Family Law Lecture – Marriage, Divorce, Custody & Support

41 question-and-answer flashcards covering key doctrines from the family-law lecture: marriage validity, premarital agreements, divorce jurisdiction, UCCJEA, property division, spousal and child support, custody standards, visitation, paternity, adoption, and unmarried-partner rights.

What are the three requirements for a valid ceremonial marriage?

• Mutual consent of both parties;- A marriage license; and- Solemnization in a ceremony by a judicial officer or member of the clergy.

How is a common-law marriage formed?

• The couple cohabits for the statutory period;- Is legally able to marry;- Presently agrees they are married; and- Holds themselves out to the public as married.
  Most states recognize a valid common-law marriage created elsewhere.

Under what doctrines can a bigamous marriage be validated?

• Equity Doctrine: presumption the most recent marriage is valid;- Uniform Marriage & Divorce Act: an otherwise invalid marriage is validated once the prior impediment (e.g., earlier marriage) is removed.

Under the UPAA, when is a premarital agreement unenforceable?

The challenging spouse proves:

• The agreement was involuntary (e.g., fraud, duress, coercion); OR
• It was unconscionable when executed and, before signing, the spouse:
  • Lacked fair disclosure of the other’s finances;
  • Did not waive disclosure in writing; and
  • Had no knowledge of the facts.

What factors are considered in determining whether a premarital agreement was voluntary?

• Each party’s access to independent counsel;- Time between signing and the wedding;- The party’s ability to understand the agreement; and- Other reasons for proceeding with marriage (e.g., pregnancy).
  Mere insistence on signing is not duress.

Are provisions in a marital agreement regarding child support or custody binding on a court?

No. Such provisions are not binding, and:

• Any term that adversely affects a child’s right to support is unenforceable.

Under the UPAA, when will a premarital agreement’s spousal-support waiver be denied enforcement?

• If enforcement would make the spouse eligible for public assistance.
  (Some states bar such waivers as against public policy.)

Can an ex-parte divorce be granted without personal jurisdiction over the absentee spouse?

Yes, if:

• The petitioner is domiciled in the forum state.
  Many states require a durational residency period before filing.

What is a divisible divorce?

A proceeding that:

• Dissolves the marriage (over which the court has jurisdiction); - While reserving economic or custody issues for later because the court lacks personal jurisdiction over the defendant spouse.

Under the UCCJEA, when does a court have home-state jurisdiction?

• The state is the child’s home state; OR
• The child lived there with a parent for at least 6 months immediately before filing, is now absent, and a parent remains in the state.

When does a court have significant-connection jurisdiction under the UCCJEA?

• No state qualifies as the home state;- The child and at least one parent have a significant connection with the forum; and- Substantial evidence about the child is available there.

When does a court have more-appropriate-forum jurisdiction under the UCCJEA?

• When all other states with potential jurisdiction decline because the forum court is the more appropriate venue.

When does a court obtain temporary emergency jurisdiction under the UCCJEA?

• When the child is physically present in the state and has been abandoned; OR
• An emergency requires protection of the child.

When does a court have "no other state" jurisdiction under the UCCJEA?

• Only when no other state has jurisdiction under the Act.

What grounds permit annulment of a marriage?

• Lack of capacity (e.g., fraud, duress, mental incapacity);
• Bigamy;
• Consanguinity; or
• One spouse was underage at the time of marriage.

What are the five traditional grounds for divorce?

• Cruel and inhuman treatment;
• Adultery;
• Abandonment for the statutory period;
• Habitual drug addiction or drunkenness; and
• No-fault/irretrievable breakdown.

When may a separation agreement be set aside and when may a divorce settlement agreement be vacated?

• Separation agreement: if unconscionable or induced by fraud.
• Divorce settlement: for mediator misconduct or if substantially unfair due to fraud, duress, overreaching, or coercion.

What assets qualify as separate property in equitable distribution?

• Property acquired before marriage;- Gifts or inheritances to one spouse during marriage;- Property the spouses agree is separate; and- Passive appreciation of any of the foregoing.

What assets are included in marital property?

