Family Law – Marriage, Divorce, Support & Custody

GETTING MARRIED

• A valid marriage = civil contract that can be modified/terminated only with state intervention.

• Core contractual elements

  • Legally-capable parties (capacity + consent)

  • Consideration = mutual promises

  • Imposed rights & obligations

• Two legally-recognized marriage types

  • Ceremonial (statutory)

  • Common-law (abolished in most states; assume abolished on exam unless told otherwise)

Ceremonial / Statutory Marriage

• Requires BOTH a state license AND solemnization (ceremony)

License requirements

• Age

  • In absence of parental/judicial consent, almost all states require minimum age 18.

  • Most allow under 18 w/ parental consent and/or judicial approval.

  • Age statutes upheld as constitutional.

• Waiting period

  • Many states: delay between application & issuance or issuance & ceremony.

  • Court may waive for emergency.

• Premarital medical testing

  • Some states demand health certificate / blood tests (e.g., measles, TB, sickle-cell).

  • State may not condition license on test RESULTS.

• Expiration

  • Most impose expiration date on issued license.

Circumstances when license will NOT issue

• Either party already married (bigamy)

• Parties too closely related (statutory consanguinity limits)

• Sham marriage

• Incapable of understanding nature of marriage

• Additional statutory bars: intoxication, duress, fraud at time of application

Same-sex marriage

• Permitted in every state; all states + federal gov’t must recognize valid same-sex marriages from other states (Obergefell; Windsor).

Solemnization

• Most states: no prescribed ceremony form; many require at least 2 witnesses.

• Proxy marriage allowed in some states with written authorization.

• Officiants: judge, political official, or clergy of recognized religion.

• Executed license must be filed with appropriate clerk/agency.

Common-Law Marriage

• Elements

  • Present-tense mutual agreement to be married

  • Cohabitation as spouses

  • Public holding out (reputation)

• No ceremony, no license.

• Invalid if either party still married to someone else.

• Recognition

  • Most states have abolished; other states must recognize common-law marriages validly created elsewhere (Full Faith & Credit) unless contrary to strong public policy.

  • Conflict-of-laws: some require domicile in permitting state; others accept transitory visits.

• Capacity

  • Same legal & mental capacity standards as ceremonial (age, relation, understanding).

• Intent proof

  • Must show present-tense words; future-tense promises insufficient.

  • Courts may look to cohabitation + reputation; cohabitation ALONE not enough.

Heartbalm Actions

• Civil damages for broken engagement (breach of promise, seduction, alienation of affection, criminal conversation, jactitation).

• Abolished in most jurisdictions; assume abolished on exam.

Marriage Relationship

• Courts avoid intervening in intact-family disputes (spending, child-rearing) until separation.

• Duty of spousal support; creditor supplying necessities to one spouse can sue the other.

ENDING A MARRIAGE

• Only by annulment, divorce, or death.

Annulment

• Declares marriage invalid ab initio.

Void marriage (never existed)

• Prior existing marriage (bigamy)

  • “Enoch Arden” statutes: good-faith belief spouse dead can be defense.

  • Presumption: most recent marriage valid; rebuttable with evidence of prior valid marriage.

• Incest (prohibited consanguinity)

  • Blood relatives within statutory degrees; many bar first cousins & relations by adoption/half-blood.

• Mental incapacity (lack understanding of nature/responsibilities).

Voidable marriage (valid until judicial decree)

• Grounds: age, impotence, intoxication at ceremony, fraud/duress, lack of intent.

  • Age: under-age party/parents may seek annulment; barred once party reaches legal age & continues cohabitation.

  • Impotence: “naturally & incurably” impotent, unknown to other spouse pre-marriage.

  • Intoxication: must show no ratification after sobering.

  • Fraud/duress: fraud must go to essence of marriage & be present-fact; requires cessation of cohabitation once discovered.

  • Lack of intent: marriages in jest, limited-purpose (e.g., immigration) can be annulled.

