Family Law

Question 1

A court will generally enforce separation agreements unless it is

Answer 1

unconscionable (substantially unfair) or based on fraud

Question 2

Parties must enter into separation agreements

Answer 2

voluntarily

Question 3

Effects of fault on divorce

Answer 3

In states which have fault based divorce, fault may be a factor in determining (increasing) spousal support, but is not a factor in the distribution of property

Question 4

Professional licenses or degrees are

Answer 4

not treated as distributable property interests

Question 5

Types of spousal support include

Answer 5

lump sum, permanent, limited direction, rehabilitative, or reimbursement

Question 6

Under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), a court has subject matter jurisdiction to preside over custody hearings and either enter or modify custody or visitation orders if the state is

Answer 6

(1) the child’s home state (the state in which the child has lived with a parent or guardian for at least six consecutive months immediately prior to the custody proceeding, or since birth, if the child is less than six months old); or
(2) was the child’s home state in the past six months and the child is absent from the state, but one of the parents (or guardians) continues to live in the state.

Question 7

When there is no home-state, a court may be granted jurisdiction through significant connection which is valid if

Answer 7

(1) the child and at least one parent have a significant connection with the state, and
(2) there is substantial evidence in the state concerning the child’s care, protection, training and personal relationships.

Question 8

The Supreme Court has held that a fit parent has a fundamental right to

Answer 8

the care, custody, and control of his children and state courts must give “special weight” to a fit parent’s decisions on care, custody, and control

Question 9

Equitable division of property at divorce does not

Answer 9

require 50/50 split

Question 10

Marriage requires

Answer 10

mental and legal capacity to marry (+ consent and present exchange of promises / vows)

Question 11

Valid marriage in one state will be valid in another unless

Answer 11

it violates a strong public policy of the other state

Question 12

Putative marriage protects an innocent party who

Answer 12

participated in a marriage ceremony in good faith thinking the marriage was valid but later found out about an impediment to the marriage (e.g. other party was still married to someone else)

allows for legal remedies like spousal support and property distribution

Question 13

No-fault divorce is typically granted for

Answer 13

irreconcilable differences

Question 14

Fault based divorce typically includes

Answer 14

adultery, cruelty (physical abuse), desertion

Question 15

In most states, marital property continues to accrue while

Answer 15

parties are separated and until final divorce decree is entered

Question 16

SP can be transformed into MP if marital funds or efforts are

Answer 16

used to increase value or build equity

Question 17

Taking title in one spouse’s name alone

Answer 17

is not conclusive of separate property

Question 18

While professional license / degrees are not MP

Answer 18

contributions made to educational and living expenses may be reimbursed

Question 19

Once a property division is awarded it

Answer 19

may not be modified after the fact (either based on will of the parties or change in circumstances)

Question 20

Factors considered in determining spousal support include

Answer 20

(1) Financial resources of both parties
(2) Standard of living during marriage
(3) Time for receiving spouse to find employment / finish education
(4) Length of marriage
(5) Contributions to marriage
(6) Age and health of parties
(7) Marital misconduct (only in some states)

Question 21

Types of spousal awards

Answer 21

(1) Permanent alimony (for remainder of spouse’s life)
(2) Limited duration alimony (for short marriages)
(3) Rehabilitative support (until spouse receives education or employment)
(4) Reimbursement alimony (compensation for sacrifices made during marriage)

Question 22

Modification of spousal support may be done when

Answer 22

the moving spouse establishes a significant and continuing change in circumstances warranting the modification

Note: voluntary reduction usually NOT ok, re-marriage of former spouse may terminate spousal support

Question 23

An ex part divorce allows

Answer 23

a court to grant a divorce if one spouse is domiciled in the state

applicable only to divorce decree but state does NOT have jx to address property division, spousal support, or child support unless PJ over both spouses

Question 24

Child support may not be

Answer 24

bargained away in premarital or settlement agreements (court retains jx to modify)

Question 25

Once paternity is established the father has

Answer 25

rights to custody and visitation but also duty to support child

Question 26

Uniform Interstate Family Support Act (UIFSA) governs when

Answer 26

a state has PJ over an out of state parent in an attempt to enforce child support or establish paternity Governs when: (1) personally served within state and consents to PJ (2) Resided with child in state in past, or (3) Engaged in sexual intercourse in the state and child may have been conceived by the act (BROAD)

Question 27

In determining child support courts may consider

Answer 27

(1) best interests of the child (2) age of the child (3) special needs (4) Assets of both parties (5) Standards of living during marriage

Question 28

Child support may be modified if

Answer 28

there has been a substantial change in circumstances regarding the child's needs or parents' financial situation (burden on moving party)

Question 29

Modifications to child support may not be done

Answer 29

retroactively (only modifiable prospectively) Note: "Retroactive" only as to the date of service of motion, NOT when need / desire arose

