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
•
marital property
“Equitable”—applies to the division of ______________________________
property at divorce
Note 1: “Equitable” division requires a “just and fair” division of marital
equal
property. It does not require an “______________________”
50/50 division of
marital property.
•
welfare
“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
•
contract
Marriage is a civil ______________________________
between two people.
o
o
consent
Both parties must have capacity to give ______________________________
There must be an exchange of consideration in the form of:


promises
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
•
state
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


18
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
parental consent
_________________________________________.
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
results
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.
10
30
d. Expiration of license—varies from _____________
to _______________
days after issuance
2. When Will a License NOT be issued?
o
o
o
o
married
If a party is already ______________________________
to someone else;
related
If the parties are too closely ______________________________;
sham or induced by fraud
If the marriage is a ______________________________;
If the parties are incapable of understanding the act of the marriage (e.g., substances render
fraud
duress
a party incapable or a lack of consent due to _________________
or __________________)
3. Same-Sex Marriages
o
o
Same-sex couples may marry in all states.
recognize
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
o
o
o
2 witnesses
Most states require at least ______________________________
to the ceremony
Most states require an officiant (e.g., judge, person of the clergy, political official)
filed
Marriage license must be _____________________
with the appropriate government office
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
o
o
o
o
cohabitation
Established by custom and ______________________________
license
No ______________________________
or solemnization is required
Most states have abolished common-law marriages.
Some states allow common-law marriages that occurred before a certain date to be
grandfathered in and still recognized
Requirements:




o
Capacity to marry
Consent (i.e., parties agree that they are married)
Cohabitation
Conduct (i.e., spouses hold themselves out to public as married)
No states have a minimum time period of cohabitation to establish a common-law marriage.
2 | © 2023 Themis Bar Review, LLC | MEE Family Law
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
o
o
3.
States will recognize common-law marriages from other states under the Full Faith and
Credit Clause.
public policy
Exception: If the state has a strong ______________________________
against recognizing
the marriage, then the state need not recognize the common-law marriage.
domiciled
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
evidence
The parties must produce ____________________
of their present intent to enter the marriage.
E. Heartbalm Actions
•
Historically included:
o
o
o
o
promise
Breach of ______________________________
to marry
Alienation of affection
Seduction
Criminal
______________________________
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
•
duties
benefits
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:
•
Annulment
______________________________;
•
Divorce
______________________________
(Dissolution);
•
Death
______________________________
A. Annulment
•
voids
Judicial decree that ______________________________
a marriage
MEE Family Law | © 2023 Themis Bar Review, LLC | 3
•
marriage is voidable
Available when a marriage is void ab initio or ______________________________
•
beginning
Applies when an impediment to a legal marriage existed at the ______________
of the marriage
1. Void Marriage—“as if it never happened”
o
o
any
Does not require judicial decree; will not be legally recognized for ______________
purpose
Any
_________ party may seek an annulment for a void marriage (e.g., parent, guardian, party).
a. A prior existing marriage (i.e., bigamy)



second (subsequent)
The ______________________________
marriage will be void.
first
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:
•
first cousins
About half of states bar marriages between ______________________________;
•
Most states prohibit marriages between relatives of half-blood;
•
virtue of adoption
Many states prohibit marriages of relationship by ___________________________.
c. Mental incapacity


lucid
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
o
Valid until one of the parties seeks annulment
judicial
Requires a ______________________________
decree
a. Age



marriage consent
Any party who is under the age of ______________________________
and who did not
seek their parents’ consent can ask for an annulment.
parent
The ______________________________
of the minor child can also seek an annulment.
Once the underage party reaches the age of majority and continues to
cohabitate
_________________________
with their spouse, they can no longer seek an annulment
b. Impotence


incurably
One party is naturally and ______________________________
impotent
Exception: The other party knew about the impotence prior to the marriage
4 | © 2023 Themis Bar Review, LLC | MEE Family Law
c. Intoxication


Either party was incapable of contracting due to alcohol or drugs
after
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.
marriage
The fraud must be in existence at the time of the ______________________________;
future
it cannot be about ______________________________
facts.
The parties must immediately cease living together once the fraud is
discovered
________________________________.
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.
e.
Lack of intent



