Family Law

Question 1

Common Law Marriage

C-H-A-M

Answer 1

Assuming its recognized by a state, common law marriage requires:
(1) cohabitation,
(2) hold themselves out as married in public, and
(3) present **agreement **to be married,
(4) mental & legal capacity.

Question 2

Putative Marriage

Answer 2

Putative marriage is when the innocent party believed in good-faith their marriage is valid, but later discovered an impediment to the marriage.

Innocent party can seek legal remedies – like spousal support & property distribution.

Question 3

No Fault Divorce

Answer 3

No fault divoce means just irreconcilable differences

Question 4

Fault-Based Divorce

ABCD-HIIM

Answer 4

Fault-based divorce is when one spouse proves that the other spouse did something which resulted in the failure of the marriage.
It includes:
* adultery,
* bigamy,
* cruelty,
* desertion,
* habitual drunkenness,
* imprisonment,
* indignity, and
* mental disorder.

Question 5

Fault-Based Divorce: Cruelty

Answer 5

Divorce based on cruelty requires proving a (1) harmful pattern of behavior, not an isolated incident,
(2) that makes continued cohabitation unsafe.

While most jurisdictions recognize physical abuse, few accept only emotional/mental cruelty as grounds.

Question 6

Mediation

CIND

Answer 6

Sometimes parties are required to engage in mediation as part of the divorce process.

Mediator must:
(1) Clearly explain process to parties;
(2) be impartial
(3) not coerce or improperly influence a party to make a decision
(4) disclose any conflicts of interest they might have

Question 7

Community Property Approach

Answer 7

Under community property approach, some states **equally **divide martial property 50/50

Question 8

Hotchpotch Property Approach

Answer 8

Under hotchpotch approach, some states state** all property **before and during marriage is martial property

Question 9

Equitable Distribution

Answer 9

Most states follow equitable distribution, which fairly divides marital property.

Question 10

Equitable Distribution Considerations

S-L-A-V-E

Answer 10

Courts consider a number of factors in determining the equitable distribution of marital property, and are given broad discretion.

Some include:
* Standard of living, and
* length of the marriage,
* age, health, earning potential, and needs of each
* value of separate property,
* Economic circumstances of each at the time of divorce.

Question 11

Equitable Distrbution - What is Marital Property

Answer 11

DURING MARRIAGE: In most states, all property acquired during the marriage is marital property and subject to equitable distribution.

**APPRECIATION > SPOUSAL LABOR: **The appreciation in nonmarital property during the marriage will be subject to equitable distribution if the appreciation can be attributable to spousal labor.

Question 12

Accural of Marital Property

Answer 12

In most states, marital property continues to accrue while the parties are separated and until a final divorce decree is entered.

Question 13

Dissipation

Answer 13

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 new girlfriend.

A court will consider this in dividing property upon divorce.

Question 14

Spousal Support

FLATS - CM

Answer 14

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

Award factors include:
(1) Financial resources of both parties
(2) **Length **of marriage
(3) Age and health of both parties
(4) Time it will take for receiving spouse to find employment or finish education
(5) Standard of living during marriage
(6) Contributions to marriage
(7) **Marital misconduct **such as adultery (only in some states)

Question 15

Modification of Spousal Support

Answer 15

In general, spousal support can be modified, even when declared “permanent.” The party seeking modification has the burden of establishing a significant and continuing change in circumstances.

• Voluntarily reducing income does not count.
• Incurring new obligations** does **count.

Question 16

No Personal Jurisdiction for Out of State Spouse

Answer 16

WIth no PJ, state can still grant divorce. But no jurisdiction to address property division, spousal support, or child support.

Question 17

Personal Jurisdiction of Out of State Parent

P-E-R-C

Answer 17

Personal Jurisdiction exists to an out-of-state parenr if the parent:
(1) Is **Personally **served within the state; or
(2) Engaged in sexual intercourse in the state, and the child may have been conceived by that act of intercourse; or
(3) Resided with the child in the state in the past; or
(4) Consents to jurisdiction

Question 18

Paternity Discovered

Answer 18

Once identity and paternity are established, the child’s father has rights to custody and visitation, and now under a duty to support the child.

Question 19

Amount of Child Support

A BASS

Answer 19

Most states, use an income-shares model. The guidelines are presumed to provide the correct amount, but courts may deviate based on specific factors:
* **Assets **of both parties
* Best interests of child
* Age of the child
* Special needs
* Standard of living during marriage

Question 20

Modification of Child Support

Answer 20

Child support modifications allowed 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 showing change:
* Voluntary reduction in income – child support?: 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.
* Man is actually not the father – child support?: If a man discovers that he is not the father of the child, some states will terminate the child support order, while others may continue the support obligation.

Question 21

Modifying Established Child-Parent Relationship

Answer 21

Traditionally, courts are against modifying an established parent-child relationship, citing the child’s best interest as reason.

