Family Law

Question 1

Before Marriage - Breach of Promise to Marry

Answer 1

• Rare in most states

* When used, gives torts damages (actual + loss to reputation + mental anguish)

Question 2

Before Marriage - Gifts in Contemplation of Marriage

Answer 2

• Gifts null of marriage doesn’t happen

* Consider the type of property, conditions, intent of donor

Question 3

Before Marriage - Antenuptial Agreements

Answer 3

• Many states - UPAA
• Parties can agree to disposition of property and alimony
• Waiver of alimony upheld UNLESS causes spouse to become public charge
• Courts NOT bound be provisions re kids
• Reqs for validity:
  (1) In writing+signed
  (2) Voluntary (no fraud/duress)
  (3) Full disclosure of assets OR proof of independent knowledge (but must find unconscionable before evaluating)
• Some courts consider fairness+representation by counsel

Question 4

Marriage - Reqs

Answer 4

(1) License
(a) Some states require medical cert
(b) 72-hr waiting period (most states)

(2) Ceremony w authorized officiant

(3) No legal impediments:
(a) Too closely related
* * Many states - No marriages bw ppl related by marriage, step-relations, or adoptions
* * Some states - First cousins OK
(b) No bigamy

(4) Capacity
(a) Mental ability to consent
(b) Age - Generally 18
* * 16-17 - parent consent
* * <16 - Judicial consent (often preggers)

• NB: Procedural defects DO NOT invalidate marriage

Question 5

Marriage - Common Law

Answer 5

• Reqs:
  (1) Consent to marry, not just to cohabit
  (2) Cohabitation
  (3) Holding yourself out publicly as married
• States that don’t allow, will recognize CL marriages from other states where permitted

Question 6

Marriage - By Estoppel/Putative Marriage

Answer 6

Equitable marriage given to innocent party who acted in good faith (e.g. marrying someone you didn’t know was married)

Question 7

Marriage - R+Rs bw Spouses

Answer 7

• Property:
  (a) Each spouse owns own property, but title not dispositive in divorce
  (b) If spouses take title to real estate in joint names - Tenancy by the entireties is presumed
• Support:
  (a) Owe each other support
  (b) Doctrine of Necessaries - One spouse can be liable to third party for other’s ~necessary expenses~
• Spousal Abuse Orders:
  (a) Victim entitled to protective order; can be granted ex parte
• Tortious Interference w Marriage - Claims against third party; abolished in many states:
  (a) Alienation of Affection - Reqs:
  (1) Genuine love and affection
  (2) L+A was alienated and destroyed, and
  (3) D’s acts CAUSED loss

(b) Criminal Conversation - Reqs:
(1) Marriage
(2) Adultery bw D and one spouse

Question 8

Annulment

Answer 8

• Ex post declaration that marriage was invalid/defective
• Available for marriages that are void OR voidable
• Void:
  (a) Fail to meet ~essential reqs~
  (b) Can be attacked by spouses or third party
  (3) MIGHT be remedied by cohabitation after removal of impediment (UMDA + some states)
• Voidable
  (a) Event or condition affecting adequacy of ~consent~ to marry
  (b) Valid until annulled
  (c) Can be attacked ONLY by/on behalf of a spouse
  (d) Ratify marriage by continued cohabitation after removal of infirmity
• Presumption of validity of LAST/MOST RECENT marriage; must be overcome by strong evidence that prior marriage subsists
• Effects of Annulment:
  (a) Marriage set aside as if never existed
  (b) Kids stay legit
  (c) Child support can be awarded
  (d) Spousal support may be awarded in some states
  (e) Property treated as if never married - “pre-marital state”-

Question 9

Divorce

Answer 9

• JX:
  (1) One spouse must be domiciled in forum
  (2) If spouse resident of state for minimum period of time, presumption of domicile
  (3) If multiple jxs have jx and one renders a judgment, others lose SMJ
• Grounds
  (1) No-Fault Divorce - Allowed on proof of:
  (a) Irreconciliable differences - May require agreement of spouses
  (b) Living separate and apart for a specified time period (short if agree, longer if unilateral)
  (c) Incompatibility
  (2) Fault-based Divorce
  (a) Adultery - Proved by circumstantial evidence of (1) opportunity, AND (2) inclination; corroboration often reqd
  (b) Desertion/abandonment - Unjustifiable departure from home for some time w no intent to return
  (c) Cruelty
  (d) Habitual drunkenness/drug abuse ~starting after marriage~
  (e) Insanity (maybe institutionalized)
• Defenses
  (1) No-fault - Generally no defenses, but one spouse can claim reconciliation to restart clock for living separate and apart
  (2) Fault-based - Rarely used:
  (a) Collusion
  (b) Connivance (consent to misconduct)
  (c) Condonation (forgiveness; generally requires sex after)
  (d) Recrimination (unclean hands)

