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FAMILY LAW

PROFESSOR HELEN CHANG

GOLDEN GATE UNIVERSITY

CHAPTER 1: INTRODUCTION AND GETTING MARRIED

A. Terminology

• “Irretrievably broken” (i.e., irreconcilable differences)—relates to grounds for no-fault divorce

• “Equitable”—applies to the division of ______________________________ property at divorce

Note 1: “Equitable” division requires a “just and fair” division of marital

property. It does not require an “______________________” 50/50 division of

marital property.

•

“Best interest of the child” or “best interest and ______________________________ of the

child”—the standard for child custody, support, and other issues related to the child

B. Getting Married

• Marriage is a civil ______________________________ between two people.

o Both parties must have capacity to give ______________________________

o There must be an exchange of consideration in the form of:

 Mutual exchange of ______________________________ between the two parties; and

 Imposition of the rights and obligations that come with the marriage relationship.

• No longer limited to opposite-sex parties; same-sex parties may be legally married

• A marriage contract can only be terminated or modified with _________________ intervention.

C. Ceremonial Marriage—requires a license and solemnization

1. Licensing

a. Age restriction—all U.S. jurisdictions impose a minimum age requirement

 Most states require both parties to be at least __________________________ years old.

 Most jurisdictions allow marriage if a party is under 18, provided that party has

_________________________________________.

b. Waiting period—many states require a waiting period between when the license is issued

and the marriage ceremony.

c. Premarital medical testing

 Some states require premarital medical testing

 The ______________ cannot be one of the conditions for issuance of a marriage license.

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

marrying. That statute was declared to be invalid.

d. Expiration of license—varies from _____________ to _______________ days after issuance

2. When Will a License NOT be issued?

o If a party is already ______________________________ to someone else;

o If the parties are too closely ______________________________;

o If the marriage is a ______________________________;

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 under the Full Faith and Credit Clause.

4. Solemnization

o Most states require at least ______________________________ to the ceremony

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 Proxy marriage—some states allow a party to have a stand-in for them at the ceremony

because they cannot physically attend

Example 2: A party is overseas on military deployment; a party is unable to

attend due to incarceration

D. Common-Law Marriage

1. In General

o Established by custom and ______________________________

o No ______________________________ or solemnization is required

o Most states have abolished common-law marriages.

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

grandfathered in and still recognized

o Requirements:

 Capacity to marry

 Consent (i.e., parties agree that they are married)

 Cohabitation

 Conduct (i.e., spouses hold themselves out to public as married)

o No states have a minimum time period of cohabitation to establish a common-law marriage.

o Evidence the court will consider (among others): common children, joint debt, joint assets,

title to property, bank accounts, insurance forms, tax returns, etc.)

2. Recognition

o States will recognize common-law marriages from other states under the Full Faith and

Credit Clause.

o Exception: If the state has a strong ______________________________ against recognizing

the marriage, then the state need not recognize the common-law marriage.

Some states require a minimum time period to be ______________________________ in

the state in order to establish a common law marriage.

Legal and mental capacity

Both parties must have legal and mental capacity to enter into the common-law marriage.

4. Intent

The parties must produce ____________________ of their present intent to enter the marriage.

E. Heartbalm Actions

• Historically included:

o Breach of ______________________________ to marry

o Alienation of affection

o Seduction

o ______________________________ conversation

• These were civil tort actions for money damages based on broken engagements or infidelity.

• No longer recognized

Exam Tip 1: Assume that the jurisdiction has abolished heartbalm actions

unless the question states otherwise.

F. The Marriage Relationship

• The marriage relationship brings along many ________________ and _____________________.

• Provides a right to privacy for the marital or family relationship under the constitution

CHAPTER 2: ENDING A MARRIAGE

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

• ______________________________;

• ______________________________ (Dissolution);

• ______________________________

A. Annulment

• Judicial decree that ______________________________ a marriage

• Available when a marriage is void ab initio or ______________________________

• Applies when an impediment to a legal marriage existed at the ______________ of the marriage

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

o Does not require judicial decree; will not be legally recognized for ______________ purpose

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

a. A prior existing marriage (i.e., bigamy)

 The ______________________________ marriage will be void.

