Family Law Rule Blocks

Question 1

Common Law Marriage

Answer 1

Common law marriage: to establish a common law marriage, the proponent must show (mnemonic = “CACH”): (1) capacity to enter into a marital contract, (2) a present agreement to be married, (3) cohabitation,
and “holding out ” a marital relationship

Question 2

Premarital agreements - when will the courts enforce?

Answer 2

Enforceability- A court will enforce a premarital agreement so long as it is (1) voluntarily made, (2) substantively fair, and (3) if full disclosure of assets and obligations was made.

Question 3

requirements for Challenging a premarital agreement

Answer 3

Under the UPAA (Uniform Premarital Agreement Act) requires that the challenging party show: (i) involuntariness, or
(ii) that the agreement was unconscionable when it was executed, that she did not receive or waive fair and reasonable disclosure, and she “did not have, or reasonably could not have had, an adequate knowledge” of the other’s assets and obligations.

Tip for remembering this - this is basically saying they either did fraud or this is basically fraud

Question 4

What is reasonable disclosure in a premarital agreement?

Answer 4

Premarital agreements must provide full disclosure of financial status, including income, assets, and liabilities of all parties. Absent full disclosure, a court will generally refuse to enforce the agreement. The agreement must be in writing and signed by the party to be charged.

Question 5

When is unconscionability assessed?

Answer 5

Most courts evaluate fairness at the time of the execution of the contract. The current trend is for courts to enforce contractual agreements that may not be fair as long as there has been fair disclosure.

Question 6

Affects of second marriage on valid marriage

Answer 6

If either party is still part of a valid marriage, a subsequent marriage is void. There is a presumption that the most recent marriage is valid. However, this presumption is rebuttable by cogent evidence of the existence of a prior valid marriage at the time that the latest marriage was entered into. A valid marriage, including common law marriage, can be terminated only by annulment, divorce, or death.

Question 7

Putative spouse doctrine

Answer 7

Under the doctrine, a party who participated in a ceremonial marriage and believes in good faith that the marriage is valid may use a state’s divorce provisions if the marriage is later found void due to an impediment. Although this claim does not result in a divorce, it does provide equitable relief through maintenance and property distribution.

chick marries dude who didn’t get valid divorce - 10 years later she finds out.

Question 8

Equitable distribution v. community property

Answer 8

Equitable distribution is not necessarily an equal division of marital assets.

Community property distribution divides properly evenly

Question 9

Equitable Distribution general rule

Answer 9

In general, the objective of the equitable-distribution system is to order a fair distribution of all marital property, taking into consideration all of the circumstances between the parties. In most states, all property acquired during the marriage is marital property and subject to equitable distribution.

Question 10

Factors court consider in equitable distribution

Answer 10

Courts many factors:

(1) the length of the marriage,
(2) the age, health, earning potential, and needs of both spouses,
(3) the value of separate property, the spouses’ standard of living, and economic circumstances of each spouse at the time of divorce.

Question 11

Common types of child support

Answer 11

(1) Lump sum- A lump-sum spousal support award is a fixed amount and may not be modified in the absence of fraud.
(2) Permanent- typically awarded only when the marriage was one of long duration. Although jurisdictions differ on the definition of “long-term,” it typically refers to a marriage of 15 years or more.
(3) Rehabalitive- is for a limited period of time, such as until the spouse receives education or employment. The purpose of this type of support is to enhance and improve the earning capacity of the economically dependent spouse.

Question 12

What orders or awards may be modified?

Answer 12

child Support - Can be modified , Significant change in circumstances.

Child custody/visitation- substantial change in circumstances regarding the child’s needs or the parent’s financial situation.

Property Awards- the property division award cannot be modified.

Question 13

Modification of a child support order

Answer 13

Generally, a state may prospectively modify a child support order when there is a substantial change in circumstances regarding the child’s needs or the parent’s financial situation. The parent requesting the modification has the burden of showing a substantial change in circumstances such as a significant decrease in income.

Not retroactive

Question 14

Voluntary change in income

Answer 14

When a parent voluntarily changes his employment, a reduction in income alone is not sufficient proof of substantial changes in circumstances. The courts will consider the parent’s earning capacity and other factors surrounding the change before deciding whether to modify the support order.

Question 15

Modifying spousal support

Answer 15

Courts can modify** a spousal support order **based on a significant change in circumstances.

Question 16

Standard for determining child custody

Answer 16

The standard for determining child custody is the best interests of the child.Most courts will consider the wishes of the child if the court can determine that the child has a sufficient maturity to express a preference. Although age is not the sole factor in determining whether a child should be consulted, it is considered by the court. If children are consulted, the court evaluates the reasons behind the preference.

