Family Law Black Letter Review

Question 1

Can adopted siblings marry?

Answer 1

Many states prohibit marriages by siblings, whether related by blood, by marriage, or by adoption.

Question 2

What is required in most jurisdictions that recognize common law marriage?

Answer 2

(i) an exchange of consents between two people, (ii) cohabitation, and (iii) a holding out publicly of living together as spouses.

Question 3

What are the grounds that make a marriage voidable?

Answer 3

(i) nonage; (ii) lack of physical capacity; (iii) lack of mental capacity; (iv) duress, and (v) fraud.

Question 4

What are the grounds that make a marriage void?

Answer 4

(i) bigamy or polygamy; and (ii) consanguinity or affinity. Abuse is not a valid ground for finding a marriage voidable.

Question 5

When is a biological parent’s consent to adoption waived?

Answer 5

The requirement of parental consent may be waived if the court determines that it is being unreasonably withheld against the best interest of the child. This waiver occurs most often when the parent has deserted or abandoned the child

Question 6

Who can sue to have a void marriage annulled?

Answer 6

Any interested party.

Question 7

Who can sue to have a voidable marriage annulled?

Answer 7

Only one of the spouses.

Question 8

Who decides whether third-party visitation is appropriate?

Answer 8

As long as a parent is fit, that parent’s determination as to the appropriateness of third-party visitation must be given special weight.

A judge may not override a fit parent’s decision regarding visitation merely because she feels a better decision would be in the best interest of the child.

Question 9

Usually, all property acquired during marriage is considered marital property unless:

Answer 9

It is acquired through gift, bequest, devise, or descent.

Question 10

What kind of property is a gift given to both spouses?

Answer 10

Marital property.

Question 11

How do courts determine the purpose of a gift?

Answer 11

They look at (i) the gift giver’s intent and (ii) how the gift was used.

Question 12

Should wedding gifts be classified as marital property?

Answer 12

Yes, unless they are only suitable for one spouse.

Question 13

What is the purpose of spousal support?

Answer 13

To ensure an adequate income stream for a spouse whose economic dependency resulted, at least in part, from the marital relationship.

Question 14

What do courts consider when awarding spousal support:

Answer 14

1. The standard of living during the marriage
2. The duration of the marriage
3. The age and physical and emotional conditions of both parties
4. The financial resources of the parties
5. The contribution of each party to the marriage
6. The time needed to obtain education or training to enable either party to find appropriate employment
7. The ability of the payor spouse to meet his needs while paying spousal support.

Question 15

When is a spouse awarded permanent spousal support:

Answer 15

When she has neither resources nor ability to be self-sustaining.

Question 16

What is child support based on?

Answer 16

(i) The child’s monetary need and (ii) the obligor’s ability to pay.

Question 17

How is child support determined in most jurisdictions?

Answer 17

Most states use a statutory formula that considers the number of children, their ages, their special needs, and the parents’ income.

Question 18

Is marital fault considered in determining a spousal support award?

Answer 18

In some states, but not in all.

Question 19

What kinds of spousal support awards exist?

Answer 19

Permanent and temporary awards.

Question 20

Can courts deviate from the statutory formula used to determine child support obligations?

Answer 20

Yes, the court may deviate from the guidelines but must make findings of fact justifying the deviation.

Question 21

How is jurisdiction for divorce determined?

Answer 21

Divorce is an in rem action. A state has subject matter jurisdiction over a divorce if (i) one spouse is domiciled in that state and (ii) has met a residency requirement.

Question 22

Can a court determine the division of marital property if it lacks jurisdiction over both spouses?

Answer 22

It cannot without independent jurisdiction over the property.

Question 23

What is the limited exception to a court that lacks personal jurisdiction over one of the parties’ ability to adjudicate divisions of marital property and support?

Answer 23

If the state has sufficient minimum contacts with the defendant and the property, it can adjudicate the parties’ rights to marital property.

Question 24

What must be shown for a no-fault divorce?

Answer 24

(i) the marriage is irretrievably broken and (ii) the spouses have been living apart for some time.

