Family Law Essay

Question 1

What are the four elements of common law marriage?

Answer 1

1. Capacity
2. Present agreement
3. Cohabitation
4. Holding out a marital relationship

Question 2

Will a marriage performed in one state be valid in another?

Answer 2

Yes, under the full faith and credit clause of the constitution, UNLESS the marriage violates a strong public policy of the state.

Question 3

What is a putative marriage?

Answer 3

A marriage that arrises when an innocent party participates in a ceremonial marriage and believes in good faith that the marriage is valid, but later disovers there was an impediment on the marriage.

Question 4

What rights does a putative spouse have?

Answer 4

They can seek legal remedies like spousal support and property distribution.

Question 5

What is the standard for divorce in a no-fault state?

Answer 5

irreconcilable differences.
NOTE: there is no requirement to attempt reconcilliation.

Question 6

What code of conduct must a mediator follow?

Answer 6

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 (address signs of DV or threats during mediaiton)
4. not coerce or improperly influence a party to make a decision.

Question 7

What are assetts divided in a community property state?

Answer 7

Genearlly, equal division of marital property.

Question 8

What is considered separate property?

Answer 8

Anything acquired before the marriage and assetts acquired during marriage by gift, device, or descent.

Question 9

How is SP transformed into MP?

Answer 9

If marital funds or efforts are used to increase the SP’s value or build equity.

Question 10

Classify future reitrement/pension benefits.

Answer 10

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 11

Classify professional licenses/degrees

Answer 11

Most courts treat these as MP
- The non-degree earning spouse would not be compensated for the value of the degree
BUT they can seek reimbursement for contribution to educational and living expenses

Question 12

Classify personal injury claim proceeds

Answer 12

If the cause of action accrues during marriage, it can be classifed as MP.

Question 13

What are the two approaches to classifying personal injury claim proceeds for a cause of action that accrued during the marriage?

Answer 13

Approach 1: all proceeds are treated as MP
Approach 2: Damages are divided by type:
- Compensatory (pain, suffering, disability) are SP of injured spouse
- Consoritum damages are SP of non-injured spouse
- lost wages, lost earning capacity, and medical expenses are MP (divided equitably)

Question 14

What is the rule around modifying a property division award?

Answer 14

A property division is not modifiable after hte fact because it is based on the parties’ assets at the time of divorc.e
Changes in the parties’ circumstances after divorce do not affect the award.

Question 15

What is the rule around division of property in a putative marriage?

Answer 15

Putative spouses may be entitled to an equitable distribution of property that would have been classifed as marital property had the parties been legally married.

Question 16

What is spousal support?

Answer 16

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

Question 17

What factors are considered when determining a spousal support award?

Answer 17

• financial resources of both parties
• standard of living during marriage
• time it will take for receiving spouse to find employment or finish education
• length of marriage
• contributions to marriage
• age and health of both parties
• marital misconduct such as adultery (only in some states)

Question 18

What are the different types of spousal support?

Answer 18

1. Permanent alimony
2. limited-duration alimonty - if marraige was short
3. Rehabilitative Support - a limited period of time, such as untilt he spouse receives education or employmenet
4. Reimbursement support - compensates as pouse for financial sacrifices made during the marriage that resulted in a reduced standard of living in order to secure an enhanced standdard of living in the future.

Question 19

What is the standard for modifying spousal support?

Answer 19

The party seeking modification has the burden of establishing a significant and continuing change in circumstances that warrants the modification.

Question 20

What can a court do in an ex parte divorce?

Answer 20

Only grant a divorce to one spouse if they are domiciled in the state.

The court cannot address property division, spousal support, or child support unless there is PJ over the out-of-state spouse.

Question 21

When does the UIFSA say that a court has personal jurisdiction over an out-of-state parent for purposes of child support or establishement of paternity?

Answer 21

1. the out-of-state parent is personally served within the state or consents to jurisdiction or
2. the out-of-state parent resided with the child int he state int he past or
3. the out-of-state parent enegaged in sexual intercourse in the state, and the child may have been conceived by the act of intercourse.