Voidable when parties acted with no intention to be married (e.g., as a sham or joke)
consumated
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
o
o
o
o
spousal
Either party can still seek ______________________________
support
equitable
Can still seek an ______________________________ distribution of marital property
Can also seek child support if a child was born within the now-annulled marriage
Courts try to put the parties in the same position as before the marriage.
marital
Children born of an annulled marriage are considered _______________________
children.
4. Defenses to Annulment
o
o
Deny the impediment
Other party can still pursue a dissolution (divorce) action
5. Putative Marriage
o
o
o
o
Also known as “putative spouse doctrine”
Equitable remedy applies to protect a party who believes their marriage is valid
Most jurisdictions have adopted the putative marriage doctrine.
The unknowing party may use the state’s divorce provisions, even if the marriage is found to
be void.
B. Divorce and Separation
•
dissolution
Divorce—a legal ______________________________
of a marriage
•
residency
Most states have a ______________________________
requirement:
MEE Family Law | © 2023 Themis Bar Review, LLC | 5
o
o
At least one party must be a resident of the state.
The length of the residency requirement varies, and may depend on whether:


•
were married
The couple ______________________________
in that state; and/or
The grounds for the divorce happened in that state.
Grounds:
o
o
Most states recognize no-fault and fault divorce.
A substantial minority of states recognize only no-fault divorce.
1. No-Fault Divorce
o
Majority—granted if marriage is irretrievably broken

o
o
o
May also refer to “irreconcilable differences”
separated
Half of states require the parties to be ______________________________
for a particular
period of time before they can seek no-fault divorce.
prevent
One spouse who desires to reconcile cannot __________________________
the dissolution.
defenses
Most states have abolished traditional ______________________________ to divorce.
2. Fault-Based Divorce
o
o
Most jurisdictions retain some fault-based grounds, but some have removed it completely.
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
•
opportunity
The charging spouse has to show both ______________________________
and
inclination by the other spouse.
•
May be proven through circumstantial evidence
2) Cruelty or inhumane treatment
•
course
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)
•
cause
One spouse voluntarily leaves the marital home without _________________
or
consent
_____________________ from the other spouse, with the intent to remain away
permanently.
•
Some jurisdictions also find desertion when a spouse forces the other spouse out,
harm
and there is fear of _________________
if they return (i.e., constructive desertion).
6 | © 2023 Themis Bar Review, LLC | MEE Family Law
4) Habitual Drunkenness (in some states)
•
impairment
Applies if frequent habit of getting drunk causes _____________________________
in the marriage
•
Alcoholism
______________________________
is not a requirement
5) Bigamy
•
prior
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
time
divorce if the imprisonment period is for a specified period of _________________.
7) Indignity
•
negative
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:
•
Confined
______________________________
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
o
fault
Only apply to ______________________________-based
divorces
affirmatively
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
consent
b. Connivance—the complaining spouse has given ______________________
to participate in
the marital wrong
MEE Family Law | © 2023 Themis Bar Review, LLC | 7
c. Condonation



Spouse forgives
___________________________
for whatever wrongful act in which they were engaged
knowledge
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 atfault divorce.
fabricate
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.
fail
Religion—challenges to a divorce on religious grounds will ____________
in all jurisdictions
4. Limited Divorce
o
o
Widely recognized, but rarely used
Refers to legal separation where the parties live apart, allowing courts to determine support
and property division
support
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
•
unbiased
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.
8 | © 2023 Themis Bar Review, LLC | MEE Family Law
o
equal
Presumes ______________________________
distribution of marital property
2. Equitable Distribution
o
o
Most states follow this approach.
fair
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
o
during
All property acquired _____________________
the marriage is considered marital property.
Does not include:



