Family Law

Question 1

Tor F? States can impose a statute of limitations on paternity suits if a reasonable opportunity is offered and it is substantially related to a government interest.

Answer 1

True

Question 2

T or F? Physical resemblance between the child and purported father will not be enough to establish paternity.

Answer 2

False

Question 3

A marriage license will NOT be issued when:

Answer 3

IBSI
i) One of the parties is married to someone else;
ii) The parties are too closely related as defined by statute;
iii) The parties entered into the marriage as a sham; or
iv) The parties are incapable of understanding the nature of the act.
Most jurisdictions also provide that marriage licenses will not be issued when, at the time that the license was sought, one or both parties were under the influence of alcohol, drugs, or another substance that rendered the person(s) incapable, or when a party lacked consent because of duress or fraud.

Question 4

What is solemnization?

Answer 4

Most states do not prescribe a particular form of the marriage ceremony, but many require that any ceremony solemnizing the marriage be performed in front of at least two witnesses. Some states allow for a proxy to stand in for one of the parties who cannot attend the ceremony if the party provides written authorization for the third person to act as a proxy. In most jurisdictions, a judge, political official, or member of the clergy of a recognized religious organization must solemnize a marriage. The marriage license must be completed and filed with the appropriate government office

Question 5

Common-law marriages are defined as marriages when the parties:

Answer 5

Capacity: mental and legal capacity to marry

Present agreement: both parties must intend to presently be married; an agreement to be married in the future does not meet this requirement

Cohabitation: the parties must live together

Hold themselves out in public as married

Question 6

When will a state recognize common law marriage?

Answer 6

Under the Full Faith and Credit Clause of the U.S. Constitution, almost all states that have abolished common-law marriages recognize common-law marriages entered into in a jurisdiction that does recognize those relationships
However, under conflict-of-law principles, a state does not need to recognize a marriage valid under the law of the place where it was contracted if it violates a strong public policy of the state asked to recognize the marriage.
Some jurisdictions recognize a common-law marriage when the parties had only a short, transitory visit to the permitting state, while other jurisdictions require that the parties be domiciled in the permitting state.

Question 7

Void vs Voidable Marriages

Answer 7

Void (3): Prior existing marriage, incest, mental incapacity
Voidable (5): FAIIL Age, Impotence, Intoxication, Fraud, misrepresentation, duress, coercion, or force, Lack of intent

Question 8

What happens when an a marriage is annuled? (Is there Equitable Distribution of Property?)

Answer 8

The party seeking the annulment (for void and voidable marrages) still has a right to request an equitable distribution of property and, in some cases, spousal support. The party may also seek child support, custody, attorney’s fees, and other costs related to the dissolution of the marriage.
Many jurisdictions have statutorily provided courts with the ability to award spousal support. In states without this statute, courts will not award spousal support. However, many of these states allow temporary spousal support during the pendency of the suit. Also, most courts will not reinstate spousal support from a previous marriage

Question 9

Putative Marriage

Answer 9

A party who participated in a ceremonial marriage and believes in good faith that the marriage is valid may use a state’s divorce provisions, even if the marriage is later found void because of an impediment. The doctrine is normally invoked to provide equitable relief, including maintenance and property distribution.

Question 10

To show adultery

Answer 10

Evidence must show that a party had the opportunity and the inclination to commit adultery

Question 11

Bigamy

Answer 11

occurs when one of the parties in the marriage knowingly entered into a prior legal and existing marriage before entering into the current marriage.
In most jurisdictions, bigamy is also grounds for annulment

Question 12

Defenses to a fault-based divorce

Answer 12

Recrimination and unclean hands
- Recrimination occurs when both spouses have committed the same marital wrongdoing.
- “unclean hands” defense is available when the plaintiff’s own behavior or acts are questionable, regardless of the other spouse’s wrongdoing.

Connivance: consent to or participation in the marital wrong, usually adultery (e.g., allowing or benefitting from a spouse’s prostitution).

Condonation: when the plaintiff spouse (1) knowingly forgives the misconduct and (2) resumes marital relations with the guilty party. The defense is typically based on a promise not to engage in the misconduct again. At common law, once an act was forgiven, it could not become future grounds for divorce.

Collusion: when both spouses “conspired to fabricate” grounds for divorce.

Provocation
Insanity
Consent
Justification: Justification grounds may be established if one party left the home because of the other’s misconduct. This is a defense to desertion.
Religion: A litigant that challenges a divorce on religious grounds will fail in all jurisdictions.

Question 13

2 methods relating to the distribution of marital property:

Answer 13

community property (equal)
and equitable distribution (fair distribution)

Question 14

Retirement or pension benefits acquired during the marriage - MP or SP?

