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FAMILY LAW

PROFESSOR DAVID SCHOTT

UNIVERSITY OF DENVER STURM COLLEGE OF LAW

CHAPTER 1: INTRODUCTION AND GETTING MARRIED

Exam Tip 1: Historically, Family Law is frequently tested on the MEE.

A. Terminology

• “Irretrievably broken”—relates to a petition for divorce

• “Equitable”—applies to the division of _________________________ and marital property

Note 1: “Equitable” does not mean “_________________________.”

•

“Best interest of the child” or “best interest and ________________________ of the child”—the

foundational standard that courts employ when dealing with issues surrounding a child

B. Getting Married

• Marriage is a civil _________________________ between two parties.

o Both parties need to be legally capable of _________________________.

o There must be an exchange of ________________________________________________:

 Mutual promises that you make;

 Imposition of the rights and obligations that go along with the marriage

• No longer a civil contract that is limited to only a man and a woman

• A marriage contract CANNOT be modified or terminated without ______________ intervention.

C. Ceremonial Marriage—requires a license and solemnization

1. Licensing

Age restriction

 All U.S. jurisdictions impose a minimum age requirement.

 Almost all states require parental _________________________ if one of the parties is

under 18 years old.

 Most jurisdictions allow a marriage if a party is under 18, if that party gets parental

consent.

Editorial Note 1: The professor misspoke. Most jurisdictions permit individuals

under the age of 18 to marry with parental consent.

Waiting period—most states require a waiting period between the date of the marriage

license and the date of marriage ________________________________.

Premarital medical testing (some states)

A state can require you to get the test; the results cannot be one of the conditions upon

which the _________________________________ of the marital license relies.

Example 1: A Utah statute prohibited an HIV-positive individual from

marrying. That was declared to be invalid.

Expiration of license—varies from ______________ to ______________ days

2. When Will a License NOT be issued?

o If a party is ______________________________ to someone else;

o If the parties are too closely related, as defined by statute (marriage of consanguinity);

o If the marriage is a sham;

o If the parties are incapable of understanding the act of the marriage (e.g., substances render

a party incapable or a lack of consent due to ___________________ or ________________)

3. Same-Sex Marriages

o Same-sex couples may marry in all states.

o All states and the federal government must ______________________________ a same-sex

marriage legally entered into in another state.

4. Solemnization

o Most states require at least __________________________________________________.

o Most states require an officiant (e.g., judge, person of the clergy, political official)

o Marriage license must be _____________________ with the appropriate government office

o Some states allow for a _________________, so long as the parties provide

_______________________________ authorization.

D. Common-Law Marriage

1. In General

o Definition:

 The parties agree that they are married;

 They _________________________ as spouses; and

 They hold themselves out in _________________________ as being married.

o No ______________________________ and no _________________________

o NOT valid if either party was married to someone else at the time that the common-law

marriage was entered into

2. Recognition

o Most states have abolished common-law marriages.

o Some states allow common-law marriages that occurred before a certain date.

o ALMOST ALL states recognize common-law marriages from states that allow for common-

law marriages to occur.

Editorial Note 2: The professor misspoke. Almost all states recognize out-of-

state common law marriages.



A state need not recognize a common-law marriage if it violates a strong

_______________________________________________ of the state.

Example 2: Jack and Jill live in a state that recognizes common-law marriage

but they only live there for a very short time. Then they move to a state that

does not recognize common-law marriage. Some states will still recognize this

common-law marriage.



Some states require the parties to be ___________________________ in the permitting

state for a period of time.

Exam Tip 2: On the bar exam, assume that the jurisdiction has abolished

common-law marriages unless the question states otherwise.

Editorial Note 3: The professor misspoke. You should assume that the

jurisdiction has abolished common-law marriages.

Legal and mental capacity

o Both parties must have the mental capacity to enter into the common-law marriage;

o They must be old enough; and

o They must not be too closely _________________________

4. Intent

The parties must produce _____________________________ that they intended to enter the

marriage and the words must be in the _________________________ tense.

E. Heartbalm Actions

• No longer recognized

Exam Tip 3: On the bar exam, assume that heartbalm actions have been

abolished unless the question states otherwise.

• Definition—if the marriage fails to take place, a jilted party is entitled to bring a civil suit for

money damages for damage to their ______________________________ after the engagement

was broken.

F. The Marriage Relationship

• A marriage brings many _________________ and responsibilities, as well as ________________

and obligations.

• These include constitutional ____________________________ issues.

CHAPTER 2: ENDING A MARRIAGE

A valid marriage can only be terminated in one of three ways:

• __________________________________________________;

• _________________________ (Dissolution);

• _________________________

A. Annulment

• Voids a marriage

• The impediment must exist at the _________________________ of the marriage.

1. Void Marriage—“as if it never happened”

o Does not require judicial dissolve; will not be legally recognized for _____________ purpose

o Any party may seek an annulment for a void marriage (e.g., parent, guardian, party).

A prior existing marriage

Example 3: Marge and Homer get married, but Homer was previously

married and was still in that valid, legal marriage at the time that he and

Marge tried to get married.



The _________________________ marriage will be void.

 The burden is on the person who is trying to prove the ___________________ marriage.

 Exception: Some states allow that once the impediment is removed, then the second

marriage becomes valid (“Enoch Arden” rule)

Incest

 Must prove marriage or sexual relations within a prohibited degree of ______________

 All states restrict marriages within a specified degree of consanguinity:

• 50% of states bar marriages between _____________________________________;

• Most states prohibit marriages between relatives of half-blood;

• Many states prohibit marriages of relationship by ___________________________.

Mental incapacity

 Must be ______________________ for the moment of contract

 Must be able to understand the duties and the responsibilities to which they are

engaging

Example 4: Temporary insanity would lead to a void marriage.

2. Voidable Marriage

o A ______________________ marriage until a spouse seeks annulment

o Requires a ___________________________________ decree

Age

 Any party who is under the age of _________________________ and who did not seek

their parents’ consent can ask for an annulment.

 The _________________________ of the minor child can also seek an annulment.

Example 5: If Romeo is 18 and Juliet is 14, Juliet can ask for an annulment,

and Mr. and Mrs. Capulet can also ask for an annulment.



The overage party _________________________ seek an annulment if he was of the

age of majority at that time.

 Once the underage party reaches the age of majority and continues to

________________________, can no longer seek an annulment

Impotence

 One party is naturally and __________________________________ impotent

 Exception: One of the parties knew about the impotence prior to the marriage

Intoxication

 If either party was incapable of contracting due to alcohol or drugs

 Exception: The parties continue to live together _____________________ the marriage

(ratification)

Fraud, misrepresentation, duress, coercion, force

 Marriage may be annulled if it is the result of fraud that goes to the

_________________________ of the marriage

 The fraud must be present at the time of the marriage; it cannot be about ___________

facts.

 The parties must immediately cease living together once the fraud is

__________________________________________.

 Insufficient grounds: spouse has low morals, bad habits, a bad ____________________,

or claim certain financial status

Note 2: Jurisdictions differ as to whether a false claim that a woman is

pregnant amounts to fraud that justifies an annulment.

Lack of intent

 If the marriage is ___________________________________, then it cannot be annulled.

