Family Law (3h55min)

Overview:
 Matters that Proceed the Marriage & the Process of Marriage
 Annulment- How to terminate a marriage/get out of a marriage
 Divorce,
 Property Division- Economic issues surrounding break up (most important)
 Alimony, Child Support, Separation Agreements, Child Custody & Visitations
 Termination of Parental Rights & Adoption

Introduction to Family Law

 Family Law is the easiest subject to prepare for the test because questions in family law
are fundamentally discretionary issues, they are committed to the discretion to the front
line decision maker.
 This means there is no right answer, it’s a judgment call, no right answer as to how
property is divided or, What parent gets custody of the child
 The last factor is usually anything the court deems just and appropriate, so any
justification they will give credit even if it is remotely rational it will count

Pre-Marriage Issues
 Unmarried Cohabitants:
o They enter into an agreement which is enforceable between unmarried
o Contract not enforceable if any part of the consideration is sex

 They Get Engaged

o They may also enter into a contract in contemplation of marriage: ante nuptial
(pre-nups)–usually deals with economics in the event of divorce. It’s a
contingent planning document.
o There is no legal limit in the content of a pre-nup

Matters Proceeding Marriage & Marriage:

1) Breach of Promise to Marry is not actionable

o Is calling of an engagement, emotional distress

2) Premarital Gifts
o Can you get them back if you call of the engagement? No
o Premarital gifts are not recoverable back if you call of the engagement
 Exception: If the gift had a condition on a subsequent marriage, then you
can get it back if the engagement is called off because the condition
never materializes
 The engagement rings falls under this exception as it is a condition on a
subsequent marriage
 3) Prenuptial Agreement/ Marital Agreement- (before or after marriage)
o Normally it is to deal with economic issues that may arise in the event that the
marriage fails and ends in divorce
o To deal with money, property, economics
o There is nothing in the law that limits what you can put in a prenup
o Even about household chores

 On the Exam: They usually give you a scenario where a couple enters into an
agreement and then the couple gets married and then they
break up and divorce. During the divorce one spouses wants to
challenge the validity of the agreement. The argument will be
that a party things the agreement is stingy and will get more
money from the a judge. The agreement says that he will pay
her 25 thousand for 3 years, but she wants it for 4 years.
 Example 2: H and W enter into a prenup. Get married. Now they break up.
One of them wants to set the agreement aside= challenge the
validity of the agreement: because the spouse thinks the
agreement does not make a sufficient economical
accommodation. (that party can get more from a judge)
 W is the economically weaker spouse

What is the Validity of the Prenuptial Agreement?

 The Statute of Frauds- The agreement must be in writing signed by both
parties. (oral agreement not enforceable)

 The Agreement must be freely made- (valid marriage)

 If any evidence of fraud, duress or unconscionability(physical threats) you
can raise that to challenge the validity of the agreement.
 A threat to call off the wedding is not duress
o An agreement that is 32 pages in length to be signed at the chapel
o An issue is time pressure, it might be corrosive
o Taking advantage of someone’s lack of economic or business
sophistication might be an indication of duress
o Disparity in business experience
 Representation: 1 party not assisted by counsel and not get advice of a
lawyer and discouraged from getting a lawyer
o If they did have independent representation it will be harder.

 Unconscionability- Must be so severe that it would essentially leave the

challenging party dependent on public assistance as it is so stingy.
o It can’t be 2 parties who make six figure salaries, it has to be
a poorer party

 Lack of Disclosure- The other party never made a financial disclosure and you
didn’t have independent knowledge of that persons assets. You did not
knowingly waive your right to disclosure at the time
How to get Married?
 2 Requirements in Order to get Married:

 1) Licence- Is a formality that the government needs to ascertain that you

have the capacity to marry
 Usually no waiting period
 Pay
 Licence expires if you don’t get married within a certain
period of time (usually a year)
 Any irregularities in the licence it does not affect the validity
of the licence. As long as it was all in good faith. (spelt name
wrong, birth wrong)

