)

Question 82

parentage action

Answer 82

lawsuit to establish a biological relationship between a parent and child

Question 83

presumption of parentage

Answer 83

mother's spouse is presumed the father if the child was born during a marriage or within 300 days after termination of a marriage he/she is presumed conceived during the marriage rebutted by clear and convincing evidence

Question 84

do the presumptions of parentage apply to void or voidable marriages?

Answer 84

yes

Question 85

how to establish parentage of a man who is not married to the mother of the child

Answer 85

has to show that he has exercised parental responsibility (supervision, support, care) of the child and any of the following: the man married the mother after child's birth man consents to being on the birth certificate man holds the child out as his biological child man formally acknowledged paternity or a court order finds paternity

Question 86

what is a paternity suit? who can bring a paternity suit?

Answer 86

a suit brought to seek support from a man believed to be a father the child, the mother, or the state if state provides support to the child the SOL is tolled while child is a minor

Question 87

what is the burden of proof in a paternity suit?

Answer 87

clear and convincing evidence

Question 88

ways parental rights are terminated

Answer 88

-by relinquishment by the parent & putting child up for adoption -involuntary termination

Question 89

grounds for involuntary termination of parental rights

Answer 89

-serious physical harm to child -abandonment of child -neglect of child -failure to provide support w/o justifiable cause -mental illness making parent unable to care for child -parental unfitness (conduct that harms the child physically or psychologically)

Question 90

requirements for adoption

Answer 90

-termination of biological parents' rights -consent of an unwed father is there is a father who has taken parental responsibility -consent of adoptee over 12 or 14 -home study to make sure home is suitable -approval by the court

Question 91

effect of adoption

Answer 91

biological parents rights are terminated adopted parents have parental rights and obligations child loses right to inherit from biological parents in most states. in a few states they can inherit from both biological and adopted families.

Question 92

are egg and sponor donors given parental rights?

Answer 92

no, they are not considered the parent of the child some states allow the donor to have parental rights if the parent agrees in writing with the donor

Question 93

gestational carrier agreement

Answer 93

a woman who is not intended to be a parent agrees to become pregnant using someone else's eggs and sperm must be: -in writing and approved by court -child welfare home study must be done -must be voluntary -must provide for health care costs until birth -maintain surrogate's constitutional rights to -make health care decisions -provide reasonable considerations can be terminated up until embryo transfer

Question 94

allowable provisions in premarital agreements

Answer 94

under the UPAA, adopted by majority of states: -disposition of property in case of death or divorce -spousal support provisions unless it leaves a spouse totally dependent on the state -choice of law -agreements to make a will or trust to carry out the terms of the agreement

Question 95

what law governs a premarital contract if it doesn't have a choice of law clause?

Answer 95

the law where it was executed or state w/ most significant relationship to the parties

Question 96

during marriage, can one spouse sue the other?

Answer 96

yes, most states have abolished interspousal immunity except in cases of negligence

Question 97

constitutional rights of families

Answer 97

right of privacy implicit in right to liberty and is a fundamental right right to marry right to procreate right to use contraception right to live together right to educate children in way parents choose rights of parents to decide issues concerning care, custody, and control of children

Question 98

burden of proof of void marriage

Answer 98

the most recent marriage is presumed valid, the challenger must prove the marriage is void

Question 99

who can seek to annul a void marriage?

Answer 99

any interested party

Question 100

who can seek to annul a voidable marriage?

Answer 100

only a spouse

Question 101

if a marriage is annulled, are the children still legitimate?

Answer 101

yes, they are treated as marital children and child support and custody issues are handled as in divorce actions

Question 102

defenses to void marriage

Answer 102

impediment does not exist marriage has been validated after impediment has been removed (some states)

Question 103

if one spouse thinks the marriage is not irretrievably broken or thinks parties are still compatible, what is the effect on the divorce proceeding?

Answer 103

it is a defense to divorce, but in most states the spouse won't prevail if the other is unwilling to remain married

Question 104

are the defenses to fault divorce still viable?

