Bar Prep - Domestic Relations Flashcards
What is the rule regarding the enforceability of contracts between unmarried cohabitants?
An express agreement that would regulate H and W’s economic affairs after they break up is ENFORCEABLE.
What is equitable estoppel regarding paternity?
Man who has erroneously represented himself as child’s father can be estopped (prevented) from denying paternity if the child has justifiably relied on paternity representation to child’s detriment.
True or False: NY will imply a contract between unmarried cohabitants if the couple did not entered into a bargain.
FALSE. NY will not imply.
What are key points to discuss potential challenge to agreements between unmarried cohabitants?
(1) Agreement must be in writing, signed by both and acknowledge.
(2) Couple actually gets married
(3) Contract not made under fraud, duress or unconscionability.
What is the exception to the general rule that agreements between unmarried cohabitants are enforceable?
Only enforceable if the consideration is something OTHER THAN sex.
What are key factors to look for in analyzing whether a contract between unmarried cohabitants is unconscionable?
Whether each party had ind counsel, business experience, knew effects of waiver.
What are the rights of children born to unmarried cohabitants?
Non-marital children are entitled to the same protections under the law as children born into marriage
What is a filiation proceeding?
Paternity suit.
What are the requirements of marriage process?
(1) License
(2) Ceremony
What are the requirements of a marriage ceremony?
(i) Officiant
(ii) Witness
(iii) Exchange of promises (solemn declaration)
Official definition – solemn declaration before an officiant and a witness
True or False: There is common law marriage in NY.
FALSE - it was abolished.
If a couple enters in a valid common law marriage in a state where its permissible and they relocate in NY - treated as married.
What are the 5 matrimonial causes of action for the termination of marriage
(1) Declaration of nullity
(2) Nullity
(3) Legal Separation
(4) Divorce
(5) Dissolution
True or false: there is a prescribed language for matrimonial ceremony.
NO - you can write your own vows.
What is a declaration of nullity?
Couple lacked capacity to marry AND incapacity renders their marriage VOID.
True or False: Litigation to end a marriage is brought in State Supreme Court (not family court).
True
What are common grounds for declaration of nullity?
(1) Bigamy
(2) Incest
What is annulment?
Used when there is capacity issue that renders marriage voidable.
True or False: grounds for annulment are waivable through cohabitation.
True
What are the grounds for annulment?
(1) Nonage
(2) Mental incapacity at time of marriage
(3) Duress
(4) Fraud
(5) Physical incapacity
True or False: if you are 16 or 17 you can get married with consent of your mother.
FALSE - you need the consent of BOTH PARENTS.
True or False: if you are 14 or 15 you can get married with approval of both parents and judicial consent.
True.
Person under 14 NEVER has legal capacity to get married.
What is the rule regarding annulment and mental incapacity at time of marriage?
Mental illness or developmental disability
This ground can be waived if you continue to cohabit after the person becomes lucid.
What is the rule regarding annulment and duress?
Marriage can be annulled under threat of force.
This ground for annulment is waivable through cohabitation after physical threat is removed.
What is the rule regarding annulment and fraud?
The misrepresentation or the concealment of information by a fiance prior to the marriage that goes to a vital or essential aspect of that marriage.
When is an annulment on the ground of fraud waivable?
Cohabitation after learning about the truth of the misrepresentation or concealment.
True or False: regarding an annulment for fraud, misrepresentation must go to an essential aspect of the marriage?
True.
Does fraud going to religion go to essential aspect of marriage?
YES - this would be a ground for annulment.
If not waived.
Does fraud with regard to ability to child or probably of birth defects, is this grounds for annulment?
Lying about ability to have kids = fraud and can be a ground for annulment.
Is money, property or social status grounds for annulment based on fraud?
No - not sufficient for an annulment.
What is the rule regarding the physical incapacity grounds for an annulment?
An incurable physical condition that prevents safe and normal sexual intercourse is grounds for annulment.
Must be brought within 5 years of marriage.
What is legal separation?
Allows you to live separate and apart with court permission. Leaves the marriage intact.
What is the rule regarding annulment and 5 years of incurable insanity?
Spouse was sane at time of marriage, other spouse waits 5 years and then you can get annulment.
Requires 3 different court appointed physicians to testify and agree.
Why do couples opt for legal separation.
Keeps marriage intact.
(i) pragmatic reasons – preserve marital status for health insurance or tax benefits
(ii) religious or physical
What is the point of legal separation?
Determine and economic and custody issues when spouses move into separate homes
No jury trial.
What are the grounds for legal separation in NY?
(1) Cruel and inhumane treatment
(2) Abandonment
(3) Adultery
(4) 3 years consecutive imprisonment
(5) Failure to support spouse
What is the definition of cruel and inhumane treatment (ground for legal separation)?
Physical and mental abuse; endangers well-being of innocent spouse and makes it unsafe or improper for continued cohabitation.
What is the definition of abandonment (ground for legal separation)?
Requires:
(1) D spouse to voluntary depart from marriage
(2) Without consent of other spouse
(3) Departure is unjustified, and
(4) No intent to return
What is the definition of adultery (grounds for legal separation)?
Act of sex or deviant sex voluntary performed with another person who is not your spouse during marriage