Family Law

Question 1

When can separation agreements be invalidated?

Answer 1

they can be invalidated, in whole or in part, if the court makes a finding of fraud or unconscionability.

Question 2

When is a K unconscionable?

Answer 2

when it is so unfair to one party that no reasonable person in the position of the parties would have agreed to it. The K or part of the K at issue must have been offensive at the time it was made. Unconscionability may also be applied to prevent unfair surprise.

Question 3

Could a wife’s failure to inform a husband that he is not the biological parent before entering into a child-support agreement constitute fraud?

Answer 3

It is possible it could be fraudulent misrepresentation on her part.

Question 4

Can a property division award be modified?

Answer 4

Nope, unlike support awards, which are subject to changing circumstances, the division of the marital assets was determined based upon known facts and circumstances as they existed at the time of divorce.

Question 5

When can spousal support awards be modified?

Answer 5

when there has been a significant change in a party’s circumstances. If the agreement was made with full knowledge of future support obligations then that would not constitute a change in circumstances.

Question 6

Why are court’s reluctant to modify an established parent-child relationship?

Answer 6

because of the best interests of the child.

Question 7

Have some states recently recognized the interests of erroneously identified fathers?

Answer 7

Yes, this is a departure from the traditional approach to disestablishment of paternity. It allows erroneously identified fathers to offer proof of non-paternity.

Question 8

Common law marriage elements (keep in mind most states don’t recognize common law marriage)

Answer 8

1) mental and legal capacity to marry
2) present agreement: both parties must intend to presently be married, an agreement to be married in the future does not meet this requirement.
3) cohabitation: the parties must live together
4) holding out a marital relationship to the community: hold themselves out to the public as “spouses.”

Question 9

If a common law marriage is valid in one state, will it be valid in another state?

Answer 9

Yes, unless it violates a strong public policy of the other state.

Question 10

Putative marriage doctrine

Answer 10

Most states have adopted this….it arises when one innocent party participated in a ceremonial marriage and believes in good faith that the marriage is valid, but they later discover that there was an impediment to the marriage (like the other spouse already being married). The innocent party is considered a “putative spouse” and this allows them to seek legal remedies like spousal support and property distribution.

Question 11

No fault divorce

Answer 11

every jurisdiction has a no-fault ground for divorce…the typical standard is irreconcilable differences. There is no required attempt at reconciliation.

Question 12

Fault based divorce…what were the typical grounds?

Answer 12

adultery, cruelty, desertion, habitual drunkenness, bigamy, imprisonment, indignity, and mental disorder…in most jurisdictions, they permit divorces based on cruelty in cases of physical abuse but some permit it in cases of only emotional abuse or mental cruelty. Conduct must be serious and typically cannot be based on one isolated incident.

Question 13

Do some states require parties to separate for a period of time before divorce?

Answer 13

Yes (like a year)

Question 14

What must a mediator do when involved in a separation or divorce process?

Answer 14

1) be impartial and disclose any conflicts of interest they might have.
2) clearly explain the process and make sure the parties have all the information required;
3) control the mediation proceedings; and
4) not coerce or improperly influence a party to make a decision

Question 15

What should you do in an exam when you have a list of assets and are asked how they should be divided?

Answer 15

discuss each asset separately.

Question 16

What does equitable division (majority rule) require?

Answer 16

1) requires an equitable, or fair distribution of all marital property
2) not necessarily an equal 50/50 division.
3) takes into consideration all of the circumstances between the parties.
Marital property is equitably divided between spouses whereas separate property generally remains the property of the owning spouse.

Question 17

what does SP include?

Answer 17

1) assets acquired during marriage by gift, descent, or devise; and
2) anything acquired before marriage.

Question 18

what does MP include?

Answer 18

all property or assets acquired during marriage by any means other than gift, descent, or devise.

Question 19

May a court overrule the spending decisions of a spouse if the other spouse objects?

Answer 19

Nope…while married, each spouse has full management rights of his or her earnings and a court may not overrule the spending decisions of a spouse if the other spouse objects.

Question 20

Does MP continue to accrue while the parties are separated but before a final divorce decree is entered?

Answer 20

Yes, in most states this is the case.

Question 21

Can SP ever be transformed into MP?

Answer 21

Yes, if marital funds or efforts are used to increase its value or build equity.

Question 22

Is title conclusive?

Answer 22

Nope…

Question 23

Are future retirement/pension benefits MP or SP?

Answer 23

if a spouse works during the marriage and creates or earns profits or benefits that will be paid out after divorce, the profits will be considered MP.

Question 24

are professional licenses/degrees MP?

Answer 24

Most courts do not treat degrees as MP.
The non-degree earning spouse would not be compensated for the value of the degree. But that spouse could seek reimbursement for contribution to educational and living expenses.