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

 Exception: Some states allow the second marriage to become valid once the

impediment is removed (i.e., “Enoch Arden” rule).

b. Incest

 Void because the parties are too closely related by blood (consanguinity) or by marriage

(affinity)

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

• About half of states bar marriages between ______________________________;

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

• Many states prohibit marriages of relationship by ___________________________.

c. Mental incapacity

 Must be ______________________________ for the moment of the marriage contract

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

engaging

Example 3: Temporary insanity would lead to a void marriage.

2. Voidable Marriage

o Valid until one of the parties seeks annulment

o Requires a ______________________________ decree

a. 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.

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

_________________________ with their spouse, they can no longer seek an annulment

b. Impotence

 One party is naturally and ______________________________ impotent

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

c. Intoxication

 Either party was incapable of contracting due to alcohol or drugs

 Exception: The parties continue to cohabitate _________ the marriage (i.e., ratification)

d. Fraud, misrepresentation, duress, coercion, force

 Fraud that goes to the essence of the marriage can be grounds for a voidable marriage.

 The fraud must be in existence at the time of the ______________________________;

it cannot be about ______________________________ facts.

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

________________________________.

 Insufficient grounds: spouse lied about wealth, or has poor morals, bad habits, or a bad

temper

Note 2: Jurisdictions differ as to whether a false claim of pregnancy amounts

to fraud that justifies an annulment.

Lack of intent

 Voidable when parties acted with no intention to be married (e.g., as a sham or joke)

 If the marriage has since been ________________________, then it cannot be annulled.

 Includes marriages of limited purpose (e.g., marriages for immigration purposes)

3. Effect of Annulment

o Either party can still seek ______________________________ support

o Can still seek an ______________________________ distribution of marital property

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

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

o Children born of an annulled marriage are considered _______________________ children.

4. Defenses to Annulment

o Deny the impediment

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

5. Putative Marriage

o Also known as “putative spouse doctrine”

o Equitable remedy applies to protect a party who believes their marriage is valid

o Most jurisdictions have adopted the putative marriage doctrine.

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 legal ______________________________ of a marriage

• Most states have a ______________________________ requirement:

o At least one party must be a resident of the state.

o The length of the residency requirement varies, and may depend on whether:

 The couple ______________________________ in that state; and/or

 The grounds for the divorce happened in that state.

• Grounds:

o Most states recognize no-fault and fault divorce.

o A substantial minority of states recognize only no-fault divorce.

1. No-Fault Divorce

o Majority—granted if marriage is irretrievably broken

 May also refer to “irreconcilable differences”

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

period of time before they can seek no-fault divorce.

o One spouse who desires to reconcile cannot __________________________ the dissolution.

o Most states have abolished traditional ______________________________ to divorce.

2. Fault-Based Divorce

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

o Mainly used to determine support (i.e., alimony)

a. Grounds for fault-based divorce

1) Adultery

• Voluntary sexual intercourse with someone other than your spouse

• The charging spouse has to show both ______________________________ and

inclination by the other spouse.

• May be proven through circumstantial evidence

2) Cruelty or inhumane treatment

• Cannot be just a one-time incident; requires a _____________________ of conduct

• Most jurisdictions look for physical harm; only some allow for divorce based on

emotional abuse or cruelty.

• Must make cohabitation unsafe or improper

3) Desertion (abandonment)

• One spouse voluntarily leaves the marital home without _________________ or

_____________________ from the other spouse, with the intent to remain away

permanently.

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

and there is fear of _________________ if they return (i.e., constructive desertion).

4) Habitual Drunkenness (in some states)

• Applies if frequent habit of getting drunk causes _____________________________

in the marriage

• ______________________________ is not a requirement

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 ______________________________ behavior to the

other that renders that spouse’s condition intolerable and their life burdensome.