Question 17

Abandonment

Answer 17

Many states assess abandonment by an objective test which occurs When an objective standard is applied, the key is whether the parent has failed to act in a way that indicates a commitment to maintaining the parent-child relationship (e.g., visitation and support). While other states use the subjective test, which assess whether the parent subjectively intended to abandon the parent-child relationship; objective evidence of a parental loss of interest in the relationship is insufficient.

Question 18

Parent v. 3rd Party

Answer 18

A fit parent has a fundamental right to the care, custody, and control of her children.As such, state courts must give special weight to a fit parent’s decision to deny nonparent visitation, unless denying visitation would be detrimental to the child. In some situations, the courts will grant visitation to a third party, such as a stepparent. However, this is typically limited to those cases in which the third party lived with the child for an extended period of time and acted as a de facto parent prior to the divorce.

Note that parent must be unfit or highly detrimental to parent

Question 19

Natural parent opposing adoption

Answer 19

Rights of a parent when another person wants to adopt a child: an involved parent who demonstrates a “full commitment to the responsibilities of parenthood” will likely be able to successfully oppose an adoption petition by another and is entitled to notice of such proceedings.

Question 20

Termination of natural parent rights

Answer 20

Termination of natural parent rights- may occur voluntary or involuntary.

If voluntary, need parental consent. If parent is unknown, the opportunity to consent is revoked by failure to register with state. In voluntary termination usually occurs because of child abuse, neglect, or other similar situations. A parent may also lose parental rights via abandonment.

Question 21

Legal effects of adoption

Answer 21

Once an adoption takes place, the adoptive parents have all of the rights and responsibilities that the biological parents would have had (e.g., support, custody, visitation, and inheritance), and the adopted child has all of the rights and responsibilities that a biological child would have had (e.g., intestate rights in the adoptive parents’ estate).

Some states allow for the natural parents to visit, but the majority do not. Generally, an adoption may not be dissolved, although some states have permitted dissolution in limited circumstances, such as the discovery of an undisclosed mental or physical illness. In evaluating dissolution claims, courts typically consider the length of the relationship, the child’s needs, and the parent’s motives.

Question 22

Req

Question 23

Adoption requirements

Answer 23

Termination of natural parent rights, which either occur voluntary or involuntarily, and approval by the state

Question 24

Uniform Interstate Family Support Act (UIFSA)

Answer 24

1. Uniform Interstate Family Support Act (UIFSA)- Uniform Interstate Family Support Act (UIFSA)

• The UIFSA governs when a state has personal jurisdiction over an out-of-state parent in an action to establish or enforce child support or establish paternity.
• A court will be found to have personal jurisdiction over an out-of-state parent in various stations, including:
  
  • Is personally served within the state or consents to jurisdiction.
  • Resided with the child in the state in the past
  • Engaged in sexual intercourse in the state, and the child may have been conceived by the act of intercourse.
• Enforcement/Modification- Once a child support order is registered, it may be enforced by any state. The state that originally issued a child support order has exclusive jurisdiction to modify the order if the state remains the residence of the obligee, the child, or the obligor, and at least one of the parties does not consent to the use of another forum.

Question 25

The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA).

Answer 25

1. The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). The UCCJEA governs child custody orders and uses various tests to prioritize states.

• Home state test- the “home state” has exclusive jurisdiction to modify a decree. A home state is a state where the child has lived with a parent or person acting as a parent for at least six consecutive months immediately before the commencement of the child custody proceeding. A home state continues to have exclusive jurisdiction to issue a custody order for six months after a child leaves the state, so long as a parent (or person acting as a parent) still lives in the state.
• Significant connections test- applies if a child has no home state. Requires: (1) significant connections with the child and at least one parent and (2) the existence of substantial evidence relating to child custody in the forum jurisdiction.
• Exclusive-continuing jurisdiction- Courts have exclusive jurisdiction over the matter until : (1) Both parties no longer reside in the state; or (2) The child no longer has a significant connection to the state, and evidence connected of child’s connections are no longer available.
• When the UCCJEA is tested, generally the Parental Kidnapping Prevention Act (PKPA) is also mentioned. The PKPA is very similar and the result is virtually always the same. However, it does not hurt to mention that “the result would be the same under the PKPA” if you see a UCCJEA issue tested.

Question 26

ex-parte divorce

Answer 26

The court does not need jurisdiction over both spouses to terminate a marriage. If the plaintiff spouse is domiciled in the forum state or if the state has some. other equivalent long-term connection between at least one of the parties to the marriage, then that court has jurisdiction to dissolve the plaintiff’s marriage.