The ABCs of: Family Law
Here is a collection of 26 important concepts, from A to Z, you need to know about Family Law for the bar exam:
A - Adoption: Adoption has been tested on the MEE twice since 2008 (February 2008 and July 2011). Adoption legally establishes a parent-child relationship between individuals not biologically related. It involves a court process and requires consideration of the child's best interests, including the capability of adoptive parents to provide a stable and nurturing environment. Generally, the consent of the child’s biological parents is required. If the parents are unmarried, the father’s consent may not be necessary. The determination of whether the father’s consent is necessary depends on how actively involved the father has been in that child’s life to date.
B - Best Interest of the Child: This principle prioritizes the child's safety, well-being, and happiness in most legal decisions affecting them. It's the guiding criterion in custody, visitation, and adoption cases. The best-interests inquiry is typically far-ranging, including the following factors: the wishes of the child's parents, the child’s primary caretaker, the mental and physical health of all individuals, the interrelationship of the child and parents, and stability. Additionally, nearly every state currently mandates consideration of domestic violence between the parents when awarding custody, and many states have standards under which it is presumed that a parent guilty of serious domestic violence should not be awarded custody of a child.
C - Common Law Marriage: A common law marriage is recognized in some jurisdictions without a formal ceremony or license. Formation of a valid common law marriage requires that the partners (i) cohabited, (ii) agreed to be married, and (iii) held themselves out to others as a married couple. Under generally accepted conflict-of-laws principles, a marriage valid under the law of the state where it was contracted is valid elsewhere unless it violates the strong public policy of another state which has the most significant relationship to the spouse and the marriage.
D - Dissolution of Marriage: This term is synonymous with divorce, marking the legal end of a marriage. It involves the division of marital assets, determination of child custody, and possibly spousal support, based on state laws.
E - Equitable Distribution of Property: After the court has identified the marital property and valued it, the court will proceed to make an equitable distribution of the property without regard to title ownership. The sentence, “Equitable distribution doesn’t mean an equal distribution” is almost always appropriate to include in an MEE response when discussing division of property. Some factors courts look at include the duration of the marriage; the age, health, earning capacity, and financial needs of the parties; the contribution by one party to the education of the other; and economic circumstances of each party at the time of division.
F - Fault in Divorce: Some jurisdictions allow citing specific reasons (like abuse) for divorce, which may impact the divorce proceedings, including alimony and property division. Fault is usually one factor among many that states consider when making alimony decisions. Traditionally, in those states that have retained fault divorce grounds, the abuse must be physical, successive, and continuing for an extended period of time, or a single severe physical act causing serious bodily harm or reasonable apprehension of serious future danger. In recent decades, however, jurisdictions recognize a single, less serious physical incident as sufficient and recognize emotional or mental cruelty.
G - Grandparent Visitation Rights: The right to privacy includes the rights of parents to decide issues concerning the care, custody, and control of their children. Courts generally will not interfere in parental decision-making absent allegations of abuse or neglect. This means that parents’ decisions regarding whether grandparents (and other third parties) may visit their grandchildren is constitutionally protected, and parental preferences are usually given precedence.
H - Health Care Decisions in Parental Rights: Although courts will not intervene in disputes between parents in an intact household, the state, pursuant to its jurisdiction over child abuse and neglect, may obtain an order overruling a parental decision and ordering appropriate services, including medical care, whenever the parental child-rearing decisions endanger the child. The fact that parental rights are constitutionally protected does not alter this result, even when the parental choice is religiously motivated:
I - Inheritance Rights: Children, including adopted and nonmarital children, generally have the right to inherit from their parents. Spouses also have inheritance rights, often protected by law even against disinheritance in wills.
J - Joint Custody: Joint custody can refer to joint legal custody (both parents have a say in major decisions) or joint physical custody (children split time between both parents), focusing on the child's best interests.
K - Parental Kidnapping Prevention Act: Parental kidnapping involves a parent taking a child without the other parent's consent or court order, violating custody agreements. It gives priority to a child's "home state" in custody decisions and ensures that custody determinations are consistently recognized and enforced across state lines. The jurisdictional standards set forth in the PKPA are substantially the same as those in the UCCJEA, except that emergency-based jurisdiction is not made temporary in the PKPA.
L - Legal Separation: Legal separation, sometimes referred to as a "limited divorce," is a legal arrangement available in some states that enables married couples to live apart while maintaining their legal marriage status. Unlike divorce, it doesn't dissolve the marriage, preventing either party from remarrying someone else. However, it allows couples to address crucial matters such as property division, spousal support, child custody, and child support through a court order. Legal separation can be chosen for various reasons, including religious beliefs or the desire to retain marital rights like inheritance, insurance, pensions, and tax benefits. Additionally, in some states, it can eventually be converted into an absolute divorce if both parties agree after a specific waiting period, providing couples with flexibility and time to make decisions about their future.