Example 4: Vulgarity, habitual laziness, manifest disdain, 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;

• With no reasonable prospect of discharge or rehabilitation.

3. Defenses to Divorce

o Only apply to ______________________________-based divorces

o Must be ______________________________ pleaded when asserted

a. Recrimination and unclean hands

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

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

behavior is in question

b. Connivance—the complaining spouse has given ______________________ to participate in

the marital wrong

c. Condonation

 ___________________________ for whatever wrongful act in which they were engaged

 The forgiving spouse must have ______________________________ of the wrongful act

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.

d. Collusion—both parties have conspired to ________________________ grounds for divorce

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

doing

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

ability to understand the act is wrongful

g. Consent—consent to desertion or adultery

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

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

4. Limited Divorce

o Widely recognized, but rarely used

o Refers to legal separation where the parties live apart, allowing courts to determine support

and property division

5. Separate Maintenance—when a party is asking for ______________________________, even

though parties do not live apart

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

period has elapsed

C. Mediation

• Requires a neutral court-appointed mediator who is ______________________________

• Mediator cannot be connected with one party or the other

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

• Parties then submit a settlement agreement to the court.

o If the court approves it, it is incorporate into the final divorce judgment.

CHAPTER 3: DIVISION OF PROPERTY

A. Overview

1. Community Property

o Only nine states currently use community property standards.

o Presumes ______________________________ distribution of marital property

2. Equitable Distribution

o Most states follow this approach.

o Requires ______________________________ and just distribution of marital property

Exam Tip 2: “Equitable” does not mean “equal” distribution.

B. What is Marital Property?

1. In General

o All property acquired _____________________ the marriage is considered marital property.

o Does not include:

 Property acquired ______________________________ marriage

 Gifts and inheritance

 Property acquired after ______________________________

2. Increases in the Value of Separate Property

o Increases in the value of separate property resulting from either spouse’s efforts is

considered ______________________________ property.

o Improvement due to marital property ______________________________ is also

considered marital property.

Example 5: You own an apartment building that you acquired before

marriage (i.e., your separate property). You use your salary during the marriage

to improve the property. At a minimum, the amount contributed from marital

property funds will be considered marital property.

Example 6: Jack owns a house before marriage and then marries Jill. Both

spouses start contributing to the mortgage payments. Jill would be entitled to

an equitable value in the increase in value of the home.

Note 3: The way that property is titled is not material.

3. Gifts Between Spouses—Marital property

4. Burden of Proof

o The party who is claiming that something is ______________________________ property

has the burden of proving that it is separate 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

• Property that was mortgaged or encumbered in _________________ before the final separation

• An award or settlement payment that was received for any cause that accrued prior to marriage

Example 7: Jill got into a car accident before the marriage. They get married

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

considered to be nonmarital.

Exam Tip 3: 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

Factors include:

• How ______________________________ was the marriage?

• Were there prior marriages?

• What are the ______________________________ circumstances of each spouse:

o How old are they?

o How is their health?

o How close are they to ______________________________?

o What are their earnings and earning ______________________________?

o What are the needs of the spouses?

• Contributions to the education or ______________________ advancement of the other spouse;

• Their needs for future acquisitions;

• Income, medical needs, retirement of both spouses;

• What is the value of any separate property?

• Was there a ______________________________ in the value in marital property by one spouse

(e.g., dissipation or fraud)?

• Economic circumstance of each spouse at divorce; and

• Custodianship of any minor children

E. Treatment of Specific Types of Marital Property

1. Professional License or Degree

o Majority: Not distributable property

o May affect support payments or distribution of marital assets

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

contributed to the other spouse’s education (“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 4: Watch the timing of pension benefits. Often, it is both marital

property and nonmarital property because it started prior to the marriage. The

portion that accrued prior to the marriage is nonmarital property.