 Marriage of limited purpose—parties agree to only _____________________ of the

conventional aspects of a marriage

3. Effect of Annulment

o A party can still ask for _________________________ support

o Can still ask for an _____________________________________ distribution of property

o Can also seek child support if a child was born within the now-annulled marriage

o Courts try to place the parties in the same position as before the marriage.

o Children—children of an annulled marriage are considered ___________________ children.

4. Defenses to an annulment action:

o Deny the impediment

o Other party can still pursue a dissolution (divorce) action

5. Putative marriage (spouse) doctrine

o Someone is _________________________ to be the spouse

o Most jurisdictions have adopted the putative marriage doctrine.

o Purpose—to protect the party that is _________________________ of the impediment

o The unknowing party may use the state’s divorce provisions, even if the marriage is found to

be void.

B. Divorce and Separation

• Divorce—a _________________________ dissolution of a marriage

• Most states have a _____________________________________ requirement:

o One party must be a resident of the state.

o The length of the residency requirement varies. Factors:

 Was the couple married in that state?

 Did the grounds for the divorce happen in that state?

• Grounds:

o Most states recognize _________________________ and _____________________ divorce.

o All states recognize _________________________ divorce.

o A substantial minority of states recognize only _________________________ divorce.

1. No-Fault Divorce

o Two grounds:

 “Irretrievably broken” (“irreconcilable differences”)—most commonly used terminology

 “Incapacity”

o Half of states require the parties to be _______________________________ for a particular

period of time before they can file for the dissolution of marriage.

o One spouse who desires to _____________________________ does not bar the dissolution.

o Most states have abolished the traditional ___________________________ to divorce.

Note 3: A court may deny a dissolution if it is based on the wrong basis.

However, that will not prevent the divorce.

2. Fault-Based Divorce

o Most jurisdictions retain some fault-based grounds, but some have removed it completely.

o Mainly used to determine maintenance (alimony)

Grounds for fault-based divorce

1) Adultery

• Voluntary sexual intercourse with someone other than your spouse

• The charging spouse has to show ______________________________________ and

inclination by the other spouse.

• May be proven through circumstantial evidence

2) Cruelty or inhumane treatment

• There has to be a _____________________ of conduct; it cannot be just a one-time

incident.

• It has to be harmful to either the _____________________________ or

_________________________ health; and

• It makes cohabitation unsafe or improper

Editorial Note 4: To prevail on the grounds of cruelty or inhumane treatment,

most jurisdictions require that the plaintiff demonstrate a course of conduct by

the other party that is harmful to the plaintiff’s physical or mental health and

that makes the continued cohabitation between the parties unsafe or improper.

• The majority of jurisdictions allow for divorce to be based on

______________________________ abuse.

• Only some allow for divorce based on emotional abuse or cruelty.

3) Desertion (abandonment)

• One spouse voluntarily leaves the marital home without ______________________

or _________________________ from the other spouse.

• The intent has to be to remain apart ______________________________________.

• Some jurisdictions also find desertion when a spouse forces the other spouse out,

and there is fear of harm if they return.

Editorial Note 5: The lecturer inadvertently reads the word “and” in the above

rule as “or.” Note that the rule is stated correctly in your handout.

4) Habitual Drunkenness (in some states)

• The frequent habit of getting drunk that causes _____________________________

in the marriage

• Alcoholism is not a requirement

• Defense: Assumption of the risk by the party now claiming an at-fault basis

5) Bigamy

• One party knowingly entered into a __________________ legal marriage before

entering into the current marriage.

• Most jurisdictions—grounds for annulment and grounds for divorce

6) Imprisonment

• Imprisonment of one of the parties in the marriage may be grounds for an at-fault

divorce if the imprisonment period is for a specified period of _________________.

7) Indignity

• When one spouse exhibits negative behavior to the other that renders that spouse’s

condition intolerable and their life ________________________________________.

Example 6: Vulgarity, habitual laziness, manifest disdain, malignant ridicule,

violence, sexually deviant behavior, etc.

• The majority of states do not recognize indignity as a basis for at-fault divorces.

8) Institutionalization

• If a spouse’s insanity or serious mental condition results in the spouse being

_____________________________ to a mental institution for a specified time, prior

to the commencement of the divorce, and there is no reasonable prospect of

discharge or rehabilitation.

3. Defenses to Divorce

o Only apply to fault-based divorces

o Must be affirmatively pleaded when asserted

Recrimination and unclean hands

1) Recrimination—both spouses commit a marital wrongful act of like conduct

Example 7: Since both parties have committed adultery, the court cannot

grant the at-fault divorce.

2) Unclean hands—a common defense to an at-fault divorce when the plaintiff’s own

__________________________________ is in question

Connivance—the complaining spouse has given ________________________ to participate

in the marital wrong

Condonation

 ___________________________ for whatever wrongful act in which they were engaged

 The forgiving spouse must have _______________________________ and must resume

marital relations after having that knowledge.

 At common law, once that misconduct is forgiven, it cannot be used as a ground for at-

fault divorce.

Collusion—both parties have conspired to ______________________________ grounds for

divorce

Provocation—the misconduct of the respondent is due to something the other spouse is

doing

Insanity—one spouse does not know the difference between right and wrong and lacks the

ability to understand the act is wrongful

Consent—consent to desertion or adultery

Justification—one spouse leaves the home because of the other spouse’s misconduct

Religion—challenges to a divorce on religious grounds will ____________ in all jurisdictions

4. Limited Divorce

o Widely recognized but rarely used

o If the parties live apart, the courts can still determine support and property.

5. Separate Maintenance—when a party is asking for a decree to be provided for support of a

party that does not authorize the parties to live apart.

6. Finalizing Divorces—once a dissolution is granted, many states do not finalize until a certain

period has elapsed (________________________________________ decree)

7. Mediation

o Requires a neutral court-appointed mediator who is _________________________ who

does not engage in any collusion with one party or the other

o Mediators can assist with child support, custody, visitation, parenting time, etc.

o The parties will agree on a separation agreement and they will submit that to the court

along with a _________________________ plan, and the court approves it.

CHAPTER 3: DIVISION OF PROPERTY

A. Overview

1. Community Property

o Marriage is a ____________________________; an equal distribution of property is merited

o Only nine states currently use community property standards.

2. Equitable Distribution

o Most states follow this approach.

o “____________________” distribution

Exam Tip 4: “Equitable” does not mean “equal” distribution.

B. What is Marital Property?

1. In General

o All property acquired _________________________ the marriage is considered marital

property (with exceptions).

o Much depends on whether it remains ___________________________ during the marriage.

2. Increases in Non-Marital Property

o Increases in non-marital property resulting from either spouse’s efforts is considered marital

property.

o Improvement due to marital funds is also considered marital property.

Example 8: Pensions, insurance funds, and other things that accrue

Example 9: Jack has a robust pension worth $100,000 when he gets married.

Then, it accumulates another $50,000 during the course of the marriage. Jill

would have a right to make a claim to some portion of the $50,000 increase.

Example 10: Jack owns a house and then marries. Both spouses start

contributing to the mortgage. Jill would be entitled to an equitable value in the

increase in value of the home.

