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2024 DC Bar Exam - UBE > FAMILY LAW > Flashcards

FAMILY LAW Flashcards

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1
Q

What is required for a statutory law marriage?

A

1) Capacity
- At least 18 years of age
- Comprehend activities (no drugs/alcohol)
- Voluntary (no fraud/duress/coercion/force)

2) Licence
- Physician certificate (free from communable disease) (some states)
- Waiting period of 72 hours (many states)

3) Solemnization (Ceremony)

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2
Q

What remedies are available for breach of promise to marry?

A

(Most states have abolished such remedies)

Actual damages
Loss reputation
Mental anguish
Health damage
Punitive damages
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3
Q

What is required for a common law marriage?

A

(Most states have abolished)

1) Capacity
2) ‘Present’ agreement to be married
3) Cohabitation
4) Holding out publicly (living together as spouses)

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4
Q

Premarital Agreement

A

An agreement made in contemplation of marriage that alters or confirms the rights and obligations that would otherwise arise under applicable law.

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5
Q

What is required for a pre-marital agreement?

A

Uniform Premarital Agreement Act (UPAA) + Most courts

1) Capacity (NO unconscionability - full exertion of influence)
2) In writing + Signed (not waived)
3) Full fair disclosure of spouses’ financial worth
4) Fair + reasonable provisions
5) Independent counsel (not necessary but less chance of overturning)

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6
Q

Is a void pre-marital agreement still enforceable?

A

To extent necessary to avoid inequitable result

- E.g. Child custody provisions

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7
Q

What rights do spouses have in pre-marital agreements?

A

Uniform Premarital Agreement Act (UPAA) + Most states

  • Property
  • Sell/Lease/Assign
  • Spousal support
  • Will/Trust
  • Choice of law
  • NOT child custody (judicial reform/public policy/courts to decide based on child’s best interests)
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8
Q

What property rights do spouses have?

A

Right of survivorship (presumed joint tenancy)

  • No unilateral sales
  • No unilateral encumbrances

Equitable distribution of marital property after marriage

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9
Q

What type of support must spouses give to each other and third parties?

A

Equal obligations

Liability to TPs for other spouse’s authorised purchases (agency law)

Liability to TPs for necessaries (food, clothing)

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10
Q

Do spouses have constitutional privacy?

A

Due Process Clause

  • Marriage
  • Procreation
  • Contraceptions
  • Abortion
  • Homosexuals cohabitation
  • Children care/custody

Unless regulation meets strict scrutiny standard

1) Necessary
2) Meets compelling government interest

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11
Q

When may spouses assert spousal privilege?

A

Spousal immunity

  • Criminal cases (Not crimes vs spouses)
  • Witness spouse

Confidential communications

  • Regarding marriage
  • Made during marriage
  • Criminal + civil cases
  • Defendant/Witness spouse
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12
Q

When may spouses sue TPs for tortious interference with marriages?

A 
TP alienation (deprives marriage)
- Abolished in most states

TP sexual relations

  • TP lives separately from spouse
  • Abolished in most states

Negligent spouses causes loss of consortium
- Allowed in most states

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13
Q

How may community property be divided?

A

Marital property
- Equal distribution

Separate property

  • Gifts to directed spouses
  • Bequests to directed spouses
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14
Q

What is the procedure for equitable division of all property?

A

Equitable division (fair, but not necessarily equal)

- Property acquired before/during/after marriage

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15
Q

What type of marital property may be equitably divided?

A

Uniform Probate Code (Most common approach)

Acquired during marriage

Businesses operated + owned by spouses

Spouses’ active appreciations that increase value

  • Increased value => Supporting spouse
  • Original value => Original spouse

Support to spouses (even if not actively involved)

Pensions earned during marriage

Compensating contributions for education/training to acquire professional licence/degree

Personal injury damages (between marriage and separation)

Stock options acquired during marriage

Mixed property

  • Separate property no longer traceable
  • Evidential intention as marital property (named in both spouses’ names)
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16
Q

What type of separate property may be equally divided?

A

Acquired before marriage

Acquired during marriage

  • Gifts
  • Bequests
  • Descent
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17
Q

Transmutation

A

A voluntary change in the character of property by one or both spouses, either from separate property to marital/community property or vice-versa.

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18
Q

What factors may determine equitable division?

A

Age/Education/Background

Financial capacity

Marriage standard/duration

Present incomes

Financial sources

Health

Assets/Debts

Needs

Child custody provisions

Alimony

Contributions

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19
Q

Are property decrees modifiable?