Equitable consequences

• Annulment actions may award equitable distribution, temporary/permanent spousal support, child support, custody, attorney fees.

• Children of annulled marriage = marital children.

Defenses

• Void marriage: deny existence of impediment.

• Voidable: equitable defenses (unclean hands, laches, estoppel).

Putative-Spouse Doctrine

• Good-faith participant in void/voidable ceremonial marriage may access divorce-type remedies (maintenance, property division).

Divorce & Separation

Residency

• At least one spouse must meet state residency period (varies).

Grounds

• No-fault (all jurisdictions)

  • Irretrievable breakdown / irreconcilable differences; often require separation period (≈ 1 yr).

• Fault (most jurisdictions retain)

  1. Adultery – proved by opportunity + inclination (circumstantial).

  2. Cruelty – harmful course of conduct endangering mental/physical health; usually repeated acts; physical abuse widely accepted.

  3. Desertion – voluntary departure without consent/intention to remain apart for statutory period; constructive desertion if forced out.

  4. Habitual drunkenness – frequent intoxication impairing marriage; assumption-of-risk possible defense.

  5. Bigamy – knowing prior valid marriage.

  6. Imprisonment – incarceration for specified term.

  7. Indignity – extreme negative behavior rendering life intolerable (list of 13 examples).

  8. Institutionalization – confinement for mental illness for specified pre-petition period w/ no prospect of recovery.

Fault Defenses

• Recrimination / unclean hands

• Connivance (consent/participation)

• Condonation (forgiveness + resumption of relations)

• Collusion (fabricated grounds)

• Provocation, insanity, consent, justification, religion (fails).

Limited Divorce / Separate Maintenance

• Divorce from bed & board: parties still married but may live apart; court decides support/property.

• Separate maintenance: decree of support; parties cannot live apart/remarry unless statute allows.

Finalizing

• Some states impose interlocutory period before decree becomes final; no remarriage during.

Mediation

• Neutral mediator assists with support, custody; process confidential.

• Mediator duties: impartiality, disclose conflicts, detect domestic abuse, ensure informed decisions.

Division of Property

• Two major systems

  1. Community property (minority): equal split.

  2. Equitable distribution (majority): fair, not necessarily equal; some presume equal then adjust.

Marital Property definition

• Generally, all property acquired during marriage; includes retirement benefits; appreciation on separate property if due to spousal labor.

• Title irrelevant; adding spouse to pre-marriage title = presumption of gift.

Separate Property exceptions

• Owned pre-marriage or exchanged for such property

• Excluded by valid agreement

• Gift/inheritance (except between spouses)

• Disposed of before separation

• Encumbered pre-separation

• Pre-marriage cause-of-action awards

Distribution factors (12 typical)

• Length of marriage, prior marriages, ages/health, earning capacity, education contributions, future needs, income/retirement, contributions incl. homemaking, value of separate property, dissipation, standard of living, custodianship of children.

• Fault generally NOT factor; dissipation is.

Specific asset treatment

• Professional degree/license: generally NOT property; may justify reimbursement alimony (cost-value approach).

• Retirement/pensions: marital to extent earned during marriage (incl. military).

• Personal-injury proceeds:

  • All marital if cause accrues during marriage (some states) OR

  • Allocate between marital (lost wages/med exp pre-divorce) and separate (pain & suffering, post-divorce losses, consortium) in others.

• Goodwill of professional practice: marital in significant minority.

• Accumulated sick/vacation days: split among three approaches.

• Future interests: not distributable.

• Social Security: not distributable (Fleming v. Nestor).

• Post-separation property: varies (some marital until divorce, others use separation filing date).

• Stock options earned during marriage: marital.

Tax

• Transfers incident to divorce = non-taxable; carryover basis; gain taxed on later sale.

Non-modifiable

• Property division final; no post-divorce modification.

FINANCIAL SUPPORT OF SPOUSES & CHILDREN

Spousal Maintenance (Alimony)

• Not dischargeable in bankruptcy.

