<FAMILY LAW>

1. Marriage:
A. Getting married:
1) Ceremony: license (capable, waiting period b/w marriage date & ceremony; medical testing; expiration date of license) + participate in
ceremony (in front of 2+ witnesses with someone who solemnizes
2) Common law (assume abolished): parties agree they are married, cohabit & hold themselves out as married. Mentally capable, above minor
& intent to presently marry (v. “limited purpose: green card). Marriage valid in 1 state is valid elsewhere unless violates PP.
B. Separation
1) Annulment: --> equitable distribution of property; children still marital children. (1)Void: treated as never happened, can be challenged by
any interested party. [Prior existing marriage, unless good faith belief that marriage valid+ impediment removed; incest; mental incapacity]. Only
defense= remove impediment. (2) Voidable: valid until H/W seeks judicial decree[age, impotence, intoxication, fraud/duress, lack intent]. Not
fraud= finances, bad morals. Defenses= unclean hands, laches, estoppel.
2) Divorce (terminates valid marriage): if at least 1 is a resident, and either (1) no fault (all states: irretrievably broken + no prospect of
reconciliation for specific time before filing for action) or (2) some fault: (IAMBIC DH: imprisonment; adultery w/ circum. evidence; mental
disorder; bigamy; indignity; cruelty (more than once); desertion; habitual drunkedness; Defense: unclean hands by both parties, connivance (gave
consent), condonation (knowledge+ forgiveneness) , collusion, provocation, insanity, justification, religion
 Indigent not required to pay fees, but no right to legal counsel in divorce. Mediation: mediator must be neutral and court approved. Impartial,
disclose all conflicts of interest. Explain mediation process, and not improperly influence 1 side to agree to sth
C. Divide property: Most states equitable (fair) distribution, only 9 states require community property (equal division). Tax-free transfer between
divorcees. Modification not permitted.
 Marital property (default): all property acquired during marriage: increase in value of non-marital property by 1 party’s efforts (not due ot
market effects), wages by 1 spouse, improvement due to marital funds), pension, military benefits/ work comp award, unexercised stock options
acq. during marriage; goodwill (some), gifts between spouses, future profits to be paid after divorce earned during marriage
 Non-marital (separate): acquired before marriage (ex. house purchased before marriage. However if use house mortgage to pay funds, the
house then becomes marital property); gifts/inheritance, award or settlement before marriage, regardless of when paid, excluded by valid agreement,
professional license/degrees (but $ spent supporting degree may be paid back as MP, and advanced license = increased earning capacity),
expectancy interest in property, social security benefits. Split: personal injury (but pain and suffering generally non-MP)
 Factors: HIP PAID SEAT: (H)ealth insurance loss, Loss of (I)nheritance, (P)ension benefits, Separate (P)roperty holdings of each spouse,
(A)ge and health of each spouse; (I)ncome of each at beginning/end of marriage, (D)uration of marriage, (S)tandard of living, (E)arnings capacity,
(A)ny other relevant factor, including domestic violence, (T)ax consequences. but NOT consider basis for fault.
D. Spouse support (alimony): Only if other spouse cannot provide for own needs w/employment. Factors: financial resources of both parties,
standard of living during marriage, time to get another job, length of marriage, contribution to marriage, age/health sometimes fault/marital conduct).
Can be modified only if sig change of circumstances but not willful/voluntary reduction (but property division is one-time order, cannot be modified).
Terminate with death, may be terminated with marriage/ cohabitation/retirement.
 Types: PRLR (1)Permanent Periodic: Ct considers (i) whose fault; (ii) age/health; (iii) education/earning capacity; (iv) marital duration; (v)
whether custody affects ability to work. Parties may negotiate maintenance terms (2) Rehabilitative: awarded by Ct to assist spouse in obtaining edu
or job training. Ct considers (i) whether paying spouse obtained greater edu or job skills during marriage, and whether payee provided support for
other spouse to do so (3) lump sum , (4) reimbursement (rare).
E. Marital agreements (UPAA: uniform premarital agreement act)
1) Pre-nup agreement: marriage is suff/consideration + must expressly state applicability to divorce. Apply state law w/most sig. relation to
agreement & marriage. Valid if in writing + signed, 1) full disclosure of financial status of parties at execution, 2) fair & reasonable (procedural:
opportunity to be rep by counsel? Undue influence?; substantive: so egregious to one party at time of entering agreement)? 3. Agreement is voluntary
(fraud, duress, time pressure to sign) but modern trend: enforce if full disclosure, even if unfair since voluntarily entered. Modification clause for
spouse support permitted, but cannot modify child support
2) Separation agreement: prior to divorce, can define property division/child support/ visitation etc.[ Defense: unconscionability, fraud]. Can be
emrged w/divorce but if not, separate K
3) Property settlement agreement: when divorce about to happen, can settle econ issues. [defense: unconscionability,fraud].
4) Cohabitation b/w unmarried persons enforceable, unless only consideration is sex. Allowed to equitable distribution of property to avoid unjust
enrichment.
