Family Law

Question 1

What is a common-law marriage?

Answer 1

A couple may be deemed to be married if they:
1. cohabit,
2. have the capacity to marry,
3. hold themselves out as married, and
4. form a present agreement that they’re married.

A common-law marriage confers the same legal status as a ceremonial marriage.

Most states no longer recognize common-law marriage. However, a common-law marriage that’s valid in the state where it was formed is valid in all other states unless it violates a strong public policy of the state with the most significant relationship to the parties and the marriage.

Question 2

Under what circumstances can a marriage be annulled based on fraud?

Answer 2

In most states, the fraud must go to the essentials of the marriage. Generally, false statements about one’s wealth or social status aren’t enough to void a marriage

Essentials of the marriage? Think fidelity.

Question 3

What is the legal status of a bigamous marriage?

Answer 3

A bigamous marriage is void.

But there are some marriage-saving doctrines that can preserve the bigamous marriage.
1. One such doctrine presumes that someone’s latest marriage is valid. This equitable presumption is especially strong when necessary to protect an innocent spouse.
2. Another doctrine says that a marriage carried out in the face of some impediment becomes valid when that impediment is removed (e.g., dissolution of the preceding marriage).

Question 4

What is a pre-marital agreement?

Answer 4

Premarital agreements are binding contracts that may address matters such as property distribution, alimony, custody, and child support.

However, a few states won’t enforce waivers of spousal support or alimony.

In any state, the courts won’t be bound by any provisions regarding child support or child custody (the child’s best interests are dispositive).

Question 5

Under what circumstances may a pre-marital agreement be unenforceable?

Answer 5

In some states, a premarital agreement may be unenforceable if it was involuntary, unfair, or unconscionable, or signed without adequate disclosure of the other party’s finances.

States vary as to whether unconscionability is assessed as of the time when the agreement was signed or the time of divorce.

Question 6

What is the Uniform Premarital Agreement Act (UPAA)?

Answer 6

A statute (adopted by some states) that deems a pre-marital agreement unenforceable if it was involuntary.

An agreement is also is unenforceable if the challenging party can show:
1. the agreement was unconscionable when signed, and
2. the challenging party didn’t receive or waive disclosure of the other party’s finances, and neither knew nor reasonably could’ve known the other party’s finances before signing.

The UPAA considers an agreement unconscionable if it’s the product of oppression, unfair surprise, asset concealment, or other actions inconsistent with fair dealing.

Question 7

What constitutional rights do parents have in the parental relationship?

Answer 7

Constitutional due-process rights.

More specifically: A parent has a constitutional right to make decisions about the care and upbringing of that parent’s child. This right includes making choices about education and medical care.

But parental rights can sometimes be outweighed by broader social interests, especially if the parent’s decisions have the potential to harm the child or others.

Question 8

What parental rights does an unwed father have?

Answer 8

If an unwed father has demonstrated a willingness to take on the responsibilities of parenthood, then he can have the right to exercise or assert his parentage.

Question 9

What is the presumption of legitimacy, and what effect does it have on a biological father’s parental rights?

Answer 9

The presumption of legitimacy holds that if a married woman has a child, then the woman’s husband is legally presumed to be the father.

If a child has a presumptive father, then the biological father’s rights can be restricted.

Question 10

What is the doctrine of parentage by estoppel and when does it apply?

Answer 10

This doctrine applies when someone who’s not a child’s biological parent nonetheless acts like the child’s parent and induces reliance on that relationship.

If terminating the relationship isn’t in the child’s best interests, then the nonparent may be estopped from denying parentage.

Question 11

How does an existing divorce judgment affect parentage?

Answer 11

Some courts have held that such a judgment is res judicata as to parentage, thereby barring postjudgment challenges to paternity.

Question 12

What is a separation agreement, and what effect does it have on a court?

Answer 12

The parties to a divorce may enter a separation agreement to address property division, alimony, custody, and child support.

In most states, the court may accept the parties’ separation agreement, with or without modifications.

Question 13

Under what circumstances will a court set aside some or all of a separation agreement?

Answer 13

A court may set aside some or all of a separation agreement that’s unconscionable or substantively unfair due to fraud, duress, or coercion. Making a bad bargain or having second thoughts is not enough.

Note: If one spouse has a lawyer and the other doesn’t, then some courts hold that the represented spouse has a fiduciary duty to deal with the unrepresented spouse in good faith.

Question 14

In the context of divorce, what is mediation? What are a mediator’s responsibilities, and can happen if a mediator fails to fulfill those responsibilities?

Answer 14

A mediation is essentially a guided settlement negotiation.

A mediator must:
1. Be impartial and free from conflicts of interest,
2. Help the parties understand the mediation process, and
3. Help the parties exercise self-determination in crafting their own solutions.

