Most Commonly Tested Family Law Issues

Family law is a narrow subject with a small set of high-frequency fact patterns. On the MEE, the most heavily repeated topics are division of marital property (including characterization of pensions, businesses, degrees, gifts, and inheritances), enforceability of premarital agreements, child custody standards and modification, child support calculation and modification, jurisdiction over divorce and support, and parentage. On a law school final, add whatever your professor's scholarship covers — commonly assisted reproduction, nonmarital cohabitation, or the constitutional status of the family.

Almost every essay is a two- or three-issue problem, not a one-issue problem. A typical structure: a couple divorces, one spouse asks for a share of an asset acquired in a contested way, the other invokes a premarital agreement, and there is a child whose custody or support is disputed across state lines. Train yourself to spot that combination and you will not be surprised.

Use a rigid three-step method: characterize, value, divide. Characterize each asset as marital or separate. The general rule is that property acquired during the marriage by either spouse is marital regardless of title, while property owned before marriage, or acquired during marriage by gift, bequest, devise, or descent, is separate. Then apply the tracing and transmutation doctrines: separate property that is commingled beyond tracing becomes marital; the increase in value of separate property is typically marital to the extent it results from marital labor or marital funds, but passive appreciation stays separate.

This is where jurisdictional variation genuinely matters, so say so on the exam. Nine states use community property with a presumption of equal division; the rest use equitable distribution, which means fair, not necessarily equal. Within equitable distribution, some states are 'all property' or hotchpot states that let a court divide separate property too, while most divide only marital property. Whether marital fault may be considered also varies. On the MEE, apply the majority rule and note the minority approach in a sentence; on a final, apply what your professor taught.

Recurring characterization problems worth memorizing: pensions and retirement accounts (marital to the extent earned during the marriage; the time-rule coverture fraction), a professional degree or license (majority rule: not property, but a reimbursement or enhanced-earnings award or a larger alimony award may be appropriate), goodwill in a business (enterprise goodwill is usually divisible, personal goodwill often is not), personal injury recoveries (analytic approach: lost wages during the marriage and medical expenses paid with marital funds are marital; pain and suffering is separate), and stock options or deferred compensation earned partly before and partly during the marriage.

For spousal support, the modern framework asks about the payee's need and the payor's ability to pay, then weighs statutory factors: length of the marriage, standard of living, age and health, contributions to the other's earning capacity (including homemaking), and the time needed to become self-supporting. Identify the type — temporary/pendente lite, rehabilitative, reimbursement, or permanent — because the facts usually point to one. Gender-based alimony statutes are unconstitutional under Orr v. Orr, 440 U.S. 268 (1979). Modification requires a substantial and continuing change in circumstances; remarriage of the recipient generally terminates support, and cohabitation may reduce or terminate it depending on the state.

For child support, the amount is set by state guidelines, which are presumptively correct; a court may deviate only with written findings. Know that the duty runs to the child and cannot be bargained away by the parents, so a separation agreement waiving support does not bind the court. Voluntary underemployment permits imputation of income. Enforcement is tested through contempt — remember Turner v. Rogers, 564 U.S. 431 (2011), holding that an indigent obligor facing civil contempt has no automatic right to appointed counsel but is entitled to substitute procedural safeguards, including notice that ability to pay is the critical issue.

The governing standard is the best interests of the child, applied through statutory factors: the child's relationship with each parent, each parent's caretaking history, stability, the child's preference if of sufficient maturity, domestic violence, and each parent's willingness to foster the child's relationship with the other. Race may not be a factor, per Palmore v. Sidoti, 466 U.S. 429 (1984), and a parent's sexual conduct or religion matters only on a showing of actual harm to the child (the nexus test).

Modification requires a substantial change in circumstances since the last order plus a showing that modification serves the child's best interests. Relocation cases are a favorite: most states require notice and then either place the burden on the relocating parent to show good faith and benefit to the child, or on the objecting parent to show the move is not in the child's interest. Say which approach you are applying and why.