before
Property acquired ______________________________
marriage
Gifts and inheritance
separation
Property acquired after ______________________________
Editorial Note 1: Most states consider the “date of separation” for purposes of
classifying marital property to be when the final divorce decree is entered.
However, some states draw the line after permanent separation but before
divorce. Still others consider the date of separation to be on the date that
the divorce action is filed.
2. Increases in the Value of Separate Property
o
o
Increases in the value of separate property resulting from either spouse’s efforts is
marital
considered ______________________________
property.
funds
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
not martial
The party who is claiming that something is ______________________________
property
has the burden of proving that it is separate property.
MEE Family Law | © 2023 Themis Bar Review, LLC | 9
C. Exceptions to Marital Property
•
before
Property acquired ______________________________
the marriage
•
Property that is excluded pursuant to a valid agreement
•
inheritance
Property acquired by gift or _______________________,
unless those gifts are between spouses
•
value
Property that a party has sold or granted or conveyed for ______________________________
in good faith before the date of the final separation
•
good faith
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:
•
long
How ______________________________
was the marriage?
•
Were there prior marriages?
•
economic
What are the ______________________________
circumstances of each spouse:
o
o
o
o
o
How old are they?
How is their health?
retirement
How close are they to ______________________________?
potential
What are their earnings and earning ______________________________?
What are the needs of the spouses?
•
career
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?
•
reduction
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
10 | © 2023 Themis Bar Review, LLC | MEE Family Law
o
o
May affect support payments or distribution of marital assets
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
o
Considered marital property and subject to equitable distribution
present
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
o
“Marital property” approach—if the cause of action occurred during the marriage, then it is
after
marital property, even if the proceeds are received _______________________
the divorce
“Separate and marital allocation” approach—depends on the nature of the award:


o
separate
Pain and suffering, disability award—___________________
property of injured spouse
marital
Lost wages, income, medical expenses—______________________________
property
non-injured
Consortium claims—separate property of the ______________________________
spouse
4. Goodwill of a Business
o
o
Considered marital property if it is developed during the marriage
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
marital
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.
MEE Family Law | © 2023 Themis Bar Review, LLC | 11
G. Modification of a Property Division Award
•
non-modifiable
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
•
employment
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
•
discharged
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
•
Financial
______________________________
resources of both parties, and the ability of the payor to
potential
pay (e.g., assets, inheritances, gifts, child support, earning ______________________________)
•
Standard of living during the marriage
•
job
Time to find a ______________________________
or to complete education
•
Duration of the marriage:
o
o
o
Short term—up to seven years
Moderate term—seven years to 15 or 16 years
Long term—16 or 17 years or more
•
enhanced
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
•
consider
Marital misconduct—many jurisdictions ____________________
marital misconduct as a factor
o
•
adultery
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
permanent
Maintenance may be modified, even if it was originally ______________________________.
12 | © 2023 Themis Bar Review, LLC | MEE Family Law
o
o
Cannot seek to modify a support order if no original maintenance was awarded or reserved.
Party seeking modification has the burden to show that there has been a
significant
________________________________________
in circumstances:


o
recipient
In either the needs of the ______________________________;
or
payor
In the financial abilities of the ______________________________.
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.
estate
The payor’s obligation usually is not included as an obligation of the ________________,
unless specified by the court.
b. Remarriage


modify
If the payor remarries, the court may ______________________________
support.
terminate
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?
•
children
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



