Family Law Lecture – Marriage, Divorce, Custody & Support

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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.

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41 Terms

1
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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.
2
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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.
3
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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.
4
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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.
5
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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.
6
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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.
7
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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.)
8
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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.
9
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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.
10
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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.
11
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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.
12
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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.
13
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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.
14
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When does a court have "no other state" jurisdiction under the UCCJEA?

  • Only when no other state has jurisdiction under the Act.
15
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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.
16
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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.
17
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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.
18
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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.
19
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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.
20
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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.
21
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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.
22
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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.
23
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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.
24
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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.
25
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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.
26
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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.
27
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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.
28
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What is the legal standard for determining child custody?

  • The best interests of the child.
29
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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.
30
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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.
31
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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.
32
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When may a child-custody determination be modified?

  • Only upon a substantial change in circumstances;
  • Modifications cannot be retroactive.
33
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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.
34
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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.
35
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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.
36
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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.
37
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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.
38
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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.
39
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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.
40
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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.
41
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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.