Question 30

Child support after the age of majority may be

Answer 30

subject to reasonable parental demands

Question 31

Under UIFSA, the state which issued the initial child support order has

Answer 31

continuing exclusive jurisdiction to modify the child support order exceptions: (1) parties (both parents) and child no longer reside in the state (2) parties expressly agree to permit another state to exercise jx

Question 32

States are bound to enforce other states' child support orders based on

Answer 32

full faith and credit

Question 33

3 types of custody

Answer 33

(1) Legal custody (major decisions of child) (2) Physical custody (routine daily care and control) (3) Joint custody (2 parents share equal right)

Question 34

Best interests of the child standard

Answer 34

(1) Primary-caretaker (2) Child's preference (if sufficiently mature and consider reasoning) (3) Race or religion (CANNOT be used - unless detrimental to the child) (4) Third party rights

Question 35

Third party rights (e.g. step-parents, grandparents) may

Answer 35

be granted custody as de facto parent / parent by estoppel if legal parent is unfit or would be detrimental or child has lived with that third party for an extended period of time

Question 36

A court may only deny a parent visitation if

Answer 36

it would seriously endanger the child's physical, mental, or emotional health CANNOT be denied on the bases of failure to pay child support

Question 37

Third party visitation of child is limited to instances of

Answer 37

loco parentis (having acted as quasi-parent) prior to divorce

Question 38

Modification of a custody order requires the moving parent to show

Answer 38

substantial change in circumstances

Question 39

Relocation of a custodial parent with a minor child may be done for

Answer 39

a legitimate and reasonable purpose consider: (1) best interests of child (2) relationship between non-relocating parent and child (3) age and needs of child (4) child's preference (5) quality of life of relocating parent and child

Question 40

A pre-marital agreement is enforceable if

Answer 40

(1) there has been full disclosure (2) the agreement is fair and reasonable, and (3) it was voluntarily entered into

Question 41

To argue unenforceable pre-marital agreement, must show

Answer 41

(1) involuntariness (fraud, duress, coercion) OR (2) Unconscionability when executed AND lack of reasonable knowledge or disclosure

Question 42

Fair and reasonable pre-marital agreement means

Answer 42

(1) Procedural fairness and (2) substantive fairness (generally at time of execution of contract, minority also consider at time of enforcement)

Question 43

Separation agreements are

Answer 43

agreements in preparation for divorce and define property division, spousal support, child support, custody and visitation Generally merge into final judgement for divorce Note: Terms relating to children are ALWAYS modifiable by court if necessary and in best interests of the child

Question 44

For conflict of laws concerning marital agreements, apply either

Answer 44

(1) State in which agreement was executed, or (2) State with most significant relationship

Question 45

Putative father registry allows

Answer 45

unwed fathers to register themselves as father of a child If registered, father will receive notice and hearing before rights are terminated

Question 46

Adoptive children have

Answer 46

all the rights and responsibilities that biological children would have had (and same for adoptive parents)

Question 47

The common law doctrine of nonintervention disallows

Answer 47

judicial intervention in an intact family Note: has been relied upon to deny spousal support petition when couple is living together

Question 48

A fit parent has a fundamental right to

Answer 48

the care, custody, and control of his children Note: not absolute, may be impacted by state statutes if social harm exists (think vaccinations in schools)

Question 49

The U.S. Supreme Court has held that the right of an unwed father to object to an adoption cannot be denied if

Answer 49

the father has demonstrated that he is committed to fulfilling the responsibilities of parenthood Note: May conflict with putative husband / adoption registries in states which may serve to waive right to notice of adoption and thus implies consent to adoption

Question 50

If a natural parent has had little or no contact with a child, or if the child has lived with the third party for an extended period of time, then courts have

Answer 50

employed the terms “parent by estoppel” and “de facto parent” to get around the presumption that legal parents are entitled to the custody of their children in cases against third parties

Question 51

The state may intervene and terminate parental rights when it is

Answer 51

in the best interests of the child (Grounds for termination include failure to support)

Question 52

Under the theory of parens patriae, a court can intervene to protect a child when

Answer 52

medical treatment contradicts religious beliefs and such treatment is required to prevent serious harm to the child’s health Note: In those situations, a child can be declared neglected and the medical treatment ordered

Question 53

In determining distribution of assets under equitable distribution, courts consider a number of factors including

Answer 53

the length of the marriage, contributions to the marital estate, and custodianship of children

Question 54

A valid marriage, including common-law marriage, can be terminated only by

Answer 54

annulment, divorce, or death

Question 55

While property distribution is generally unaffected by adultery in divorce, it may be relevant if

Answer 55

the adulterer used MP for sole benefit such as expensive gifts for the mistress Will thus be taken into consideration by court