 2) Ceremonial Marriage
 You need an officiate (conducts the ceremony)
o Can be a member of the clergy
o Can be a public official (someone authorized to
administer odes) mayor, governor, lower official,
town clerk, justices of the peace, commissioners of
civil marriage
o Can get a license to officiate for 1 day so you can
have a person of your choosing

 2 people must exchange promises at the ceremony the

o Solemn Promises – take this with a degree of
seriousness (personal commitment)
o No prescribed form of words that you must outer
o Standard promises in the conventional America
marriages ceremony “promise to love, honour,
cherish you for the rest of my life”. This is not
mandatory, as it is not prescribed by statute
o The form of the ceremony does not matter as long as
you exchange promises. (wear whatever, it can be
anywhere)

 Common Law Marriage

o Is not recognized in NY but will recognizes if valid
o Only recognized in 10 states
o Common law marriage is portable
o Will inherit as a surviving spouse and will take an elective
share
 Divorce: No fault Divorce
 To Prove irretrievable break down of the marriage is by proof of separation
 Both spouses must separate with no physical interactions (no sex) for a specified period
of time
 Period of time tends to be shorter if both of them tend to consent to the divorce by
agreeing that their marriage is irretrievably broken, period will be longer if one of them
disputes that fact
 During this period you are still married and cannot have sex with other people or this
will be considered adultery
 You cant have sex with your spouse because during this separation period, there is no
physical interaction you cant cohabitate with your spouse, you have to be celibate.

When both agree we refer this to bilateral/mutual contest no fault divorce:

o Separation period might be as short as 60-90 days

If only 1 party wants the divorce it is referred to a unilateral no fault divorce:

o The period is then somewhat longer 6 months -1 year

How to File for Divorce:

 One party files a complaint and recites that the marriage is irretrievably broke
 The other party files an answer and admits that the marriage is irretrievably broken
 Then you live apart for the specified period of 60,90,120 days
 Then the courts will enter a divorce decree

There may be other disputed issues such as division of property, alimony, custody
arrangements of children and child support and if so then there may be:
o A trial
o Discovery
o Continuous
o So then no fault divorce can take an extended period of time and may consumed
litigating these collateral issues

5 Affirmative Defences to Fault based Divorce

1) Condonation – 3 part showing: (cant be used in domestic violence cases)
1) Plaintiff knew of the misconduct
2) Forgave the misconduct
3) A resumption of martial relation
 Example: John and Marry were married. John was having an affair for 2 months
in February and March, before Marry found out. John ended the affair
and Marry and John went to see a marriage counsellor. Marry has then
forgave him and went to on a cruise and had sex with each other.
Marry has then noticed she cant forgive him and wants out of the
marriage. She then files a divorce petition on the grounds of adultery
that has taken place in February and March. John can then come to
court and use the defence of Condonation as Marry knew about the
 adultery and forgave him and had sex. She cannot use it against him as
it was the past.

Procedure: What State Has Jurisdiction to Grant Divorce?

 Rule: Any state where 1 spouse is domiciled and has lived for some specified statutory
period of days
 1 spouse + residence for a specified period (NY-1 year)
 If they want the colleterial remedies(alimony) they must also have personal jurisdiction
over the other party
o Personal jurisdiction: He needs to be either living in NY, purposeful availed
himself in NY, nothing in the long arm statute that covers him and would violate
due process to enter an order against him (international shoes) (VW)
o Needs to go back to the main state where they lived to get personal jurisdiction

 When you have to litigate in 2 jurisdictions this is called divisible divorce

 Every court will honour a divorce decree from any other state so long as the other spouse
is domiciled in the forum
 Every American state will give full faith and credit to a divorce from another state
provided that the issuing state the forum has 1 spouse domiciled there
 International Divorce Doctrine: Comity - Divorcee from another country will be
honoured if both spouse participated

Different Types of Maintenance (Alimony):

 Awards is classified into different categories such as:

 Permanent Periodic Maintenance: Open ended obligation by one person to

pay the other a certain amount of money every month. It does not have a time
limit on it as it is open ended. Can be modified on a showing of substantial
change (accident or inflation) of circumstances anytime (15 years later).