Question 22

Timing of Child Support Modification

Answer 22

A court will only modify child support amounts** prospectively**, from the date of the motion moving forward, NOT retroactive.

Question 23

Termination of Child Support

Answer 23

A parent’s obligation to pay support usually ends when the child reaches the age of majority, typically 18 y/o.

Some jurisdictions have the authority to order support beyond the age of majority when the child is in college. Rights are **contingent **on the compliance by the child with reasonable parental demands.

Question 24

Jurisdiction of Child Support Modification

Answer 24

The state that issued the **initial child support **order has continuing exclusive jurisdiction to modify the child support order.

Except when:
(1) The parties and the child no longer reside in the state; or
(2) The parties **expressly agree **to permit another state to exercise jurisdiction.

Question 25

Child Support Enforcement in New State

Answer 25

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 enforce the order, but can’t modify.

Question 26

Legal Custody

Answer 26

The right of a parent to make major decisions regarding the child.

Question 27

Physical Custody

Answer 27

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

Question 28

Joint Custody

Answer 28

Both parents are willing and able to cooperate with respect to the wellbeing of the child. Neither has superior right to make major decisions.

Question 29

Child Custody & Visitation Jurisdiction

Answer 29

Default rule is that child’s** home-state **has jurisdiction. If no home state, then look at **significant connection jurisdiction**. A home state is where child’s has lived there for a period of 6 months or since birth OR if absent - was the child’s home state in the past 6 months, but one of the parents still lives there. If no home state then, a significant connection is when there is substantial evidence in the state concerning the child’s care, protection, training and personal relationships. A court can decline jurisdiction if the party has wrongfully removed a child from another state.

Question 30

Factors in Determining Child Custody

Answer 30

The standard for determining child custody is **the best interests of the child. ** Courts can consider who the** primary caretaker** of the child was during the marriage and the separation. Almost all jurisdiction requires the court to consider the presence of **domestic violence**. Some jurisdictions have created **rebuttable presumptions** in favor of the nonabusive spouse.

Question 31

Legal Parent Presumption & Getting Around It

Answer 31

Legal parents are presumptively entitled to **custody of their children**, unless it can be established that the legal parent is **unfit** or it would be **detrimental to the child**. If the legal 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 get around the presumption via **parent by estoppel.**

Question 32

Parental Visitation

Answer 32

Parents have a constitutional right to visitation with their children. A court may deny visitation if contact would **seriously endanger** a child’s physical, mental, or emotional health.

Question 33

Unwed Biological Father Rights

Answer 33

Unwed biological fathers have a substantive due process right to have contact with the child if they **demonstrates a commitment** to the responsibilities of parenthood. This includes the right to visitation and to object to an adoption.

Question 34

Modification of Custody Order | CRAB - Q

Answer 34

The parent seeking modification must show a **substantial change in circumstances**. If the custodial parent is proposing to relocate with the child that impairs the noncustodial parent’s ability to visit the child, they must show a **legitimate and reasonable purpose.** The court will consider various factors when modifying a custody order, including: * ***Child’s** preference * ***Relationship** of the non-relocating parent with the child * **Age** and needs of the child * **Best** interests of the child * **Quality **of life of relocating parent and child

Question 35

Premartial Agreement | WS - FFV

Answer 35

A premartial agreement must: (1) Be in **Writing ** (2) **Signed** by the charged party (3) Have **Full** Disclosure; (4) Be **Fair** and Reasonable; and (5) **Voluntary** For **full disclosure,** it requires disclosure of all income, assets, and liabilities of both parties. For **fair and reasonable**, it must not be so unfair to one party that no reasonable person in the position of the parties would have agreed to it. For **voluntary,** courts consider time-pressure, the parties’ previous business experience, and the opportunity to be represented by independent counsel.

Question 36

Conflict of Law Premartial Agreement

Answer 36

When determining the validity of a premarital agreement, states will apply the law of 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 37

Putative Father Registry

Answer 37

A putative father registry allows unwed fathers to register themselves as the father of a child. If registered, the father will receive notice and a hearing before rights are terminated (via adoption typically).

Question 38

Legal Affect of an Adoption

Answer 38

Adoption is a legal action in which the previous parent-child relationship is terminated and a new parent-child relationship is established. Adoptive parents have all the 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.

Question 39

Dissolving an Adoption | L-C-P

Answer 39

Generally, an adoption may not be dissolved. Some states permit this in limited circumstances such as discovery of an undisclosed mental or physical illness. In evaluating dissolution claims, courts typically consider: (1) the **length** of the relationship, (2) the** child’s** needs, and (3) the **parent’s **motives.

Question 40

Limit on Parental Authority

Answer 40

A parent has a right to make decisions about how to raise child, but courts may intervene in** the best interest of the child.** However, 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. States are also permitted to require vaccinations and refuse admission to public schools for students who fail to receive them.