A mediator’s misconduct can be grounds to vacate a mediated settlement agreement.

Question 15

What is alimony?

Answer 15

Alimony is also called spousal support or spousal maintenance. Alimony can be payable in periodic payments, lump-sum payments, or both.

Question 16

What factors will a court consider when granting or denying alimony?

Answer 16

Courts generally consider multiple factors in awarding alimony, including each party’s:
* needs,
* ability to pay,
* earning potential,
* capacity for self-support,
* contributions (positive and negative) to the marriage,
* separate assets,
* duration of the marriage, and
* marital misconduct (sometimes, but courts give relatively little weight to this factor).

Question 17

What are the three types of alimony?

Answer 17

1. Rehablitative.
2. Reimbursement.
3. Permanent.

Question 18

What is rehabilitative alimony?

Answer 18

Rehabilitative alimony helps the recipient become self-supporting by redeveloping a prior vocation or preparing for a new one. Rehabilitative alimony is awarded temporarily, and it expires after the recipient achieves the rehabilitative goal.

In a few states, however, a court may deny rehabilitative alimony if the requesting spouse can be self-supporting.

Question 19

What is reimbursement alimony?

Answer 19

Reimbursement alimony compensates a former spouse for foregone income or past losses (e.g., when one spouse gives up his own career to support the other’s).

In a few states, however, a court may deny reimbursement alimony if the requesting spouse can be self-supporting.

Question 20

What is permanent alimony?

Answer 20

Permanent alimony is a permanent or long-term award to support the recipient spouse. Permanent alimony is most appropriate in cases involving lengthy marriages, especially if there are likely to be long-term economic disparities between the parties.

Question 21

Under what circumstances may a court modify or terminate alimony?

Answer 21

A court can modify or terminate alimony based on a substantial, unanticipated, and permanent change in either party’s circumstances that makes the prior award unreasonable. A court can modify either the amount or the duration of the award.

But a foreseeable change won’t justify modification.

A common basis for terminating alimony: the receiving party’s remarriage.

Note: Alimony is typically not reinstated following an annulled remarriage because the paying ex-spouse has a right to rely on the finality of a remarriage to make financial decisions.

Question 22

What is the non-intervention doctrine?

Hint: Will a court order spousal support during a marriage?

Answer 22

The non-intervention doctrine holds that the courts won’t interfere with an intact marriage by ordering one spouse to support the other.

However, a court might award support upon the parties’ separation pending divorce.

Question 23

May the parties to the divorce divide their property themselves?

Answer 23

Yes; but if they cannot do so, the court must do it for them.

Question 24

What is the default principle governing property division?

Answer 24

Equitable (not necessarily equal) distribution.

Question 25

Can the court divide separate (as opposed to marital) property?

Answer 25

**Generally (in most states), no.** But **a few states allow a court to divide all the parties’ assets**, without distinguishing between separate and marital property.

Question 26

What is marital property?

Answer 26

Generally, **marital property consists of property acquired by either spouse during the marriage**, regardless of how the property is titled. Exceptions: **gifts from a third party to one spouse** during the marriage and **property acquired by inheritance** during the marriage. **Pensions**: If a spouse's pension reflects both marital employment income and premarital employment income, a court could apportion its value accordingly.

Question 27

What if separate property increases in value during the marriage?

Answer 27

The **increased value of separate property during the marriage remains separate property unless the increase is attributable to either party’s efforts or contributions during the marriage**.

Question 28

How are expectancies handled during property division?

Answer 28

**Expectancies acquired during the marriage also are marital property**, regardless of whether the marriage ends before payment is received.

Question 29

When does accural of marital property terminate?

Answer 29

In most states, **marital property continues to accrue until the final divorce judgment**. ## Footnote However, in a minority of states, accrual stops when the parties finally separate or when one party files for divorce.

Question 30

What four primary factors will a court consider when dividing marital property?

Answer 30

Courts consider **a wide range of factors** in distributing marital property, including: 1. **each party’s contribution (positive or negative) to the marriage**, whether through homemaking, childrearing, or outside employment; 2. **the parties’ respective economic circumstances after the divorce**; 3. the **extent to which each party supported the other’s career or education**; and 4. the **marriage’s duration**. ## Footnote Most states **don’t** allow consideration of adultery or other marital fault in property division.

Question 31

Can a court modify a final property-distribution award?

Answer 31

No.

Question 32

Can unmarried cohabitants obtain property division?

Answer 32

**Sometimes**. 1. A **minority of states recognize the putative-marriage doctrine**, also called the putative-spouse doctrine. This rule says that **even if a valid marriage never existed, a person who believed in good faith that she was married to someone may claim property rights as if the couple had been married**. 2. Some states also allow unmarried cohabitants to seek property division based on **theories such as contract, unjust enrichment, or simply the depth and significance of the relationship**. These rules vary from state to state and are reserved for long-term, serious cohabiting relationships.