 A Lump Sum Payment: It is generally not modifiable. This is used if period

payments would not make sense. It could be that her millionaire husband is
not in good health and if she gets a periodic payment he might die within a
year and she won’t be able to get anything later, so it would be more
equitable to get a lump sum. (OLD OR INFIRMED- weak, poor, health)

 Rehabilitative Maintenance: Short term periodic payments (2-3 years) to

enable so that the other can pursue education or job training. (TRAINING)

 Reimbursement: Paying you back money that you spent to support your
spouse while your spouse went to school. (FINANCED EDUCATION)
 Example: John paid for Mary to go to school and all the household
expenses. When she finished school she wanted a divorce. John now
wants her to pay him back for paying for her school and household
expenses. This is called a reimbursement
 Financial aspect of the child support obligation that goes back to the other
financial issues:
 If the parties choose to do so they don’t have to submit these trios to the
court, they can work it out themselves or get assistance from an attorneys
and negotiate an agreement:
o Alimony, property division and child support
o These agreements are called separation agreements

Separation Agreements:
 Are favoured by the courts because they save judicial resources and
 The parties know better what is good for them then what a judge can possibly
know
 When you enter into s separation agreement the court will review the agreement
before approving it to make sure that the terms are essentially fair
 Any provision dealing with child support or child custody is always subject to full
review and always subject to modification by the judge
 The other provision might be given some degree of deference provided that they
are fair with respect to property division

Can Alimony/ Maintenance be Subject to Modification?

 It depends if the agreement has been merged into the divorce decree or merely
incorporated by reference (they would tell you explicitly)

 If the agreement was merged: (modifiable)

 All of its terms are embodied in the decree and now it is modifiable because
any alimony provision in a court decree is modifiable

 If it is merely incorporated: (look at terms of the agreement)

 Then it retains its separate status as a separate contract between the parties and
it is only modifiable if it says “this agreement is modifiable”
 Contracts are usually not modifiable unless it says

2 Types of Child Custody:

 1) Physical Custody- Where is the child going to live?

 2) Legal Custody- Which parent gets to make decisions concerning the child’s
upbringing and welfare

 Either type of custody can be exclusive to 1 parents or can be shared between the 2 of
them
 Could have exclusive physical custody with the mother but shared legal custody with
both
1) Under the Uniform Premarital Agreement Act ("UPAA"), a court determining enforcement of a
properly executed premarital agreement considers:

A Current financial needs of each party.

B Voluntariness and unconscionability.

C Current financial resources of each party.

D Each party's contribution to the marriage.

Answer
Under the UPAA, a court determining enforcement of a properly executed premarital agreement considers only
two things: voluntariness and unconscionability. If an agreement was unconscionable when executed, the court
will then consider whether the complaining party (i) was not provided fair and reasonable disclosure of the
other party’s property or financial obligations; (ii) did not waive in writing such disclosure; and (iii) did not
have, or reasonably could not have had, adequate knowledge of the other party’s property or financial
obligations.

2) Which of these is a feature of a voidable marriage?

A Parties may walk away from a voidable marriage without court order.

B Any interested party may seek annulment of a voidable marriage.

C A voidable marriage is deemed valid unless a spouse seeks to have it annulled.

D A voidable marriage is subject to collateral attack even after the death of one of the
parties.

Answer
A voidable marriage is deemed valid unless a spouse seeks to have it annulled because of an impediment
existing at the time of the marriage. This type of marriage cannot be attacked collaterally or by third parties.
On the other hand, a void marriage is one that never existed for any purpose. Generally, parties may walk away
form void marriages without a court order. Any interested party may seek annulment of a void marriage, and
the marriage is subject to collateral attack even after death of one of the parties.

3) When analyzing the constitutionality of a government action based on a distinction between

marital and nonmarital children, the action will be stricken unless it is:

A Rationally related to a legitimate governmental interest.

B Substantially related to an important governmental interest.

C Necessary to achieve a compelling governmental interest.

D Narrowly tailored to achieve a compelling governmental interest.

Answer
Distinctions drawn between marital and nonmarital children are almost always suspect under the Equal
Protection Clause. When analyzing the constitutionality of a government action based on such a
classification, the courts will apply the immediate scrutiny standard and strike the action unless it is
substantially related to an important governmental interest.
4) Which of the following marriages would most likely be deemed valid?