Question 25

Are personal injury claim proceeds MP?

Answer 25

if the cause of action accrues during marriage....there are 2 approaches: approach 1: all proceeds are treated as MP approach 2: damages are divided between by type: - compensatory (pain, suffering, disability) are SP of the injured spouse - consortium damages are SP of the non-injured spouse - lost wages, lost earning capacity, and medical expenses are MP (divided equitably).

Question 26

Are property division award modifiable?

Answer 26

Nope...a property division is NOT modifiable after the fact because it is based on the parties' assets at the time of divorce. Changes in the parties' circumstances after divorce do not affect the award.

Question 27

Spousal support (maintenance or alimony)

Answer 27

the obligation of one party to provide the other party with financial support.

Question 28

what are the various factors that most jurisdictions consider when determining the support award?

Answer 28

they include: 1) financial resources of both parties 2) standard of living during marriage 3) time it will take for receiving spouse to find employment or finish education 4) length of marriage 5) contributions to marriage 6) age and health of both parties 7) marital misconduct such as adultery (only in some states)

Question 29

what is permanent alimony?

Answer 29

an award for the remainder of the dependent spouse's life. Typically, only appropriate after long marriages. Primarily used when one spouse remained out of the workforce to take care of the home or children.

Question 30

Limited-duration alimony

Answer 30

typically awarded when the marriage was of short duration.

Question 31

rehabilitative support (recently tested)

Answer 31

a limited period of time, such as until the spouse receives education or employment.

Question 32

reimbursement alimony (recently tested)

Answer 32

compensates a spouse for financial sacrifices during the marriage that resulted in a reduced standard of living in order to secure an enhanced standard of living in the future.

Question 33

can spousal support be modified?

Answer 33

in general it can even when it has been declared to be "permanent." the party seeking the modification has the burden of establishing a significant and continuing change in circumstances that warrants a modification.

Question 34

what if a spouse voluntarily reduces their income? does that warrant a reduction in spousal support?

Answer 34

generally a court will not reduce their obligation to the receiving spouse.

Question 35

what is a paying spouse incurs new obligations...will a court modify a spousal support order?

Answer 35

if the paying spouse incurs new obligations, then a court may consider modification.

Question 36

what if a receiving spouse remarries...will they still receive spousal support?

Answer 36

most jurisdictions will terminate the spousal support.

Question 37

Do spouses have a duty to support each other equally under family expense statutes?

Answer 37

yes

Question 38

what happens if a creditor provides a "necessary" item to one spouse? can it sue the other spouse?

Answer 38

Yes, for the payment if the purchasing spouse does not pay.

Question 39

does a court need both subject matter jurisdiction and personal jurisdiction to decide a family law issue?

Answer 39

generally yes...however, a state court may grant a divorce to one spouse if she is domiciled in the state, even if it does not have PJ over the other spouse.

Question 40

Are states required to give full faith and credit to divorce decrees issued in other states?

Answer 40

Yes

Question 41

If a court can grant a divorce to one party, does it have jurisdiction to address property division, spousal support, or child support?

Answer 41

No, unless there is PJ over the out-of-state spouse.

Question 42

can parents bargain away child-support payments in premarital or settlement agreements?

Answer 42

Nope...

Question 43

can visitation rights be denied for nonpayment of support?

Answer 43

Nope

Question 44

what happens when paternity is established?

Answer 44

the father has rights to custody and visitation, but he is also under a duty to support the child.

Question 45

What Act governs when a state has PJ over an out-of-state parent in an action to establish or enforce child support or establish paternity?

Answer 45

UIFSA

Question 46

Under UIFSA, a court will be found to have PJ over an out-of-state parent in various situations, including when an out-of-state parent...

Answer 46

1) is personally served within the state or consents to PJ; or 2) resided with the child in the state in the past; or 3) engaged in sexual intercourse in the state, and the child may have been conceived by the act of intercourse.

Question 47

what are child support guidelines?

Answer 47

All jurisdictions have adopted them and most use an income-shares model.

Question 48

what specific factors may courts deviate from the guidelines based on?

Answer 48

1) best interests of the child 2) age of the child 3) special needs 4) assets of both parties 5) standard of living during the marriage.

Question 49

when are child support modifications permissible?

Answer 49

when there is a substantial change in circumstances regarding the child's needs or the parents' financial situation. The party seeking the modification of child support bears the burden of showing a substantial change in circumstances.

Question 50

is a voluntary reduction in income grounds for reducing child support?

Answer 50

if in good faith, the court may reduce the amount owed; if done to deprive the child or punish the parent in bad faith, the court might not reduce the obligation.