A

No

Property awards

  • Determines past division at time of divorce
  • Ascertained division

Support awards

  • Determines future support
  • Unascertained division
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20
Q

Is jurisdiction required for enforcing property awards?

A

Yes

- To adjudicate on the merits only

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21
Q

What is required for a void marriage?

A

Impediment at time of marriage

  • Bigamy (another living spouse unless other spouse unaware of bigamy + reasonably believed marriage was valid - ‘Doctrine of putative spouse’)
  • Incest/Consanginuity (most states)
  • Underage (some states)
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22
Q

Annulment

A

A legal action declaring a marriage invalid because of an impediment at the time of the marriage.

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23
Q

What are the consequences of a void marriage?

A

Nullity (no court order required)

Any interested party may seek annulment

Subject to collateral/parties’ attack after death

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24
Q

What defenses are available against void marriages?

A

Uniform Marriage and Divorce Act (UMDA)

1) Remove impediment
2) Parties continue to co-habit

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25
What is required for a voidable marriage?
Impediment at time of marriage - Inability to have normal sexual relations - Lack of capacity (drugs/alcohol/duress/fraud/no mutual assent) - Underage (most states)
26
What are the consequences of a voidable marriage?
Valid until declaration of annulment Spouse may seek annulment
27
What defenses are available against voidable marriages?
Uniform Marriage and Divorce Act (UMDA) 1) Remove impediment 2) Parties continue to co-habit Ratification Laches Estoppel Spouse's death
28
What is a legal separation order?
Prevents termination of marriage Adjudicate spouses' rights - Alimony/Custody/Support/Property
29
Divorce
A court judgment that legally ends a marriage.
30
What grounds are required for a divorce?
No fault grounds 1) Irretrievably broken down (at least one spouse believes) 2) Separated for specified period Fault grounds - Adultery - Impotence - Incarceration - Mental illness - Addiction - Cruelty (Physical Abuse) - Abandonment (Desertion) - NOT collusion/connivance/condonation/recrimination
31
What is required for state to have jurisdiction (satisfaction of full faith and credit) over divorces?
1) Spouse domiciled in rendering state (SMJ) - 90 days for most states 2) PJ over Defendant
32
What are the consequences of a state having jurisdiction over divorces?
NO PJ => Divorce decree valid in all states PJ => Satisfaction of full faith and credit => Determines property/alimony/child support provisions (not child custody) - NO fraud/unconscionability
33
What type of divorce orders can be made?
Final Interlocutory (not final until after specified period) - No remarriage allowed - Co-inheritance allowed
34
How can spouses mediate divorce orders?
Parties' decisions (mediator's decision not binding) Independent counsel Impartial mediator Informed decision-making
35
What is a separation agreement?
Prevents termination of marriage Agreement to live separately Resolve economic issues - Enforce property/alimony provisions - Enforce child support/custody provisions (in child's best interests)
36
What is required for a separation agreement?
1) Capacity 2) Full and fair disclosure of spouses' financial worth 3) Consideration (mutual promises) 4) Independent counsel representation
37
What is the difference between a separation agreement and a divorce?
Separation agreement - Enforceable as 'contract' Divorce - Enforceable as court judgment - Can merge divorce + separation agreement
38
When may alimony be granted?
During divorce proceeding As part of divorce decree ``` During marriage (if annulled/divorced) - Otherwise courts disinclined to interfere with spouses' affairs ```
39
What factors may determine amount of alimony?
Duration/Standard of marriage Age/Conditions Financial resources Contributions Time for necessary training Payor's ability to meet recipient's needs Marital fault
40
Why do courts have wide discretion to determine alimony?
Ensure adequate income stream to recipient economically dependent on marriage
41
Can alimony be waived?
No - Contrary to public policy - Not leave spouse dependent on state
42
What type of spousal support is available?
Permanent periodic spousal support - Regular + permanent - For spouse with no self-sustaining resources at all Rehabilitative spousal support - Regular + temporary - For spouse with no self-supporting skill/education until sufficient Reimbursement spousal support - Fixed - For spouse's compensation for licence/degree Lump sum payment - Fixed - Single/Instalments
43
How may alimony be modified?
Unanticipated + substantial change in circumstances - Recipient's needs - Payor's ability to pay - Legal obligation to new spouse NOT stepchildren NOT intent to remarry NOT self-induced reduction to income
44
How may alimony be terminated?