A A marriage where one of the parties maintains a prior undissolved marriage to a person
living in another state.

B A marriage between adopted siblings.

C A marriage between two individuals below the legal minimum age who have
obtained judicial approval.

D A marriage between two individuals who do not live together, but have consented to
enter into a marriage relationship and publicly hold themselves out as being married in a state that
recognizes common law marriage.

Answer
Most states require persons to be a minimum age, usually 18, before they can legally consent to be married, but
some states will allow marriages of parties below the specified age if there is judicial approval. A marriage
where either party has another living spouse is void. Marriages where the parties are too closely related are
also prohibited. Many states prohibit marriages by siblings, whether related by blood, by marriage, or by
adoption. A valid common law marriage requires cohabitation.

5) Which of the following is true regarding state of mind requirements to enter into a valid
marriage?

A- Capacity is determined after the marriage ceremony has taken place.

B-The parties must intend to enter into the marriage relationship.

C- If one party fraudulently induces the other party to enter the marriage, the marriage is
automatically invalid.

D- Someone under the influence of alcohol lacks the mental capacity to enter into a valid marriage.
Answer
For a marriage to be valid, the parties must, of their own free will, intend to enter into the marriage
relationship. If one party uses fraud, duress, coercion, or force to induce the other party to enter the marriage,
the marriage is not automatically invalid, but the validity of the marriage is subject to attack. Someone under
the influence of alcohol or drugs does not necessarily lack the capacity to enter into a valid marriage, so again
the marriage is not automatically invalid, but it may later be subject to attack. Capacity is determined at the
time the marriage ceremony takes place, not after it has taken place.

6) Under the Uniform Premarital Agreement Act ("UPAA"), parties to a premarital agreement
may contract to:

A- Marry.

B- Eliminate spousal support.

C- Eliminate child support.

D- Determine a child custody arrangement upon which the court will be bound.
Answer
Under the UPAA, parties to a premarital agreement may contract with respect to the modification or
elimination of spousal support, but may not contractually modify or eliminate child support. Generally,
premarital contracts between prospective spouses are valid, however this is not true for contracts to marry.
Although the UPAA does not explicitly bar agreements regarding child custody, the traditional rule is that a
child custody provision cannot bind a court.

7) A majority of states hold that ___________________ are not marital property subject to
equitable distribution at divorce.

A- Pensions.

B- Professional degrees.

C- Stock options earned during marriage.

D- Lost wages from personal injury actions that accrued before final separation.

Answer
A professional license or degree is not distributable property, according to a majority of jurisdictions.
However, some jurisdictions have compensated supporting spouses for their contribution during the other
spouse’s training or education in other ways. Pensions are considered marital property subject to distribution.
Thus, the portion of a pension that was earned by one party during the years the marriage existed can be
divided by the court in an equitable fashion. The majority rule is that stock options earned during the marriage
are marital property even if they will not be exercised until after the divorce. If a cause of action for personal
injury accrues between the date of marriage and the final separation, the proceeds from the settlement or award
are marital assets subject to equitable distribution no matter when they are paid. States may distinguish
between awards for lost wages, which generally are considered marital property, and compensation for pain
and suffering, which may be deemed separate property.

8) Periodic spousal support generally terminates if either spouse ____________________.

A-Remarries.

B-Dies.

C-Moves out of the court's jurisdiction.

D- Experiences a significant change in income.

Answer
Periodic spousal support generally terminates upon the death of either spouse, or the remarriage of the
recipient spouse. Spousal support awards can be enforced out of state, so support generally does not terminate
just because either party leaves the jurisdiction. A significant change in income might be grounds for the
modification of a spousal support award, but would not always terminate support.

9) Child support payments:

A- May go on indefinitely if the child is severely disabled.

B- Terminate if the custodial parent remarries.

C- Are includible in the income of the custodial parent.