Note 4: Titling is not material.

Example 11: If Jill moves into the house and starts contributing to the

mortgage, even if the title stays in Jack’s name, courts do not care. He does not

get to claim that it is all his; it is now marital property (the increase in value).

3. Gifts Between Spouses—Marital property

4. Burden of Proof

o The party who is claiming that something is nonmarital property has the burden of proving

that it is separate property.

Editorial Note 6: The professor misspoke. The above bullet point is an accurate

statement of the law (i.e., the burden is on the party claiming that an asset is

nonmarital property).

C. Exceptions to Marital Property

• Property acquired _________________________ the marriage

• Property that is excluded pursuant to a valid agreement

• Property acquired by gift or _____________________________________, unless those gifts are

between spouses

• Property that a party has sold or granted or conveyed for _________________________ in good

faith before the date of the final separation

Example 12: Jack has a car (marital property) and he sells it prior to the date

of final separation. Jill cannot claim that the car is marital property.

• Property that was mortgaged or incumbered in ______________________________ before the

final separation

• An award or settlement payment that was received for any cause that occurred before the

marriage

Example 13: Jill got into a car accident before the marriage and they get

married and a month later, she gets an award or settlement payment. That

would be considered to be non-marital.

Exam Tip 5: Watch for this scenario: If a husband owned a house prior to the

marriage, the house is not necessarily marital property. The increase in value

could be marital property. However, if the husband titles it in both parties’

names, then there is a presumption that the home is going to be marital

property. The husband would have the burden to show that it was not a gift.

D. Distribution of Marital Property—Factors

• How ____________________ was the marriage?

• Were there prior marriages?

• What are the ________________________________ circumstances of each spouse:

o How old are they?

o How is their _________________________?

o How close are they to retirement?

o What are their earnings and earning ____________________________________?

o What are the needs of the spouses?

• Contributions to the education or _________________________ of the other spouse;

Example 14: Jill helped pay for Jack to go to medical school, and now they are

getting divorced.

• Their needs for future acquisitions;

• Income, medical needs, retirement of both spouses;

• Increases in marital property, including ________________________________ and child-rearing

services;

• What is the value of the separate property?

• Was there a reduction in value in marital property by one spouse?

• Standard of _________________________;

• Economic circumstance of each spouse at divorce; and

• Custodianship of any minor children

• Dissipation of _________________________ can also be a factor

Note 5: In states that recognize fault-based divorce, the fault is not a factor in

the distribution of property. However, dissipation of assets can be considered.

E. Treatment of Specific Types of Marital Property

1. Professional License or Degree

o Majority: Not distributable property (future earnings are ____________________________)

o May affect alimony, ________________________________, or distribution of marital assets

o Spousal reimbursement: A court may reimburse a spouse for amounts that spouse

contributed to the other spouse’s ___________________________ (“cost-value approach”)

2. Retirement or Pension Benefits

o Considered marital property and subject to equitable distribution

o Court looks at the _________________________ value of the pension, not the future value

Exam Tip 6: Watch the timing of pension benefits. Often, it is both marital

property and non-marital property because it started prior to the marriage.

The portion that accrued prior to the marriage is non-marital property.

Example 15: Jack worked for 15 years at the nuclear plant and then gets

married. He has a fairly robust pension plan. He is married for 10 years. The

first 15 years of the pension is non-marital property. The subsequent 10 years

after he is married is marital property.

3. Personal Injury Claim Proceeds

o “Marital property” approach—if the cause of action occurred during the marriage, then it is

marital property, even if the proceeds are received _______________________ the divorce

Example 16: Jack and Jill are married. Jack gets in a car accident while they

are married. For two years, Jill has to help him and care for him. They get

divorced and two months later, Jack gets a large settlement. That is considered

to be marital property because Jill was sacrificing and contributing to his well-

being in helping him get better.

o “Separate and marital allocation” approach—depends on the nature of the award:

 Lost wages, income, medical expenses—_______________________________ property

 Pain and suffering, disability award—______________________________ property

 Consortium claims—separate property of the non-injured spouse

4. Goodwill

o Considered marital property if it is developed during the marriage

o Intangible (e.g., the _______________________________________ of a business)

o It must be independent of the individual.

Example 17: If Jack and Jill owned a dry cleaner and built up goodwill, that

goodwill is marital property.

Example 18: Jack is a fortune teller. The goodwill of the fortune-telling

business is attributable just to him; the court will say that is not marital

property.

5. Accumulated Sick and Vacation Days—split jurisdictions:

o Option 1—They are marital property;

o Option 2—They are not marital property;

o Option 3—Only those that ___________________ during the marriage are marital property.

6. Future Interest—a possible future inheritance _________________________ distributable.

7. Social Security Benefits—_________________________ to equitable distribution

8. Post-Separation Property

o Applies when a spouse acquires property after the separation but before the divorce

o Most states—It is still marital property if it is _________________________ the divorce

o Some states—separate property if acquired after the separation but before the divorce

o Other states—depends on the date of the filing

9. Stock Options—if acquired during the marriage, then it is marital property, even if the stock

options will not be ___________________________________ until after the divorce

F. Tax Consequences

Example 19: Jill gets half of Jack’s stock options from equitable distribution

during a divorce.

• Such distributions ________________________ taxed as regular income at the time of transfer.

G. Modification of a Property Division Award

• Once a property division occurs, it is ________________________________________________.

• Changes in circumstances after divorce are not considered once the award is entered.

CHAPTER 4: FINANCIAL SUPPORT OF SPOUSES (PART 1)

A. Spousal Support Generally

• The obligation of one spouse to provide support to the other in the form of _________________

• Arises when one spouse cannot support themselves with their own

_______________________________________

• Can occur at any time after or even during a marriage

• Can last any length of time

• Cannot be ____________________________ in bankruptcy

• Can be waived for other consideration (e.g., waive maintenance in exchange for the house)

B. Factors in Determining the Amount of Support

• _____________________________ resources of both parties, and the ability of the payor to pay

(e.g., assets, non-marital assets, inheritances, ______________, child support, earning potential)

• Standard of living during the marriage

• Time to find a ___________________ or to complete education

• Length of the marriage:

o Short term—up to seven years

o Moderate term—seven years to 15 or 16 years

o Long term—16 or 17 years or more

• Contributions to the marriage—particularly if a spouse _________________________ the

earning potential of the other spouse (e.g., homemaking, child care, etc.)

• Age and health of the parties

• Marital misconduct—many jurisdictions ____________________ marital misconduct as a factor

o In some jurisdictions, adultery can be considered in a support determination.

• Children—future responsibilities for the children (i.e., who is going to be taking care of them)

• Sources of income—_____________ sources of income can be considered

• Tax treatment and consequences of the alimony and maintenance

C. Types of Support

Note 6: Marital home—the use or possession of the marital home may be

ordered as a form of alimony or child support.