Spouse's death Recipient's marriage Recipient's cohabitating relationship
45
Uniform Interstate Family Support Act (UIFSA)
The statute, adopted in some form by all states, that prevents parents from avoiding court-ordered child support by moving across state lines
46
How may alimony be enforced by law?
Uniform Interstate Family Support Act (UIFSA) Income withholding order - Mail to payor's out-of-state employer - Mail to payor's out-of-state support enforcement agency Registration support order 1) Mail order to payor's state 2) Payor's state files order as foreign judgment 3) Subject to enforcement proceedings
47
How may alimony be enforced by sanctions?
Hold non-payer in court contempt File judgment against non-payer Seize real property Wages attachment/withholding Attorneys' fees Intercept tax returns Not renew driver's licence
48
Which states may modify alimony awards?
Uniform Interstate Family Support Act (UIFSA) Issuing state - Generally has continuing + exclusive jurisdiction Sister state - Child + Parents no longer reside in issuing state - ALL parties consent to sister state's modification
49
Best interest of the child
A standard for the determination of custody that includes the child’s short- and long-term interests.
50
How are parents' duties to support children distributed?
Equal duties
51
What factors may determine amount of child support?
Child's monetary need Obligor's ability to pay No. children Ages Special needs Parents' income NOT visitation rights (non-custodial parents)
52
How may child support be modified?
Substantial change in circumstances (child's needs/parent's ability to pay) - Changes in employment - Child's growth - Inflation - Retirement - Income (NOT self-induced reduction) - Disability/Illness
53
How may child support be terminated?
Emancipation Child's marriage Termination of parent's rights (lack of paternity) Obligor's death
54
How may child support be enforced by law?
Uniform Interstate Family Support Act (UIFSA) Income withholding order - Mail to payor's out-of-state employer - Mail to payor's out-of-state support enforcement agency Registration support order 1) Mail order to payor's state 2) Payor's state files order as foreign judgment 3) Subject to enforcement proceedings
55
How may child support be enforced by sanctions?
Hold non-payer in court contempt File judgment against non-payer Seize real property Wages attachment/withholding Attorneys' fees Intercept tax returns Not renew driver's licence
56
Which states may modify child support awards?
Uniform Interstate Family Support Act (UIFSA) Issuing state - Generally has continuing + exclusive jurisdiction Sister state - Child + Parents no longer reside in issuing state - ALL parties consent to sister state's modification
57
Physical custody
The right to live with a child.
58
Legal custody
The right to make decisions about a child’s welfare on matters including medical care, schooling, religion, and finances.
59
Joint custody
A situation where the child lives with each parent for significant lengths of time or where both parents have equal rights in making decisions on the child’s behalf.
60
What is required for state to enforce child custody orders?
Home state jurisdiction - Child domiciled in state (at least 6 consecutive months before proceedings) - Child domiciled in state during last 6 months + Parent/Guardian domiciled in state NO home state jurisdiction 1) NO other state accepts home state jurisdiction/State has jurisdiction + petition already filed in State 2) Child + Parent have significant connection with State 3) Available substantial evidence re child care in State
61
What methods of enforcement are available for states?
Single state - Contempt proceedings - State habeas corpus proceedings - Suits in equity - Uniform Child Custody & Jurisdiction Enforcement Act (UCCJEA) (avoid jurisdictional disputes/promote interstate cooperation/facilitate interstate enforcement) Sister state - Federal Parental Kidnapping Prevent Act (PKPA) (avoid jurisdictional disputes/discourage 'forum shopping' by parents dissatisfied with existing custody order pursuant to child’s home state)
62
When may jurisdiction be denied to a state for enforcement?
Inconvenient forum + more appropriate forums available Unjustifiable conduct (wrongfully taking child from state)
63
What is required for modifying child custody orders?
Burden of proof => Applicant 1) Elapsed time/Endangered child (emotionally/physically/mentally) 2) Substantial/Material change in circumstances
64
How may court grant single child custody?
Child's best interests (court must provide substantial assistance in reaching interests => Then appoint counsel/guardian) - Child's wishes (at least 12 years of age) - Parents' wishes - Child's relationship with parents - Child's adjustment to home/school/community - Child's physical/mental health - Gender (Tender Years doctrine - Grants mother custody unless gender bias found/unfit mother) - NOT adultery/financial ability Primary caregiver (two qualified parents)
65
How may court grant joint child custody?