2. Child: “BI child”
A. Child support Ad litem (attorney for child) may be appointed for child custody case. Paid for by parent.
 Nonmarital children cannot be denied support. Can become marital children if: parents marry after child’s birth, father consents to being
named on birth certificate, father acknowledges; judicial decree. Paternity established: via clear & convincing evidence. blood test; prior statements
by deceased family members; medical testimony on % of conception; D’s acknowledgement. No SOL limit to file paternity action. If paternity
proved before father dies, may inherit from father’s estate
 Husband (not dad) estopped from support of wife’s child if husband made rep. that he would provide, wife relied, & wife suffered $
detriment due to reliance
 Child support calculation via income shares (M; child receives support as if parents continued to be together); or % of income (some; min.
amount of child support by using % of supporting parent’s net income, determined by # of children supported). If court deviates, must provide
specific findings. Medical insurance included in child support award (M); and obligor not permitted to monitor how money spent.
 Modified via substantial change in circumstances of parent/child’s needs but NOT for voluntary reduction. Only prospective modifications
allowed, not retroactive before date of service of process.. Terminated when majority; child marries; parental rights terminated; child/parent dies;
child emancipated (“self-supporting”. Some. On exam: see totality of circumstances) Possible extension for college; disabled. Parent can be req. to
buy life insurance on his life for child. Child support not taxed as income & not deductible to payor.
B. Child custody: 1) legal custody to make major decisions about child’s life (health, education, religion), 2) physical custody: can reside with
child + routine daily care/control of child, 3) joint custody: legal: neither can make superior decision; physical: does not require 50/50 time sharing
 BI child standard: presume that parent is best caregiver unless detrimental to child (BI child std. may be unconst). Race/religion cannot be
used as factors.
 Custody factors: DAD FLIPS: (D)esire of child, Parent’s (A)vailability, (D)omestic violence (preponderance of evidence), (F)inancial
ability of parent, (L)ifestyle w/any possible adverse affect, (I)nitial custody award, (P)rimary caregiver, (S)iblings should not be seprated.
 Child custody modified ONLY if substantial + unforeseen change in circumstances. Parent allowed to relocate ONLY if legit + reasonable
purpose (consider relation w/nonmoving parent, age of child etc). Terminates when child becomes adult. If interference, compensatory visitation/
attorney fees/ jail time/ tort damages for period of time child is wrongfully out of custody. Cannot deny visitation rights b/c child objected.
 Visitation: If lose custody, bio parents always get visitation. NOT contingent on payment of child support. Look to wishes of child, parents,
and family relationships. Child's pref given greater weight if > 12. No willful denial of visitation rts. Noncustodial parent has reasonable visitation
time, limited ONLY when seriously endanger child’s health (physical/mental), but supervision & denial of overnight visits may be imposed. Court
must give “special weight” to parent’s desires when awarding custody (considering whether to grant to grandparents etc)
3. State & child
1. Adoption: 1) Voluntary: Parents/ unwed father (consent via failure to register on putative father registry for unwed fathers + no
commitment to parenthood) can voluntarily terminate parental rights of minor child (req. consent of child over 14). Child loses all records
except biological parent’s medical records. 2) involuntary termination via abuse/neglect/ termination of parent rights. Adoption and safe
families act: state can move for termination if child placed outside of home for past 15 out of 22 months, provided certain reunification
attempts by the state.
2. Domestic Violence: by someone in relationship with victim/household family member + most require continuum of behavior.
Leads to injunction, sometimes exclusive possession of residence. Applicant must obtain ex parte order with limited injunctive relief+
hearing after notice given to D for a permanent order.
3. Parental consent MUST be req. except for emergency. But minors can consent to abortion/ STD treatment/ obtain birth control
w/ out parent consent. Parent can choose child’s religion, but court will override religious belief if creates serious harm/ medical care
4. Children liable for own torts. If criminal act, juvenile delinquency.
JXN PJ
Child Over parent if domicile. If out of state,(UIFSA) personal service on parent; consent, past residency w/child in state; past residency in
support state + provision of prenatal expenses/child support; residency of child; act of conception in that state; parent asserted parentage via
putative father registry. Court that makes initial ruling has exclusive jxn unless parties no longer side / child has no longer sig. conn
to state.
 State where CS first enforced has jxn. Court cannot modify child support from another state unless 1. Parties+ child no longer
reside in 1st state OR 2. Parties + child expressly permit. If an aspect not modifiable in 1 st state, cannot modify in another state.
Divorce At least 1 must be resident. Court can order divisible divorce (ex parte divorce): grant divorce but not for property division,
alimony, child support. Nonresident can challenge due to lack of PJ: 1) P was not domicile in divorcing state when judgement granted
or 2) left state’s domicile immediately after entry of divorce.
Custody: In all states, divorce cts authorized to make custody awards. Ct has jx to initially enter or modify custody award if in child's home state.
UCCJEA Look to (1) home state jxn) child's home for > six consecutive months, home within the last six months, and whether one parent still
located in home state. If not,(2) significant connection -->child+at least 1 parent has sig conn. w/ child care/ protection/ training/
personal relation) -> (3) default (appropriate connection. Court can decline jxn if forum inconvenient (domestic violence, length of
time reside outside state, distance between competing jxn, $ circumstances, agreements of parties). Temporary emergency jxn if child
in danger & req. immediate protection
 Custody from another state can be registered without request for enforcement. After petition filed, must appear in person on 1st
judicial day after service of order. If child likely to suffer physical injury/ be reomved from state, court can issue a warrant for
child custody.
State court Needs (1) PJ: service of process, and (2) SMJ: domestic relations issue (settlement related to divorce, property division).