M - Marital Property: Marital property, also referred to as community property in some states, generally encompasses assets and property acquired by a married couple during their marriage. This includes income earned by either spouse, real estate purchased together, vehicles, bank accounts, retirement savings, and other assets acquired while married. In community property states, marital property is typically divided equally (50/50) between spouses in the event of a divorce, regardless of which spouse earned or acquired the assets during the marriage. In equitable distribution states, the division may not be strictly equal but is determined by what is considered fair and just, considering various factors. (See “E - Equitable Distribution of Property.”)
N - Nonage: Nonage, or being underage, is a legal barrier to marriage without consent or court order. Marriages entered into by someone under the statutory age (usually 18) usually makes these marriages voidable. The underage spouse can ratify the marriage by continuing the relationship after reaching the statutory age.
O - Orders of Protection: These are legal orders issued to prevent domestic violence, abuse, or harassment, providing safety for the victim by limiting the abuser's actions and contact. All 50 states allow battered spouses to seek some form of “stay away” or protection orders against violent spouses. The duration of these orders varies with each state.
P - Premarital Agreements: All states permit spouses to contract premaritally with respect to rights and obligations in property. States apply either the law of the state in which the contract was executed or the state with the most significant relationship to the parties and the transaction. The enforceability of such an agreement turns on three factors: (i) voluntariness, (ii) fairness, and (iii) disclosure. How courts apply these factors varies significantly from one state to the next. In many states, an agreement is unenforceable if the party against whom enforcement is sought succeeds in showing involuntariness, unfairness, or lack of adequate disclosure. However, under the UPAA, which has been adopted in a majority of states (and usually adopted by the state in an MEE question), the party against whom enforcement is sought must prove (i) involuntariness or (ii) that "the agreement was unconscionable when it was executed" and that he or she did not receive or waive "fair and reasonable" disclosure and "did not have, or reasonably could not have had, an adequate knowledge" of the other's assets and obligations.
Q - Quality Relationship: If a man who isn't married to the mother wants to be involved in the life of his newborn baby, the law recognizes this as a right protected by the constitution. This means he has the right to form a strong and positive “quality relationship” with his child, unless there is good reason to believe he cannot take care of the child properly.
R - Residency Requirements in Divorce: Most states require at least one spouse to live in the state for a specific period before filing for divorce. This requirement (e.g., 60 days or one year) ensures that the court has jurisdiction over the divorce proceedings.
S - Spousal Support: Also known as alimony or maintenance, this is a financial support paid by one spouse to another post-divorce. In awarding spousal support, the court carefully considers factors like the standard of living during the marriage, marriage duration, each party's age, health, and financial resources, their contributions to homemaking, childcare, and career development, the time needed for employment training, and the paying spouse's ability to support themselves while meeting these obligations.
An issue that MEE questions typically asks is whether existing spousal support award can be modified. Modification of spousal support is allowed only upon a showing of a substantial and continuing change in circumstances making the prior order unreasonable. A change in the payor’s ability to pay or in the recipient’s needs would be the type of situation in which a court would consider modification. It's important to note that when the payor’s income loss is voluntary, courts require a showing that the reduction was made in good faith and not for the purpose of depriving the child or punishing the custodial parent.
T - Transmutation of Property: This legal concept refers to changing the character of property from separate to marital or vice versa, often through a written agreement or commingling of assets.
U - Uniform Child Custody Jurisdiction and Enforcement Act: This act provides a standard legal framework for determining jurisdiction over child custody matters, especially in multi-state scenarios, to avoid conflicting orders and promote cooperation between states. A state that is a child’s “home state” has exclusive jurisdiction over a custody action involving the child. Under the UCCJEA, a home state is the state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child-custody proceeding. This jurisdictional standard is the same under the PKPA. (See “K - Parental Kidnapping Prevention Act.”)
V - Void and Voidable Marriages: Void marriages are legally invalid from the start (e.g., due to incest), while voidable marriages are valid until annulled (e.g., due to fraud or coercion).
W - Waiver of Rights in Premarital Agreements: This involves voluntarily giving up certain legal rights in a premarital agreement, such as claims to spousal support or property in the event of divorce. Representation by independent counsel can help lessen the risk that the waiver was obtained through fraud, duress, or coercive behavior that results in an unfair agreement.
X - eX Parte Orders: Okay, "ex parte orders" doesn't begin with the letter "X," but it does contain the letter "X." These are court orders issued based on one party's request without the other party's presence, often used in urgent situations like protecting a child from harm. A court cannot award spousal support or divide property located out of state because it must have personal jurisdiction over both parties.
Y - Young child: The wishes of a young child (usually under the age of eight) is usually given little to no weight when examining the best interests of the child. (See “B - Best Interest of the Child.”) Conversely, the preferences of older children, usually those over the age of 12, are often given considerable importance.
Z - Zone of Privacy: In addition to the privacy right implicit in the Due Process Clause of the U.S. Constitution, some state constitutions explicitly provide for a right to privacy. The “zone of privacy” refers to the protection of personal and family autonomy from unwarranted government intrusion, particularly relevant in matters of marriage, procreation, and child-rearing.