Example 8: You worked for five years before marriage and had a pension that

accrued during that time. After marriage, you continued to earn the pension for

another 10 years. The court would divide the benefits accordingly (one-third as

separate property and two-thirds as 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

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

 Pain and suffering, disability award—___________________ property of injured spouse

 Lost wages, income, medical expenses—______________________________ property

o Consortium claims—separate property of the ______________________________ spouse

4. Goodwill of a Business

o Considered marital property if it is developed during the marriage

o It must be part of a business, and independent of the individual.

Example 9: Professor Chang runs a law firm that has developed a positive

reputation. That goodwill can be part of the value of the law firm to be

distributed upon divorce. However, if the goodwill only comes from Professor

Chang’s personal reputation, that goodwill is not considered distributable

marital property.

5. Accumulated Sick and Vacation Days—split jurisdictions; often depends on how/when accrued

6. Stock Options—if acquired during the marriage, then it is _______________________ property,

even if the stock options will not be exercised until after the divorce

F. Tax Consequences

• Equitable distribution payments transferred between divorcing spouses are not taxed as

income.

G. Modification of a Property Division Award

• Once a property division occurs, it is ______________________________.

• Changes in circumstances after divorce are not considered once the property division award is

entered.

Exam Tip 5: Changes in circumstances after divorce may impact spousal or

child support obligations, but they have no impact on property division.

CHAPTER 4: FINANCIAL SUPPORT OF SPOUSES

A. Spousal Support Generally

• Spousal support is also called spousal maintenance or sometimes “alimony.”

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

• Arises when one spouse cannot support themselves with their own _______________________

or assets

• 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, inheritances, gifts, child support, earning ______________________________)

• Standard of living during the marriage

• Time to find a ______________________________ or to complete education

• Duration 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 has ______________________________

the earning capacity of the other spouse (e.g., homemaking, childcare, etc.)

• Age and health of the parties

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

o Some jurisdictions will consider _____________ as a specific ground in determining support.

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

C. 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 Party seeking modification has the burden to show that there has been a

________________________________________ in circumstances:

 In either the needs of the ______________________________; 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

a. 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.

b. Remarriage

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

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

c. Cohabitation

 Does not automatically end maintenance

 Court may consider:

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

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

• Do both jointly contribute to the household budget?

• Did they both support the ______________________________ of the other?

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

Note 4: Cohabitation does not terminate alimony pendente lite, which is

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

d. Retirement

 Some jurisdictions ______________________________ modification.

 Some jurisdictions will ______________________________ support on this basis.

 May depend on reason and nature of retirement (e.g., voluntary, for added benefit, etc.)

D. Jurisdiction of the Court

• Courts must have ______________________________ jurisdiction and

_______________________________________ jurisdiction to make family law determinations.

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.

2. Powers of Matrimonial Courts

Broad and full ______________________________ powers to:

o Divide property;

o Order divorce or annulment;

o Issue orders regarding ______________________________ of the children;

o Order ______________________________ and alimony;

o Award attorney’s fees;

o Enforce ______________________________ agreements; and

o Many other matters (e.g., sanctions).

3. Divisible and Ex Parte Divorces

o The court has personal jurisdiction (PJ) over one party but ___________________________

have PJ over the other party.

o The court can grant an ex parte divorce (i.e., determine marital status only).

o A court without PJ over one of the spouses cannot issue orders on property division, spousal

support, or child custody or support.

4. Collateral Attack on Jurisdiction

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

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

5. Indigent Parties

o Courts cannot require an indigent party to pay ______________ and _________________ to

access matrimonial court.

o There is no right to legal ______________________________, but the court can award

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

CHAPTER 5: CHILD SUPPORT

A. Generally

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

• They have _________________________ responsibility, unless circumstances dictate otherwise.

• Obligations based on the child’s needs, not the parents’ ___________________________ to pay

• Typically, support is paid until the child reaches the age of __________________ years old, with

some exceptions:

o If the child is in high school full-time, can be required until the child is __________ years old

o Can be extended if the child’s physical or mental condition requires support past the age of

majority

o Can be extended through a ______________________________ degree

• Child support is entirely separate from ______________________________ rights.

o Visitation cannot be denied because the payor failed to pay child support.