deny the
Some jurisdictions ______________________________
modification.
modify
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
•
both personal
Courts must have ______________________________
jurisdiction and
subject-matter
_______________________________________
jurisdiction to make family law determinations.
1. Duration of Residency
o
Most states require some residency for subject-matter jurisdiction (generally
6 weeks
2 years
______________________________
to ______________________________).
MEE Family Law | © 2023 Themis Bar Review, LLC | 13
o
Full faith and credit will apply if one spouse is a resident for that length of time.
2. Powers of Matrimonial Courts
equity
Broad and full ______________________________
powers to:
o
o
o
o
o
o
o
Divide property;
Order divorce or annulment;
custody
Issue orders regarding ______________________________
of the children;
support,
maintenance
Order ______________________________ and alimony;
Award attorney’s fees;
separation
Enforce ______________________________
agreements; and
Many other matters (e.g., sanctions).
3. Divisible and Ex Parte Divorces
o
o
o
it does not
The court has personal jurisdiction (PJ) over one party but ___________________________
have PJ over the other party.
The court can grant an ex parte divorce (i.e., determine marital status only).
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
o
The defendant/respondent may attack an ex parte order for lack of jurisdiction.
Can show that the plaintiff was not domiciled in the divorcing state
5. Indigent Parties
o
o
fees
costs
Courts cannot require an indigent party to pay ______________
and _________________
to
access matrimonial court.
counsel
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.
•
equal
They have _________________________
responsibility, unless circumstances dictate otherwise.
•
ability
Obligations based on the child’s needs, not the parents’ ___________________________
to pay
•
18
Typically, support is paid until the child reaches the age of __________________
years old, with
some exceptions:
o
o
19
If the child is in high school full-time, can be required until the child is __________
years old
Can be extended if the child’s physical or mental condition requires support past the age of
majority
14 | © 2023 Themis Bar Review, LLC | MEE Family Law
o
•
visitation
Child support is entirely separate from ______________________________
rights.
o
•
college
Can be extended through a ______________________________
degree
Visitation cannot be denied because the payor failed to pay child support.
child
The right to receive child support belongs to the ____________;
parents cannot bargain it away.
o
scheduling
Parents can agree regarding payment ______________________________
and timing.
B. Nonmarital Children
•
were not
Historically—nonmarital children ______________________________
entitled to child support
•
Now—nonmarital children cannot be denied child support, government benefits, death
inheritance
benefits, or ______________________________
rights
•
dies
Paternity needs to be established before the father ______________________________.
•
When nonmarital kids can become marital kids:
o
o
o
o
after
If the parents marry ______________________________
the birth of the nonmarital child;
If the father consents to putting his name on the child’s
birth certificate
__________________________________________________;
If the father holds himself out to be the father; or
decree
By judicial ______________________________.
C. Paternity
•
public
Paternity actions are not available to the ______________________________.
•
Once paternity is established, gives rise to:
o
o
custody
The rights to ______________________________
and visitation; and
support
The duty to ______________________________.
1. Blood Test
o
o
o
The court may order a paternity test.
indigent (poor)
If the father is ______________________________,
the court will pay.
If there is no paternity, then any child support case filed against that individual is
dismissed
______________________________.
2. Other Evidence
o
o
o
o
deceased
Prior statements by ______________________________
family members
Medical testimony based on the probability of conception
The defendant’s own knowledge of paternity
resemblance
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
Equal Protection
_____________________________________________
Clause of the U.S. Constitution
MEE Family Law | © 2023 Themis Bar Review, LLC | 15
o
o
The nonmarital child or the child’s mother can always bring the suit.
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
husband
_______________________.

o
Presumption applies in cases of artificial insemination, provided the father
consented
______________________________
to the procedure and it was performed by a doctor
When can a wife deny that her husband is the father?



estopped
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)
exclude
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:



o
o
The husband promised to provide for the child;
relied
The wife ______________________________
on that promise; and
detriment
The wife would suffer economic ______________________________ from relying on
that promise
Cannot be used to block the biological father of his rights
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
o
o
o
o
o
o
service
Personal ______________________________
on the defendant-parent;
Consent
___________________________ of the defendant-parent (e.g., entering an appearance);
residency
Past ______________________________
with the child in the state;
Past residency in the state while providing child support;
reside
Defendant directed the child to ______________________________
in the state ;
Defendant engaged in the act of conception in that state that resulted in the child’s birth;
registry
Defendant asserted parentage via the putative father ______________________________
maintained by the state;
16 | © 2023 Themis Bar Review, LLC | MEE Family Law
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
o
o
o
o
o
•
Three public policy principles that guide child support:
o
o
o
•
Wages
______________________________;
Dividends;
Interest;
gains
Capital ______________________________;
Rental income;
Retirement benefits;
Social security income
support
Parents have a fundamental obligation to financially ____________________
their children.
The combined income is what is important (i.e., as if the home were intact).
litigation
To minimize ______________________________
(i.e., a fair and efficient settlement)
affidavit
Both parents must file an ______________________________
regarding their net income, and a
worksheet
child support guidelines ______________________________.
1. Calculating Support
majority of
a. “Income shares” model—employed in ______________________________
jurisdictions

Method:
•
Add both incomes.
•
Determine the amount of child support based on total income.
•
net
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
number
Determined by the _________________________
of children who are being supported
c. Deviations from child support guidelines

o
Court must specify why it is deviating (e.g., imputing income to an underemployed
parent)
spent
The payor is not permitted to monitor how that money is ___________________________.
MEE Family Law | © 2023 Themis Bar Review, LLC | 17
2. Other Considerations
o
o
o
o
o
o
o
o
Age of the child when determining child support
education
Unusual needs (e.g., special ______________________________
or medical needs)
Support obligations of the parties themselves
Assets
______________________________
of the parties
insurance
Medical expenses outside of ______________________________ coverage
Relative standard of living
Duration of the marriage
best interest
Most important consideration = “What is in the _______________________
of the child?”
3. Medical Insurance
o
o
include
Most jurisdictions _________________________
medical expenses in a child support award.
deducted
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
10 (ten)
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
o
o
seeking
Burden is on the party ______________________________
the modification
retroactive
Change is ________________________
to the date of service of the motion for modification
voluntarily
A party cannot ______________________________
reduce income and then seek a
modification; courts impute an income amount on that parent.