Question 22

What factors may a court look to to deviate from child support guidelines?

Answer 22

• best interests of the child
• age of the child
• special needs
• assets of both parties
• standard of living during marriage

Question 23

What is the standard for modifying a child support modiciation?

Answer 23

The party seeking the modification of child support bears the burden of showing a substantial chang in circumstances regarding the child’s needs or the parents’ financial situation.

Question 24

When may a court modify a child support order because of a voluntary reduction in income?

Answer 24

If the voluntarily reduction in income wasm ade in good faith, and not done to deprive the child or punish the parent in bad faith.

Question 25

What will happen to a child support order if the man discovers he is not the father of the child?

Answer 25

Some states will terminate the child support order, while others may continue the support obligation?

Question 26

What are the timing issues for a modification of child support?

Answer 26

A court will only modify child support amounts prospectively, from teh date of the motion moving forward (future payments). A court will not reduce the amount of child support retroactively (will not reduce amounts owed prior to the date of the motion).

Question 27

When does chld support terminate?

Answer 27

Usually when the child reaches the age of majority, but in some jurisdictions the couert may extend it beyond of the age of majority when the child is in college, subject to reasonable parental demands.

Question 28

Who has jurisdiction over modifying an existing child support obligation?

Answer 28

Under UIFSA, the state that issued the initial child support order has continuing exclusive jurisdiction to modify the child support order. Exceptions arise if both parents and the child no longer reside in the state OR the parties expressly agree to permit another state to exercise jurisdiction.

Question 29

What is legal custody?

Answer 29

The right of a parent to make major decisions regarding the child (e.g., health, education, religion)

Question 30

What is physical custody?

Answer 30

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 31

What is joint custody?

Answer 31

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 32

WHat is the scheme for jurisdiction of child custody under the UCCJEA?

Answer 32

Under the UCCJEA, 1. the home state jurisdiction - the child's home state is the state where they have resided for a period of 6 months or since their birth if less than 6 months OR if it was the child's home state in the past six months and one parent still lives there 2. significant - connection jurisdiction if home state is not met - 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 33

When will a court that made the initial custody case ruling no long have exclusive-continuing jurisdiction.

Answer 33

Courts that make the initial ruling in a child ucstody case have exclusive continuing jurisdiction over hte matter until the court determines that: - both parties no longer reside int he state or - the hcild 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.H

Question 34

What factors will a court consider when modifiying a custody order for relocation?

Answer 34

- the best interests of the hcild - the relationship of the non-relocating parent with the child - age and needs of the child - the child's preference - the qualify of life of the relocating parent and child

Question 35

What is required for a pre-marital agreement to be enforceable.

Answer 35

It needs to be in writing. There must have been full disclosure, the agreement must be fair and reasonable, and it must have been involuntarily entered into.

Question 36

When is a premarital agreement uneforceable under the UPAA?

Answer 36

The party arguing hte agreement is unenforceable must show at least one of the following: - involuntariness (fraud, duress, coercion) or - unconscionablility when executed AND a lack of reasonable knowledge or disclosure of hte other's assets and obligations

Question 37

What do courts look at to find involuntariness in a premarital agreement?

Answer 37

Courts consider factors such as 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 38

When may a separation agreement be invalidated?

Answer 38

In whole or in part if a party can show unconscionability or fraud.

Question 39

When determining the validity of a premarital agreement, what will a court do with the conflict of laws?

Answer 39

States will apply the law of either (i) the state in which the agreement was executed or (ii) the state with the most significant relationship to the parties and transaction.

Question 40

What rights do unwed fathers have?

Answer 40

Unwed fathers have substatnive due process rights under the U.S. Constitution if they have shown a commitment to being a parent. This includes the right to object to the temrination of a parental right by adoption.

Question 41

Can an adoption be dissolved?

Answer 41

Genearlly no. Some states, however, have permitted dissolution in limited circumstances (e.g., discovery of an undisclosed mental or physical illness.

Question 42

What factors do courts consider in evaluating dissolution of an adoption?

Answer 42

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