Question 10

Separation

Answer 10

• Permitted for same grounds as divorce
• Effects:
  (a) Parties still married
  (b) Parties can seek to have rights re property, support, custody decided
  (c) Court MAY permanently divide marital property when separation granted

Question 11

Property Division - General Principles

Answer 11

• 3 approaches:
  (1) Community property - All property acquired during marriage is owned jointly, and all previously acquired property is separate
  (2) Equitable division of ALL property owned by either spouse
  (3) Equitable division of MARITAL property - Most popular
• Property distribution decrees are FINAL/not modifiable (unlike support awards)
• Property division has 2 steps:
  (1) Classification - Determine what’s marital and separate property
  (2) Division - Make equitable (not necessarily equal) division of marital property, regardless of title

Question 12

Property Division - Separate Property

Answer 12

• All real and personal property owned before marriage, including retirement accounts
• Property acquired at any time by gift, bequest, devise, or descent
• Property acquired in exchange for property acquired before marriage
• Income from, and appreciation of, separate property
• Pain and suffering awards, crime victim compensation, future medical expenses, and future lost wages
• Property acquired by a spouse after an order of legal separation where court has made final property disposition

Question 13

Property Division - Marital Property

Answer 13

• All property acquired during the marriage up to the final divorce decree (or may date of separation or date of filing for divorce)
• Includes vested and unvested pension, vested and unvested stock rights, retirement/fringe benefits relating to employed that accrued during marroage
• Includes recovery in personal injury, worker’s comp, SS disability, and other similar actions for ~lost wages~, reimbursement for medical bills incurred and paid w marital property, property damage to marital property

Question 14

Property Division - Special Classification Issues

Answer 14

• Commingling - Separate property can become marital if property is ~inextricably intertwined~ (e.g. bank account)
• Transmutation - Separate property can become marital based on intent of parties
• Improvement of separate property - When separate property is improved by use of marital funds OR efforts of either spouse, courts grant marital estate/non-owning spouse reimbursement for value added
• Property acquired before marriage but paid for after - Courts are split
  (a) Majority seems to be apportionment bw estates in proportion to contribution
• Pensions - Marital property EVEN IF non-working spouse didn’t contribute
• Professional license/degree - NOT marital property
  (a) BUT some courts consider it when awarding alimony
  (b) Minority of courts actually put a value on it
• Tax consequences - Property division is NOT a taxable event

Question 15

Property Division - Equity

Answer 15

• Equitable division =/ equal
• Factors - Tons
• Marital fault generally NOT a factor, but can be
• Court can divide property in kind or by contribution

Question 16

Alimony - Overview/Types

Answer 16

• Paid to economically dependent spouse
• Court has great discretion
• 4 types (can award more than one):
  (1) Permanent periodic - E.g. $X per month until death/remarriage
  (a) Duration - Indefinite
  (b) Modification - Yes

(2) Lump sum - E.G. $X payable at $Y per month
(a) Duration - Specified time period
(b) Modification - NO

(3) Rehabilitative support - E.g.. $X per month for Y months to gain education/skills
(a) Duration - Specified time period
(b) Modification - Yes

(4) Reimbursement support - E.g. $X as repayment for contribution to education/license by other support
(a) Duration - Specified time period; lump sum or installments
(b) Modification - NO

Question 17

Alimony - Factors

Answer 17

• Primary considerations:
  (a) Needs of claimant spouse
  (b) Ability of other spouse to pay
• Other factors - Lots

Question 18

Alimony - Modification/Termination

Answer 18

• Modifiable based on substantial/material change of circumstances
  (a) Voluntary reduction in income NOT sufficient to reduce obligation
• Termination:
  (a) Periodic payments terminate on:
  (a) Remarriage of recipient
  (b) Death of recipient
  (c) Some states - Cohabitation w another