good faith
Exception: If the change was made in ______________________________
and there is
no hardship to the child
2. Termination of Child Support
o
o
automatically
Ends ___________________________
when the child reaches the age of majority (typically,
18 years of age)
Court might order support beyond the age of majority if the child:

Is still in high school;
18 | © 2023 Themis Bar Review, LLC | MEE Family Law


o
Cannot support himself due to disability; or
Goes to college (some jurisdictions).
Child support can also be terminated in the following circumstances:





Child marries;
Child emancipation;
parental
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:


o
o
agreement
By ______________________________
of the parties; or
Neither party nor the child lives in the “court of continuing jurisdiction.”
If neither of the above applies, the new state cannot modify the support order.
Parties may register the order in another tribunal, but if an aspect of the order is nonmodifiable in State 1, then it is non-modifiable in State 2.
4. Tax Consequences of Child Support
o
o
o
cannot
The paying parent ___________________________
deduct child support from their income.
cannot
The receiving parent ______________________________ include it as income.
can
The parent who pays medical expenses _______________________
deduct those expenses.
G. Enforcing Child Support Awards
May include:
•
Contempt orders;
•
garnishment
Wage ______________________________;
and
•
Withholding tax refunds
1. Civil Contempt
o
o
o
The payor must violate a court order for failure to pay.
incarceration
The court may levy a fine or order ___________________________
until the amount is paid.
There is a split in courts whether appointment of counsel is constitutionally required in
indigent cases.
2. Criminal Contempt
o
o
The court can impose a jail term.
willful
Typically, the court must find that the failure to pay by the obligor is “_________________”
beyond a reasonable doubt.
MEE Family Law | © 2023 Themis Bar Review, LLC | 19
3. Other Sanctions
o
o
o
o
o
o
o
o
o
Intercept tax refunds;
Suspend driver’s license;
professional (e.g. to practice law)
Suspend ______________________________
licenses;
Report to credit bureau;
Seize property or assets;
Order insurance or bond;
Attorney
______________________________
fees;
Order a job search; or
passport
Seize the ______________________________,
if more than $5,000 in arrears
4. Enforcement in Other Jurisdictions
o
o
o
o
o
Uniform Interstate Family Support Act (UIFSA)
ALL
Adopted in ______________________________
states
collection
and
enforcement
of orders from one state to another
Created to simplify the ______________________________
If the order is registered in the second state, it is enforceable from the first state.
modify
Only the original state may ______________________________
the order.
CHAPTER 6:
CHILD CUSTODY (PART 1)
A. Definitions
•
major
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
o
o
o
o
majority
Applies to the ______________________________
of cases (often statutorily favored)
cooperate
Both parents must be willing and able to ______________________________ for the best
interest of the child.
superior
Neither parent has a ____________________
right to make decisions on behalf of the child.
There is usually a procedure for resolving conflicts
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
•
subject-matter
Under UCCJEA, the court must have ______________________________
jurisdiction.
20 | © 2023 Themis Bar Review, LLC | MEE Family Law
1. Initial Custody Determination (Home-State Jurisdiction)
o
o
six
Home state—where the child lived with a parent for ______________________________
months (or since birth, if the child is less than six months old)
If the child has moved, the home state can still have jurisdiction if:


home state
It was the ______________________________
within the past six months; and
lives
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;
child
at least one parent
o The _________________
and _________________________
have “significant connections”
to a new state; and
evidence
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
appropriate
o A court in a state that has ______________________________
connections to the child.
4. Temporary Emergency Jurisdiction
o
A court can assume emergency jurisdiction if:


