B. Matrimonial Actions Flashcards
What may be included in separation agreements?*
Making testamentary gift
Waiving right of election
Dividing separate + marital property
Setting amount + duration of maintenance
- Fair + reasonable maintenance when made
- NOT unconscionable maintenance at time of judgment
Custody/Care/Education/Support of parties’ children
What is required for courts to set aside separation agreements?*
Unconscionability
Fraud/Duress/Coercion
Manifestly unfair agreement to Spouse due to other Spouse’s overreaching
NOT just one sided agreement
What is required for Divorce?*
1) ‘No-fault’ ground of ‘irretrievable breakdown of marriage’
- Spouse must state under oath
- Relationship broke down ‘irretrievably’
- For at least 6 months before commencement of action
2) Resolution of issues by Parties/Court including;
- Equitable distribution
- Payment/Waiver of spousal support
- Payment of Attorney’s fees
- Custody + Visitation
Cruel/Inhuman treatment
Defendant’s Actual/Constructive abandonment of Plaintiff
- 1 or more years
Confinement of Defendant in prison
- 3 or more consecutive years after marriage
Adultery
Living pursuant to degree of judgment of separation
- 1 or more years
Living apart pursuant to agreement
- 1 or more years
What is required for New York to exercise personal jurisdiction over parties in matrimonial actions?*
1) Plaintiff must be resident/domiciliary of New York
2) Either;
- Parties’ matrimonial domicile was NY before separation
- Defendant abandoned Plaintiff in NY
- Claim for economic relief accrued under NY law
3) Claim for economic relief (equitable distribution of marital property)
What is required for New York to exercise subject matter jurisdiction over matrimonial actions?*
1) Both parties are residents of NY at time of action
2) Cause of action was in NY
1) One of the parties is resident of NY for 1 continuous year immediately before the action
2) Either;
- Parties were married in NY
- Parties lived as spouses in NY
- Cause of action was in NY
One of the parties is resident of NY for 2 continuous years immediately before the action
What is required for service of process and pleadings in matrimonial actions?*
1) Verified pleadings
- UNLESS concerning adultery
2) Personal delivery of service of summons to Defendant
- UNLESS court order authorises substitute service
- Plaintiff is subject to summons once filed
- Defendant is subject to summons once served
3) Serve copy of ‘automatic orders’ (restraining orders) to Defendant
- NOT to dispose property
- NOT to incur debts to other spouse
- NOT to remove children from existing medical policies
- NOT to change life insurance beneficiaries