1. Lump sum

o The spouse gets it all at once.

o Cannot be modified later, unless _________________________ is shown

2. Permanent alimony

o Most likely in a ______________________________ marriage

o Alimony for remainder of the payee’s (receiver’s) life

o Usually to compensate for lost earning capacity or benefits conferred during the marriage

(e.g., child rearing)

3. Durational alimony (limited duration)

o Usually only awarded if _________________________ of the other categories are suitable

o Only for a short period:

 Following a short- or moderate-term marriage

 Only for a long-term marriage if there is no need for permanent support

o Typically cannot _________________________ the length of the marriage

4. Rehabilitative alimony

o For a limited time to help the spouse re-establish themselves

Example 20: A spouse pays for their soon-to-be ex-spouse’s four years of

college and their living expenses to help them get back on their feet.

Purpose—to help improve their earning _________________________ so they can become

independent

o Automatically ______________________________ at the end of the period

5. Reimbursement maintenance

o To compensate for the spouse who made ____________________________ sacrifices which

resulted in their lower standard of living

Example 21: Spouse 1 goes to law school and does not work; Spouse 2 is doing

all the working. Now, Spouse 1 is going to have an enhanced standard of living

now that Spouse 1 has a professional degree. Spouse 2 helped Spouse 1 get the

professional degree. The court will take this into consideration.

o Some jurisdictions handle this reimbursement in property division.

6. Palimony (Marvin v. Marvin, 1976)

o Only recognized in a few states

o Applies to ___________________________ couples who are cohabitants whose relationship

has ended

o The relationship must have been long and stable, and sex was not part of the contractual

________________________________________.

o Need not be in writing

CHAPTER 5: FINANCIAL SUPPORT OF SPOUSES (PART 2)

A. Modification of Spousal Support

1. Generally

o Maintenance may be modified, even if it was originally ______________________________.

o Cannot seek to modify a support order if no original maintenance was awarded or reserved.

o The movant has the burden to show _____________________________________________

in circumstances:

 In either the needs of the recipient; or

 In the financial abilities of the _____________________.

o Voluntary income reduction does not reduce the payor’s support obligation.

2. Factors That May Affect Modification

Death

 Support usually continues until the death of the spouse.

 The payor’s obligation usually is not included as an obligation of the ________________,

unless specified by the court.

Example 22: Marge cannot pursue Homer’s estate for maintenance after he

dies, unless it was part of the agreement or part of the court’s order.

Remarriage

 If the payor remarries, the court may _________________________ support.

 If the recipient remarries, the court may _______________________________ support.

Note 7: If the second marriage is annulled, the support obligation is not

revived.

Cohabitation

 If the recipient lives with a non-family member, support may be modified or terminated.

 Does not _________________________________________________ end maintenance

 Factors:

• How long has the recipient lived with the other person?

• Have they held themselves out to be _______________________ and for how long?

• Do both jointly contribute to the property or real estate in which they are living?

• Did they both support the _________________________ of the other?

• How much do they support each other (financially or services)?

Note 8: Cohabitation does not terminate alimony pendente lite, which is

alimony that is paid during the pendency of the divorce litigation.

Voluntary retirement

 Some jurisdictions deny modification (should have addressed it in the

_______________________________).

 Some jurisdictions will modify on that basis.

B. Jurisdiction of the Court

• Courts must have _________________________ jurisdiction and _________________________

_______________ jurisdiction.

1. Duration of Residency

o Most states require some residency for subject-matter jurisdiction (generally

____________________________ to _____________________________).

o Full faith and credit will apply if one spouse is a resident for that length of time.

o Powers—matrimonial courts have full _________________________ powers, including:

 Division of property;

 Divorce or annulment;

 _________________________ of the children;

 Support and alimony;

 Award attorney’s fees;

 Enforce ____________________________________ agreements; and

 Many other matters.

2. Divisible and Ex Parte Divorces

o The court has PJ over one party but ______________________ have PJ over the other party.

o The court can grant the _________________________ but it cannot ___________________

on property, alimony, or child support.

Example 23: Marge moves to Alaska; Homer stays in Springfield, OR. Alaska

has personal jurisdiction over Marge; it does not have personal jurisdiction over

Homer. The court can grant the divorce, but that is it. For all other issues, the

court would have to get personal jurisdiction over Homer.

3. Collateral Attack on Jurisdiction

o The defendant/respondent may attack such an ex parte order for lack of jurisdiction.

o Can show that the plaintiff was not ____________________________ in the divorcing state

4. Indigent Parties

o Courts cannot require an indigent party to pay _____________ and ___________________.

o But, there is no right to legal ___________________________, so the court can award

attorney’s fees and costs if one of the parties is indigent.

CHAPTER 6: CHILD SUPPORT (PART 1)

A. Generally

• Both parents are legally required to support their minor children.

• They have _________________________ responsibility, unless circumstances dictate otherwise.

• Based on the child’s ____________________, not the parents’ ______________________ to pay

• Typically, support is paid until the child reaches the age of ____________ years old; Exceptions:

o Can be required until the child is _____________ years old, if working full-time on obtaining

a high school diploma;

o Extended if there is a physical or mental condition which ____________________ the child;

o Sometimes, it will be extended through a _________________________ degree.

Note 9: Child support is entirely separate from visitation rights. Visitation

cannot be denied because the payor is failing to pay child support.

o The right to child support belongs to the _______________; parents cannot bargain it away.

o Parents can agree regarding _________________________.

B. Nonmarital Children

• Historically—nonmarital children were not entitled to child support

• Now—nonmarital children cannot be denied child support, government benefits, or death

benefits

• Paternity needs to be proved before the father dies.

• When nonmarital kids can become marital kids:

o If the parents marry _________________________ the birth of the nonmarital child;

o If the father consents to putting his name on the child’s _____________________________

_______________________________;

o If the father holds himself out to be the father; or

o By judicial _________________________.

C. Paternity

• Paternity actions are not available to the _________________________.

• Once paternity is established:

o The rights to _________________________ and visitation attach; and

o The duty to _________________________ also attaches.

1. Blood Test

o The court may order a paternity test (if the father is indigent, the court will pay).

o If there is no paternity, then any child support case filed against that individual is

________________________________.

2. Other Evidence

o Prior statements by ____________________________ family members

o Medical testimony based on the probability of conception

o The defendant’s own knowledge of paternity

o The __________________________________ between the child and the defendant

3. Time Limit on Paternity Petition

o No time limit on the filing a paternity claim—violates the ____________________________

____________________________ Clause of the U.S. Constitution

o The nonmarital child or the child’s mother can bring the suit.

o Burden of proof varies by jurisdiction

4. Marital Presumption

o A child born to a married woman is presumed to belong to the woman’s _______________.

 Presumption applies in cases of artificial insemination, provided the father

_________________________ to the procedure and it was performed by a doctor

o When can a wife deny that her husband is the father?