o
o
danger
The child is in ______________________________;
and
The child requires immediate protection.
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.
If there is no prior custody order in place, then the emergency order stays in place until the
home
______________________________
state changes it.
5. Exclusive Continuing Jurisdiction
continues
The court that made the initial rulings in the custody case ______________________________
to have jurisdiction until:
o
o
The parties no longer reside in the state; or
The child no longer has a significant connection to the state and no substantial
evidence
_________________________
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
covenient
jurisdiction when the forum is no longer __________________________,
per the factors below:
MEE Family Law | © 2023 Themis Bar Review, LLC | 21
o
o
o
o
o
o
o
o
When domestic violence occurred
outside
The length of time the child has resided ___________________________
of the jurisdiction
distance
The ______________________________ between the competing jurisdictions
financial
The parties’ relative ______________________________
circumstances
Agreement of the parties
relevant
The nature and location of evidence that is ______________________________
in the case
Each court’s ability to decide the issues expeditiously and the procedures necessary to
present the evidence
The familiarity of each state court with the facts and issues
7. Enforcement of Another State’s Orders
a. Registration of order



certified
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;
•
vacated
The order had been stayed or ______________________________;
or
•
Notice was improper; or
registered
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:


serious
To suffer ______________________________
physical injury; or
removed
To be wrongfully ______________________________ from the state.
d. Law enforcement
Allows law enforcement officials to obtain return of the child or enforce an order if:


criminal
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
22 | © 2023 Themis Bar Review, LLC | MEE Family Law
o
o
o
imminent
If there is not ______________________________
deployment, then the courts cannot use
potential
______________________________ deployment negatively against the military personnel.
Sets out procedures for temporary custody and out-of-court agreements
permanent
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)
•
visitation
Did not address ______________________________
•
home
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
•
state
PKPA supersedes any conflicting ______________________________
law
•
Purpose—to discourage forum shopping
•
Allocates the powers and duties between the states regarding child custody disputes; a
full faith
credit
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
danger
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
•
unfit
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
divorce
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.
MEE Family Law | © 2023 Themis Bar Review, LLC | 23
b. Past sexual conduct


A parent’s past sexual conduct is typically not considered in most jurisdictions
negative
Unless, it has a ______________________________
impact on the child
c. Third-party rights




Legal parents presumptively get parental responsibility, unless:
•
unfit
They are deemed ______________________________;
•
It is detrimental to the child; or
•
terminated
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
all
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
maturity
______________________________
Typically a child in contested cases will never be brought into court, unless ordered by
good cause
the court (and that must be based on “______________________________”).
e. Guardian ad litem


f.
In highly contested cases, may be appointed by the court to act for the child
Duty is to advocate on behalf of the child
Siblings


separating
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
rebuttable
____________________________.
B. Visitation (Parenting Time)
•
constitutional
Parents have a ______________________________
right to see their child, but visitation must
be in the best interest of the child.
•
place
Typically, parents create an agreement as to the time, _______,
and circumstances of visitation.
•
Denying non-custodial visitation is very unusual.
o
endanger
Only allowed if it would “seriously ______________________________”
the child
24 | © 2023 Themis Bar Review, LLC | MEE Family Law
•
supervised
Can require ______________________________
visitation or place other time restrictions on
visitation (e.g., restrict overnights)
1. Third Party Visitation
o
o
o
grandparents
May apply to stepparents, ______________________________,
or nonbiological co-parents
Typically, only granted in cases of in loco parentis prior to the divorce
rights
Generally no protected ___________
for third parties for ongoing visitation after the divorce
a. “Special weight” to a fit parent’s decision


fundamental
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.
guarantees
No states ______________________________
grandparent visitation.
When a grandparent requests visitation that has been denied, the courts will look at:
•
The fit parent’s decision;
•
applicable statute
The conditions of visitation set forth in the _____________________________;
and
•
best interest
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
preclude
state may ______________________________
the biological father’s paternity petition.
2. Sexual Relationship or Cohabitation
o
o
unlikely
Courts are ______________________________
to restrict visitation by a parent due to a
sexual relationship or cohabitation by that parent
Unless it adversely affects or impacts the child
3. HIV/AIDS
cannot
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
o
o
A change in custody arrangement;
Contempt
______________________________
proceedings; or
Make-up time.
MEE Family Law | © 2023 Themis Bar Review, LLC | 25
C. Enforcement, Modification, and Termination of Parental Responsibility Order
1. Enforcement
o
Potential remedies:




o
Compensatory
______________________________
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
child support
The court cannot deny visitation for failure to pay ______________________________.
a. Habeas Corpus Proceedings


