FAMILY LAW OUTLINE

PRENUTPIAL AGREEMENTS

1. Prenuptial agreements are entered into before marriage. They generally provide for
division of marital property upon dissolution.
a. Choice of Law
i. Some states apply law of state where agreement was signed.
ii. Some states apply law of state where parties have most significant
contacts.
b. Uniform Premarital Agreements Act. Agreement will be enforced unless
i. The party against whom enforcement is sought did not execute
voluntarily, or
ii. Party did not receive, or waive, fair and reasonable disclosure of assets
and obligations of other party, AND can show agreement was
unconscionable when signed.
c. Non-UPAA states agreement is unenforceable if party can show
involuntariness OR unfairness OR lack of adequate disclosure.
d. Also relevant is fraud, duress or coercion.
e. When agreement is presented soon before marriage, courts will also look at
difficulty of conferring with counsel, other reasons for proceeding w/ marriage
such as preexisting pregnancy and financial losses and embarrassment.
f. Prenups on custody and child support are not binding on court. Best interests
of the child governs.

MARITAL PROPERTY

1. Property acquired by either spouse is marital property

2. Title is not determinative of status as separate or marital property.
3. Property that was separate property before marriage remains separate property
unless commingled with marital property.
4. Increase in separate property during marriage is marital property.
5. Property acquired by selling separate property is separate property.
6. Property acquired after separation and before dissolution is marital property.
7. Property acquired by inheritance, bequest or gift during marriage is separate
property.

CHILD SUPPORT

1. Each parent has responsibility to pay child support until child reaches 19.
2. Exception is if child cannot support himself and is dependent on parents due to
physical or mental disability.
3. Amount of support is based on income of both parents, standard of living, child's
resources, paying parent's ability to pay.
4. Best interests of the child.
 5. Dissolution agreement can provide for support of college age child, but generally
no obligation unless agreed on by parties.
6. Obligation exists regardless of marital misconduct.
7. Support can be terminated if child is emancipated.
a. Emancipation is release of child from duty to obey parents and release of parents
duty to support, control and educate child.
b. Military service is emancipation.
c. Marriage is emancipation.
8. Death of supporting parent does not release his estate from support obligation.
9. Remarriage of non-custodial parent does not terminate support obligation.
10. Uniform Marriage and Divorce Act governs modification.
a. Support can be modified only on a showing that continuing and substantial
change of circumstances make application of the original order unconscionable.
b. But a voluntary reduction in income is probably not sufficient grounds for
modification, especially if the non-custodial parent is acting in bad faith.
c. Modification is never retroactive--federal law.
d. Hardship to child will be balanced against benefit to non-custodial parent.
e. Support of an employable child who disobeys reasonable parental commends can
be terminated.

JURISDICTION

1. If petitioner is a domiciliary of a state, the courts of that state have in rem

jurisdiction over the marriage and can grant a divorce.
a. Domicile probably is established by presence within the state with an intent to
remain, shown by actions and declarations of the person. Drivers license, voter
registration, school attendance. Requirement that party be domiciled in forum
state 90 days typical.
2. Court cannot decide support, alimony, property division or attorney's fees without
in personam jurisdiction.
a. Party may waive jurisdictional defense if she voluntarily appears before court.
b. A long arm statute may apply if the non-resident spouse has significant contacts
with the state.

GROUNDS FOR DISSOLUTION

1. Most states are no-fault.

2. Under UMDA grounds for dissolution is irreconcilable differences.
3. Marital misconduct is irrelevant.
4. Other spouse cannot prevent dissolution.
5. Some states require a minimum period of separation, typically one year, but the
separation need not be consensual.