 Some states—a wife is ______________________ from denying the husband’s paternity

 Half of the states—allow for a wife to present evidence that her husband is not the

father of the child (e.g., if the husband is impotent, sterile, or not accessible)

 Some states—allow the court to _________________________ evidence of the

mother’s rebuttal, if it is not in the best interest of the child

5. Estoppel

o A husband who is not the biological father may be required to pay child support:

 When the husband said he’d pay it;

 The wife _________________________ on it; and

 The wife would suffer economic ____________________________ from relying on that

o Usually only allowed to estop the husband from not paying child support

o Cannot be used to block the biological father of his rights

o Some states—non-father husbands are being allowed to show that they are not the father

and thus, they do not owe child support

D. Personal Jurisdiction over an Out-of-State Parent

• Long-arm provision—Uniform Interstate Family Support Act (UIFSA)

• Adopted in every state

• Obtaining PJ over the out-of-state parent:

o Personal _________________________ on the defendant-parent;

o _________________________ of the defendant-parent (e.g., entering an appearance);

o Past ______________________________________ with the child in the state;

o Past residency in the state, not with the child, but they provided support;

o Defendant directed the child to reside in the state (or the child was

_________________________ to reside there due to the defendant’s actions);

o Defendant engaged in the act of conception in that state that resulted in the child;

o Defendant asserted parentage via the putative father _________________________

maintained by the state;

o Any other basis consistent with the federal and state constitution for exercising PJ

CHAPTER 7: CHILD SUPPORT (PART 2)

A. Amount of Support

• All jurisdictions have adopted some form of guidelines

• Any source of income can be factored into calculating child support:

o _________________________;

o Dividends;

o Interest;

o Capital _________________________;

o Rental income;

o Retirement benefits;

o Social security income

• Three public policy principles that guide child support:

o Parents have a fundamental obligation to _________________________ their children.

o The combined income is what is important; as if the home were intact

o To minimize litigation (i.e., a fair and ____________________________ settlement)

• Both parents must file an _________________________ regarding their net income, and a child

support guidelines _____________________________.

1. Calculating Support

“Income shares” model—employed in ______________________ jurisdictions

 Method:

• Add both incomes.

• Determine the amount of child support.

• Allocate responsibility respective to each person’s ____________________ income.

Example 24: If mom 1 makes 2/3 of the income and mom 2 makes 1/3 of the

income, then mom 1 would be responsible for 2/3 of the child support

obligation and mom 2 would be responsible for 1/3 of the child support

obligation.

“Percentage-of-income” model—some jurisdictions

 Uses a percentage of the non-custodial parent’s income

 Determined by the _________________________ of children who are being supported

Deviations from child support guidelines

 Court must specify ______________ it is deviating (e.g., imputing income to an

underemployed parent)

Example 25: Mom 2 has gone to part time work, earning only half of what she

used to make. The court can deviate from the child support guidelines and

impute income to her as if she were fully employed.

o The payor is not permitted to monitor how that money is ___________________.

2. Other Considerations

o Age of the child when determining child support;

o Unusual needs (e.g., _________________________ education);

o Support obligations of the parties themselves;

o _________________________ of the parties;

o Medical expenses outside of ________________________________ coverage;

o Relative standard of living;

o Duration of the marriage (particularly for spousal support or alimony pendente lite);

o Best interest of the child

3. Medical Insurance

o Most jurisdictions include medical expenses in a child support award.

o Premium costs of insurance will be ___________________________ from the net income of

the parent who pays for the insurance.

B. Modification of Child Support

• Can modify child support if the _________________________ circumstances change or the

_________________________ circumstances change

1. “Substantial Change” in the Parent’s Circumstances

Example 26: Change in occupation; increase in income; decrease in health;

remarriage that creates additional obligations

o “Substantial change”— _______________% change or more in the amount owed

Example 27: Mom 1 owes $1,500 per month to Mom 2. Mom 1 loses her job

or experiences a decrease in health. Mom 1 calculates that she now owes

$1,000 per month, based on her new income. This is more than a 10% change

in what she owed. The courts would deem that, in most jurisdictions, to be a

substantial change.

o Burden—on the party _________________________ the modification

o Change is retroactive to the date of service of the motion for modification

o A party cannot __________________________________ reduce income and then seek a

modification; courts ______________________ an income amount on that parent.

Example 28: A chiropractor decided to quit their job and paint nature scenes,

making far less income. The court will impute the chiropractic salary.

Exam Tip 7: Be aware of a fact pattern where the obligor (payor) quits a job

voluntarily. Child support may not be reduced. Courts will still impute income

to the obligor based on age, health, physical condition, etc.

 Exception: If the change was made in _____________________________________ and

there is no hardship to the child

2. Termination of Child Support

o Automatically ends when the child reaches the age of majority (typically, 18 years of age)

o Court might order support beyond the age of majority if:

 The child goes to college (some jurisdictions);

 The child cannot support himself due to disability; or

 The child is still in high school

Editorial Note 7: The Professor misspoke. A court might order continued child

support beyond the age of majority in the above circumstances.

o Child support can also be terminated in the following circumstances:

 Child marries;

 Termination of parental rights;

 Child emancipation;

 Child dies;

 Parent dies (Note: Courts can require a life insurance policy).

Exam Tip 8: If the question is about child emancipation, discuss the “totality of

the circumstances”; it is a fact-specific situation.

Example 29: Is the child self-supporting after emancipation? It is not enough

for the child simply to have employment.

Note 10: If the child gives birth, that is not automatic termination of support.

3. Jurisdiction for Modification

o Like child custody orders, there are only two ways to move jurisdiction:

 By _________________________________ of the parties; or

 Neither party nor the child lives in the “court of continuing jurisdiction.”

o If neither of the above applies, the new state cannot modify the support order.

o Parties may register the order in another tribunal, but if an aspect of the order is non-

modifiable in State 1, then it is non-modifiable in State 2.

4. Tax Consequences of Child Support

o The paying parent _____________________ deduct child support; the receiving parent

cannot include it as income.

Editorial Note 8: The professor failed to specify that it is the receiving parent

who cannot include child support as income.

o The custodial parent automatically gets the child dependency exemption (but the parties

can agree otherwise).

o The parent who pays medical expenses ______________________ deduct those expenses.

C. Enforcing Child Support Awards

• Civil contempt orders;

• Income withholding (wage _________________________________________);

• Withholding tax refunds

1. Civil Contempt

o The payor must violate a court order for failure to pay.

o The court may also levy a fine or order __________________________________ until the

amount is paid.

o There is a split in courts whether appointment of counsel is constitutionally required in

indigent cases.

2. Criminal Contempt

o The court can impose a jail term.

o Typically, the court must find that the failure to pay by the obligor is

“_________________________” beyond a reasonable doubt.

3. Other Sanctions

o Intercept tax refunds;

o Suspend driver’s license;

o Suspend _______________________________________ licenses;

o Report to credit bureau;

o Seize _________________________ or assets;

o Order insurance or bond;

o Attorney’s fees;

o Order a job search; or

o Seize the _________________________, if more than $5,000 in arrears

4. Enforcement in Other Jurisdictions

o Uniform Interstate Family Support Act (UIFSA)

o Adopted in __________________ states

o Created to simplify the __________________________________ from one state to another

o If the order is registered in the second state, it is enforceable from the first state.

o Only the original state may _________________________ the order.

Example 30: Dad 1 and Junior move to State 2. They have a child-support

order. Dad 2 is paying Dad 1 child support every month. Dad 1 registers the

enforcement order in State 2, and it is enforceable from State 1. State 2 does

not have personal jurisdiction over Dad 2, who is the payor.

Exam Tip 9: If more than one state is involved in a Family Law question, always

discuss the UIFSA.