Question 51

Will a court terminate child support if a man discovers he is not the father of the child?

Answer 51

some states will terminate the order, while others may continue the support obligation.

Question 52

do courts modify child support amounts prospectively or retroactively?

Answer 52

Yes, they will only modify prospectively, from the date of the motion moving forward (future payments)...they will not reduce the amount retroactively (will not reduce amounts owed prior to the date of the motion).

Question 53

When does a parent's obligation to pay support usually end?

Answer 53

when the child reaches the age of majority (18)...some jurisdictions have the authority to order support beyond the age of majority when the child is in college (subject to reasonable parental demands)

Question 54

Under UIFSA, which states has continuing exclusive jurisdiction to modify the child support order?

Answer 54

the state that issued the initial child support order... However, there are two exceptions: (1) the parties (both parents) and the child no longer reside in that state; or (2) the parties expressly agree to permit another state to exercise jurisdiction.

Question 55

What can a receiving parent do when they move to a new state to enforce a support order?

Answer 55

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 56

legal custody

Answer 56

is the right of a parent to make major decisions regarding the child (health, education, religion)

Question 57

physical custody

Answer 57

is the right to have the child reside with a parent or guardian and the obligation to provide routine daily care and control the child

Question 58

joint custody

Answer 58

both parents are willing and able to cooperate with respect to the wellbeing of the child; typically neither parent has a superior right to make major decisions.

Question 59

What does UCCJEA stand for?

Answer 59

Uniform Child Custody Jurisdiction and Enforcement Act

Question 60

what is the purpose of UCCJEA?

Answer 60

to dictate which court has jurisdiction to decide child custody and visitation

Question 61

In an initial custody determination, a court has SMJ to enter custody orders if the state is the child's home state (home-state jurisdiction)...what is required for this?

Answer 61

a court has SMJ if it is: - the child's home state (and has been the home state for a period of six months or since birth, if the child is less than six months old); or - was the child's home state in the past 6 months, and the child is absent from the state, but one of the parents still lives there. However, a court can decline jurisdiction if the party has wrongfully removed a child from another state.

Question 62

What is significant connection jurisdiction and when is it used?

Answer 62

used if home state jurisdiction is NOT met... 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.

Question 63

exclusive-continuing jurisdiction

Answer 63

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 64

Best interests of the child standard

Answer 64

1) primary caretaker: many courts consider who the primary caretaker of the child was during marriage, separation, and prior to divorce 2) child's preference: courts will consider the wishes of an older child if sufficiently mature and will consider the child's reasoning. 3) race or religion: courts generally will not use race or religion in determining custody. 4) third party rights: grandparents, stepparents, etc. may wish to have custody.

Question 65

Are legal parents presumptively entitled to custody of their children?

Answer 65

Yes, unless it can be established that the legal parent is unfit or it would be detrimental to the child.

Question 66

parent by estoppel or de facto parent

Answer 66

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, the courts have employed the terms "parent by estoppel" or "de facto parent" to get around the presumption.

Question 67

do parents have a constitutional right to visitation with their kids?

Answer 67

Yes...however, a court may deny visitation if contact would seriously endanger a child's physical, mental, or emotional health.

Question 68

do unwed biological fathers have a substantive due process right to have contact with the child?

Answer 68

Yes, but only when the father demonstrates a commitment to the responsibilities of parenthood.

Question 69

may a custodial parent relocate?

Answer 69

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 a legitimate and reasonable purpose.

Question 70

in determining whether the modify the custody order to allow for relocation, the court will consider various factors including the following:

Answer 70

1) best interests of the child 2) the relationship of the non-relocating parent with the child 3) the age and needs of the child 4) the child's preference 5) the quality of life of relocating parent and child.

Question 71

what is a premarital agreement?

Answer 71

a contract made before the marriage. it typically constrains terms that govern division of property or spousal support upon divorce or death.

Question 72

are clauses in premarital agreements relating to child custody and support enforceable?

Answer 72

Nope

Question 73

what are the formalities required of premarital agreements?

Answer 73

must be in writing and signed by the party to be charged.

Question 74

when is a premarital agreement enforceable?

Answer 74

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

Question 75

under the UPAA (Uniform Premarital Agreement Act) - to argue an agreement is unenforceable, you must show at least one of the following:

Answer 75

1) involuntariness (fraud, duress, coercion); or 2) unconscionability when executed and lack of reasonable knowledge or disclosure of the other's assets and obligations.

Question 76

what factors do courts consider in evaluating whether a premarital agreement was entered into voluntarily?

Answer 76

time pressure and the opportunity to be represented by independent counsel. A party's insistence on an agreement as a condition to marriage does not make it involuntary.