Question 25

What constitutes voidable fraud?

Answer 25

1. Religion - a lie about religion or depth of observance
2. Procreation - a lie about wanting to or being able to have children
3. Sex - you lie about your sexual history by hiding that you were at one point a prostitute

Question 26

Are lies about property holdings or social status grounds for annulment?

Answer 26

No.

Question 27

What must be proved in order to show irretrievable breakdown of a marriage?

Answer 27

Seperation.

Question 28

What must be shown in order to prove fault for a fault-based divorce?

Answer 28

1. Adultery
2. Desertion (unjustified departure from the marital home for a continuous, statutorily specified period)
3. Physical cruelty
4. Mental cruelty
5. One spouse stops basic hygiene
6. Incarceration
7. Drug addiction or habitual drunkenness

Question 29

What are the defenses to fault-based divorce?

Answer 29

1. Condonation
2. Connivance
3. Recrimination

Question 30

In order to get economic remedies pursuant to a divorce, what jurisdiction is required?

Answer 30

You must litigate in a forum that has subject matter jurisdiction over the defendant spouse, i.e. a forum in which the defendant spouse lives and has established residency.

Question 31

What must be the case in order for a property division within a prenuptial agreement to be upheld?

Answer 31

For a court to uphold a premarital property agreement, the agreement must contain fair and reasonable economic provisions for the claiming spouse.

Question 32

Can a prenuptial agreement be unconscionable?

Answer 32

Yes.

Question 33

What does the court look to in order to determine if a prenuptial agreement is unconscionable?

Answer 33

The circumstances surrounding the formation of the agreement.

Question 34

Are custody agreements in prenuptial agreements binding?

Answer 34

No. Courts will always determine custody issues by looking at the best interests of the children.

Question 35

What does the court look at when determining how it will award custody?

Answer 35

(i) the fitness of the parents, (ii) whether the parents agree on joint custody, (iii) the parents’ ability to communicate and cooperate concerning the well-being of the children, (iv) the children’s’ preference (depending on their age), (v) the level of involvement of each parent in the children’s lives, (vi) geographic proximity to the parents’ homes, and (vii) the effect of joint custody will have in the children’s psychological development.

Question 36

Who usually gets custody of children?

Answer 36

The primary caregiver.

Question 37

Can child support be contracted away?

Answer 37

No.

Question 38

What kind of duty do parents owe their children?

Answer 38

An equal duty to support their children.

Question 39

When can a spousal support award be modified?

Answer 39

When there has been a substantial and material change in circumstances affecting the needs of the recipient spouse or the ability to pay of the obligor spouse.

Question 40

Can erroneously misidentified fathers disestablish paternity?

Answer 40

There is a growing trend towards allowing this.

Question 41

How does adoption occur (what is its process)?

Answer 41

First, the biological parents’ rights are terminated.

Then, a new parent child relationship is created between the child and the adoptive parents.

Question 42

Do biological parents need to give their consent in order to effectuate an adoption?

Answer 42

Usually, they do. However, this can be modified. For instance, if a child has been abandoned then consent might not be necessary.

Question 43

When a third party is attempting to obtain custody of a child, what does the court consider?

Answer 43

The best interests of the child weighed against the interests of the natural parent, which are given great weight.

A natural parent has the presumptive right to raise his or her child. As such, absent voluntarily relinquishment, the parent is entitled to custody unless it is shown that the parent is unfit.

OR, under special circumstances (relinquishment of the child) custody will be awarded to a third party.

Question 44

What is one special circumstance in which the court will find that custody of a child has been established with a third party that is not a natural parent of the child?

Answer 44

When the child was relinquished.

Question 45

How should a court address a parent’s refusal to allow his or her child to be visited by a third party?

Answer 45

The Supreme Court has held that as long as a parent is fit, that parent’s determination as to the appropriateness of third-party visitation must be given “special weight.”

Question 46

Can a court overrule a parent’s denial of third-party visitation rights when the court feels that a better decision could be made or visitation would be in the child’s best interest?

Answer 46

No. The natural parent must be unfit and therefore incapable of making the visitation determination.