CHAPTER 8: CHILD CUSTODY (PART 1)

A. Definitions

1. Legal Custody

o The right to make major _________________________ (e.g., health,

______________________________________, religion) vs. everyday decisions

o May be shared

2. Physical Custody

o The right to have the child _________________________ with the parent or guardian

o The obligation to provide routine daily care and control

o May be shared

3. Joint Custody

o Applies to the majority of cases (often statutorily favored)

o Both parents must be willing and able to ________________________________ for the best

interest of the child.

o Neither parent has a superior right to make decisions on behalf of the child.

o There is usually a procedure for resolving _________________________ (e.g., PC/DM,

Parent Coordinator/Decision Maker).

o Not necessarily 50-50 time-sharing; the child maintains residence at the home of each with

_________________________________________ time

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

• Purpose—prevent interstate jurisdictional _________________________ regarding child

custody and visitation

• Determines what state can have jurisdiction, change it, or decline it

• Under UCCJEA, the court must possess ____________________________________ jurisdiction.

1. Initial Custody Determination (Home-State Jurisdiction)

o Home state—where the child lived with a parent for ___________ months (or since birth, if

the child is less than six months old)

o If the child has moved, the home state can still have jurisdiction if it was the home state

within the past six months and a parent or guardian still lives there.

Editorial Note 9: The professor misspoke regarding the above bullet point. The

child’s home-state continues to have jurisdiction if it was the child’s home state

in the past six months, and the child is absent from the state, but one of the

parents (or guardians) continues to live in the state.

2. Significant-Connection Jurisdiction

o If no other state is the home state;

o The __________________ and ________________________ have “significant connections”

to a new state; and

o There is substantial _______________________________ in that state concerning the child;

o Then that court has significant-connection jurisdiction.

3. Default Jurisdiction

o There is no court that has home-state jurisdiction.

o There is no court that has significant-connection jurisdiction.

o A court has jurisdiction in a state where the child has “_______________________________

connections.”

4. Exclusive Continuing Jurisdiction

The court that made the initial rulings in the custody case _________________________ to have

jurisdiction until:

o The parties no longer reside in the state; or

o The child no longer has a significant connection to the state and no substantial

_________________________ of the child’s condition continues to be available in the state.

5. When Courts can Decline Jurisdiction

The new home state or a court of exclusive continuing jurisdiction can decline to exercise

jurisdiction when the forum is no longer __________________________, per the factors below:

Example 31: State 2 has been asked to preside, but State 1 has jurisdiction.

When can State 1 say, “Hey, State 2, you can take this”?

o When domestic _________________________ occurred and is likely to continue in State 1;

o The length of time the child has resided _________________________ of the jurisdiction;

o The _________________________ between the competing jurisdictions;

o The parties’ relative _________________________ circumstances;

o Agreement of the parties;

o The nature and location of evidence that is _________________________ in the case;

o Each court’s ability to decide the issues expeditiously and the procedures necessary to

present the evidence;

o The familiarity of each state court with the facts and issues

6. Temporary Emergency Jurisdiction

o A court can assume emergency jurisdiction if:

 The child is in _________________________; and

 The child requires immediate protection.

o If a prior custody order is in existence, the new court must allow time for the parties to

return to that prior court to argue the issues.

o If there is no prior custody order in place, then the emergency order stays in place until the

_________________________ state changes it.

7. Enforcement of Another State’s Orders

Registration of order

 Get a _______________________________ copy of the order.

 Register it with the new court.

 The new court can then grant relief under that order.

Expedited enforcement of a child custody determination

The respondent must appear the very next judicial day after being served with an order, or

else the petitioner will be awarded immediate physical possession; unless:

a) The custody order was not registered and one of the following exists:

o The court did not have jurisdiction;

o The order had been stayed or _________________________; or

o Notice was improper; or

b) The order was registered but stayed, vacated, or modified.

Warrant for child custody (physical possession)

A court may issue a warrant upon a petitioner’s request to take physical possession of the

child if the child is likely:

 To suffer serious ____________________________ injury; or

 Wrongfully be ___________________________ from the state.

Law enforcement

Allows law enforcement officials to obtain return of the child or enforce an order if:

 The official believes the person holding the child violated a _______________________

statute; or

 If such action is requested by the court.

8. Uniform Deployed Parents Custody and Visitation Act (UDPCVA)

o Applies the UCCJEA to parents serving in the military

o If there is not imminent deployment, then the courts cannot use potential deployment

negatively against the military personnel.

o Sets out procedures for temporary ______________________ and out-of-court agreements

o Prohibits permanent orders before or during ________________________________ (unless

the military parent consents)

C. Uniform Child Custody Jurisdiction Act (UCCJA)

• Almost all states have replaced the UCCJA with the UCCJEA

• Goal—to create a _________________________ system to resolve interstate custody matters

• Did not allow another state to modify a custody order if the original state still had jurisdiction

• It ____________________________ with Congress’s Parental Kidnapping Prevention Act (PKPA)

• Did not address _____________________________________

• Did not give first priority to the _________________________ state of the minor child

D. Parental Kidnapping Prevention Act (PKPA)

• Applies to kidnapping cases and to interstate parental responsibility disputes

• PKPA supersedes any conflicting _________________________ law

• Purpose—to discourage forum shopping

• Allocates the powers and duties between the states regarding child custody disputes; a

noncompliant state’s order will not get full faith and credit

• International PKPA prohibits children from being taken out of the country

o The Hague Convention requires return of the child, unless return of the child puts the child

in grave _________________________ (either physical or psychological).

CHAPTER 9: CHILD CUSTODY (PART 2)

A. Best Interest and Welfare of the Child Standard

• The standard for determining child custody

• Unless the parent is deemed to be ___________________, a parent is determined to be in the

best position to care for the child.

• There is no longer a presumption for custody in favor of the _________________________.

1. Primary Factor to be Considered

Who was the primary caretaker during the marriage and separation, prior to the

___________________________?

Exam Tip 10: For any fact pattern involving children, be sure to discuss the “best

interest and welfare of the child” in determining parental responsibility and

time-sharing.

2. Other Factors to be Considered

Race & Religion

 Race cannot be used as a factor.

 Religion is typically not a factor.

Past sexual conduct

 A parent’s past sexual conduct is typically not considered in most jurisdictions

 Unless, it has a _______________________________ impact on the child

Third-party rights

 Legal parents presumptively get parental responsibility, unless:

• They are deemed unfit;

• It is detrimental to the child; or

• The parent has ___________________________________________ those rights.

 A parent is presumptively entitled over a grandparent or a stepparent (but a stepparent

has priority over a _________________________).

 Exception: Parent by estoppel (de facto parent)—the child was living with a third party

for an extended period

 Some jurisdictions use the “best interest” standard in _____________ custody cases

even if it is between a parent and a third party

The child’s preference

 May be considered in determining custody, but only if the child is of sufficient maturity

 Typically a child in contested cases will never be brought into court, unless ordered by

the court (and that must be based on “______________________________________”).

Guardian ad litem

 In highly contested cases, may be appointed by the court to act for the child

 Duty is to _____________________________ on behalf of the child

Siblings

 Courts avoid _____________________________________ siblings

 Unless, keeping them together would not be in the best interest and welfare of the child

Domestic violence

 Nearly every jurisdiction requires courts to consider domestic violence

 The presumption in favor of the nonabusive parent is ___________________________.