visitation
Generally not available for custody or ______________________________
disputes
legal
physical
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,
registered
if the original order was ______________________________
in the second state.
cannot
Generally, the new court ______________________________
modify the order, unless:
•
denied
The prior court has ______________________________
jurisdiction; and
•
The out-of-state party is given sufficient notice.
2. Modification
o
o
o
o
o
o
Most jurisdictions use the “change in circumstances” standard.
substantial
The change in circumstances must be ______________________________
and unforeseen
at the time the final judgment was entered.
Modification must be in the best interest of the child.
original
The ______________________________
state retains subject-matter jurisdiction.
Some states impose a time barrier if there is no immediate danger to the child.
is not
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.
presumptive
Some states give relocating parent the ______________________________
right to
relocate, so long as the child’s welfare is not prejudiced.
26 | © 2023 Themis Bar Review, LLC | MEE Family Law

legitimate
The relocating parent often has the burden to demonstrate a “_____________________
and reasonable purpose.”
•


objecting
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.
to allow
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);
•
relationship
Ability to preserve the ___________________________
with the nonmoving parent;
•
preference
Child’s ______________________________;
•
Movant’s history of promoting parenting time;
•
Enhancing effect on the child’s life;
•
motive
Each parent’s ______________________________;
and
•
Any other factor
Note 7: If joint custody, then it is harder to relocate; courts protect the nonmoving parent more.
b. Cohabitation


Some states permit a hearing to modify custody if the custodial parent is living with a
non-marital
______________________________
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
o
tort
A doctor who performs without parental consent is liable in ________________________.
Exceptions (i.e., when consent is not needed):



An emergency;
mature
The child is older and ______________________________;
or
Public health issues
2. Religious Beliefs
o
o
contradict
Parents’ religious beliefs may ___________________________
the best interest of the child.
in need and neglected
The court can intervene and declare the child ______________________________.
MEE Family Law | © 2023 Themis Bar Review, LLC | 27
o
Some states allow exemptions for emergencies without finding the parent was
neglectful
__________________________.
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
o
o
o
o
o
o
o
o
An agreement between prospective spouses
contract
It is a ______________________________.
Terms relate to property, spousal support in the case of death or divorce, etc.
basis of consideration
A valid marriage is the ______________________________
for these contracts.
Many jurisdictions require an express statement in the agreement that it applies in the
divorce
event of ______________________________.
custody
support
Not enforceable with regard to child ________________
or child _________________
terms
Uniform Premarital Agreement Act (UPAA)—adopted in 26 states with lots of amendments
Uniform Premarital and Marital Agreements Act (UPMAA)—adopted in two states
significant
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
o
o
o
o
Can decide property division, child support, spousal maintenance, custody, visitation, etc.
ultimate divorce
Made between spouses planning for ______________________________
fraud
Enforceable so long as there is no __________________________
or unconscionable aspect
custody
support
Always modifiable regarding child _________________
and _________________,
if it is in
the best interest of the child
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.
contract
When no merger occurs, enforcement is based on a breach of _______________
claim.
3. Property Settlement Agreements
o
o
o
economic
Purpose—settle and finalize the ______________________________
issues between the
parties to an impending divorce
May be entered into prior to the divorce decree
fraud
Enforceable so long as there is no __________________________
and no unconscionability
28 | © 2023 Themis Bar Review, LLC | MEE Family Law
B. Validity of Marital Agreements
1. Requirements:
o
o
o
o
o
disclosure
Full ______________________________
of assets and debts;
Fair and reasonable terms;
Voluntary;
writing
In ______________________________;
and
Signed
2. To Enforce
o
o
all
Disclosure, voluntariness, and fair and reasonable terms are required in ___________
jurisdictions.
In states where the UPAA is not adopted, other grounds may be used to validate.
3. To Invalidate
o
o
o
Burden on party trying to invalidate the agreement
clear and convincing
Must prove the agreement is invalid by ___________________________________
evidence
To invalidate, the UPAA requires:


o
The agreement was involuntary; or
unconsionable
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.
voided
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
o
o
o
health
Courts consider wealth, age, and ______________________________
of the parties.
fair
Courts also consider if the agreement was procedurally and substantively ______________.
force
Procedural unfairness may include fraud, duress, ____________________,
undue influence,
or mediator misconduct.
execution
Most courts look at the fairness of the document at the time of _______________________