Factors (common statutory list)

• Financial resources of payee; earning capacity of each; marital standard of living; time for education/training; marriage length; contributions to marriage/human-capital; ages & health.

• Fault may weigh (varies: factor vs. bar).

Types of alimony

• Lump-sum: fixed, non-modifiable (except fraud), may be paid in installments.

• Permanent: lifelong; usually long marriages (≈ \ge 15 yrs); compensates lost earning capacity.

• Limited-duration: set term for short marriages where economic need persists.

• Rehabilitative: limited term to enhance earning potential (e.g., schooling period).

• Reimbursement: repay spouse’s past contributions (education support); some treat as property allocation.

• Palimony: post-breakup support between unmarried cohabitants; recognized narrowly (Marvin v. Marvin) when long-term stable cohab & contract/implied-contract.

Modification

• Requires significant, continuing change in circumstances; court looks at foreseeability & good faith.

• Voluntary income reduction ≠ grounds.

• Death generally ends; estate not liable unless ordered.

• Remarriage of recipient usually terminates; remarriage of obligor may justify reduction.

• Cohabitation of recipient may reduce/terminate (depends on decreased need).

• Retirement: split authority.

Necessaries (Family-Expense) Doctrine

• Either spouse liable to third-party for necessaries; most states gender-neutral; some abolished.

• Courts rarely order support within intact marriage (non-intervention tradition).

JURISDICTION & PROCEDURE

• Subject-matter: residency statutes \approx 6\text{ weeks}–2\text{ years}.

• Full Faith & Credit: divorce decree valid if one spouse resident.

Divisible Divorce Doctrine

• Court with SMJ + PJ over one spouse can dissolve marriage but cannot adjudicate property/support without PJ over both.

Collateral Attack

• Nonresident may challenge ex parte divorce by showing plaintiff not domiciled.

Indigent parties

• Filing fees cannot bar access; counsel not constitutionally required but courts may award fees.

CHILD SUPPORT

Right & Duration

• Both parents owe support until majority (usually 18), emancipation, marriage, military, death; may extend through college or for disabled adult child.

• Support independent of visitation; cannot bargain away.

Nonmarital Children

• Intermediate scrutiny for distinctions; now entitled to support, benefits, inheritance if paternity proved.

Paternity

• Evidence: blood/DNA tests (state-funded for indigent); acknowledgments; statements; resemblance (some states).

• Time limits on paternity suits unconstitutional unless reasonable opportunity + substantial relation to purpose.

• Marital presumption: child of married woman presumed husband’s; rebuttable in many states with proof of impotence/sterility/non-access; best-interests override.

• Paternity by estoppel: husband paying support may be estopped from denial when representation, reliance, detriment.

UIFSA – Personal Jurisdiction over out-of-state parent

• Long-arm bases: personal service, consent, prior residency with child, sex in state likely conceiving child, putative-father registry, etc.; no SOL.

Calculating Support

• Guidelines create rebuttable presumption of correct amount.

  • Income-shares (majority): child gets same proportion of combined income as pre-divorce.

  • Percentage-of-income (minority): set % of obligor’s net income.

  • Melson formula: ensures obligor’s self-support needs first.

• Courts can deviate with findings; consider child ages, unusual needs, obligations, assets, medical costs, standard of living, best interests.

• Imputed income for unemployed/underemployed parents; also cap for high earners.

• Medical insurance costs generally included; may order life insurance.

Modification

• Needs substantial, continuing change; no retroactive reduction before service date.

• Voluntary income drop usually ignored.

Termination

• On majority, marriage, parental rights termination, military service, emancipation, death.

Jurisdiction to Modify

• Only issuing state has continuing, exclusive jurisdiction unless all parties leave or consent otherwise.

Tax

• Child support not deductible; not income to recipient.

