Family Law (MEE) Graded A+- Barbri
2 Requirements for an Adoption - Answers-1) Termination of the rights of the biological
parents (consent required unless rights were already terminated or consent is being
unreasonably withheld against best interests of child)
2) Creation of new parent rights for the adopting couple (If child is old enough, 12-14, he
must consent to the adoption, a Home Study is often done also. Payment of money
prohibited, w/ exception for medical costs of pregnancy)
2 Special Issues in the Classification of Property - Answers-1) Commingling (if
inextricably intertwined, courts will attempt to trace, if can't trace will be considered
marital property)
2) Transmutation of Separate Property (analysis based on the intent of the parties - e.g.
often considered a gift if money goes towards a mutually titled house)
2 Step Process in Property Division - Answers-1) Classification (determine which
property is marital and which is separate)
2) Make an Equitable Division of the MARITAL property, regardless of how the property
is titled
2 Theories for property acquired before the marriage but paid for after the marriage -
Answers-1) Inception of Title theory (husband got title before marriage, so title it is
separate property)
2) Apportionment Theory (Majority View) -- property should be apportioned in proportion
to the contribution of separate and marital funds to pay for the property
2 Things you can agree to in a pre-marital contract - Answers-(1) Property (2) Alimony
(even waiver of alimony as long as the disadvantaged spouse will not become a public
charge)
2 Ways To terminate your parental rights - Answers-(1) Voluntary Termination (2)
Involuntary Termination
3 Approaches to dividing property at divorce - Answers-1) Community Property (50/50)
2) Equitable Division of ALL property owned by either spouse
3) Equitable Division of MARITAL property (majority rule) Equitable meaning fair not
equal
Note: Property settlements cannot be modified
3 reqs for common law marriage - Answers-1) Consent to Marriage (Not just consent to
cohabit) (must have no legal impediments)
2) Capacity
3) Common law marriage is abolished in most states
,4 Types of Alimony - Duration? Modifications allowed? Goals of each? - Answers-1)
Permanent Periodic Support (lasts until death of payor, can be modified with proof of
SUBSTANTIAL CHANGE IN CIRCUMSTANCES)
2) Lump Sum Support (used in especially hostile relationships, lasts for a specified time
period - until total balance paid, can be paid in installments. CANNOT be modified b/c is
a contractual arrangement)
3) Rehabilitative Support (for specified time period, goal is to allow spouse to gain skills
to be less economically dependent and disadvantaged, can be modified with proof of
substantial change in circumstances)
4) Reimbursement Support (for, e.g., putting spouse through law school, can be lump
sum or installments but is only for a specified period of time. CANNOT be modified b/c
is a contract right. Can be given even if the spouse is not otherwise eligible for spousal
support. Think of as retroactive support)
5 Effects of Annulment - Answers-1) Marriage is set aside as if it never existed
2) Children remain legitimate
3) Child support can be awarded
4) Spousal support MAY be awarded (depending on jurisdiction)
5) Property generally treated as if never married
5 Examples of Voidable Marriages - Answers-1) Underage
2) Incurable Physical Impotence
3) Lack of capacity (under the influence, mental incapability)
4) Duress (must be pending at the time of consent "You got my daughter pregnant, if
you don't marry her I will shoot you")
5) Fraud (that affects an essential element of the marriage) (e.g. pregnant at the time of
the marriage with the child of another man)
A victim of domestic abuse is entitled to what? - Answers-A protective order which an
be granted ex parte (w/ no notice to other spouse). Can last for 2 months to 3 years
depending on jurisdiction
Adoption records are generally sealed UNLESS - Answers-The biological parents
consent to contact
Alienation of Affection Tort - 3 Reqs + A Common Defense - Answers-(1) Genuine love
and affection between spouses who are validly married (if your marriage was already
falling apart, you are out of luck) (2) The love and affection was destroyed (3) The D's
actions CAUSED the loss of love and affection (common defense "your marriage was
already broken before I showed up")
Proof of damages also required (hihgly subjective) - punitive may be available
Amendment or Revocation of Pre-nup - Answers-After marriage the agreement may be
amended or revoked only by written agreement by the parties. It is enforceable without
additional consideration.