Answer 104

most states have abolished connivance or recrimination. even in states where recrimination is allowed, courts try to avoid finding it proven

Question 105

does a legal separation have any impact on inheritance or other death benefits like life insurance or pensions?

Answer 105

the default rule is no. court order would have to explicitly decide the issue or the will, pension, or policy would have to be modified to remove spouse's rights.

Question 106

end of marriage date for property distribution purposes

Answer 106

most states say date of divorce decree. anything acquired before that will be MP some states say date of separation.

Question 107

factors in division of property

Answer 107

court has great discretion marital fault is generally not a factor factors considered: -age, education, and earning capability of each spouse -length of marriage -standard of living in marriage -present incomes of each spouse -skills of each spouse and employability -assets, debts, liabilities -parties' needs -contribution as a homemaker -economic fault (gambling or taking money away from marital estate to pay for affairs or drugs and alcohol) -child custody provisions

Question 108

when is spousal support modifiable?

Answer 108

upon proof of a substantial change of circumstances (death, remarriage if it was unanticipated at time of divorce)

Question 109

can visitation be withheld if child support is not paid?

Answer 109

No. the obligation of support is independent from visitation rights.

Question 110

when is a child emancipated?

Answer 110

when a child applies for it or is married under age

Question 111

uniform interstate family support act

Answer 111

-adopted by all 50 states -governs enforcement and modification of support orders from other states

Question 112

are child support orders entitled to full faith and credit?

Answer 112

yes, under Full Faith and Credit for Child Support Orders Act if: 1) the issuing court had jurisdiction over the parties 2) the parties had reasonable notice and opportunity to be heard

Question 113

can a child support order be modified by a court other than the one that issued the child support order?

Answer 113

no, unless the parties consent to its jurisdiction or no party resides in the issuing state anymore

Question 114

can a child custody decree be modified by a court other than the issuing court?

Answer 114

no, unless the child and parent or guardian no longer live in the issuing state AND the child has no significant connection with the issuing state anymore AND there is no substantial evidence about the matter available in the issuing state

Question 115

is a child subject to a custody decree able to relocate (change primary residence)?

Answer 115

only after a court hearing finding it is in the best interest of the child

Question 116

surrogates- issue of who the mother is, UPA and default rules

Answer 116

if the state has not adopted the UPA, the father and mother would have to be determined by a parentage action, adoption, or a gestational agreement (which is allowed in most states) under the UPA: -the mother is the person who gave birth, or another person who is determined to be the mother by parentage action or adoption. -but note that the UPA does allow people who contribute the eggs and sperm is a parent if they do so with intent to be a parent -the father is the husband of a woman who has a child through assisted conception, unless he proves lack of consent within 2 years

Question 117

registering a child support order

Answer 117

the issuing state sends its judgment to the paying spouse's state of residence and the state of residence registers and enforces the issuing state's order as a foreign judgment

Question 118

parental kidnapping prevention act

Answer 118

federal law that requires that custody orders from one state be given full faith and credit and enforced by another state even if the issuing state continues to have and does not decline jurisdiction. provides remedies in case child is taken across state lines by non custodial parent. there is continuing jurisdiction unless: -neither the child or any parent or guardian lives in the state anymore -the child no longer has a significant connection with the state

Question 119

if a spouse without custody or that has joint custody takes the couple's child to another state, what is the other spouse's remedy?

Answer 119

to file a petition in the state where the child was taken and have the original enforced under the Parental Kidnapping Protection Act, or file a certified copy with the state where the child is under the UCCJEA

Question 120

important thing to mention in spousal support essays

Answer 120

court has wide discretion purpose is to ensure continued support, not to punish

Question 121

habeas proceedings (family law)

Answer 121

a claim by someone who is not in possession of the child but claims to have a legal right to custody in many states the court only considers the validity of the order granting custody and whether the claimaint is entitled to custody