Family Law Basics for the Certified Paralegal Exam

Family Law Fundamentals for the CP Exam

Family law is an area that may appear on the Certified Paralegal exam. While it typically receives less weight than civil litigation or contracts, you should still have a solid understanding of the key concepts. Paralegals in family law practices handle divorce, custody, support, and adoption matters.

Marriage

Marriage is a legal relationship between two individuals that creates specific rights and obligations. Key concepts include:

• Requirements: Capacity (legal age, mental competence, not already married), consent, and compliance with licensing and solemnization requirements
• Common Law Marriage: Recognized in a minority of states. Requires agreement to be married, cohabitation, and holding out as married. No ceremony or license is required.
• Void vs. Voidable Marriages: A void marriage is invalid from inception (e.g., bigamy, incest). A voidable marriage is valid until annulled (e.g., fraud, duress, underage).
• Annulment: A court declaration that the marriage was never valid, as distinguished from divorce, which ends a valid marriage

Divorce

Divorce (dissolution of marriage) terminates a valid marriage. Important concepts include:

• Grounds: All states offer no-fault divorce (irreconcilable differences or irretrievable breakdown). Some states also allow fault-based divorce on grounds such as adultery, cruelty, abandonment, or imprisonment.
• Residency Requirements: Most states require at least one spouse to have been a resident for a specified period (often 6 months to 1 year) before filing
• Property Division: Community property states divide marital property equally. Equitable distribution states divide property fairly (but not necessarily equally), considering factors like length of marriage, contributions, earning capacity, and needs.
• Separate vs. Marital Property: Property owned before marriage, inherited, or received as a gift is generally separate property. Property acquired during the marriage is generally marital property subject to division.

Child Custody

Custody determinations are governed by the best interests of the child standard. Types of custody include:

• Legal Custody: The right to make major decisions about the child's welfare, including education, healthcare, and religion
• Physical Custody: Where the child physically resides
• Joint Custody: Both parents share legal custody, physical custody, or both
• Sole Custody: One parent has exclusive legal or physical custody

Courts consider many factors in determining the best interests of the child, including the child's age, the relationship with each parent, each parent's ability to provide, stability, and the child's own wishes (depending on age and maturity).

The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) determines which state has jurisdiction over custody matters. Generally, the child's "home state" (where the child has lived for at least six consecutive months) has jurisdiction.

Child Support

Both parents have a legal obligation to support their children financially. Key concepts include:

• Guidelines: All states have child support guidelines that calculate support based on parental income, number of children, and other factors
• Income Shares Model: Used by most states. Combines both parents' incomes and allocates the support obligation proportionally.
• Percentage of Income Model: Used by some states. Calculates support as a percentage of the non-custodial parent's income.
• Deviation: Courts may deviate from guidelines based on special circumstances (extraordinary medical needs, travel costs for visitation, etc.)
• Modification: Support orders can be modified upon a showing of a substantial change in circumstances (job loss, significant income change, change in custody)
• Enforcement: Methods include wage garnishment, contempt of court, license suspension, and federal criminal penalties for willful non-payment

Spousal Support (Alimony)

Spousal support may be awarded to a financially dependent spouse. Types include:

• Temporary: Awarded during the pendency of the divorce
• Rehabilitative: Limited duration support to allow the receiving spouse to become self-supporting
• Permanent: Continuing support, typically in long-term marriages where one spouse cannot become self-supporting
• Lump Sum: A one-time payment in lieu of periodic support

Adoption

Adoption creates a legal parent-child relationship between persons who are not biologically related. The biological parents' rights must be terminated (voluntarily or involuntarily) before an adoption can be finalized. Types include agency adoption, private adoption, stepparent adoption, and international adoption.

Study Family Law for the CP Exam

While family law is not the most heavily weighted area, it does appear on the CP exam and can make the difference between passing and failing. Our flashcard system includes family law concepts organized for efficient review. Sign up free to get started.