Family Law

Question 1

What are the two requirements for a traditional path to marriage?

Answer 1

1. getting a marraige license
2. having a wedding ceremony

Question 2

When ight a state refuse to issue a marriage license?

Answer 2

1. the fiancess are too closely related
2. one party is already married
3. one party is underage
4. one party is incapable of consent - e.g., drunk, suffering from extreme dementia, or under duress

Question 3

What is required for a marriage ceremnoy?

Answer 3

someone authorized by law to perform the ceremony
many states require witnesses as well
some allow for a proxy to stand in for one party who can’t attend the ceremony.

Question 4

What are the four common requierments for common-law marriage?

Answer 4

1. Capacity
2. Consent
3. Cohabitation - lived together
4. Conduct - couples held themselves out as married

Also migh tlook at joint accoutns, joint debt, jointly filed taxes, having common children, etc.

Question 5

When will states not recognize a marriage performed in another state?

Answer 5

If the state has a strong public policy against recognizing the marriage.

Question 6

What are the three ways to get someone out of their marriage?

Answer 6

1. annulment
2. mediation
3. divorce

Question 7

What is an annulment?

Answer 7

A judicila decree that some impediment to the marriage existed at the time of marriage. Impediments can lead to marriage being void or voidable.

Question 8

What does it mean if a marriage is “void”?

Answer 8

The marriage wasn’t ever valid and doesn’t technically need an annulment to have a legal effect of ending the marriage.

Question 9

What does it mean if a marriage is “voidable”?

Answer 9

The marriage is valid unless and until an annulment occurs.

Question 10

When is a marriage “void”?

Answer 10

1. incest
2. bigamy – BUT presumption in most states is most recent marriage is valid.
3. lack of capacity

Question 11

When is a marriage voidable?

Answer 11

1. Age - under 18 and no consent of parents or court
2. impotency
3. under the influence of alcohol or narcotics at marriage
4. sham marriages
5. fraud, duress, force (BUT most lies aren’t sufficient i.e. about morals, money, habits, or personality. some recognize pregnancy and religion)

Question 12

What happens/are the consequence of an annulment?

Answer 12

Courts generally have equitable powers to unwind annulled marriage through ane quitable division of property
Some states also authorize courts to award spousal support after an annulment.

Question 13

What is a putative marriage?

Answer 13

If one party acted in good faith without knowledge of the void/voidable character of the marriage, the innocent spouse can generally seek relief as if they were marreid.

Question 14

What is a no fault divorce?

Answer 14

Most states recognize.
Requires that marriage be irretrevably broke.
Some states require a waiting period between the couple separates and when they file for no-fault divorce. (i.e. one year)

Question 15

What are the grounds for fault based divorce?

Answer 15

Still recognized in some states.
1. adultery - often proved by circumstantial evidence of opportunity and inclination
2. cruelty - physical abuse, in some states mental
3. desertion - one spouse leaves voluntarily and intends to remain apart permanently
4. habitual drunkness
5. bigamy
6. imprisonment - must occur for some statutorily-defined period of time
7. institutionalization - confinement for statutorily-defined period of time with no reasonable prospect of discharge
8. indignity

Question 16

What are defenses to fault basis for divorce?

Answer 16

1. Recrimination and unclean hands - other party at fault
2. connivance - other party consented
3. condonation - other party already forgave
4. provocation - other party provoke or caused
5. insanity

Question 17

How is martial property divided?

Answer 17

Equitably.

Question 18

How is community property divided?

Answer 18

Tends to be split equally.

Question 19

What is a hotchpot state?

Answer 19

A state that does not recognize the difference between marital property and separate property. Courts can divide any all porperty that spouses hold at the time of divorce.

Question 20

What is considered separate property?

Answer 20

1. earned before the marriage
2. obtained during the marriage through gift or inheritence
3. obtainedd during the marriage but paid for with separate property
4. earned after the marriage ends - states differ on date used (date of divorce decree, date permanently separated, date action was field)

Question 21

What is marital property?