ENFORCEMENT OF SUPPORT

• Methods: civil contempt (coercive jail), criminal contempt (punitive sentence), wage garnishment, tax refund intercepts, license suspension, liens, credit reporting, attorney fees.

• UIFSA: every state must enforce; registration in new state makes order enforceable; only issuing state can MODIFY.

CHILD CUSTODY

Definitions

• Legal custody: decision-making (education, health, religion).

• Physical custody: residence & daily care.

Joint Custody

• Requires parents able & willing to cooperate; many states presume joint legal custody best; joint physical ≠ 50/50 necessarily.

UCCJEA Jurisdiction

• Home state = where child lived \ge 6 consecutive months immediately before proceeding (or since birth if <6 mos).

• Initial jurisdiction: home state OR state with significant connection + substantial evidence if no home state.

• Default jurisdiction if neither applies.

• Exclusive-continuing jurisdiction until neither party remains or no significant connection/evidence.

• Temporary emergency jurisdiction for danger.

• Court may decline due to inconvenient forum or party’s unjustifiable conduct.

• Enforcement tools: registration, expedited habeas-style hearing, warrants, law-enforcement assistance.

• UDPCVA adds rules for deployed military parents (cannot use deployment negatively, permits temp orders, etc).

PKPA

• Federal statute paralleling UCCJEA; orders violating PKPA not entitled to full faith & credit.

• International: IPKCA crime; Hague Convention requires prompt return unless grave risk.

Best-Interests Standard

• Primary caretaker factor; no gender presumption.

• Race mostly barred; religion only if harm; sexual conduct considered only if adverse effect.

Third-Party Custody

• Parent superior unless unfit/detriment; concepts of de facto / parent by estoppel.

Child’s Preference

• Considered if sufficiently mature; court evaluates reasons.

Guardian ad litem may be appointed in contested cases.

Siblings usually kept together.

Domestic violence mandatory factor; rebuttable presumption favoring non-abusive parent in some states.

Visitation / Parenting Time

• Noncustodial parent entitled to reasonable visitation unless serious endangerment; restrictions (supervised, no overnights) possible.

• Third-party visitation

  • Fit parent’s decision given “special weight” (Troxel v. Granville).

  • Grandparents must overcome deference; statutes vary.

  • Unwed biological father: visitation rights only if commitment to parenting shown; two-year limits common when mother married.

• Parental cohabitation/sexual orientation: visitation limited only with proven harm.

• HIV/AIDS status cannot be sole basis to deny visitation.

Enforcement

• Sanctions: compensatory visitation, contempt, fines, fees; tort damages for kidnapping.

• Habeas corpus actions; equity suits preferred for injunctive relief.

• Full Faith & Credit for registered out-of-state orders; local court cannot modify unless jurisdictional requirements met.

Modification

• Requires substantial, unforeseen change; time barriers may apply.

• Relocation: custodial parent bears burden to prove legitimate purpose & best interests; factors list (relationship, impact, quality of life, motives, etc.). Stricter when joint custody.

• Cohabitation only if adverse effect.

Termination

• On custodial parent death (surviving parent usually gets custody) or child majority.

Parental Consent for Medical Decisions

• Required except emergencies; mature minor & public-health exceptions; state may override for life-saving care (parens patriae).

MARITAL AGREEMENTS

Types

• Premarital (prenuptial/antenuptial) – before marriage; consideration = marriage.

• Separation agreements – planning for divorce; modifiable re: child terms; merged into decree if fair.

• Property-settlement agreements – before decree; economic terms.

Enforceability (UPAA/UPMAA)

• Must be in writing, signed.

• Challenging spouse must show:

  1. Involuntariness OR

  2. Agreement unconscionable + no fair/reasonable disclosure + no adequate knowledge of assets.

• Courts everywhere examine: full financial disclosure, fairness (procedural & substantive), voluntariness (independent counsel opportunity, time pressure), poverty-gap (cannot leave spouse on welfare).

• Modifiable by signed writing; child support/custody always modifiable by court.