o
Minority look at time of enforcement (i.e., divorce)
Current trend: A court will enforce an agreement as long as there was full
disclosure
______________________________,
even if it is not necessarily fair.
MEE Family Law | © 2023 Themis Bar Review, LLC | 29
6. Voluntary
Courts consider factors like:
o
o
o
Time pressure
business
Previous ______________________________
experience of the party
counsel
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
o
Courts will uphold a “cannot modify” provision.
child support
BUT a provision about ______________________________
is always modifiable in the best
interests of the child
C. Agreements Between Unmarried Cohabitants
1. Cohabitation Agreements
o
o
Enforceable, but not if the only consideration is sexual relations
Courts are less likely to enforce an implied cohabitation agreement
2. Property Division Between Unmarried Cohabitants
equitable
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
•
terminated
The prior parent-child relationship is ______________________________,
and a new parentchild relationship is created.
•
The child is adopted for all purposes (e.g., inheritance, rights, privileges)
•
sealed
Records are ______________________________,
except for birth parents’ medical records
•
residency
Most states have ______________________________
requirements.
•
payment
The law prohibits ______________________________
to the natural parent for the adoption.
1. Termination of the Natural Parent’s Rights
o
o
biological
Before adoption may occur, the ______________________________
parents’ rights must
be terminated
Termination can be voluntary (natural parents consent) or involuntary (court process)
30 | © 2023 Themis Bar Review, LLC | MEE Family Law
2. Legal Effects of Adoption
o
o
o
o
o
The adoptive parents have all the rights and obligations of biological parents.
biological
The child has all the rights of a ______________________________
child.
visitation
The biological parents have no rights of ______________________________ (in most
jurisdictions) unless the parties agree otherwise.
Stepparents can visit (sometimes); it depends on how substantial the relationship was
between the stepparent and the child.
dissolved
Adoptions may not be ______________________________,
except in cases of undisclosed
mental or physical illness

length and duration
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
•
mental
Domestic violence is typically physical abuse (not emotional or _____________________
abuse).
•
civil
Every jurisdiction has a statute for ______________________________
relief for victims.
1. Scope of Statute
o
o
o
Nearly every jurisdiction requires the perpetrator of the violence to be in a
relationship
______________________________
with the victim, or a family or household member.
former
Most statutes include: spouses, children, ________________
spouses, household members,
family
_____________________ members, and unmarried parents who have a common child.
Typically, require a “continuum of behavior,” but a single episode may qualify
2. Relief Granted
o
o
o
injunctive ("no contact", stay away) order.
The most common relief is an ______________________________
“No contact” order usually includes: residence, parenting time, child custody, or support
Two-step process:
1) Ex parte order with limited injunctive relief (TRO, i.e., temporary restraining order); and
hearing
2) Notice to defendant, and a __________________________
for a permanent order (PRO)
o
o
imprisonment
Violation of the order can result in fines or ______________________________.
Length of order is typically one year to an indefinite period
D. Rights and Obligations of Children
1. Capacity for Contracts and Wills
o
contracts
Children can convey property and enter into ___________________________,
but not wills.
MEE Family Law | © 2023 Themis Bar Review, LLC | 31
o
majority
They have the option to disaffirm contracts at the age of ____________________________.
2. Right to Consent to Medical Care
o
o
o
A child’s right to make medical decisions varies.
emergency
Parental consent is almost always necessary for ______________________________
medical care (but a risk to life of child can override that requirement).
Minors can usually consent to abortions, treatment for STDS, and birth control.
3. Liability for Torts and Criminal Acts
o
juvenile
Criminal acts—generally subject to ______________________________
courts and laws


o
supervision
The purpose is to provide ______________________________
and rehabilitation.
Degree depends on age
lenient
Torts—can be liable, but may be judged by a more __________________________
standard
4. Emancipation
o
o
If the child is self-supporting and not living with parents, the child may petition the court for
a decree of emancipation.
After emancipation, the child:


o
o
minor
Is no longer a ______________________________;
and
Has duties and obligations of an adult.
duty
The parents no longer have a ___________________
to support the now-emancipated child.
married
Typically, a minor who gets _________________________ is considered to be emancipated.
5. Limits on Parental Authority
o
o
o
absolute
Parental authority is not ______________________________.
Courts may terminate parental rights if it is in the best interest and welfare of the child.
neglect
Grounds for termination of parental rights can include: abandonment, _________________,
failure to support, inflicting serious harm, etc.
[END OF HANDOUT]
32 | © 2023 Themis Bar Review, LLC | MEE Family Law