D- Must be paid before the noncustodial parent can exercise visitation rights.
Answer
The duty to pay child support may go on indefinitely if the child is severely disabled and, as a result, has no
capacity to be self-supporting as an adult. The duty to support a child generally ceases upon the child’s death
or emancipation by age (usually age 18) or marriage, or upon termination of parental rights. Child support does
not terminate if the custodial spouse remarries. For tax purposes, child support payments are neither includible
in the income of the custodial parent nor deductible by the payor parent. A noncustodial parent’s obligation to
pay child support is independent of visitation rights, as visitation is primarily for the benefit of the children.
Thus, the custodial parent generally cannot deny visitation rights to a noncustodial parent who fails to make
child support payments.

10) Under the Uniform Interstate Family Support Act (“UIFSA”), if there are two child support
orders in two different jurisdictions, which state law will control?

A- The law of the child’s home state.

B- The law of the noncustodial parent’s home state.

C- The law of the state in which the child support order was first entered.

D- The law of the custodial parent’s home state.

Answer
If there are two child support orders in two different jurisdictions, the law of the child’s home state controls.
The parents’ home states and the timing of the orders do not determine which state’s law will control.

11) Provided that there was full and fair disclosure and that the agreement was entered into voluntarily
and is essentially fair, a court will be bound by a separation agreement with respect to what provisions?

A- Spousal support payments and property division.

B- Child custody and child support payments.

C- Child support payments and spousal support payments.

D- Property division and child custody.

Answer
As long as the requirements are met, provisions relating to property and spousal support will be enforced by a
court. Provisions relating to child custody and support are treated differently. A court will not enforce child
custody and support provisions that are not in the child’s best interest. Even if the court decides to go along
with these provisions, the award of custody and support is always subject to modification by the court.

12) Generally speaking, will a custodial parent be permitted to move to another state with the
child?

A-Yes, if the move is motivated by a benefit to the custodial parent, and not by a desire to frustrate the
other parent's visitation rights.
B-Yes, the custodial parent has the absolute right to make all decisions affecting the child’s life.
C- No, because the initial court has exclusive continuing jurisdiction over the matter.
D-No, unless the noncustodial parent approves of the move.
Answer:
Most states allow a custodial parent to move to another jurisdiction with the child as long as it is motivated by
a benefit to the custodial parent and not merely by a desire to frustrate visitation rights. Even if the
noncustodial parent is against the move, courts generally will not unduly restrict the residence of the custodial
parent. However, removal of the child from the jurisdiction may be considered a violation of the visitation
provisions of the custody order. Therefore, it is advisable to have the custody order modified for this purpose
before the custodial parent and child move to another state. Under the Uniform Child Custody Jurisdiction and
Enforcement Act ("UCCJEA"), the court that made the initial child custody or visitation determination has
exclusive continuing jurisdiction over the matter until the court determines that: (i) neither the child nor the
child’s parents (or persons acting as parents) continue to reside in the state; or (ii) the child no longer has a
significant connection with the state (e.g., a close relationship with a parent who lives in the state), and
substantial evidence relating to the child’s care, protection, training, and personal relationships is no longer
available in the state. Therefore, a court could retain jurisdiction over the matter even if the custodial parent
and child move out of state, if the other parent remains in the state.

13) Under the Full Faith and Credit Clause, an ex parte divorce:

A-Is invalid unless both parties are under the jurisdiction of the court.
B-Both dissolves the marriage and settles the parties’ money rights.
C-Settles the parties’ money rights, but does not dissolve the marriage.
D-Dissolves the marriage, but does not settle the parties’ money rights.

Answer
An ex parte divorce dissolves the marriage, but does not settle the parties’ money rights. Under the Full Faith
and Credit Clause, binding effect must be given to any divorce granted in the plaintiff’s domicile,
notwithstanding the fact that the other spouse was not subject to the jurisdiction of the court. Although an ex
parte divorce dissolves the marriage, it generally does not affect the monetary rights of the nonresident party. If
the court does not have personal jurisdiction over a party, it cannot validly impose an alimony or child support
obligation against that party, nor can it make any division of property in which that party has an interest
(unless the property was located in the jurisdiction).

