2. Termination of Marriage in New York Flashcards
Five separate matrimonial actions in New York
- A Declaration of Nullity
- An Annulment
- A Lawsuit for Legal Separation
- Divorce
- Dissolution
Declaration of Nullity
Only used where one party lacked capacity to marry prior to the date of the wedding, and the incapacity is so serious as to make the marriage totally void.
Two grounds for a declaration of nullity:
- Bigamy
2. Incest
Annulment
If there was a capacity problem prior to the marriage that only makes the marriage voidable.
The grounds for annulment can be waived.
Grounds for annulment in New York:
- Being too young (capacity problem)
- Mental Incapacity (must predate the marriage)
- Duress (shotgun wedding)
- Fraud (most likely to be tested)
- Physical incapacity
- Five years of incurable insanity occurring after the date of the marriage
When can fraud be a ground for an annulment?
Prior to the marriage, one party misrepresents or conceals from the other, facts that go to an essential aspect of the marriage.
Examples of when fraud is grounds for an annulment
- Religion,
- Level of religious commitment,
- Lying about procreation or sex.
What level of physical incapacity is grounds for an annulment?
An incurable physical condition that prevents you from engaging in safe, sexual intercourse.
(Only a ground if the couple has refrained from having sex until the wedding night.)
How to waive an annulment:
You continue to cohabit after the impediment is removed.
Cohabitation
Living together plus having sexual relations
What is a Lawsuit for Legal Separation?
- Does not end the marriage
- It results in an order that makes it lawful for them to live apart, that adjudicates their financial affairs, and deals with any issues concerning their kids.
Reasons to get a legal separation instead of a divorce:
- Practical considerations (benefits are through spouse, taxes, etc.)
- Religious or philosophical scrupulous against divorce
Five grounds that can be raised as a predicate for legal separation
- Cruel and inhuman treatment (both physical and mental cruelty)
- Abandonment
- Adultery
- Three Years Imprisonment
- Failure to economically support
When will cruel and inhuman treatment be grounds for a legal separation?
It must endanger the wellbeing of the innocent spouse and makes it unsafe or improper for them to continue to live together.
Four requirements for abandonment to be grounds for a legal separation
- A voluntary departure of one spouse
- Without the consent of the other
- Unjustified
- Without intent to return
Constructive Abandonment
Leaving the marriage without leaving the house.
Adultery
An act of sex or deviant sex voluntarily performed with another person, not your spouse during the marriage.
Affirmative defenses to adultery:
- Recrimination - There is an offsetting act of adultery by the plaintiff
- Condonation - After learning of the adultery, the innocent spouse continues to cohabit
- Connivance - The “innocent” party lured the guilty party into committing adultery
- Statute of limitations - If there is adultery, you have five years to file a lawsuit for separation
Ways to prove adultery:
- Third party testimony
- Circumstantial evidence showing an opportunity to cheat and a disposition to cheat
- The testimony of one of the two spouses is NOT sufficient
Six grounds for a divorce in New York:
- Cruel and inhuman treatment (both physical and mental cruelty)
- Abandonment (must wait until the other party has been gone for 12 months)
- Adultery
- Three Years Imprisonment
- A conversion divorce
- The irretrievable breakdown of the marriage for a period of at least six months (No-Fault)
What is a conversion divorce?
A conversion from a separation.
First the couple must separate for one year
They separate as the result of a lawsuit for separation, or
They separate as a result of mutual agreement.
Validity of a separation agreement:
A separation agreement must be:
- In writing,
- Freely made (no undue influence of duress), and
- Acknowledged (notarized)
How is an irretrievable breakdown of the marriage proven?
One party states so under oath
What is a dissolution of a marriage?
When your spouse has disappeared, without any tithings for a period of five years