``` Parents' fitness Parents' agreement Communication with child Child's wishes (at least 12 years of age) Parents' involvement Geographical proximity Similarity of homes Effect on child's psychological development Child's physical capacity ```
66
How may court grant TP child custody?
Unfit parent Full abandonment Physical incapacity (NOT depression)
67
How may court grant visitation rights?
Child's best interests (court must provide substantial assistance in reaching interests => Then appoint counsel/guardian) - Child's wishes (at least 12 years of age) - Parents' wishes - Child's relationship with parents - Child's adjustment to home/school/community - Child's physical/mental health - Gender (Tender Years doctrine - Grants mother custody unless gender bias found/unfit mother) - NOT adultery/financial ability
68
Who may exercise visitation rights?
Biological parent (fit) (SDP rights) TP (stepparent) - TP child custody
69
How may court limit visitation rights?
Injury to child (rare absolute denial) Removal of child from state (motivated by benefit to parent) In child's best interests + TP-child relationship
70
How may unmarried cohabitants have contract rights?
Express contracts - Earnings - Property rights NOT implied contracts/sexual relations
71
How may unmarried cohabitants have property rights?
Express contracts Equitable distribution - Constructive/Resulting trust - Quantum in meruit
72
How can non-marital children presume legitimacy from their fathers?
Father married mother after birth Father holds out as biological child Father consents to birth certificate name Paternity acknowledgement (by Father/court) (clear + convincing/preponderance of evidence - some states) - Medical testing - Blood testing - Paternity statements
73
What rights does a non-marital father have if he acknowledges paternity?
Child custody/visitation rights Child support duty (full commitment to parenthood) - Acknowledgment of paternity - No acknowledgement of paternity (Knowledge of non-paternity + opportunity to litigate at time of divorce)
74
What rights do illegitimate children have?
No discrimination between legitimate + illegitimate children No father inheritance preclusion No discriminatory statute of limitations Same rights as legitimate children Government benefits
75
What rights do non-marital parents have for child's death?
Mother/Father - Recovery in tort (negligence/intentional) - Bring action for Child's loss of consortium Father (legally recognised) - Full commitment to parenthood - Daily supervision - Education/Care/Protection - Birth expenses - Paternity acknowledgment
76
When are intra family immunities applied?
Parent-Child tort actions - NOT intentional torts (Parent/Child can sue Parent/Child) - NOT automobile accidents (personal injury) (Parent/Child can sue Parent/Child) NOT Spouse-Spouse tort actions - Spouse can sue Spouse
77
When may court intervene parental autonomy?
Children in need of supervision - Habitual truancy/Escaping home - Counselling/Social worker supervision/State agency adoption Termination of parental rights 1) Due process (Right to counsel) 2) Clear + convincing evidence (harm/abandonment/sexual abuse/neglect/mental illness/unfit parent)
78
What is required for adoption?
1) Natural parents' consent - Unless waiver/withdrawal before adoption decree entered (in child's best interests) (notice + hearing for Adopting parent) 2) Child's consent (at least 12 years of age) 3) Father's consent - Married - NO veto (depends on father's level of involvement re care/regular visits/admit paternity/child support) 4) Investigation + Court consent (most states) 5) Medical costs to natural parents (most states)
79
What is required for jurisdiction to enforce adoption orders?
UCCJEA Home state jurisdiction - Child domiciled in state (at least 6 consecutive months before proceedings) - Child domiciled in state during last 6 months + Parent/Guardian domiciled in state NO home state jurisdiction 1) NO other state accepts home state jurisdiction/State has jurisdiction + petition already filed in State 2) Child + Parent have significant connection with State 3) Available substantial evidence re child care in State Uniform Adoption Act (UAA) - Child + Parent domiciled in state (6 months before proceedings) - Adopting Parent domiciled in state (6 months before proceedings) + Substantial evidence re child care - Adopting Agency domiciled in state + Substantial evidence re child care + Parent and Child's significant connections with state - Adopting Parent and Child physically present + Child was abused/neglected/abandoned - NO other child accepting/declining jurisdiction + In child's best interests
80
What is required for assisted reproduction/in vitro fertilisation?
Uniform Parentage Act (UPA) 1) Parent intended to act as parent 2) Parent provides gamete/consent => Sperm mixed with frozen embryo - UNLESS Parent died + NO written consent before Child's birth
81
What is required for surrogacy agreements?
Genetic surrogacy - Surrogate uses own gamete - Additional safeguards ``` Gestational surrogacy (UPA + most states) - Surrogate uses other gamete ```

2024 DC Bar Exam - UBE (8 decks)

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