B. Visitation (Parenting Time)

• Generally, parents have a constitutional right to see their child.

• Visitation must be in the best interest of the child.

• Typically, parents create an agreement as to the time, _________________, and circumstances.

• Denying non-custodial visitation is very unusual; only if it would “seriously

_________________________” the child

• Can restrict overnights or require _________________________________ visitation

1. Third Party Visitation

o May apply to stepparents, ______________________________, or nonbiological co-parents

o Typically, only granted in cases of in loco parentis prior to the divorce

o No protected _________________________ for ongoing visitation after the divorce

“Special weight” to a fit parent’s decision

 A fit parent has a ___________________________________ right to care for and

control their child.

 Must be given “special weight” in their decision to deny a nonparent visitation

Grandparent visitation

 The majority of states have a statute regarding grandparent visitation.

 No states “_______________________________” grandparent visitation.

 When a grandparent requests visitation that has been denied, the courts will look at: (1)

the fit parent’s decision; (2) the _________________________; and (3) the best interest

of the child.

Unwed biological father

 An unwed biological father has a right to substantive ____________________________.

 The father must demonstrate a commitment to parenting responsibilities.

 If the mother is married to another man and refuses to join in a paternity action, the

state may _____________________________ the biological father’s paternity petition.

2. Sexual Relationship or Cohabitation

o Courts are _________________________ to restrict visitation by a parent due to a sexual

relationship or cohabitation by that parent

o Unless, it adversely affects or impacts the child

3. HIV/AIDS

Courts _________________________ deny a parent’s rights of visitation due to HIV or AIDS.

4. Interference

Example 32: Mom is the custodial parent. She is trying to deny Dad any

visitation. She is interfering with the visitation order.

Interference or refusal to comply with a visitation order may be remedied by a change in

custody or _________________________ proceedings.

C. Enforcement, Modification, and Termination of Parental Responsibility Order

1. Enforcement

o Potential remedies:

 Compensatory visitation—order additional time;

 Award attorney’s fees and court costs;

 Impose a fine or order jail time;

 Tort damages for lost time with the child.

o The court cannot deny visitation for failure to pay __________________________________.

Habeas Corpus Proceedings

 Generally not available for custody or visitation disputes

 If a parent has ___________________ custody but not ___________________________

custody, they can request Habeas proceedings.

Note 11: Often, the court will revisit the issue of custody and what is in the best

interest of the child.

 Better option—a less limiting action is a suit in _________________________

Enforcement of Foreign Decrees

 The Full Faith and Credit Clause allows for custody and visitation orders to be enforced,

if the original order was ___________________________________ in the second state.

 Generally, the new court _________________________ modify the order, unless:

• The prior court _________________________ jurisdiction; and

• The out-of-state party is given sufficient notice.

2. Modification

o Most jurisdictions use the “change in circumstances” standard.

o The change in circumstances must be substantial and _____________________________ at

the time the final judgment was entered.

o Modification must be in the best interest of the child and promote ____________________

o The original state retains subject-matter jurisdiction.

o Some states impose a time barrier if there is no immediate danger to the child.

o Violation of the visitation order does not ________________________________ change the

custodial parent.

o Failure to pay child support ____________________ a basis to deny visitation or to modify a

visitation order.

Example 33: A custodial parent is proposing to relocate the child out-of-state,

and that will “significantly impair” the other parent’s visitation. That is a

“substantial change,” and a modification of visitation will be required.

Relocation

 Some states place most weight on the best interest of the child.

 Some states apply the presumptive right to the ___________________________ parent,

so long as the child’s welfare is not prejudiced.

 The relocating parent has the burden to demonstrate a “__________________________

and reasonable purpose.”

• Some states place the burden on the ______________________________ parent to

show that relocation is not in the best interest of the child or will harm the child.

 Trend—allow a parent to relocate, provided there is a legitimate reason

 An application should be filed _________________________ relocation.

 Factors:

• Potential involvement of the non-relocating parent with the child;

• Age and needs of the child (and special needs);

• Ability to preserve the ___________________________ with the nonmoving parent;

• Child’s preference;

• Movant’s history of promoting parenting time;

• Enhancing effect on the child’s life;

• Each parent’s _________________________;

• Any other factor that affects the best interest of the child.

Note 12: If joint custody, then it is harder to relocate; courts protect the non-

moving parent more.

Cohabitation

 Some states permit a hearing to modify if the custodial parent is living with a nonmarital

partner.

 A change in custody is generally not granted, unless it is shown that cohabitation has an

adverse _________________________ on the child.

3. Termination

The parental responsibility order terminates upon the death of the parent or the child reaching

the age of majority.

D. Parental Consent

1. Medical Procedures

o A doctor who performs without parental consent is liable in _________________________.

o Exceptions (i.e., when consent is not needed):

 An emergency;

 The child is older and _________________________; or

 Public health issues

2. Religious Beliefs

o Religious beliefs may contradict the best interest of the child.

o The court can intervene and declare the child neglected.

o Some states allow exemptions for emergencies without finding the parent was neglectful.

3. Upbringing—A parent generally has a right to raise the child as he or she sees fit.

CHAPTER 10: MARITAL AGREEMENTS

A. Types of Marital Agreements

1. Premarital Agreements (“pre-nuptial” or “ante-nuptial” agreements)

o It is a _________________________

o Terms relate to property, spousal support in the case of death or divorce, etc.

o A valid marriage is the ______________________________________.

o Many jurisdictions require an express statement in the agreement that it applies to

_________________________.

o Not enforceable with regard to _________________________________________ or

_________________________ support terms

o Uniform Premarital Agreement Act (UPAA)—adopted in 26 states with lots of amendments

o Uniform Premarital and Marital Agreements Act (UPMAA)—adopted in two states

o Choice of law—most courts use the state with the “most ____________________________

relationship” to the agreement and the marriage.

2. Separation Agreements

o Can decide: property division, child support, spousal maintenance, custody, visitation, etc.

o Made between spouses planning for divorce

o Enforceable so long as there is no _________________________ or unconscionable aspect

o Modifiable regarding child support and _________________________, if it is in the best

interest of the child

o Usually merged into the final decree of divorce

Editorial Note 10: The professor misspoke. When the separation

agreement is merged into the final divorce decree, enforcement is

accomplished through enforcement of the judgment. When no merger occurs,

enforcement is based on contract law rather than judicial enforcement.

3. Property Settlement Agreements

o Purpose—settle the ____________________________ issues of the marital estate

o Entered into _________________________ the divorce decree is issued

o Enforceable so long as there is no _________________________ and no unconscionability

B. Validity of Marital Agreements

1. Requirements:

o Full ____________________________________ of assets;

o Fair and reasonable;

o Voluntary;

o In _________________________; and

o Signed

2. To enforce

o Disclosure, voluntariness, and fair and reasonable terms are required in all jurisdictions.

o In states where the UPAA is not adopted, other grounds may be used to validate.