Answer 14

MP -This includes military pensions.

Question 15

2 approaches to MP vs SP for Personal-injury claim proceeds

Answer 15

1) Marital property
In some jurisdictions, if the cause of action accrues between the date of the marriage and the final separation, all proceeds are treated as MP

2) Separate and marital allocation
Other jurisdictions view the nature of the award to determine whether it is separate or marital property and allocate the award between nonmarital and marital property. Compensatory damages for pain, suffering, disability, and loss are considered the separate property of the injured spouse. Awards for lost wages, loss of earning capacity, and medical expenses are typically split. The court calculates the portion of the award attributable from the time of the accident until the termination of the marriage, and it treats that portion as marital property. Any part of the award attributable to loss of wages or medical expenses after the termination of the marriage is separate property. Consortium losses are considered separate property of the non-injured spouse.

Question 16

Accumulated sick and vacation days - MP or SP?

Answer 16

Jurisdictions are split on the issue of whether vacation and sick days are marital property. Courts have held: (1) accrued vacation and sick days are MPsubject to division at the time of dissolution, (2) accrued vacation and sick days are MP but are subject to distribution when received, as opposed to the time of dissolution, and (3) accrued vacation and sick days are SP

Question 17

what does a mediator have to do for divorce proceedings?

Answer 17

Be impartial and disclose any conflicts of interest they might have;
Clearly explain the process and make sure the parties have all the information required;
Control the mediation proceedings (e.g. address signs of domestic violence or threats during the mediation)
Not coerce or improperly influence a party to make a decision.

Question 18

MP is

Answer 18

all property or assets acquired during marriage by any means other than gift, descent, devise
In most states, MP continues to accrue while the parties are separated and until a final divorce decree is entered

Question 19

Factors to consider when determining spousal support (alimony) MEMORIZE THIS

Answer 19

FiST CALM

Financial resources of both parties
Standard of living during marriage
Time it will take for receiving spouse to find employment or finish education

Contributions to marriage
Age and health of both parties
Length of marriage
Marital misconduct such as adultery (only in some states)

Question 20

Types of spousal support/alimony

Answer 20

LUMP SUM
PERMANENT (an award for the remainder of the dependent spouse’s life, unless certain circumstances occur. meant to compensate the dependent spouse for either the lost earning capacity or benefit conferred to the other spouse during the marriage. It is primarily used in cases in which one spouse remained out of the workforce for homemaking or child-rearing purposes.
+ for a marriage of long duration. Although jurisdictions differ on the definition of “long-term,” it typically refers to a marriage of 15 years or more.
LIMITED DURATION (typically awarded when the marriage was of short, but an economic need for support still exists.)
REHABILITIATIVE (for a limited period of time e.g., until the spouse receives education or employment).
REIMBURSEMENT 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.
PALIMONY (Palimony is support provided by one unmarried cohabitant to another after the dissolution of their relationship. Palimony is available in only a few states. palimony is available only when the cohabitants have lived together in a stable, long-term relationship.

Question 21

Spousal support may generally be modified if the party seeking modification establishes that COMMONLY TESTED

Answer 21

a SIGNIFICANT and CONTINUING CHANGE in circumstances in the needs of the dependent spouse or financial abilities of the obligor warrant the modification.
E.g. Death, remarriage, cohabitation, retirement
In general, spousal support can be modified, even when it has been declared to be “permanent.”

If the spouse that’s paying support voluntarily reduces their income, generally a court will not reduce their obligation to the receiving spouse.
But if the paying spouse incurs new obligations, then a court may consider modification.
If the receiving spouse remarries, then most jurisdictions will terminate the spousal support

Question 22

Jurisdictional Issue: Divisible (Ex Parte) Divorce

Answer 22

• Generally, a court must have both subject matter + personal jurisdiction to decide
  a family law dispute.
• A state court may grant a divorce to one spouse if she is domiciled in the state, even if it does
  not have personal jurisdiction over the other spouse. States are required to give full faith and credit to divorce decrees issued in other states.
• The court can grant the divorce to one party, but it does not have jurisdiction to address property division, spousal support, or child support, unless there is PJ over the out-of-state spouse.

Question 23

Uniform Interstate Family Support Act (UIFSA)

Answer 23

UIFSA governs when a state has personal jurisdiction over an out-of-state parent in an action to establish or enforce child support or establish paternity

A court will be found to have personal jurisdiction over an out-of-state parent when the out-of-state parent:
* Is personally served within the state or consents to jurisdiction; or
* Resided with the child in the state in the past; or
* Engaged in sexual intercourse in the state, and the child may have been conceived by that act of intercourse.

Question 24

Child support modifications are permissible when

Answer 24

there is a substantial change in circumstances regarding the child’s needs or the parents’ financial situation.