Third-party visitation is a near-certain constitutional issue. Under Troxel v. Granville, 530 U.S. 57 (2000), a fit parent's decision about grandparent contact is entitled to special weight, and a statute permitting any person to seek visitation whenever a court thinks it best is unconstitutional as applied. Do not say Troxel bars all grandparent visitation; it requires deference to the fit parent's judgment.

Split the analysis into three separate jurisdictional questions, because a court can have power over one and not the others. First, the divorce itself: domicile of one spouse plus compliance with the durational residency requirement supports an ex parte divorce entitled to full faith and credit. Second, financial claims: those require personal jurisdiction over the defendant spouse. That is the divisible divorce doctrine — a valid ex parte decree ends the marriage but cannot adjudicate support or divide out-of-state property. Estin v. Estin, 334 U.S. 541 (1948), and Vanderbilt v. Vanderbilt, 354 U.S. 416 (1957), are the anchors, and Kulko v. Superior Court, 436 U.S. 84 (1978), shows that sending a child to live with the other parent in a state does not create minimum contacts there.

Third, custody and support orders are governed by uniform acts. Under the UCCJEA, initial custody jurisdiction belongs to the child's home state — where the child lived with a parent for six consecutive months immediately before the proceeding (or since birth, for infants under six months). The decree state keeps exclusive continuing jurisdiction until neither the child nor a parent has a significant connection and substantial evidence there, or no one still resides there. Temporary emergency jurisdiction exists where the child is present and abandoned or endangered. Under UIFSA, the issuing state has continuing exclusive jurisdiction over support as long as the obligor, obligee, or child resides there, unless the parties consent otherwise; another state may enforce but not modify.

Premarital agreements are tested constantly because they have a clean checklist. Under the Uniform Premarital Agreement Act and most state law, the agreement must be in writing and signed; it is unenforceable if the challenging party proves it was not executed voluntarily, or that it was unconscionable when executed and that party did not receive fair and reasonable disclosure of the other's assets, did not waive disclosure, and had no adequate knowledge of them. Note the split: some states also require that the agreement be substantively fair at the time of enforcement, and many states will not enforce a waiver of child support or a prospective custody arrangement. Independent counsel is not universally required but is heavily weighted.

For marriage validity, run the ceremonial requirements (license, solemnization, capacity) and then the substantive bars: existing marriage, consanguinity, and lack of capacity or consent. Distinguish void from voidable, because only a voidable marriage requires an annulment action and only interested parties can attack it. Common law marriage requires present agreement to be married, cohabitation, and holding out as married — but only a small minority of states still permit new common law marriages, so identify that fact rather than assuming it. Marriage is a fundamental right; Loving v. Virginia, 388 U.S. 1 (1967), Zablocki v. Redhail, 434 U.S. 374 (1978), Turner v. Safley, 482 U.S. 78 (1987), and Obergefell v. Hodges, 576 U.S. 644 (2015), supply the constitutional overlay.

Start with the marital presumption: a child born to a married woman is presumed to be her husband's child. Michael H. v. Gerald D., 491 U.S. 110 (1989), upheld a statute making that presumption effectively conclusive against a biological father's claim. Modern acts allow rebuttal within a limited period and recognize acknowledgments of paternity, holding out, and assisted reproduction as alternative bases for parentage. Equitable doctrines — de facto parent, in loco parentis, parentage by estoppel — appear in fact patterns involving a former same-sex partner or stepparent seeking custody.

Unwed fathers hold constitutional rights only if they grasp the opportunity to develop a relationship with the child; compare Stanley v. Illinois, 405 U.S. 645 (1972), with Lehr v. Robertson, 463 U.S. 248 (1983), which upheld a putative father registry. Termination of parental rights requires clear and convincing evidence under Santosky v. Kramer, 455 U.S. 745 (1982). If any fact mentions tribal membership or eligibility, flag the Indian Child Welfare Act; it changes the placement preferences and the burden of proof and is a classic hidden issue.