Question 33

What are the two components of child custody?

Answer 33

**Legal** custody: The right to make important decisions about the child, such as medical care or educational options. **Physical** custody: A parent’s physical responsibility for the child, including daily care and supervision.

Question 34

What is joint custody?

Answer 34

Joint **legal** custody: Requires parents to make importance decisions about the child together. Joint **physical** custody: Gives each parent a significant share of the overall physical custody, though not necessarily an equal share.

Question 35

What judicial standard generally governs custody determinations? What factors may a court take into account?

Answer 35

The **best interests of the chlid**. Typical factors include each parent’s: * caretaking role, * ability to care for the child, * ability to provide social and domestic stability, and * history of violence or substance abuse. Also, a **child’s preferences** are a factor **if the child is old enough or mature enough to express them meaningfully**. Chld's preference is **usually not dispositive**.

Question 36

What is the standard of review on appeal for custody decisions?

Answer 36

A custody award will be reversed on appeal only for **clear error or an abuse of discretion**.

Question 37

Is a child’s noncustodial legal parent presumptively entitled to visitation?

Answer 37

Yes, so long as that **visitation doesn’t present an undue risk to the child** or otherwise **conflict with the child’s best interests**.

Question 38

What if there is a custody or visitation dispute between a fit parent and a nonparent?

Answer 38

A **fit parent has a constitutional liberty interest in controlling the child’s upbringing**. Thus, in a custody or visitation dispute between a fit parent and a nonparent, **the courts must prefer the parent**.

Question 39

When does a nonparent become a de facto parent (i.e., a person standing in loco parentis)?

Answer 39

When a nonparent who **takes on a fully committed, responsible role in caring for a child**. Such caregivers are sometimes said to stand in loco parentis. A nonparent who attains this status **can sometimes obtain visitation, even over a legal parent’s objection**, if such visitation is in the child’s best interest.

Question 40

Generally, under what circumstances can a court modify a custody order?

Answer 40

In general, a court will modify a custody determination **only if there’s a substantial change in the parties’ circumstances** such that the child’s best interests require modification.

Question 41

What happens if a custodial parent relocates?

Answer 41

Relocation can justify a modification. Consequently, **many states allow relocation beyond a certain radius only with the court’s prior approval**. There’s a trend toward allowing relocation by a parent who has the greater physical custody, but **the law nonetheless varies from state to state**.

Question 42

What is the Uniform Child Custody Jurisdiction and Enforcement Act?

Answer 42

**Model legislation** providing for **jurisdictional principles** in child custody cases. **Nearly every state** has adopted the UCCJEA. ## Footnote The jurisdictional provisions of the federal Parental Kidnapping Prevention Act are functionally identical to the UCCJEA.

Question 43

What is the home-state rule?

Answer 43

For **initial custody determinations**, the act gives **jurisdictional priority to the child’s home state**. Home state = the **state where the child has lived with at least one parent**, or someone acting as a parent, **for at least six consecutive months immediately before the start of the custody proceeding**. The **home state need not have jurisdiction over an out-of-state parent to have jurisdiction over custody**.

Question 44

What is the recent home-state rule?

Answer 44

A rule allowing a state to exercise jurisdiction if: * it was **the child’s home state within six months before the start of the custody proceeding**, and * the **child is absent from the state but a parent still lives in that state**. ## Footnote Generally applicable if the child has no home state.

Question 45

What if a child has neither a home state nor a recent home state?

Answer 45

If a child has neither a home state nor a recent home state, a state may exercise jurisdiction if: * the **child and at least one parent** have a **significant connection** with the state **beyond mere physical presence**, and * **substantial evidence is available in the state** concerning the child’s care, protection, training, and personal relationships.

Question 46

What are the jurisdictional rules governing custody modifications?

Answer 46

A **court that issues a child-custody order retains continuing, exclusive jurisdiction to modify** the order **until** 1. the **child and the child’s parents no longer reside in the issuing state**, or 2. the **issuing state determines that neither the child nor the child and one parent have a significant connection with the issuing state and substantial evidence regarding the child is no longer available in the issuing state**.

Question 47

What is the Uniform Interstate Family Support Act (as it applies to both child-support **and** paternity actions)?

Answer 47

The Uniform Interstate Family Support Act **allows jurisdiction in paternity and child-support cases over someone who engaged in sexual intercourse within the state that might’ve caused the child to be conceived**. The act places **no time limit on jurisdiction**, considering that a child-support obligation lasts until a child reaches adulthood. ## Footnote Fun fact: Jurisdiction would be based on **sexual intercourse** within the state, which likely qualifies as **intentional activity** sufficient for personal jurisdiction (i.e., **minimum contacts** -- tee-hee).