(b) Lump sums - Survive death/not modifiable

• Tax Consequences
  (a) 2019 and later - Alimony NOT income for recipient or deductible by payor
  (b) Before 2019 - Income + deductible, unless instrument is modified to comport w new rule

Question 19

Separation Agreements

Answer 19

• Enforceable if supported by consideration
• Must be full+fair disclosure and voluntary
• Parties can waive alimony and property division, and can agree on custody/kid stuff, but court not bound by provisions re kids
• Modifications:
  (a) Merger into divorce decree - Terms of divorce can expressly merge; modifiable by court and subject to contempt
  (b) Non-merger - If no merger, court can’t modify, and enforcement only via K remedies

Question 20

Child Support

Answer 20

• Both parents have equal duty to support children based on need/ability to pay
• Courts have less discretion bc child support guidelines
• Majority approach - Income Shares - Considers # of children and income of parents to determine baseline of support
• Duration - Until age of majority OR Death of child OR Emancipation OR Termination of parental rights
  (a) Can continue >18 if still in high school until some age or completion of education
  (b) Can continue longer if child disabled
• Jx over orders
  (a) UIFSA - Adopted everywhere

(b) Original jx - Where first petition under UIFSA is filed
* * Another state has jx only if:
(1) Second petition filed before expiry of time to answer
(2) Petitioner objected to jx in first action, AND
(3) Second state is child’s home state

(c) Jx to enforce
* * Issuing court has continuing jx
* * Another state can enforce by:
(1) Direct enforcement - Obligee mails order to obligor’s employer in other state; wages withheld
(2) Registration - Order registered in other state

(d) Jx to modify - Issue court has continuing EXCLUSIVE jx UNLESS:
* * No parties reside there; or
* * Parties consent to other jx

• Modification - Based on substantial change; voluntary income reduction not relevant
• Tax consequences - Not income or deductible
• Enforcement - Civil and criminal contempt proceedings
  (a) Parties can seize property, use wage withholding, intercept tax refunds, and revoke licenses

Question 21

Child Custody - Interstate Custody and Jx

Answer 21

• UCCJEA applies
• Initial award
  (a) Home State test - Jx EITHER:
• • State where child has lived w parent for at least 6 consecutive months, OR
• • State that was child’s home state in the last 6 months AND child is absent from state, but parent still there

(b) If no home state, jx if (1) child has a significant connection, and (2) substantial evidence of child’s well-being there
(c) If above don’t work, state can assume ~deferred jx~
(d) If no other state, jx by ~default~

• Modification - Issuing state has continuing exclusive jx UNLESS:
  (a) No child or parent continues to reside there, OR
  (b) Child no longer has a sig connection w state and no substantial evidence in state (decided by issuing state)
• Declining jx:
  (a) Court CAN’T exercise jx if:
• • Proper proceeding pending elsewhere OR
• • Person seeking jx has engaged in unjustifiable conduct
    (b) Court can decline jx if inconvenient forum
• Temporary emergency jx - Reqs:
  (a) Child is physically present in state, AND
  (b) Child abandoned OR it’s necessary to protect child bc someone being abused

Question 22

Child Custody - Overview

Answer 22

• Custody includes:
  (a) Legal - Rights to make decisions
  (b) Physical - Possession and control
• Hallmark in case is ALWAYS best interests of the child
• Factors in cases:
  (a) Wishes of parents (constitutionally protected)
  (b) Preference of child (<8, not considered; >12, great weight)
  (c) Relationship of child to parents/siblings/others
  (d) Child’s adjustment to home/shool/community
  (e) Mental and physical health of parties
  (f) Parent who was the primary caregiver
• Lots of discretion

Question 23

Child Custody - Types

Answer 23

• Joint custody - Can be joint legal, physical, or both
  (a) Encouraged in most states and awarded if parents agree
  (b) Not awarded if parents are openly hostile/unable to community
• Sole custody - When strong evidence demonstrates in best interest of child
  (a) Other parent afforded reasonable visitation unless harmful to child
• Custody to a nonparent
  (a) Standard isn’t just best interests of child bc constitutional protections
  (b) Parent entitled to custody UNLESS nonparent shows: (1) harm to child, OR (2) unfitness
• Visitation:
  (a) Parental - Absolute denial is rare; denial/restriction if injury to child at risk
  (b) Nonparent - Third parties, generally grandparents, can seek visitation
• • Often applies in divorce, separation, or death
• • If parent is fit, his/her wishes about nonparent visitation must be given special weight