, Are child custody decrees modifiable? - Answers-Yes
Are spousal support decrees modifiable? - Answers-As long as not contract based, Yes
Can one parent seek to terminate the parental rights of the other parent? - Answers-
Usually No. (b/c we want both parents involved)
Can parties waive alimony and/or property division in a separation agreement? Can
parties agree to custody or child support in a separation agreement? BUT...? - Answers-
Yes. Yes, but the court is not bound by the parties' agreement concerning anything to
do with children
Can testimonial or other evidence be sufficient to establish paternity if no blood or tissue
sampling is done? - Answers-Yes. But blood and tissue sampling is definitely preferred
Child Support and visitation rights - Answers-Child support is Independent of visitation.
Even if you don't get visitation, you still have to pay child support.
Child support in surrogacy cases - Answers-An increasingly important issue in cases of
assisted conception is that of child support when one of the parties either does not
agree to, or changes his mind about, the gestational agreement or in vitro procedure.
One court has held that a husband who did not consent to his wife's being arti - cially
inseminated by another man was not legally the child's father and thus was not
obligated to pay child support.
Children in Need of Supervision - Answers-Nearly all states have statutes giving courts
jurisdiction over children whose behavior does not meet certain standards of behavior
but which is not criminal. Courts can pursue: leaving the child with his parents with or
without a protective order or order for counseling; placing the child on probation or
under the supervision of a social worker; placing the child with a relative or other
person; or placing the child with a state agency.
Children of an annulled marriage - Answers-Treated the same as if the parents were
married.
Consent of an unmarried father in an adoption - Answers-Is required if the father is
actively involved in the child's life
Might not be necessary if father has abandoned the child, failed to support the child for
a specified time period, or never attempted to establish a relationship
Content of a pre-marital contract - Answers-1) Parties' rights and obligations
2) The rights to dispose of the property
3) Disposition of property upon separation, dissolution, death or other event
4) Modification or elimination of spousal support
2 Requirements for an Adoption - Answers-1) Termination of the rights of the biological
parents (consent required unless rights were already terminated or consent is being
unreasonably withheld against best interests of child)
2) Creation of new parent rights for the adopting couple (If child is old enough, 12-14, he
must consent to the adoption, a Home Study is often done also. Payment of money
prohibited, w/ exception for medical costs of pregnancy)
2 Special Issues in the Classification of Property - Answers-1) Commingling (if
inextricably intertwined, courts will attempt to trace, if can't trace will be considered
marital property)
2) Transmutation of Separate Property (analysis based on the intent of the parties - e.g.
often considered a gift if money goes towards a mutually titled house)
2 Step Process in Property Division - Answers-1) Classification (determine which
property is marital and which is separate)
2) Make an Equitable Division of the MARITAL property, regardless of how the property
is titled
2 Theories for property acquired before the marriage but paid for after the marriage -
Answers-1) Inception of Title theory (husband got title before marriage, so title it is
separate property)
2) Apportionment Theory (Majority View) -- property should be apportioned in proportion
to the contribution of separate and marital funds to pay for the property
2 Things you can agree to in a pre-marital contract - Answers-(1) Property (2) Alimony
(even waiver of alimony as long as the disadvantaged spouse will not become a public
charge)
2 Ways To terminate your parental rights - Answers-(1) Voluntary Termination (2)
Involuntary Termination
3 Approaches to dividing property at divorce - Answers-1) Community Property (50/50)
2) Equitable Division of ALL property owned by either spouse
3) Equitable Division of MARITAL property (majority rule) Equitable meaning fair not
equal
Note: Property settlements cannot be modified
3 reqs for common law marriage - Answers-1) Consent to Marriage (Not just consent to
cohabit) (must have no legal impediments)
2) Capacity
3) Common law marriage is abolished in most states
,4 Types of Alimony - Duration? Modifications allowed? Goals of each? - Answers-1)
Permanent Periodic Support (lasts until death of payor, can be modified with proof of
SUBSTANTIAL CHANGE IN CIRCUMSTANCES)