ALIMONY/MAINTENANCE
 1. UMDA uses the word maintenance instead of alimony. Award of maintenance
requires in personam jurisdiction.
2. Grounds for awarding maintenance:
a. Spouse has insufficient property, including her share of marital property, to
provide for her reasonable needs, and
b. Is unable to support herself through appropriate employment or is a custodian of a
child whose condition or circumstances make it appropriate that the custodian not
be required to seek employment outside the home while the other spouse has the
ability to pay maintenance.
3. Factors, without regard to marital misconduct:
a. Financial resources of the party seeking maintenance, including marital property
apportioned to the party, and his ability to meet his needs independently, including
the extent to which a provision for support of the child living with a party
includes a sum for that party as a custodian;
b. Time necessary to acquire sufficient training or education to enable the party
seeking maintenance to find appropriate employment and that party's future
earning capacity;
c. Standard of living established during the marriage;
d. Duration of the marriage;
e. Contributions to the marriage.
f. Age, physical, and emotional condition of the party seeking maintenance; and
g. Ability of the party paying maintenance to meet his needs while meeting those of
the spouse seeking maintenance.
h. Typical question fact pattern is one spouse went to school and has a good income
now while spouse supported him. This argues for maintenance.
4. Rehabilative maintenance is temporary maintenance to allow spouse to go to
college.
a. Modification
b. Ends on death of either party or remarriage of receiving party.
c. Modification requires changed circumstances in a substantial and continuing
manner that the original order is unfair. Never retroactive.
d. Court cannot order parties to waive maintenance, but parties can agree to do so.
5. A court need not accept a maintenance agreement between the parties if it is based
on fraud, duress, unconscionable behavior that results in an agreement that is
substantially unfair.
a. A represented spouse has a fiduciary obligation to an unrepresented spouse.
b. An attorney cannot represent both sides.
c. Substantial mediator misconduct is grounds to set aside an agreement.

VOIDABLE AND VOID MARRIAGES

1. A court may declare invalidity of marriage if the marriage is void or voidable

2. Voidable marriage is valid unless and until one of the spouses exercises the
option. A declaration of invalidity means the marriage is invalid ab initio.
a. Lack of mental capacity to consent to the marriage at the time the marriage was
entered into due to mental incapacity or infirmity; or under the influence of drugs
 or alcohol. Must be brought within 90 days after party becomes aware of the
condition.
b. Lack of physical capacity to consummate the marriage by sexual intercourse,
which lack of capacity was unknown to the other party, sterility is not a ground.
Must be raised within one year of marriage.
c. Under age of consent and no parental or judicial approval. Minor spouse cannot
bring action; must be brought by parent or guardian. Other spouse cannot bring.
Must be brought within 24 months of the marriage.
d. Fraudulent inducement which goes to the essence of the marriage. Must be
brought within 6 months of learning of condition.
e. Duress by other spouse or third party. six months.
f. Jest or dare. Six months.
3. Void marriage can be attacked at any time. prior to the death of either party, by
either party, a child of either party or by state.
a. Bigamous marriage
b. Incestuous marriage, except to marriages permitted by established customs of
aboriginal culture.
c. Same sex marriage.
4. Children of void or voidable marriage are legitimate.
5. If impediment is removed there is a possibility of a common law marriage.

CEREMONIAL MARRIAGE

1. Any judge, clergyman, or any religious society not having clergy acting in
accordance with the rules and customs of each society.
2. Proxy marriage. If party is unable to attend marriage and agent is authorized in
writing.

COMMON LAW MARRIAGE

1. I think there are 11 jurisdictions that recognize C/L marriage

2. Requirements
a. Present and mutual intent to be married.
b. Cohabitation.
c. Holding out to the community as a married couple.
d. Legal capacity
e. Mental capacity
f. No time requirement
g. States that do not recognize C/L marriage will recognize a C/L marriage
established in another state, because of the Full Faith and Credit Clause.
h. There is no C/L divorce.

UNIFORM PARENTAGE ACT

1. A child is presumed to be a child of the purported father if:

 a. Child is born during the marriage or born within 300 days of termination of the
marriage. Includes void, voidable, presumptive and C/L.
i. Presumption can be overcome by showing non-access.
ii. Presumption can be overcome by blood or tissue testing.
b. He receives child into his home and holds child out at his own.
c. He acknowledges paternity in writing with court or birth certificate.
d. Blood test shows his paternity with 97% probability.
2. Burden is on mother.
3. Deception by mother is not a defense.
4. Action may be brought by putative father, mother, or child.

