Family Law

Question 1

Requirements to issue a marriage license

Answer 1

Age Restrictions: All states impose a minimum age restriction on marriage, but most states allow persons under the age of 18 to marry with parental consent or judicial approval.
Waiting period: A state may impose a waiting period between the date of the license application and the date of issuance or the marriage ceremony.
Medical Testing: A state can mandate premarital medical testing but cannot condition the issuance of a license on the results.
License expiration: Most states impose an expiration date on a marriage license.

Question 2

Marital Property

Answer 2

In most states, only property acquired during the marriage is considered marital property and subject to equitable distribution.

But some states follow the “hotchpot” approach, which subjects all property to equitable distribution.

Question 3

Separate Property (Nonmarital property)

Answer 3

CAGEE
- Property that a party Conveyed for value in good faith before the final separation
- Any Award or settlement payment received for a claim that accrued before the marriage, regardless of when the payment was received
- Property acquired by Gift or inheritance (except for gifts between spouses)
- Property Excluded by the parties’ valid agreement
- Property Encumbered (e.g., mortgaged) in good faith for value before the final separation

Question 4

Factors considered when distributing marital property

Answer 4

• Length of the marriage y Prior marriages
• Age, health, earnings, earning potential, liabilities, and needs of both spouses
• Contributions to education
• Needs for future acquisitions
• Income, medical needs, retirement of both spouses
• Standard of living
• Contributions to increases in marital property, including homemaking and child-rearing services
• Value of separate property
• Reduction in valuation of marital property by one spouse
• Economic circumstances of each spouse at the time of divorce
• Custodianship of any minor children

Question 5

Is Personal Injury recovery or workers’ compensation benefits considered marital property?

Answer 5

Marital-Property approach = yes, if the cause of action accrued during the marriage

Allocation approach:
- Pain, suffering, or disability = No
- Loss of consortium = No
- Lost wages, loss of earning capacity, medical expenses = Yes, if attributable to time during the marriage

Question 6

What is spousal maintenance?

Answer 6

One spouse’s obligation to provide the other spouse with support in the form of income. It is awarded if the recipient cannot provide for the recipient’s own needs. Alimony can be required for a definite or indefinite period of time, and the obligation to pay it cannot be discharged in bankruptcy.

Question 7

Factors used to determine an award of spousal maintenance

Answer 7

• Financial resources of the spouse seeking support (e.g., property to be awarded in the divorce)
• Each spouse’s earning potential and the other spouse’s ability to pay support
• Spouses’ standard of living during the marriage
• Time necessary to find employment or complete any education or training necessary for a job
• Length of the marriage
• Contributions to the marriage (particularly those that enhanced the other spouse’s earning potential)
• Age
• Physical and mental health of each spouse
• Marital misconduct

Question 8

Lump sum spousal maintenance

Answer 8

A fixed amount that cannot be modified in the absence of fraud.

Question 9

Permanent spousal maintenance

Answer 9

An award for the remainder of the dependent spouse’s life (unless certain circumstances occur) that is typically awarded after a long marriage (15 years or more).

Question 10

Limited duration spousal maintenance

Answer 10

Typically awarded when the marriage was of short duration, but there is still an economic need for support.

Question 11

Rehabilitative spousal maintenance

Answer 11

Awarded for a limited period of time to enhance and improve the earning capacity of the economically dependent spouse (e.g., until the spouse receives education or employment).

Question 12

Reimbursement spousal maintenance

Answer 12

Awarded to compensate a spouse for financial sacrifices made during the marriage that resulted in a reduced standard of living to secure an enhanced standard of living in the future (rarely granted).

Question 13

Palimony

Answer 13

Support provided by one unmarried cohabitant to another after the dissolution of a stable, long-term relationship (available in only a few states).

Question 14

Can Spousal Support be Modified?

Answer 14

Spousal support may be modified, even when it is deemed permanent. The party seeking modification typically has the burden of establishing a significant and continuing change in circumstances regarding the needs of the dependent spouse or the financial abilities of the obligor that warrant the modification.

Question 15

When can support be terminated?

Answer 15

• The death of a spouse terminates support.
• If the receiving spouse remarries, support may be terminated.
• If the receiving spouse cohabits with someone who is not family, then spousal support may be modified if the receiving spouse’s need for the support decreases as a result of the cohabitation; however, this is not automatic. Additionally, alimony pendente lite (i.e., alimony paid during the pendency of divorce proceedings) may not be terminated due to cohabitation.
• The effect of retirement depends on the jurisdiction.

A willful or voluntary reduction in income will not result in a reduction of child-support payments.

Question 16

Divisible Divorce Doctrine

Answer 16

A nonresident defendant/respondent may attack an ex parte divorce for lack of jurisdiction by demonstrating that the plaintiff/petitioner

(1) was not domiciled in the divorcing state at the time the judgment was granted or
(2) left the state’s domicile immediately thereafter.

Question 17

Evidence that establishes paternity

Answer 17

• Blood tests ordered by the court
• Prior statements regarding paternity by deceased family members
• Medical testimony on the probability or improbability of conception
• The father’s acknowledgement of paternity

Question 18

When may a husband who is not the biological father of his wife’s child be estopped from denying his obligation to pay child support?

Answer 18

• The husband represented that he would provide for the child
• The wife relied on his representation and
• The wife suffered an economic detriment as a result of the reliance.

Question 19

How do courts get Personal Jurisdiction over an Out-Of-State Parent

And grounds for obtaining PJ

Answer 19

A court obtains personal jurisdiction over an out-of-state parent pursuant to a long-arm provision in the Uniform Interstate Family Support Act (UIFSA), which has been adopted in every state.