2) Lump Sum Support (used in especially hostile relationships, lasts for a specified time
period - until total balance paid, can be paid in installments. CANNOT be modified b/c is
a contractual arrangement)
3) Rehabilitative Support (for specified time period, goal is to allow spouse to gain skills
to be less economically dependent and disadvantaged, can be modified with proof of
substantial change in circumstances)
4) Reimbursement Support (for, e.g., putting spouse through law school, can be lump
sum or installments but is only for a specified period of time. CANNOT be modified b/c
is a contract right. Can be given even if the spouse is not otherwise eligible for spousal
support. Think of as retroactive support)
5 Effects of Annulment - Answers-1) Marriage is set aside as if it never existed
2) Children remain legitimate
3) Child support can be awarded
4) Spousal support MAY be awarded (depending on jurisdiction)
5) Property generally treated as if never married
5 Examples of Voidable Marriages - Answers-1) Underage
2) Incurable Physical Impotence
3) Lack of capacity (under the influence, mental incapability)
4) Duress (must be pending at the time of consent "You got my daughter pregnant, if
you don't marry her I will shoot you")
5) Fraud (that affects an essential element of the marriage) (e.g. pregnant at the time of
the marriage with the child of another man)
A victim of domestic abuse is entitled to what? - Answers-A protective order which an
be granted ex parte (w/ no notice to other spouse). Can last for 2 months to 3 years
depending on jurisdiction
Adoption records are generally sealed UNLESS - Answers-The biological parents
consent to contact
Alienation of Affection Tort - 3 Reqs + A Common Defense - Answers-(1) Genuine love
and affection between spouses who are validly married (if your marriage was already
falling apart, you are out of luck) (2) The love and affection was destroyed (3) The D's
actions CAUSED the loss of love and affection (common defense "your marriage was
already broken before I showed up")
Proof of damages also required (hihgly subjective) - punitive may be available
Amendment or Revocation of Pre-nup - Answers-After marriage the agreement may be
amended or revoked only by written agreement by the parties. It is enforceable without
additional consideration.
, Are child custody decrees modifiable? - Answers-Yes
Are spousal support decrees modifiable? - Answers-As long as not contract based, Yes
Can one parent seek to terminate the parental rights of the other parent? - Answers-
Usually No. (b/c we want both parents involved)
Can parties waive alimony and/or property division in a separation agreement? Can
parties agree to custody or child support in a separation agreement? BUT...? - Answers-
Yes. Yes, but the court is not bound by the parties' agreement concerning anything to
do with children
Can testimonial or other evidence be sufficient to establish paternity if no blood or tissue
sampling is done? - Answers-Yes. But blood and tissue sampling is definitely preferred
Child Support and visitation rights - Answers-Child support is Independent of visitation.
Even if you don't get visitation, you still have to pay child support.
Child support in surrogacy cases - Answers-An increasingly important issue in cases of
assisted conception is that of child support when one of the parties either does not
agree to, or changes his mind about, the gestational agreement or in vitro procedure.
One court has held that a husband who did not consent to his wife's being arti - cially
inseminated by another man was not legally the child's father and thus was not
obligated to pay child support.
Children in Need of Supervision - Answers-Nearly all states have statutes giving courts
jurisdiction over children whose behavior does not meet certain standards of behavior
but which is not criminal. Courts can pursue: leaving the child with his parents with or
without a protective order or order for counseling; placing the child on probation or
under the supervision of a social worker; placing the child with a relative or other
person; or placing the child with a state agency.
Children of an annulled marriage - Answers-Treated the same as if the parents were
married.
Consent of an unmarried father in an adoption - Answers-Is required if the father is
actively involved in the child's life
Might not be necessary if father has abandoned the child, failed to support the child for
a specified time period, or never attempted to establish a relationship
Content of a pre-marital contract - Answers-1) Parties' rights and obligations
2) The rights to dispose of the property
3) Disposition of property upon separation, dissolution, death or other event
4) Modification or elimination of spousal support