UNIFORM CHILD CUSTODY JURISDICTION AND ENFORCEMENT ACT

1. Issue arises when one parent leaves the jurisdiction and commences a custody
action in another state. Basic personal jurisdiction is based on physical presence
within the forum state. UCCJEA attempts to decide whether forum state should
exercise jurisdiction or defer to home state of child.
2. UCCJEA is state statute.
3. Forum state may exercise jurisdiction if:
a. State is the home state of the child, State was the home state of child within six
months preceding commencement of the action and the child is elsewhere and a
parent resides in the state. or
i. Home state is where the child resided with a parent or parents in the six
months immediately preceding commencement.
b. If no other state has jurisdiction or other state has declined jurisdiction and the
child and his parents have significant connection with the state; or
c. Another state has declined jurisdiction; or No other state could take jurisdiction
under these criteria; or
d. State can exercise temporary emergency jurisdiction if child is in state and child
has been abandoned or needs protection.
4. Testing: Bad Dad takes child to another state, either without telling mother or
deceiving her about intent to return. Then Bad Dad commences a custody action.
State B should decline jurisdiction if State A is the home state of child, or if child
and parents have significant connections with State A. Unclean hands is a factor.
Burden on mother is State A is significant.
5. Parental Kidnapping Prevention Act (PKPPA) is a federal statute that
accomplishes similar functions.

SUPPLEMENT--OLD OUTLINE BASED ON COLORADO LAW. I SUSPECT MANY OF

THE CONCEPTS EMBODIED IN COLORADO LAW APPLY IN MANY JURISDICTIONS.

1. STATUTES
a. The Colorado Board of Bar Examiners seems to test Family
Law two ways, by general Common Law principles and by
Colorado statutes. I suggest that it would be wise to read the
statutes, C.R.S. sec 14-10-105 et seq.
i. 106. Dissolution of Marriage.
(1) irretrievably broken
(2) residency requirement
(3) 90 day waiting period
(4) decree of all other matters
(5) decree of separation
ii. 107. Pleadings requirements
(1) automatic injunction
ii. 110. Presumption of irretrievable breakdown
(1) continuance if one party disagrees
ii. 113. Property distribution.
(1) Court must have personal jurisdiction
(2) without regard to misconduct
(3) factors
(a) contribution, including homemaker
(b) value of property set aside for each spouse
(c) economic circumstances, including awarding family home to spouse
with children
(d) increase, decrease or depletion of separate property
(4) marital property means all property acquired by either spouse during
marriage except
(a) gift, bequest, devise, descent
(b) in exchange for separate property
(c) acquired after separation
(d) excluded by agreement
(2) title irrelevant
(3) Increase in value of separate property is marital property
ii. 114. Maintenance. factors
(1) spouse lacks property to provide for his needs
(2) is unable to work or must stay home to care for children
(3) without regard to marital misconduct.
(4) factors
(a) financial resources of parties
(b) time necessary for education to become self-supporting
(c) std of living during marriage
(d) duration of marriage
(e) age, physical and emotional condition
(f) ability of spouse to pay
ii. 115. Child support
(1) without regard to misconduct, can backdate to separation, filing or
 service, whichever is latest
(2) factors
(a) resources of child
(b) resources of custodial parent
(c) std of living during marriage
(d) physical, emotional condition of child and educational needs
(e) resources of noncustodial parent
(2) support ends when child reaches 19
(a) unless child physically or mentally handicapped
(b) is still in high school
(2) statutory guidelines establish a rebuttable presumption of correct
amount of support
ii. 116. representative of child or special advocate
iii. 124. Best Interests of the Child--the policy to be followed
(1) parental responsibilities--one part of what we used to call custody
(2) Parenting time--what we used to call custody
a. wishes of parents
b. wishes of child
c. relation with siblings, parents or other
significant
d. adjustment to home, school, community
e. ability of parties to encourage love etc
 f. mental and physical health of parties.
except a physical disability is no reason
not to grant parenting time
g. system of values, time commitment,
blah blah blah
h. physical proximity
i. spousal or child abuse
(1) decision making responsibility--parenting plan

2. UCCJAE AND PKPA

a. UCCJAE
i. This statute comes up when one parent moves to another state
and initiates either an original action for custody or a modification of
an existing order in state he came from
ii. A state statute, seems to be pretty universal
iii. question is whether new state should exercise jurisdiction
iv. since parent and child are in new state, state has personal
jurisdiction
v. intended to not reward wrong-doing by one spouse
vi. state B must determine if it is appropriate forum, if one or more
of jurisdictional bases are met
1. home state. Where child has lived for
previous six months with parent or parents.
2. significant connections. Especially where the
action is a modification, court files are in state
A.
3. physical presence, except when due to wrong-
doing
4. if no other state has jurisdiction, no other state
wishes to exercise jurisdiction or best interests
of the child demand
a. PKPA
i. federal statute
ii. Full Faith and Credit demands recognizing previous
decree