Question 24

Child Custody - Modification

Answer 24

• Party seeking modification has burden of proof
• Standard - Requires substantial/material change of circumstance affecting child’s well-being
• States generally require a certain time (1/2 years) to elapse before modification

Question 25

Child Custody - Relocation

Answer 25

• Generally requires notice to other parent and a court hearing to determine if appropriate
• Factors:
  (a) Child’s best interest
  (b) Motivated by benefit to family
  (c) Not intended to thwart relationship w other parent

Question 26

Child Custody - Enforcement

Answer 26

• Via civil contempt proceedings
• State habeas corpus (for physical custody)
• Suit in equity seeking injunction
• Out of state decrees - Enforced if certified copy filed w clerk
  (a) Doesn’t remove continuing exclusive jx of another state, but allows enforcement
• Child kidnapping - If child removed from state, custodial parent must file custody order in new jx and seek enforcement/obtain a writ of habeas corpus from new jx
  (a) PKPA - States must give FFC to another state’s child custody determination if jx proper
• • Jx/modification reqs similar to UCCJEA
    (b) IPKPA - International

Question 27

Non-marital Children

Answer 27

• Intermediate scrutiny applies in EP cases
• Parent action - Brought to establish biological relationship
• Presumption of parentage - Husband of mother presumed father if:
  (a) Child born during marriage, OR
  (b) Child born within 300 days of termination of marriage OR
  (c) Child is born during a void or voidable marriage
• Can rebut presumption w C+C evidence; but even if rebutted some states prohibit disestablishment of paternity
• Unwed fathers - Child can be considered child if:
  (a) After birth, father marries mother
  (b) Father holds child out as his own
  (c) Father consents to his name on the birth certificate
  (d) Father formally acknowledges paternity
  (e) Judgment decreeing paternity
• Unwed fathers protected by DP and can have rights to custody if demonstrate ~parental responsibility~
• Unwed fathers can be excluded from tort recovery for death of child if not recognized

Question 28

Termination of Parental Rights

Answer 28

• Voluntary termination - Can voluntarily relinquish all rights (usually before adoption)
• Involuntary
  (a) State can’t interfere UNLESS decision endangers child
  (b) State can seek to terminate rights for:
  (1) Serious physical harm
  (2) Abandonment
  (3) Neglect/deprivation
  (4) Failure to provide support without cause for a period (1 year)
  (5) Bad parent mental health
  (6) Parental unfitness
• Parents generally CAN’T seek to terminate rights of other parent

Question 29

Adoption

Answer 29

• Types:
  (a) Agency - through licensed adoption agency
  (b) Private - through private intermediaries
• Reqs:
  (a) Termination of biological parent rights
  (1) Consent of biological parents required UNLESS: rights already terminated OT withheld against BIOC
  (2) Consent of unmarried father required IF actively involved in child’s life

(b) Creation of new parent rights:
(1) Consent of adoptee over certain age
(2) Home study (often waived for relative adoption)
(3) Payment of money PROHIBITED (except medical costs of pregnancy)

• Adoption records - Sealed unless biological parents consent
• Consequences - Severs all rights/obligations of bio parents and creates duties to adoptive ones
  (a) Some states - Child can still inherit from bio parents

Question 30

Assisted Reproduction

Answer 30

• UPA - Has NOT been adopted by many states
• Maternity - Established by:
  (a) Birth (unless gestational agreement)
  (b) Adjudication
  (c) Adoption
  (d) Adjudication confirming mother of child born to a gestational surrogate
• Paternity - Husband married to woman who has child through assisted conception IS father UNLESS proves lack of consent within 2 years of birth
• Gamete donors - NOT parents
  (a) Some states allow them to have rights if agreed in writing bw donor and woman
• Posthumous conception - Child can be considered child of deceased gamete donor if donor consented in writing to use of gametes after death
• Gestational agreements
  (a) Some states don’t recognize (“sale of a child”)
  (b) Need a written agreement approved by court
  (c) Subsequent marriage or divorce of intended parents doesn’t invalidate agreement
  (d) Agreement can be terminated at any time by anyone BEFORE embryo transfer
  (e) If agreement is unenforceable, gestational mother considered mother of child, regardless of biology