• The right to receive child support belongs to the ____________; parents cannot bargain it away.

o Parents can agree regarding payment ______________________________ and timing.

B. Nonmarital Children

• Historically—nonmarital children ______________________________ entitled to child support

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

benefits, or ______________________________ rights

• Paternity needs to be established before the father ______________________________.

• 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, gives rise to:

o The rights to ______________________________ and visitation; and

o The duty to ______________________________.

1. Blood Test

o The court may order a paternity test.

o If the father is ______________________________, 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 physical ______________________________ 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 always bring the suit.

o Burden of proof varies by jurisdiction

4. Marital Presumption

o A child born to a married woman is presumed to be the child of 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 estopped from denying his duty to pay

child support if:

 The husband promised to provide for the child;

 The wife ______________________________ on that promise; and

 The wife would suffer economic ______________________________ from relying on

that promise

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

o Some states may still allow husband to show that they are not the biological father and

thus, they do not owe child support

D. Personal Jurisdiction (PJ) over an Out-of-State Parent

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

• Adopted in every state

• Grounds under UIFSA to obtain PJ over an 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 while providing child support;

o Defendant directed the child to ______________________________ in the state ;

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

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

E. Amount of Support

• All jurisdictions have adopted some form of guidelines to determine the proper amount.

• 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 financially ____________________ their children.

o The combined income is what is important (i.e., as if the home were intact).

o To minimize ______________________________ (i.e., a fair and efficient settlement)

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

child support guidelines ______________________________.

1. Calculating Support

a. “Income shares” model—employed in ______________________________ jurisdictions

 Method:

• Add both incomes.

• Determine the amount of child support based on total income.

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

Example 10: If mom 1 makes 2/3 of the total combined income and mom 2

makes 1/3 of the total combined 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.

b. “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

c. Deviations from child support guidelines

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

parent)

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., special ______________________________ or medical needs)

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

o Most important consideration = “What is in the _______________________ of the child?”

3. Medical Insurance

o Most jurisdictions _________________________ 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.

F. Modification of Child Support

• Permitted in most states

• Requires a “substantial change” in circumstances to warrant an upward or downward

modification

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

o Substantial change—typically __________________% change or more in the amount owed

Example 11: 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 is on the party ______________________________ the modification

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

o A party cannot ______________________________ reduce income and then seek a

modification; courts impute an income amount on that parent.

 Exception: If the change was made in ______________________________ and there is

no hardship to the child

2. Termination of Child Support

o 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:

 Is still in high school;

 Cannot support himself due to disability; or

 Goes to college (some jurisdictions).

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

 Child marries;

 Child emancipation;

 Termination of ______________________________ rights;

 Child dies;

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

Note 5: 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 from their income.

o The receiving parent ______________________________ include it as income.

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

G. Enforcing Child Support Awards

May include:

• Contempt orders;

• Wage ______________________________; and

• Withholding tax refunds

1. Civil Contempt

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

o The court may 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 property or assets;

o Order insurance or bond;

o ______________________________ 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.

CHAPTER 6: CHILD CUSTODY (PART 1)

A. Definitions

• Legal custody—right to make ______________________________ decisions for the child;

generally includes religion, education, and medical decisions

• Physical custody—right to make everyday decisions for daily care and control of the child;

generally includes right to have child reside with parent

• Joint custody

o Applies to the ______________________________ 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 ____________________ right to make decisions on behalf of the child.

o There is usually a procedure for resolving conflicts

o Not required to share time 50-50, but child usually maintains a residence with both parents

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

• Purpose—prevent forum shopping regarding child custody and visitation

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

• Under UCCJEA, the court must have ______________________________ 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 ______________________________ within the past six months; and

 A parent or guardian still ______________________________ there.

2. Significant-Connection Jurisdiction

A court has significant-connection jurisdiction if:

o 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.