6. COMMON LAW
b. No tender years doctrine
c. capacity, age, consanguinity, fraud, impotence,
emancipation,
 d. grandparent rights
e. paternity determination
f. common law marriage
g. marriage by proxy

FAMILY LAW OUTLINE SUPPLEMENT

JULY 2008

1. CRS 14-2-105. Ceremonial marriage requires a marriage license, which can be

obtained from County Clerk and Recorder.
2. Section 109. Marriage may be performed by any judge, clergyman, or any
religious society not having clergy in accordance with its customs.
3. Section 104. Colorado does not recognize same-sex marriages from other states.
4. Section 109. Proxy marriage. If one party is unable to attend and authorizes an
agent in writing.
5. Section 14-2-104 and People v. Lucero 1987.
a. Parties must have mental capacity to understand the character of the
relationship.
b. The parties must have legal capacity, i.e., not already married, of age, not
within the third degree of consanguinity.
c. Mutual and present intent to be married.
d. Parties adopt the habit and repute of being a married couple.
e. Factors: consummation, cohabitation, holding out to the public that the
parties are man and wife, insurance and loans showing other party as a spouse.
f. No specific time period required to establish C/L marriage.
g. Under Full Faith and Credit Clause states that do not recognize C/L
marriage must recognize C/L marriage from state which does recognize it.
h. There is no C/L divorce.
6. UNIFORM PARENTAGE ACT 19-4-105
a. Child born in a marriage is presumed to be the child of that marriage, or
within 300 days of the end of the marriage, The Presumption of Legitimacy is a strong
presumption that can be overcome by evidence of non-access, blood testing or DNA
evidence.
b. or father receives child into his home and holds child out as his
c. or acknowledges paternity in writing in a birth certificate
d. or blood test shows paternity by 97% probability
e. Burden of proof is on mother. Deception by mother is no defense to
father's obligation to pay child support.
7. VOIDABLE AND VOID MARRIAGES
a. Voidable
i. Lack of mental capacity, including being under the influence of
drugs or alcohol
ii. Lack of physical capacity to consummate the marriage, that was
not known to either party, but sterility is not part of this ground.
iii. under the age of consent
iv. fraudulent inducement which goes to the essence of the marriage
 v. duress
vi. jest or dare
b. Void
i. bigamous marriage
ii. incestuous marriage; marriage between cousins is OK
c. Voidable marriages are valid until one of the parties seeks a Declaration of
Invalidity. Parent or guardian may bring the action on behalf of minor or incompetent.
One party may not attack marriage on grounds the other spouse is underage.
d. Void marriages may be attacked at any time before death of one spouse by
either party, child of either party, or by state.
e. Children of an invalid marriage are legitimate.
f.
8. PRENUPTIAL AND ANTENUPTIAL AGREEMENTS
a. Must be in writing, contain a full and fair disclosure of assets and
obligations, voluntary.
b. Agreement regarding maintenance will not be enforced if it is
unconscionable at time enforcement is sought.
c. Cannot bind court in matters of child support and custody.
d. Cannot limit maintenance that leaves spouse dependent on the state,
evaluated at time enforcement is sought.
e. Representation by counsel is helpful but not required.
9. ADDITIONS TO CRS 14-10-101 et seq
a. One spouse must have been domiciled in CO for 90 days.
b. Personal Jurisdiction is required for court to enter orders regarding child
support, maintenance, attorneys fees and property division.
c. In rem jurisdiction is sufficient to dissolve marriage.
10. MODIFICATION OF MAINTENANCE AND CHILD SUPPORT
a. Maintenance.
i. Death or remarriage terminates
ii. Party seeking to modify must show that circumstances have
changed in such a substantial and continuing manner that the terms of the original order
are unfair.
b. Child Support
i. Child support continues until child reaches majority, unless child
cannot support himself and remains financially dependent on parents, because of mental
or physical disability.
ii. Emancipation terminates support obligation. Factors include
residence away from home, financial independence.
iii. Service in the military equals emancipation.
iv. Marriage equals emancipation.
v. Death does not terminate obligation.
vi. Modification only if continuing and substantial change of
circumstances. Presumption that change of 10% or less is not substantial and continuing.
11. ATTORNEY FEES
 a. After considering the financial resources of both parties, court may award
attorney fees that are reasonable and necessary. Contingent fees except for enforcement
of child support arrearages.
12. ENFORCEMENT OF COURT ORDERS
a. By contempt, unless other party can show he cannot pay.