• All property acquired by either spouse during the marriage, including active appreciation resulting from either spouse’s efforts, regardless of title. Fault is generally irrelevant.

Are professional degrees or licenses marital property?

• In most states, no; however, the supporting spouse is usually entitled to reimbursement for contributions to the other’s education.
• A minority treats such degrees/licenses as marital property.

Do courts consider marital or economic fault when dividing property?

• Marital fault is generally irrelevant.
• Most courts consider economic misconduct, such as dissipation of assets for a spouse’s sole benefit during marital breakdown.

Under the UMDA, when may a court award maintenance (spousal support)?

When the requesting spouse:

• Lacks sufficient property for reasonable needs; and
• Is unable to support themselves through employment or must care for a child that prevents employment.

What factors guide a court in setting the amount of spousal support?

• Each party’s financial resources;
• Time needed for education or training;
• Marital standard of living;
• Marriage duration;
• Age and health of the recipient; and
• Ability of the payor to meet own needs while supporting the ex-spouse.

What must state child-support guidelines include under federal law?

• Consideration of all income of the non-custodial parent; and
• Specific descriptive and numeric criteria for calculating the obligation.

When may a child or spousal support order be modified in most states?

• Only upon a substantial, continuing change in circumstances that makes the prior order unreasonable.

Under the UMDA, when may a support order be modified?

• Only on a showing of circumstances so substantial and continuing that the prior terms have become unconscionable.

Under UIFSA, when may a court modify another state’s support order?

The court must have jurisdiction to issue an order AND either:

• None of the parties resides in the issuing state; OR
• All parties consent in writing to the new state’s jurisdiction.

What is the legal standard for determining child custody?

• The best interests of the child.

What is the custody preference between parents and third parties?

• Fit biological or legal parents have a constitutional preference.
• A third party may obtain custody only on a showing of special circumstances such as neglect.

When may a court limit or reduce a parent’s visitation rights?

• If visitation would seriously endanger the child’s physical, mental, moral, or emotional health.
• Courts may modify visitation whenever required by the child’s best interests.

When are third-party visitation rights permitted?

When the third party:

• Has a substantial relationship with the child;
• Rebuts the presumption that the parent is acting in the child’s best interests; and
• Proves denial of visitation would harm the child.

When may a child-custody determination be modified?

• Only upon a substantial change in circumstances;
• Modifications cannot be retroactive.

How can another state modify an existing custody order under PKPA and UCCJEA?

• PKPA: The new court must have initial-determination jurisdiction and the issuing state must lack or decline jurisdiction.
• UCCJEA: Similar—new court must have jurisdiction and either the issuing state relinquishes jurisdiction or no party still lives there.

Are express and implied agreements between unmarried cohabitants regarding property division enforceable?

Yes.

• Express agreements are enforceable if not based on sexual services;
• Implied agreements are also enforceable but harder to prove.

What is the putative spouse doctrine?

• It grants marital property rights to a person who entered a void or voidable marriage in good-faith belief that it was valid.

What is paternity by estoppel?

A man not the biological father is estopped from denying paternity if he:

• Held himself out as the father; and
• Provided support;
  He remains liable for child support.

When does an unmarried father’s relationship with his child receive due-process protection?

• Only when he has assumed parental responsibilities and formed a substantial parent-child relationship;
• The stronger the bond, the greater the protection.

When is an unmarried father entitled to notice of an adoption proceeding?

When:

• His parental rights are constitutionally protected due to his relationship with the child; OR
• He has complied with the state’s putative-father registry requirements.

What are the exceptions to the parental-consent requirement for medical care of a minor?

Consent is not required in:

• Emergencies; OR
• When a statute specifically authorizes treatment without consent.

When is a parent’s consent not required for an adoption?

Consent is unnecessary if:

• The biological father of a non-marital child has not assumed parental responsibility; OR
• The parent has surrendered the child to an agency;
• Been declared mentally incompetent;
• Abandoned the child; OR
• Permanently neglected the child.

Under the UPA, when is a husband presumed to be the father of a child conceived by artificial insemination or IVF?

• If he consented in writing to the procedure and it was performed by a medical doctor;
• The husband is the legal father and the donor’s rights are severed.