3. Default Jurisdiction

Applies when:

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

o There is no court that has significant-connection jurisdiction; and

o A court in a state that has ______________________________ connections to the child.

4. 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.

5. 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.

6. 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:

o When domestic violence occurred

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

7. Enforcement of Another State’s Orders

a. 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.

b. 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:

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

• The court did not have jurisdiction;

• The order had been stayed or ______________________________; or

• Notice was improper; or

 The order was ______________________________ but stayed, vacated, or modified.

c. 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 ______________________________ physical injury; or

 To be wrongfully ______________________________ from the state.

d. 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 ______________________________ deployment, then the courts cannot use

______________________________ deployment negatively against the military personnel.

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

o Prohibits ______________________________ orders before or during deployment (unless

the military parent consents)

C. Uniform Child Custody Jurisdiction Act (UCCJA)

Almost all states have replaced the UCCJA with the UCCJEA because the UCCJA:

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

• Conflicted with the 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 ____________________________ and ______________

• 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 7: 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 are no gender-based legal presumptions for custody in favor of either parent.

1. Primary Factor to be Considered

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

2. Other Factors to be Considered

a. Race & Religion

 Race cannot be used as a factor.

 Religion is typically not a factor.

b. Past sexual conduct

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

 Unless, it has a ______________________________ impact on the child

c. Third-party rights

 Legal parents presumptively get parental responsibility, unless:

• They are deemed ______________________________;

• It is detrimental to the child; or

• The parent has ______________________________ those rights.

 A fit parent is presumptively entitled over a grandparent or a stepparent.

 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.

d. The child’s preference

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

______________________________

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

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

e. Guardian ad litem

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

 Duty is to advocate on behalf of the child

f. Siblings

 Courts avoid ______________________________ siblings

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

g. Domestic violence

 Nearly every jurisdiction requires courts to consider domestic violence.

 There is a presumption in favor of the non-abusive parent, but it is

____________________________.

B. Visitation (Parenting Time)

• Parents have a ______________________________ right to see their child, but visitation must

be in the best interest of the child.

• Typically, parents create an agreement as to the time, _______, and circumstances of visitation.

• Denying non-custodial visitation is very unusual.

o Only allowed if it would “seriously ______________________________” the child

• Can require ______________________________ visitation or place other time restrictions on

visitation (e.g., restrict overnights)

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 Generally no protected ___________ for third parties for ongoing visitation after the divorce

a. “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

b. 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:

• The fit parent’s decision;

• The conditions of visitation set forth in the _____________________________; and

• The ______________________________ of the child.

c. Unwed biological father

 An unwed biological father has a right to substantive due process.

 To enforce visitation rights, 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

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

o A change in custody arrangement;

o ______________________________ proceedings; or

o Make-up time.

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

1. Enforcement

o Potential remedies:

 ______________________________ visitation (i.e., order for additional visitation 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 ______________________________.

a. Habeas Corpus Proceedings

 Generally not available for custody or ______________________________ disputes

 If a parent has _______________ custody but not ________________________ custody,

they can request Habeas proceedings.

Note 6: Often, the court will revisit the issue of custody and determine what is

in the best interest of the child.

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

b. 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 has ______________________________ 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 ______________________________ and unforeseen

at the time the final judgment was entered.

o Modification must be in the best interest of the child.

o The ______________________________ state retains subject-matter jurisdiction.

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

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

visitation order.

a. Relocation

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

 Some states give relocating parent the ______________________________ right to

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

 The relocating parent often has the burden to demonstrate a “_____________________

and reasonable purpose.”

• Other 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—__________________ a parent to relocate, provided there is a legitimate reason

 Court will weigh any factor that affects the best interest of the child, including:

• 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 ______________________________;

• Movant’s history of promoting parenting time;

• Enhancing effect on the child’s life;

• Each parent’s ______________________________; and

• Any other factor

Note 7: If joint custody, then it is harder to relocate; courts protect the non-

moving parent more.

b. Cohabitation

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

______________________________ partner.

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

adversely impacts 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 Parents’ religious beliefs may ___________________________ the best interest of the child.

o The court can intervene and declare the child ______________________________.