Grounds for obtaining personal jurisdiction over a parent include (mnemonic: PC × 4):
* Personal service on the parent
* Consent of the parent
* Past residency with the child in the state
* The parent Causes the child’s residency in the state
* The parent previously resided in the state and provided Prenatal expenses or child support
* The child may have been Conceived in the state
* The parent asserted parentage in the state’s Putative father registry
* Any other Constitutional basis for personal jurisdiction

Question 20

Income-shares model for calculating child support

Answer 20

Children receive the same proportion of parental income they would have received if the parties continued to live together

Majority rule

Question 21

Percentage-of-income model for calculating child support

Answer 21

The number of children supported determines the percentage of the supporting parent’s net income owed as child support

Question 22

Melson Formula for calculating child support

Answer 22

Modifies the income-shares model by allowing supporting parents to retain sufficient income to meet their own basic needs

Question 23

Evidence of non-paternity/disestablishing paternity

Answer 23

Traditionally, courts have been loath to modify an established parent-child relationship, citing the child’s best interest as reason to deny admission of evidence of non-paternity or to deny a motion to disestablish paternity.

Question 24

Uniform Child Custody Jurisdiction and Enforcement Act

Answer 24

The purpose of this act (the UCCJEA) is to prevent jurisdictional disputes with courts in other states on matters of child custody and visitation.

Question 25

Home-State Jurisdiction

Answer 25

A court has subject matter jurisdiction to preside over custody hearings and to enter or modify custody or visitation orders if the state (1) is the child’s home state 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) still lives there. The child’s home state is the state in which the child has lived (1) with a parent or guardian for at least six consecutive months immediately prior to the custody proceeding or (2) since birth, if the child is less than six months old.

Question 26

Significant-Connection Jurisdiction

Answer 26

A court can enter or modify an order if: y No other state has or accepts home-state jurisdiction y The child and at least one parent have a significant connection with the state and y There is substantial evidence in the state about the child’s care, protection, training, and personal relationships.

Question 27

Default Jurisdiction

Answer 27

If no state has jurisdiction through home-state or significant-connection jurisdiction, then a court in a state with appropriate connections to the child has jurisdiction.

Question 28

Exclusive Continuing Jurisdiction

Answer 28

A court that makes an initial ruling has exclusive jurisdiction over the matter until the parties no longer reside in the state or the child no longer has a significant connection to the state.

Question 29

When can a court that has initial jurisdiction or exclusive continuing jurisdiction decline to hear the case?

Answer 29

If it is inconvenient. The court considers the following factors: * Whether domestic violence has occurred and is likely to continue in the future, and which state could best protect the parties and the child * The length of time the child has resided outside of the jurisdiction * The distance between the competing jurisdictions * The parties’ relative financial circumstances * Any agreement of the parties * The nature and location of the evidence relevant to the pending litigation * The ability of each state’s court to decide the issue expeditiously and the procedures necessary to present the evidence and * The familiarity of each state’s court with the facts and issues.

Question 30

Temporary Emergency Jurisdiction

Answer 30

A court may exercise temporary emergency jurisdiction when a child is in danger and requires immediate protection. If there is no prior custody order, an emergency order remains in effect until a decision by the child’s home state.

Question 31

Enforcing Another State's Order

Answer 31

* Registration of another state’s custody order need not be accompanied by an enforcement request. * For the expedited enforcement of a child-custody determination, a hearing is held on the first possible judicial day after service of the order. * A warrant for child custody may be issued if the child is likely to suffer serious physical injury or be removed from the state.

Question 32

Uniform Deployed Parents Custody and Visitation Act

Answer 32

This act applies specifically to parents who are in the military. The act provides that when imminent deployment is not an issue, the court cannot use a parent’s deployment as a negative factor in determining the best interests of the child. This act also sets out procedures for temporary custody and out-of-court custody, and it prohibits entry of permanent-custody orders before or during deployment unless the military parent consents.

Question 33

Best-Interest-of-the-Child Standard

Answer 33

Courts determine child custody matters by assessing the “best interests and welfare of the child.” Relevant factors include: Preference of child of sufficient maturity Sibling placement Domestic violence In deciding custody between parents, courts will consider who the primary caretaker was during the marriage, during separation, and prior to the divorce. In deciding custody between parents and third parties, parents are presumptively entitled to custody of their children except when (1) the legal parent is unfit or (2) parental custody would be detrimental to the child. | Race, Religion, and parents' sexual conduct will not be considered

Question 34

Visitation Rights for Stepparents/Nonbiological coparent

Answer 34

Typically limited to individuals who acted *in loco parentis* with the child prior to the divorce

Question 35

Grandparent Visitation Rights

Answer 35

Subject to the special weight given to a fit parent’s decision

Question 36

Visitation Rights of Unwed biological father

Answer 36

Fundamental constitutional right to have contact with his child if he demonstrates a commitment to the responsibilities of parenthood

Question 37

Dissipation of marital property

Answer 37

occurs when one spouse uses marital property for his sole benefit after the marriage has irreconcilably broken down, such as the purchase of expensive gifts for a paramour.

Question 38

Will a court enforce a separation agreement?

Answer 38

The court will generally enforce separation agreements unless it is unconscionable or based on fraud. As in any contract, the parties must enter into a separation agreement voluntarily. Courts consider factors such as time-pressure, the parties’ previous business experience, and the opportunity to be represented by independent counsel.