3. To invalidate

o Must prove the agreement is invalid by clear and convincing evidence.

o To invalidate, the UPAA requires:

 The agreement was involuntary; or

 It was _______________________________________ when executed:

• Spouse did not waive fair and reasonable disclosure; and

• Spouse did not have or could not have had adequate knowledge of the other’s

assets and ___________________________________________.

o If the marriage is _________________________, the premarital contract is enforceable only

if it will avoid an inequitable result.

4. Full Disclosure

The parties must fully disclose their financial status, including: income, assets, and

____________________________________.

5. Fair and Reasonable

o Courts consider wealth, age, and _________________________

o Courts also consider if the agreement was procedurally and substantively fair.

o It is not procedurally fair if by fraud, duress, _________________________, or undue

influence, or if there was ______________________________ misconduct.

o Most courts look at the fairness of the document at the time of

__________________________________ (vs. time of enforcement).

o Current trend: A court will enforce an agreement as long as there was full disclosure, even if

it is not necessarily _________________________.

6. Voluntary

Courts consider: time pressure, previous business experience of the party, and whether the

party is represented by ___________________________

Note 13: Insisting on the agreement as a condition to marriage is not duress.

Exam Tip 11: Discuss procedural fairness if one party was not independently

represented by counsel, and voluntariness by asking whether a party was

informed of the right to and given an opportunity to consult with counsel.

7. Impoverished Spouse

A court may invalidate the agreement if it leaves one spouse woefully impoverished and he

becomes ________________________________________ on the state.

8. Modification of Marital Agreements

o Courts will uphold a “cannot modify” provision.

o BUT, courts can and will override such a provision regarding ___________________ support.

C. Agreements Between Unmarried Cohabitants

1. Cohabitation Agreements

o Contracts between unmarried persons which consider full-time companionship (or other

support) in exchange for _________________________ support

o Enforceable, but not if the only consideration is sexual relations

o Courts are less likely to enforce an implied cohabitation agreement.

2. Property Division Between Unmarried Cohabitants

When there is no express contract, courts turn to __________________________ distribution of

property to avoid unjust enrichment.

CHAPTER 11: THE RELATIONSHIP BETWEEN FAMILY AND STATE

A. Adoption

• The previous parent-child relationship is ______________________________, and a new

parent-child relationship is created.

• The child is adopted for all purposes (e.g., inheritance, rights, privileges)

• Records are _________________________, except birth parents’ medical records

• Most states have residency requirements.

• The law prohibits _________________________ to the natural parent for the adoption.

1. Termination of the Natural Parent’s Rights

Before adoption may occur, the _______________________________ parents’ rights must be

terminated.

Voluntary Termination

Biological parents may voluntarily give up their rights and _________________ to adoption.

1) Consent of unwed fathers

a) Consent by failure to register

o Adoption _________________________ exist in some jurisdictions.

o Purposes—determine the identity and location of the putative father and

provide _______________________ if the mother puts the child up for adoption

o The putative father must ____________________________.

o Failure to register—waiver of an objection to an adoption and an irrevocable

consent to adoption, but only when the father had no relationship with the child

Note 14: If the child is a newborn, the unwed father is constitutionally entitled

to an opportunity to develop a relationship with the child.

b) Consent by failing to demonstrate a commitment to the

_________________________________________ of parenthood

2) Consent of prospective adoptee—if over ____________ years old, the minor child must

approve their adoption (some jurisdictions: 12 years old)

3) Withdrawal of consent—can occur prior to the final decree of adoption

Involuntary Termination

 Only a __________________ can involuntarily terminate a parent’s constitutional rights.

 Often based on abuse, _________________________, or dependency

1) Requirements

• Standard: ____________________________________________________ evidence

• Bases:

o Abandonment;

o Sibling _________________________;

o Incapacity;

o Termination of parental rights over a sibling; or

o Abuse and neglect of the child over time

• Adoption and Safe Families Act—a state can move for termination when the child is

outside the home for _________ out of __________ months and not with a relative.

1) Adoption—when the parent abandoned the parent-child relationship

• Objective test—if the parent failed to _________________________ to the child

• Subjective test—if parent _____________________________ to abandon the child

Note 15: “Loss of interest” is not sufficient so show abandonment.

Approval of adoption—requires a thorough investigation of the new parents’

_____________________ (sometimes waived if a close family member is adopting the child)

2. Legal Effects of Adoption

o The adoptive parents have all the rights and obligations of biological parents.

o The child has all the rights of a _________________________________ child.

o The biological parents have no ___________________________ rights (in most jurisdictions)

o Stepparents can visit (sometimes); it depends on how substantial the relationship was

between the stepparent and the child.

o Adoptions may not be _________________________, except in cases of undisclosed mental

or physical illness

 Courts review the child’s needs, parents’ motives, and ____________ of the relationship

B. Adoption Alternatives—Uniform Parentage Act (UPA)

• Covers assisted reproduction, surrogacy, and related “frozen embryo” issues that may arise

under such circumstances

• Adopted in nine states

C. Domestic Violence

• Domestic violence is typically physical abuse (not emotional or _____________________ abuse).

• Every jurisdiction has a statute for civil relief for victims.

1. Scope of Statute

o Nearly every jurisdiction requires the perpetrator of the violence to be in a

_________________________________ with the victim, or a family or household member.

o Most statutes include: spouses, children, ________________ spouses, household members,

___________________ members, and unmarried parents who have a common child.

o Typically, require a “continuum of behavior,” but a single episode may qualify

2. Relief Granted

o An ___________________________________ order is the typical relief.

o “No contact” order usually includes: residence, parenting time, child custody, or support

o Two-step process:

1) Ex parte order with limited injunctive relief (TRO); and

2) Notice to defendant, and a _________________________ for a permanent order (PRO)

o Violation of the order can result in imprisonment or _________________________.

o Typically last one year to an indefinite period

Exam Tip 12: A typical example of relief obtained by a protective order is that

the defendant will not abuse the petitioner and have no contact with them.

D. Rights and Obligations of Children

Example 34: Children can convey property and enter into contracts (but not

wills). They have the option to disaffirm at the age of majority.

1. Right to Consent to Medical Care

o A child’s right to make medical decisions varies.

o Parental consent is almost always necessary for _____________________________ medical

care (but a risk to life can override that requirement).

o Minors can usually consent to abortions, treatment for STDS, and birth control.

2. Liability for Torts and Criminal Acts

o Torts—children are judged by a more moderate standard

o Criminal acts—generally subject to _________________________ courts and laws

 The purpose is to provide ___________________________________ and rehabilitation.

 Degree depends on age

3. Emancipation

o If the child is self-supporting and not living with parents, the child may petition the court for

a decree of emancipation:

 No longer a minor

 Have duties and obligations of an adult

o The parents no longer have a ___________________ to support the now-emancipated child.

o Typically, a _________________________ minor is considered to be emancipated.

4. Limits on Parental Authority

o Parental authority is not _________________________.

Example 35: Child abuse and neglect laws; compulsory school attendance

statutes, etc.

o Courts may terminate parental rights if it is ________________________________________

___________________________________________________________________________.

o Grounds for termination of parental rights can include: abandonment,

_________________________, failure to support, inflicting serious harm, etc.

[END OF HANDOUT]

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