• Voluntary reduction in income—if in good faith, the court may reduce the amount owed
• If a man discovers that he is not the father, some states will terminate the child support order, while others may continue the support obligation.
• Timing:
   A court will only modify child support amounts prospectively, from the date of the motion moving forward (future payments).
   A court will not reduce the amount of child support retroactively.

Question 25

Jurisdiction over existing child support obligations Modification + Enforcement

Answer 25

UIFSA Modification * Under the UIFSA, the state that issued the initial child support order has continuing exclusive jurisdiction to modify the child support order. * Exceptions: None of the parties reside in the state OR the parties expressly agree to permit another state to exercise jurisdiction. Enforcement * If a receiving parent moves to a new state, they may register a child support order in the new state, which will give full faith and credit to the support order. * The new state can then enforce the support order (but only the initial issuing state may modify the order).

Question 26

Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA)

Answer 26

dictates which court has jurisdiction to decide child custody and visitation. 1. Initial custody determination (home-state jurisdiction) o A court has subject-matter jurisdiction if it is:  The child’s home state (and has been the home state for a period of 6m or since birth, if the child is less than 6m old); or  Was the child’s home state in the past 6m, and the child is absent from the state, but one of the parents still lives there. 2. Significant-connection jurisdiction (if home-state jurisdiction is not met) o A court can enter or modify an order if:  No other state has or accepts home-state jurisdiction  The child and at least one parent have a significant connection with the state; and  There is substantial evidence in the state concerning the child’s care, protection, training and personal relationships. Exclusive-continuing jurisdiction o Courts that make the initial ruling in a custody case have exclusive continuing jurisdiction over the matter until the court determines that:  Both parties no longer reside in the state; OR  The child no longer has a significant connection to the state, and any substantial evidence connected to the child’s condition is no longer available in the state.

Question 27

If the custodial parent is proposing to relocate with the minor child in a way that impairs the noncustodial parent’s ability to visit the child, they must show

Answer 27

a legitimate and reasonable purpose. In determining whether to modify the custody order, the court will consider various factors:  The best interests of the child  The relationship of the non-relocating parent with the child  Age and needs of the child  The child’s preference  The quality of life of relocating parent and child

Question 28

Uniform Premarital Agreement Act (UPAA)—to argue an agreement is unenforceable, must show

Answer 28

 Involuntariness (fraud, duress, coercion) Courts consider factors such as time-pressure and the opportunity to be represented by independent counsel OR  Unconscionability when executed and lack of reasonable knowledge or disclosure of the other’s assets and obligations (Look at procedural + substantive fairness)

Question 29

When determining the validity of a premarital agreement, states will apply the law of

Answer 29

The state in which the agreement was executed; or The state with the most significant relationship to the parties and transaction.

Question 30

If medical treatment contradicts a parent’s religious beliefs, can courts intervene to protect a child when necessary medical care is needed?

Answer 30

Yes, when it's needed to prevent serious harm to the child’s health. + States are permitted, under their police powers, to require vaccinations and refuse admission to public schools for students who fail to receive them. These statutes do not violate parental rights.

Question 31

H cheats on his wife and gives his mistress gifts. Does that affect distribution of property?

Answer 31

In most states, the fact that a divorce is granted on a fault ground is not a factor in the distribution of the property. However, dissipation of marital property may be a factor. Dissipation 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 32

Courts consider several factors when determining the distribution of marital property.

Answer 32

Courts consider contributions to increases in marital property, including homemaking and child rearing services. Additionally, courts will consider the age, health, earnings, earning potential, liabilities, and needs of both spouses. Equitable property distribution is highly discretionary.

Question 33

MEE Rule: Can an adoptive parent dissolve the adoption of a child?

Answer 33

Adoption generally cannot be dissolved. Some states have permitted dissolution in limited circumstances such as the discovery of an undisclosed physical or mental illness. Courts will consider the length of the relationship, the needs of the child, the parent's income.

Question 34

MEE Rule: Does a state have jurisdiction to grant a divorce?

Answer 34

A court hearing a family-related dispute must generally have both subject-matter jurisdiction and personal jurisdiction. Most states have residency requirements to establish subject-matter jurisdiction.

Question 35

MEE Rule: How to prove cruelty for a fault based divorce?

Answer 35

To prevail on the grounds of cruelty, most jurisdictions require that the plaintiff demonstrate a course of conduct by the other party that is harmful to the plaintiff’s physical or mental health and that makes the continued cohabitation between the parties unsafe or improper. The conduct must be serious and typically cannot be based on one isolated incident. The majority of jurisdictions permit divorces on the basis of cruelty in cases of physical abuse, while only some permit it in cases of only emotional abuse or mental cruelty.