UNMARRIED COHABITANTS

• Express or implied agreements enforceable if consideration not solely sexual; can sue for property on contract, quantum meruit, constructive/resulting trust.

RELATIONSHIP BETWEEN FAMILY & STATE

Adoption

• Terminates biological ties; creates new parent-child relation; new birth certificate; records sealed.

Termination of parental rights

• Voluntary consent; can withdraw pre-final decree.

  • Unwed fathers: failure to register = waiver; right to object only if commitment to parenthood.

  • Child \ge 14 (or 12) must consent.

• Involuntary termination: abandonment, incapacity, abuse, neglect, prior TPR, etc.; clear & convincing evidence; ASFA 15/22-month rule.

• Court investigation & approval; may be waived for relatives.

Effects

• Adoptive parents/child have full reciprocal rights (support, inheritance).

• Visitation by biological parents generally barred; some states allow if substantial relationship.

• Dissolution of adoption rare; possible for undisclosed grave illness.

Assisted Reproduction (UPA)

• Donor not parent unless writing says otherwise.

• Mother = woman who gives birth (unless gestational agreement); her spouse presumed father unless disavows within 2 yrs of knowledge.

• Posthumous conception: deceased donor not parent absent written consent.

Gestational Surrogacy

• Agreement filed with court; home study; voluntary; reasonable compensation; cannot limit surrogate’s medical autonomy.

• Court retains jurisdiction until child 6 months old; upon birth, intended parents file notice for parentage order.

• Unapproved agreement unenforceable.

Frozen Embryos

• Ownership/parentage unsettled; courts balance interests; hinges on whether embryo treated as person or property.

DOMESTIC VIOLENCE

• Civil protective-order statutes cover spouses, ex-spouses, children, unmarried parents, cohabitants; many include dating partners.

• Relief: ex parte temporary order, then hearing for permanent order; injunctions include no abuse/contact, exclusive residence, temporary custody/support.

• Violation = criminal penalties.

RIGHTS & OBLIGATIONS OF CHILDREN

• Property/contracts: minor can contract but may disaffirm at majority; cannot make valid will.

Medical Consent

• Emergency treatment usually requires parental consent unless life-threatening; minors may consent to abortion, STD treatment, contraception; vaccination mandates constitutional.

Tort & Criminal liability

• Lower standard; juvenile courts emphasize rehabilitation; age influences punishment.

Emancipation

• Court decree when self-supporting & independent; ends parental support duty; married minors generally emancipated.

Limits on parental authority

• State may override for child’s welfare (abuse, neglect, compulsory education); termination of rights requires clear & convincing evidence.

Here is a list of acts mentioned in the notes:

• Enoch Arden statutes: These statutes are a defense used in bigamy cases, allowing annulment if a spouse had a good-faith belief their prior spouse was dead.

• UIFSA (Uniform Interstate Family Support Act): This act establishes personal jurisdiction over out-of-state parents for child support and ensures that every state enforces support orders.

• UCCJEA (Uniform Child Custody Jurisdiction and Enforcement Act): This act determines jurisdiction for child custody proceedings, primarily based on the child's home state.

• PKPA (Parental Kidnapping Prevention Act): A federal statute that parallels the UCCJEA, ensuring full faith and credit for custody orders that comply with its provisions.

• IPKCA (International Parental Kidnapping Crime Act): This act makes international parental kidnapping a crime.

• Hague Convention: While not strictly an "Act," this international convention requires the prompt return of children abducted across international borders, unless there is a grave risk.

• ASFA (Adoption and Safe Families Act): This act includes the 15/22-month rule related to involuntary termination of parental rights.

• UPA (Uniform Parentage Act): This act addresses parentage in assisted reproduction, clarifying the roles of donors and gestational mothers.

• UPAA/UPMAA (Uniform Premarital Agreement Act / Uniform Premarital and Marital Agreement Act): These acts govern the enforceability of marital agreements like prenuptial agreements.