Question 77

procedural fairness v substantive fairness (what courts look at for unconscionability)

Answer 77

procedural fairness: the court will look for factors such as duress, undue influence, misconduct by the mediator, and whether the party had independent representation. substantive fairness: the courts will also consider the fairness of the terms themselves.

Question 78

at what point in time do courts evaluate fairness of the premarital contract?

Answer 78

at the time of execution. However, a minority of jurisdictions will also evaluate it at the time of enforcement.

Question 79

what is the current trend of enforcement of premarital contractual agreements?

Answer 79

to enforce contractual agreements that may not be fair as long as there has been fair disclosure.

Question 80

premarital agreements require full disclosure of what?

Answer 80

financial status, including income, assets, and debts of all parties.

Question 81

what are separation agreements?

Answer 81

agreements made between spouses who are planning for divorce to define property division, spousal support, child support, custody, and visitation. Terms related to children are always modifiable by the court if necessary for the best interests of the child. These agreements are generally merged into the final judgment for divorce.

Question 82

when may separation agreements be invalidated?

Answer 82

They may be invalidated in part or in whole if a party can show unconscionability or fraud.

Question 83

what are property settlement agreements

Answer 83

These settle the economic issues of the marital estate. They are entered into by the parties before a divorce decree is issued. They may be invalidated in part of in whole if the part can show unconscionability or fraud.

Question 84

In determining the validity of a premarital agreement, states apply what law?

Answer 84

either: 1) the state in which the agreement was executed, or 2) the state with the most significant relationship to the parties and transaction.

Question 85

adoption definition

Answer 85

statutory legal action in which the previous parent-child relationship is terminated and a new parent-child relationship is established.

Question 86

what rights to unwed fathers have?

Answer 86

Substantive due process rights under the US Constitution if they have shown commitment to being a parent. This includes the right to object to the termination of parental right by an adoption. A putative father registry allows unwed fathers to register themselves as the father of the child. If registered, the father will receive notice and a hearing before rights are terminated.

Question 87

what are the legal effects of adoption

Answer 87

- adoptive parents have all rights and responsibilities that biological parents would have had. - an adopted child has all the rights and responsibilities that a biological child would have had. - generally, an adoption may not be dissolved, although some states have permitted dissolution in limited circumstances (discovery of an undisclosed mental or physical illness)

Question 88

In evaluating dissolution of adoption claims, courts typically consider what?

Answer 88

the length of the relationship, the child's needs, and the parent's motives.

Question 89

Limits on parental authority

Answer 89

1) a parent has a right to make decisions about how to raise a child (eg. religion), but courts may intervene in the best interests of the child. 2) if medical treatment contradicts a parent's religious beliefs, courts can intervene to protect a child when necessary medical care is needed to prevent serious harm to the child's health 3) 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 90

Does equity in non marital property constitute marital property?

Answer 90

Yes, in some circumstances. 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.

Question 91

examples of separate property

Answer 91

property acquired before the marriage, property excluded by the parties' valid agreement entered into before, during, or after the marriage, property acquired by gift of inheritance, or property acquired in exchange for such property, except when it is between spouses, property a party has sold, granted, conveyed, or otherwise disposed of in good faith and for value before the date of final separation; property to extent that is has been mortgaged or otherwise encumbered in good faith for value before the date of final separation; and any award or settlement payment received for any use of action or claim that accrued before the marriage, regardless of when he payment was received.

Question 92

what is the "hotchpot approach"

Answer 92

used by a minority of states, this approach subjects all property owned by either spouse to equitable distribution.

Question 93

Is whether a divorce is granted on fault grounds a factor in the distribution of property?

Answer 93

Not in most states.

Question 94

What is dissipation of marital property?

Answer 94

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 95

is dissipation of marital property a factor in the distribution of property?

Answer 95

Yes, it may.

Question 96

what factors do courts consider when determining the distribution of marital property?

Answer 96

1) contributions to increases in marital property (including homemaking and child rearing services) 2) age & health 3) earnings 4) earning potential 5) liabilities 6) needs of both spouses.

Question 97

For an initial custody determination, does the court need PJ over an out-of-state spouse or just SMJ?

Answer 97

PJ over an out-of-state spouse is not needed.

Question 98

Can a court exercise personal jurisdiction over a defendant if the defendant does not have minimum contacts with the state?

Answer 98

Nope...there must be minimum contacts with the state in which the court sits and the exercise of jurisdiction would be fair and reasonable.

Question 99

domestic abuse considerations with custody

Answer 99

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 nonabrasive spouse.

Question 100

If a valid premarital agreement is voluntarily executed, meets the test for reasonableness, fairness, and full disclosure, may it still be set aside if its results winds up leaving one spouse woefully impoverished to the extent he becomes dependent on the state?

Answer 100

Yes