Family Law

Question 1

Ceremonial Marriage Requirements

Answer 1

1. The parties obtain a marriage license;
2. The marriage is solemnized by a ceremony that is
   conducted by an authorized cleric or judge; AND 3. Both parties consent.

Question 2

Common Law Marriage Requirements

Answer 2

1. Cohabitated for the statutory period;
2. Held themselves out as married; AND
3. Intended to be married.

Question 3

Pre-Marital Contracts Valid if:

Answer 3

1. In writing and signed by both parties;
2. Executed after full disclosure of the property and
   financial obligations of both parties; AND
3. Voluntary – courts consider the following factors to
   determine whether an agreement was voluntary:
   a. The presence of independent legal counsel;
   b. The length of time between the agreement and the marriage;
   c. The sophistication of the parties; AND
   d. The presence of other pressing reasons to proceed with the marriage (e.g., pregnancy).

Question 4

Pre-Marital Contracts Unenforcable Terms

Answer 4

Most courts decide child custody according to the best interests of the child, regardless of any premarital agreements. Similarly, a premarital contract that adversely affects a child’s right to support is unenforceable.

Question 5

Annulment

Answer 5

a judicial declaration that a marriage never existed and was invalid from when the parties entered into it (e.g., bigamy, underage minors, etc.).

Question 6

Grounds for a No-Fault Divorce

Answer 6

1. A minimum duration of separation; AND/OR

2. Irreconcilable differences.

Question 7

Marital Action Jurisdiction

Answer 7

Under the majority view, a state where either party is domiciled has jurisdiction to enter an annulment decree.

Question 8

Divorce Full Faith and Credit

Answer 8

A divorce validly granted in one state is entitled to full faith and credit in other states if the petitioning party:
1. Was domiciled in the state the granted the divorce;
AND
2. Provided adequate notice of the proceeding to the other spouse.

Question 9

Property Division Approaches

Answer 9

Community Property vs Equitable Division

Question 10

Equitable Division Analysis

Answer 10

1. Categorize the property as separate or marital; THEN

2. Determine an equitable distribution of the marital property between the spouses.

Question 11

Marital Property

Answer 11

All property acquired during the marriage that is not separate property.

Question 12

Separate Property

Answer 12

1. All property acquired by either spouse before the marriage;
2. All property acquired by a spouse during marriage by gift, bequest, devise, or descent;
3. All property either spouse acquires with the proceeds of the spouse’s separate property; AND
4. All passive appreciation of separate property.

Question 13

Factors in Distribution of Marital Property

Answer 13

1. The income, property, and liabilities of each party; 2. The duration of the marriage;
2. The obligations for support arising out of a prior marriage;
3. The lifestyle each spouse is accustomed to; AND
4. The contributions made by each spouse toward the accumulation of marital property.

Question 14

Eligibility for Spousal Support

Answer 14

The spouse seeking support:

1. Lacks property sufficient for his or her reasonable needs and is unable to support himself through appropriate gainful employment; OR
2. Is the custodian of a child that it would inappropriate for him to work.

Question 15

Factors in determining spousal support

Answer 15

1. The financial resources of the party seeking maintenance;
2. The time needed for the spouse seeking support to obtain an appropriate job;
3. The duration of the marriage;
4. The standard of living established during marriage;
5. The physical/mental condition of the spouse seeking maintenance; AND
6. The ability of the spouse paying support to meet her own needs while meeting those of her spouse.

Question 16

Child Support

Answer 16

Parents have an absolute obligation to support their children.

Question 17

How is Child Support Calculated

Answer 17

Federal law requires every state to provide guidelines to determine the proper amount of child support owed by a non-custodial parent, which must:

1. Consider the income of the non-custodial parent;
2. Provide for the child’s healthcare needs; AND
3. Be based on specifically descriptive numeric criteria.

Question 18

Modification of Support Orders

Answer 18

Most States: only when there is a substantial change in circumstances of either party making the prior order unreasonable.
UDMA: only upon a showing of changed circumstances so substantial and continuing to make the terms unconscionable.
Generally, no modification if change of circumstances was voluntary

Question 19

Child Custody

Answer 19

BEST INTEREST OF THE CHILD

Question 20

Modification of Child Custody

Answer 20

Parent must show that:
1. The circumstances have substantially changed; AND
2. The modification would be in the child’s best
interests.

Question 21

Establishing Paternity

Answer 21

Uniform Parentage Act, establish by:

1. An effective acknowledgement of paternity by the man (unless rescinded or successfully challenged);
2. A valid adoption of the child by the man; OR
3. An adjudication of the man’s paternity.

Question 22

Paternity Presumptions

Answer 22

Paternity presumed if:

1. He and the child’s mother are or have been married to each other and the child is born during the marriage, or within 300 days after the marriage is terminated;
2. Before the child’s birth, he and the child’s mother attempted to marry each in apparent compliance with law, although the attempted marriage is or could be declared invalid, and the child is born during the invalid marriage or within 300 days after its termination; OR
3. While the child is under the age of majority, he receives the child into his home and openly holds out the child as his own.

Question 23

Equitable Estoppel

Answer 23

a man who is not the biological father will be estopped from denying paternity if:

1. He has held himself out as the father; AND
2. Paid support.

Question 24

Legitimation by Petition

Answer 24

To establish his rights, the father may file a petition seeking to legitimate his child.
Generally, the father must show that he has:
1. Assumed parental responsibilities; AND
2. Established a substantial parent-child relationship.

Question 25

Legitimation by Marriage

Answer 25

The marriage of the mother and biological father renders the nonmarital child legitimate so long as the father recognizes the child as his child.

Question 26

Effect of Legitimation

Answer 26

the father stands in the same position as any other parent regarding parental and custodial rights with respect to the child.

Question 27

Adoption Defined

Answer 27

Adoption is a statutory procedure that terminates the rights of the biological parents and establishes the rights of the adoptive parents. In most states, the biological parents lose the right to visit their child after the adoption. However, some states will permit visitation if it is in the child’s best interests

Question 28

Consent to permit adoption

Answer 28

Generally, the consent of both parents is required to place a child up for adoption. However, if the child is born out of wedlock, consent of the father is only required when he has assumed parental responsibility. Moreover, an unwed father who knew of his child’s pending birth is not entitled to notice of the adoption if he did not take steps to establish a parent-child relationship with the child.

Question 29

Consent Challenges

Answer 29

A biological parent may challenge the validity of his/her consent to an adoption on the ground that his/her consent: 1. Was procured by fraud or duress; OR 2. Failed to comply with statutory formalities.

Question 30

Approaches to Revocation of Consent

Answer 30

1. Consent is revocable until the final adoption decree is entered with the court; 2. Consent is revocable at the court’s discretion up to a specified amount of time so long as the revocation is in the child’s best interests; OR 3. Absent fraud or duress, consent is not revocable.