Question 48

Does one parent's marital status bear on the other parent's child-support obligations?

Answer 48

No.

Question 49

Can a parent's child-support obligation be capped in proportion to the other parent's eligibility for public-assistance payments?

Answer 49

No. Federal law requires each state to establish **presumptive, numerical child-support amounts based on the obligor’s income**.

Question 50

Can a parent waive child support?

Answer 50

No. Child support is for the child’s benefit, not either parent’s benefit.

Question 51

To which parent is child support payable?

Answer 51

The custodial parent.

Question 52

Are retroactive modifications of child support permissible?

Answer 52

**Generally, no**. Both federal law and the laws of many states prohibit retroactive child-support modification. The **earliest** that a modification may apply is the date **when the party seeking modification notified the opposing party** of the petition to modify.

Question 53

Under what circumstances can a court modify a support order prospectively?

Answer 53

A court may modify child support prospectively only if there’s been a **substantial or material change** in circumstances that **makes the prior order unreasonable or unconscionable**. Furthermore, **any such change must be ongoing, not temporary**.

Question 54

Will a voluntary income reduction justify a support modification?

Answer 54

**Depends**. **Some courts refuse** to modify child-support obligations based on a voluntary income reduction. **Other courts require** the moving party to show that the reduction was made in **good faith**, not to penalize the child or the custodial parent. **Some courts** also require a showing that the **modification wouldn’t cause substantial hardship to the child**. And **some courts attempt to balance the parent’s and child’s interests** in deciding whether to approve modification.

Question 55

Can a parent be required to pay support once the child has turned 18?

Answer 55

**Perhaps**. Some states allow a court to order child support even for children aged 18 or older, **especially if the child is in college**. But **in many states, parents may stop supporting a child who’s capable of self-support if the child fails to comply with reasonable parental demands**.

Question 56

What is the federal Full Faith and Credit for Child Support Orders Act?

Answer 56

This statute **requires each state to recognize another state’s child-support order** so long as: 1. the **order was issued by a court pursuant to the laws of the original state**, and 2. the **issuing court had both subject-matter and personal jurisdiction**.

Question 57

What is the Uniform Interstate Family Support Act (as it applies to child-support orders **only**)?

Answer 57

This statute (adopted in every state) **provides for interstate enforcement and modification of child-support orders**.

Question 58

What is the registration provision of the the Uniform Interstate Family Support Act?

Answer 58

This provision allows a party to a child-support order **to register that order in another state’s courts**. If an order from an issuing state is properly registered, then **the order is enforceable in the nonissuing state as if it had originated there**.

Question 59

What is the two-state procedure under the Uniform Interstate Family Support Act?

Answer 59

Provides that **a party may file an enforcement action in the nonissuing state that’s then forwarded to another state’s courts for further action**. Importantly, this two-state procedure **doesn’t require the forwarding court to have personal jurisdiction over the responding party**.

Question 60

What are the jurisdictional rules governing modifications of support orders?

Answer 60

Both the Full Faith and Credit for Child Support Orders Act and the UIFSA provide that **an issuing court retains continuing, exclusive jurisdiction to modify** a child-support order. However, a **second state can** exercise jurisdiction to **modify** the order **if no litigant or child resides in the issuing state** or **if the litigants consent in writing** to allow modification in the second state.

Question 61

What law governs a support modification? Hint: think choice of law …

Answer 61

The **law of the issuing state**, even if a court in another state modifies the order.

Question 62

What must occur before an adoption can take place?

Answer 62

A court first must **terminate any existing parental rights**.

Question 63

Generally speaking, must biological parents consent to an adoption?

Answer 63

If both biological parents have parental rights, then **both parents must consent to an adoption unless** they’ve: * **abandoned the child**, * **voluntarily surrendered their parental rights**, or * had their **parental rights terminated** by the state for unfitness.

Question 64

If a child is born out of wedlock, must the biological father consent to adoption?

Answer 64

In general, if a child is born out of wedlock, the father’s consent to adoption will be required **only if he’s demonstrated a willingness to take on the responsibilities of parenthood**. An unwed father’s consent may also be required **if he’s tried to take on parental responsibilities but the child’s mother or other circumstances have prevented him from doing so**.

Question 65

What is a putative-father registry, and how does it affect the putative father's rights concerning adoption?

Answer 65

A **state-operated registry in which a man can indicate his belief that he might’ve fathered a child with a particular woman**. Among other things, **registration can entitle the man to notice of a potential adoption and the right to give or withhold consent**. About half the states maintain putative-father registries.

Question 66

Can an adoption be reversed?

Answer 66

**In general, no**. A **few states allow rescission based on a mental or physical illness that wasn’t previously disclosed**, but such situations are **rare**.