14) The law creates both disabilities and privileges for those under age 18. A child is generally
unable to:

A- Convey property, with the ability to disaffirm the conveyance upon reaching the age of majority.
B- Make her own will.
C- Enter into a contract, with the ability to disaffirm the contract before reaching the age of majority.
D-Be held liable for her own torts.

Answer
Children cannot make valid wills. A child may own and convey property, but the child can disaffirm the
conveyance upon reaching the age of majority. Children are generally liable for their own torts, but may be
judged by a more lenient standard than that used for adults. A child may enter into and enforce contracts, but
the child may disaffirm her contracts at any time before reaching the age of majority or within a reasonable
time thereafter.
15) When it comes to grandparent visitation:

A-The judge's determination overrides a fit parent’s decision to disallow grandparent visitation.

B-A parent's determination as to the appropriateness of grandparent visitation is given very little
weight.

C- When a fit parent is opposed to the requested visitation, the parent's due process rights in
the care, custody, and control of her child take precedence.

D-The best interest of the child standard is always controlling.

Answer
The Supreme Court has held that a fit parent’s determination as to the appropriateness of third-party (e.g.,
grandparent) visitation must be given “special weight.” In situations where a fit parent is opposed to the
requested visitation, the parent’s due process rights in the care, custody, and control of her child take
precedence over the best interest of the child standard. A judge may not override a fit parent’s decision
regarding third-party visitation merely because he feels a “better” decision could be made or visitation would
be in the best interest of the child.

16) Which of the following annulment actions could not properly be brought before a court in most
states?

A- A grandmother's action to annul her granddaughter's bigamous marriage.

B- A father's action to annul his son's marriage because his son was mentally incompetent at the
time the marriage took place.

C- A woman's action to annul her marriage because her husband is incurably physically impotent.

D- A brother's action to annul his sister's marriage to their uncle.

Answer
A marriage may be voidable and annulled because a party was incapable of consenting to the marriage, but
since only one of the spouses may bring an action to annul a voidable marriage, it is improper for the man’s
father to bring this action. If either party to the marriage has another living spouse (i.e., bigamy), the marriage
is void. Since any interested party may seek to annul a void marriage, it is proper for the woman’s grandmother
to do so. Most states consider marriages where the parties are too closely related to be void, so it is proper for
the brother of a woman that marries her uncle to seek an annulment. Marriages where one party is incurably
physically impotent are considered voidable, and one of the parties to the marriage may bring suit to have the
marriage annulled. However, if the plaintiff spouse knew or should have known of the impotence before the
marriage, the annulment will be denied. Likewise, if the plaintiff spouse continued to cohabit with the impotent
spouse long after learning of the condition, the marriage could be deemed ratified.
Some Commonly Used Terms
Commingled Property is separate property that has become marital property because it has been
inextricably mingled with marital property or with the separate property of the other spouse.
Commingling does not occur if the separate property can be traced into the new product. Some
jurisdictions hold that transmutation occurs when separate property is treated in a way that evidences an
intention for the property to be marital property so that it becomes marital property. When separate
property is improved by the use of marital funds or the effort of the nonowning spouse, courts generally
hold that the property remains separate property, but most jurisdictions grant the marital estate or the
nonowning spouse reimbursement for the value added to the separate property.

The Putative Marriage Doctrine enables a court to provide equitable relief to a party who acted in good
faith in entering a marriage that was subsequently declared invalid. A putative spouse may acquire the
rights of a legal spouse, including rights to alimony and property, when the marriage is invalidated.
However, it is generally held that the rights of a putative spouse may not supersede a legal spouse’s
rights, and the court must use equity in apportioning their rights to alimony and property

Quasi Spouse- means something that resembling whatever other word is used, so a quasi-marriage would
be some type of relationship or living relationship that resembled marriage. Married couples are assumed
to live together and love each other and all that - a quasi-marriage might mean the couple lives together,
act like they are married, but have not actually tied the not. In that sense, cohabitation - where two or
more people live together and are very close - would be like marriage, regardless of the gender of the
people involved, and so a quasi-marriage.

Proxy Spouse Proxy marriage is defined as a marriage in which one or both of the participants are not
physically present, but they are represented by another person who attends the solemnization.