Question 36

A woman wants to divorce on a fault ground, but the man is in another state. Does the court have jurisdiction?

Answer 36

Under the doctrine of divisible divorce, (i.e., ex parte divorce), a court may have sufficient jurisdiction to grant a divorce but lack jurisdiction over other divorce-related matters (e.g., property division, alimony, and child support). A court with subject-matter jurisdiction over the divorce action as well as personal jurisdiction over one spouse can grant a divorce, but it cannot determine property division, alimony, or child-support issues without personal jurisdiction over the other spouse. A court may not exercise personal jurisdiction over a defendant unless the defendant has minimum contacts with the state in which the court sits and the exercise of jurisdiction would be fair and reasonable.

Question 37

MEE Rule: Fault grounds for divorce

Answer 37

ACDH:BIIM Adultery, Cruelty, Desertion, Habitual Drunkness, Bigamy, impotency, indignity, mental disorder.

Question 38

MEE Rule: What's considered separate property?

Answer 38

i) Property acquired BEFORE the marriage or property acquired in exchange for property acquired before the marriage; ii) Property EXCLUDED by the parties’ valid agreement; iii) Property acquired by GIFT or INHERITANCE, or property acquired in exchange for that property, except when it is between spouses; iv) Property a party has sold, granted, conveyed, or otherwise DISPOSED of in good faith and for value before the date of final separation; v) Property to the extent that it has been mortgaged or otherwise encumbered in good faith for value before the date of final separation; and vi) Any award or settlement payment received for any cause of action or claim that accrued before the marriage, regardless of when the payment was received. A minority of states subject all property owned by either spouse to equitable distribution (“hotchpot approach").

Question 39

MEE: What is and how to determine marital property?

Answer 39

In most states, all property acquired during the marriage is MP. The definition of MP is typically broadly applied and includes retirement benefits and, under some circumstances, equity in nonmarital property. Classification of the appreciation in non-marital property will typically depend on whether it remains separate property and if the appreciation can be attributable to spousal labor. Title to the property is immaterial. If a party claims that an asset is nonmarital, the burden is placed on that party to prove the assertion.

Question 40

MEE: Husband cheated on wife and gave gifts to mistress. They divorce on fault ground of adultery

Answer 40

In most states, the fact that a divorce is granted on a fault ground is not a factor in the distribution of the property. However, dissipation of marital property may be a factor. Dissipation 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 41

MEE Rule: Courts consider the following factors in the distribution of property:

Answer 41

i) Length of the marriage; ii) Prior marriages; iii) Age, health, earnings, earning potential, liabilities, and needs of both spouses; iv) Contributions to education; v) Needs for future acquisitions; vi) Income, medical needs, retirement of both spouses; vii) Contributions to increases in marital property, including homemaking and child-rearing services; viii) Value of separate property; ix) Reduction in valuation in marital property by one spouse; x) Standard of living; xi) Economic circumstances of each spouse at the time of divorce; and xii) Custodianship of any minor children. In most states, the fact that a divorce is granted on a fault ground is not a factor in the distribution of property. However, dissipation of marital property may be a factor. Equitable property distribution is highly discretionary.

Question 42

MEE Rule: Can a separation agreement be invalidated?

Answer 42

Yes, in whole or in part, if the court makes a finding of fraud or unconscionability. A contract is unconscionable when it is so unfair to one party that no reasonable person in the position of the parties would have agreed to it. It must have been offensive at the time it was made. Unconscionability may also be applied to prevent unfair surprise.

Question 44

MEE Rule: UCCJEA Initial child custody order jurisdiction

Answer 44

Most states have adopted the UCCJEA. The purpose of the UCCJEA is to prevent jurisdictional disputes with courts in other states on matters of child custody and requires the court to have subject-matter jurisdiction. In an initial custody determination, a court has subject-matter jurisdiction if the state is 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 before the custody proceeding, or since birth, if the child is less than six months old); OR was the child’s home state in the past 6m, and the child is absent from the state, but one of the parents still lives there. A court can decline jurisdiction if the party has wrongfully removed a child from another state.

Question 45

MEE Rule: how to determine custody

Answer 45

Legal custody is the right of a parent to make major decisions (e.g., health, education, religion) regarding the child. Physical custody is the right to have the child reside with the parent and provide for routine daily care and control of the child. The standard for determining child custody is the best interests and welfare of the child. In addition, courts can consider who the primary caretaker of the child was during the marriage and the separation, and prior to the divorce, as factors in determining who should have custody. Nearly every jurisdiction requires the court to consider the presence of domestic violence between the parties when awarding custody and some jurisdictions have created rebuttable presumptions in favor of the nonabusive spouse.