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

__________________________.

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

CHAPTER 8: MARITAL AGREEMENTS

A. Types of Marital Agreements

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

o An agreement between prospective spouses

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 ______________________________ for these contracts.

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

event of ______________________________.

o Not enforceable with regard to child ________________ or child _________________ 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 (“post-nuptial” agreements)

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

o Made between spouses planning for ______________________________

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

o Always modifiable regarding child _________________ and _________________, if it is in

the best interest of the child

o Usually merged into the final decree of divorce

 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 a breach of _______________ claim.

3. Property Settlement Agreements

o Purpose—settle and finalize the ______________________________ issues between the

parties to an impending divorce

o May be entered into prior to the divorce decree

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

B. Validity of Marital Agreements

1. Requirements:

o Full ______________________________ of assets and debts;

o Fair and reasonable terms;

o Voluntary;

o In ______________________________; and

o Signed

2. To Enforce

o Disclosure, voluntariness, and fair and reasonable terms are required in ___________

jurisdictions.

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

3. To Invalidate

o Burden on party trying to invalidate the agreement

o Must prove the agreement is invalid by ___________________________________ 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 debts.

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 liabilities.

5. Fair and Reasonable

o Courts consider wealth, age, and ______________________________ of the parties.

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

o Procedural unfairness may include fraud, duress, ____________________, undue influence,

or mediator misconduct.

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

 Minority look at time of enforcement (i.e., divorce)

o Current trend: A court will enforce an agreement as long as there was full

______________________________, even if it is not necessarily fair.

6. Voluntary

Courts consider factors like:

o Time pressure

o Previous ______________________________ experience of the party

o Whether the parties are represented by ______________________________

7. Impoverished Spouse

If the agreement would leave one spouse woefully impoverished and a dependent on the state,

the court may choose not to enforce the agreement.

8. Modification of Marital Agreements

o Courts will uphold a “cannot modify” provision.

o BUT a provision about ______________________________ is always modifiable in the best

interests of the child

C. Agreements Between Unmarried Cohabitants

1. Cohabitation Agreements

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 9: THE RELATIONSHIP BETWEEN FAMILY AND STATE

A. Adoption

• The prior 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 for birth parents’ medical records

• Most states have ______________________________ requirements.

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

1. Termination of the Natural Parent’s Rights

o Before adoption may occur, the ______________________________ parents’ rights must

be terminated

o Termination can be voluntary (natural parents consent) or involuntary (court process)

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 of ______________________________ (in most

jurisdictions) unless the parties agree otherwise.

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)

• Adopted in nine states

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

under such circumstances

C. Domestic Violence

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

• Every jurisdiction has a statute for ______________________________ 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 The most common relief is an ______________________________ order.

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, i.e., temporary restraining order); and

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

o Violation of the order can result in fines or ______________________________.

o Length of order is typically one year to an indefinite period

D. Rights and Obligations of Children

1. Capacity for Contracts and Wills

o Children can convey property and enter into ___________________________, but not wills.

o They have the option to disaffirm contracts at the age of ____________________________.

2. 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 of child can override that requirement).

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

3. Liability for Torts and Criminal Acts

o Criminal acts—generally subject to ______________________________ courts and laws

 The purpose is to provide ______________________________ and rehabilitation.

 Degree depends on age

o Torts—can be liable, but may be judged by a more __________________________ standard

4. Emancipation

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

a decree of emancipation.

o After emancipation, the child:

 Is no longer a ______________________________; and

 Has duties and obligations of an adult.

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

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

5. Limits on Parental Authority

o Parental authority is not ______________________________.

o Courts may terminate parental rights if it is in the best interest and welfare of the child.

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

failure to support, inflicting serious harm, etc.

[END OF HANDOUT]

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