Domestic relations Flashcards
Unmarried Cohabitants - Agreements
An express agreement between unmarried persons is enforceable.
No implied contracts.
Unmarried Cohabitants - Agreements Exception
Consideration cannot be sex.
Premarital Agreements - Scope
Unlimited scope allowed.
Premarital Agreements - Formalities
- In writing
- signed by both
- Acknowledged (SoF)
Premarital Agreements - What is the condition precedent?
Getting married
Premarital Agreements - How to show it is unenforceable?
- Fraud, duress, unconscionability (when made - EXC alimony - next slide)
- Must be voluntary and knowledgeable
- Bargaining power:
a) legal representation
b) education
c) experience
Premarital Agreements - Requirements for Alimony Provision
- Fair and reasonable at the time agreement was made; AND
2. Not unconscionable at the time of divorce
Non-marital Children Rights
Exact same rights as marital children under Equal Protection.
Filiation Proceeding Defined
What NY calls a paternity suit
Who can commence a filiation proceeding?
By the
- mother
- child through a guardian
- state of New York
- purported father (to assert rights as father)
What is the SoL for a filiation proceeding?
Before the child turns 21
Filiation Proceeding - Equitable Estoppel
A man who has represented himself as the father and established a paternal relationship may not deny his paternity if child has relied.
-this works both ways: if mother acquiesced to one father can’t claim against another
Requirements for marriage
- License
2. Ceremony
Marriage Ceremony Defined
A solemn DECLARATION by the couple in front of an OFFICIANT and a WITNESS.
“Declaration” - undertake to enter seriously into status.
“Officiant” - member of clergy / civil officer who can administer oath / captain
Marriage Ceremony - Prescribed Words
There are none.
Common Law Marriage
Not available in NY
Will NY recognize another state’s common law marriage?
Yes. “Portable”
NY Matrimonial Causes of Action
- Declaration of nullity
- Annulment
- Legal separation
- Divorce
NY Nullity Grounds
Lack of capacity to marry - bigamy or incest.
(Cousins OK - “that explains half the people you see on the subway”)
Renders marriage void. No need for official process.
NY Annulment Grounds
- One party was under 18
- Mental incapacity
- Duress
- Fraud
- Physical incapacity to have sex (not psych) (SoL - 5y after marriage)
- 5 years of incurable insanity arising AFTER the marriage.
NY Annulment - Waiver
If you continue to cohabitate after the defect then you waive the right to annulment.
Annulment Grounds - Fraud
Misrepresentation or concealment of information that goes to an essential aspect of the marriage by one party prior to the marriage (SoL - 3y after learning). - religion - fertility - sexual history - sexual proclivities (not money or property)
Legal Separation - 5 Grounds
- Cruel & inhuman treatment
- Abandonment (no SoL)
- Adultery
- 3 years of consecutive imprisonment
- Failure to support
Legal Separation - Elements of Abandonment
- 1 spouse leaves
- without consent of the other
- without a valid justification
- and without the intent to return
“Contructive abandonment” even if he is home!
Affirmative Defenses to Adultery
- Condonation (waiver)
- Connivance (hiring a prostitute to entrap the guy)
- Recrimination (dirty hands - you also cheated)
- Statute of Limitations - 5 years after discovery
Divorce - Grounds
- No fault; or
- Fault
i. cruel and inhuman treatment
ii. abandonment for 1 year
iii. Adultery
iv. 3 years of continuous imprisonment
v. conversion (live apart for a year, then convert into divorce)
No fault divorce - requirements
Marriage has broken down for
1. 6 months; and
2. 1 party has stated so under oath.
Effective after all collateral issues are resolved.
Dissolution - Grounds
Spouse missing “without tidings” for 5y.
1. Demonstrate diligent search
2. Publish newspaper request
3. P lived in NY for 1y or NY was matrimonial domicile at time of disappearance.
Presumed dead! Therefore no collateral issues.
Maintenance (Alimony) Support Factors
Just use the facts suggested in the question.
Law has 19 factors - health, age, education, housewife, etc
Adultery and violence can affect.
Counsel fees for poorer spouse?
Rebuttable presumption.
Maintenance Modification
Based on substantial change of circumstances.
Only prospetive change. Arrears payments not modifiable.
Maintenance Modification based on Separation Agreement
Extreme hardship.
Maintenance - Automatic termination events
- Death of either party
- Remarriage or cohabitation of receiving party
(unless agreement states otherwise)
Property division:
NY is “Equitable Distribution” state - 2 Step Process
- Categorize all assets
2. Distribute assets
Equitable Distribution - Categories of Property
- Husband’s separate property
- Wife’s separate property
- Marital property
(On exam - arrange in 3 columns)
What can be separate property?
- Property owned by the spouse prior to the marriage
- Gift or inheritance in their sole name received after marriage
- Property agreed to be separate
- Personal injury compensation for pain and suffering
- Any appreciation in value in other non-marital property (except due to spouse’s effort)
Everything else is marital asset by default
How to distribute marital property?
Factors:
Loss of insurance or inheritance rights after divorce.
Need for home to raise kids
(Marital fault - NOT factor!)
Termination of Parental Rights - What Court?
Family court
Termination of Parental Rights - Standard of Proof?
Clear and convincing evidence
Termination of Parental Rights - Right to counsel?
Yes, one will be appointed if poor.
Termination of Parental Rights - Grounds?
- Abandonment of 6 months w/ intent
- Permanent neglect
- Abuse
- Mental illness of developmental disability
- Murder of the child’s sibling
Who can adopt?
- Married couple
- Single adult
- Two unmarried parties in an intimate relationship
Who can be adopted?
Anyone - child or adult
Consents necessary for adoption
Under 14: Both biological parents unless they voluntarily surrendered kid to authorities, OR legal custodian.
14+: Adoptee consent.
Child Support - General Rule
Both parents must support child up until 21, or through college with special circumstances.
Child Support - When can it be modified?
Change in income of 15%
Child Custody - Uniform Child Custody law
A state has jurisdiction to enter a preliminary custody order if it is currently the home state of the child or was the home state within the last 6 months.
Child Custody - What is a “home state”?
Where the child lived with a parent for 6 months.
Child Custody - Judicial Standard for determining custody
“Best interests of the child.”
Child Custody - Determining Factors
- Mental and physical health of parents
- History of violence
- New companions
- If over 12, child’s preferences
- Keeping siblings together
Child Custody - Parent v. non-parent
Still BIC standard, but presumption of preference with parent.
Grandparental Visitation Rights
Parent has due process rights to raise child how he/she wants.
Petitioning grandparent must show special circumstances of a SUBSTANTIAL STATE INTEREST in allowing visitation.
OOS or Non-U.S. Marriage
If valid where contracted then valid here; UNLESS
it violates a strong public policy of NY.
OOS Divorce - valid?
Yes, res judicata.
Including alimony, property, possession division.
Foreign - comity rule.
OOS Ex parte divorce - valid?
If spouse received notice.
Foreign divorce ex parte - valid?
Never.
Which state has jurisdiction on support?
State that issued first order has “continuing and exclusive jurisdiction” as long as parent or kid still lives there.
Which state has jurisdiction on custody?
State with “most significant connection to child”