Answer 21

All property acquired during a marriage through a spouse’s efforts
The party arguing property is separate has burden of proof.

Question 22

What factors does a court look at when dividing MP equitably?

Answer 22

1. length of the marriage
2. prior marriages
3. age, health, earnings, earning potential, liabilityies, and needs of both spouses
4. contributions to education
5. needs for future acquistions
6. income, medical needs, retirement of both spouses
7. contributions to increaes in MP, including homemaking and child rearing services
8. value of SP
9. reductions in valuation in marital property by one spouse
10. standard of living enjoyed during the marriage.
11. economic circumstnaces of each spouse at the time of divorce
12. custody of any minor children

Question 23

What is rehabilitative spousal support?

Answer 23

Temporary. Used to help spouse get back on their feet.

Question 24

When will a court order permanent spousal support?

Answer 24

If a marriage is particularly long and the other spouse cannot realistically enter the job market.

Question 25

What factors are considered when determining spousal support?

Answer 25

- financial resources of both spouses - marital standard of living - time to find a job, get a new degree, or otherwise become more self-sufficient - length of the marriage - contributions of the marriage - age and health of the spouses - marital misconduct of either spouse

Question 26

What are reasons to lower or terminate spousal support?

Answer 26

- death - remarriage or cohabitation - retirement

Question 27

When can courts modify spousal support?

Answer 27

When there is a significant and continuing change in circumstances.

Question 28

What jurisdiction must a court have to make family law determinations?

Answer 28

Personal and subject matter jurisdiction. For subect-matter jurisdiction in most states requires the spouse filing for divorce to residen in the state for some period of time (generally six weeks to two years)

Question 29

What are the powers of a matrimonial court?

Answer 29

1. divide marital property 2. order divorce or annulment 3. issue orders regarding custody of the chidlren 4. order spousal support 5. award attorney's fees 6. enforce separation agreements 7. others, e.g., sanctions

Question 30

What can a court do in an ex parte divorce?

Answer 30

It can grant an ex parte divorce effecting marital satutus only. It cannot issue orders on property division, spousal support, child support, or child custody.

Question 31

When does child support generally end?

Answer 31

When the child reaches the age of 18 years-old.

Question 32

What are the exceptions to child support ending at 18?

Answer 32

1. If the child is still in high school full-tiem, child support can be extended until the child is 19 years old. 2. Some states extend through a college degree. 3. Can be extended indefinitely when the child's physical or mental condition renders them incapable of self-support when they are adults. 4. child dies 5. parent dies 6. child is emancipated 7. child marries 8. child commences active duty in the military 9. parent's parental rights are terminated

Question 33

What is the majority approach for for determining child support?

Answer 33

The "income shares" model. The judge: 1. adds both of the parent's incomes together; 2. consults a chart that gives the percentage of that income a child (or the children0 would have received in an intact family; and 3. divides that hcild support amount in proportion to the incomes of the parents

Question 34

What is the minority approach for determining chld support?

Answer 34

The "Percentage-of-Income" Model The judge: 1. Determines the noncustodial parent's income; and 2. consults a chart that gives the percentage of that income

Question 35

What counts as income for purposes of hcild support?

Answer 35

1. wages 2. interests and dividend 3. rental income 4. retirement benefits 5. capital gains 6. social security

Question 36

What will a court do if a parent voluntarily reducts their income?

Answer 36

If the parent is voluntarily unemployed or underemployed, the court may use their earning capabity rather than actual income to caluculate the child support award.

Question 37

When might a court reduce the child support even if a parent voluntarily takes a lower paying job?

Answer 37

If the change in job: 1. was made in good faith 2. was not made for the purpose of depriving the child or punishing the custodial parent

Question 38

What factors are relevant for deviating from the child support guidelines?

Answer 38

1. Age of the child 2. unusual needs 3. other support obligations of the parents 4. assetts of the parents 5. relative standard of living

Question 39

When will states modify child support?

Answer 39

When there is a substantial change in circumstances regarding the child's needs or the parents resources