Domestic Relations Flashcards
1
Q
Agreements Between Unmarried Couples
A
-
Express agreements between unmarried couples are enforceable.
- Ex. If we split up, H will pay W $1,000 per month for three years in exchange for her taking care of the household while we were together.
- Exception:** not enforceable where **sex is consideration for the agreement.
- Courts will not recognize implied agreements between unmarried cohabitants.
2
Q
**“Heart Balm Actions” **
A
- NY has abolished actions for breach of contract to marry, etc., but sister judgments based on heart balm claims are entitled to enforcement as matter of full faith and cred
- Actions not abolished:
- Deceit action may be maintained on basis of D’s fraudulent misrepresentation of capacity to marry or fraudulent misrepresentation that marriage ceremony was legitimate.
- Cohabitation preceding fraud will bar recovery.
- To recover gifts solely in conisderation of marriage (not if donor was married to another when given; fault not a defense).
- Deceit action may be maintained on basis of D’s fraudulent misrepresentation of capacity to marry or fraudulent misrepresentation that marriage ceremony was legitimate.
3
Q
Prenuptial Agreements
A
- Engaged couples may enter into agreements, ordinarily economic, in anticipation of their marriage. **Nothing limits the scope of these agreements to economics. **
- Must be freely made
- **3 Year SOL **
- REQUIREMENTS for valid agreement ––
- Writing, signed and acknowledged by both parties (statute of frauds)
- Couple must actually mary
- Defenses to Enforceability of Prenuptial Agreement
- Fraud (no trickery/coercion; must be voluntary/knowing; less likely to be fraud if both sides had independent counsel or relative business experience).
- Duress (no trickery or coercion; voluntary/knowing agreement;; independent legal counsel weighs against; threat to call of wedding ordinarily not duress).
- Unconscionability (looks to whether there was disclosure of financial situation; independent representation; relative sophistication of the parties and understanding of significance of signing the agreement).
- **Alimony **–– must have been FAIR AND REASONABLE when the contract was made and NOT UNCONSCIONABLE at time of the divorce;
- Contracts requiring dissolution of marriage or providing for procurement of grounds for divorce are invalid.
- All other provisions –– only requires that agreement was NOT UNCONSCIONABLE when made.
4
Q
Marriage – Creation
A
- **Ceremonial Marriage **is the only way to get married in New York.
- NY recognizes out-of-state common law marriages
- **New York Marriage: **
- License
- Must have capacity to marry (sane mind; suitable age)
- 18+, or 16-17 with prior written approval and consent of parents; younger than 16 need consent of parents and a judge; no one under 14.
- persons lacking mental capacity -> grounds for annulment
- void if married while serving life sentence of imprisonment.
- Same-sex couples can marry in NY
- Must have capacity to marry (sane mind; suitable age)
- Ceremony
- Officiant (member of clergy; civil officer empowered to administer oath; ship captain at sea)
- Witness (other than officiant) (commonly 2, need 1)
- Solemn Declaration (indicating take obligation seriously; no specific words required or prescribed form of ceremony).
- Occurs between 24 hours and 60 days of the issurance of license.
- License
5
Q
Marriage at sea
A
- Recognized in NY if valid under the law of the shipowner’s domicile.
6
Q
Husband & Wife – legal relation to each other
A
- Can sue each other for injury to persons/property;
- Can make contracts with eachother, except those that alter/dissolve marriage or relieve of support if other spouse will become public charge
- A married woman’s contracts do not bind her husband/husband’s property.
- Wife can own/convey own separate property
- Spouses can be convicted of crimes agianst each other, included rape.
- Wife’s domicile doesn’t necessarily follow husband’s
- Each spouse must support the other (means/need tests). A husband is liable for the wife’s antenuptial debts only to the extent of property, if any, he has acquired from her; he is liable for postnuptial debts that wife has incurred for her support (probably goes both ways with gender).
- A spouse who is not being supported can seek support in Family Court, which may be enforced by warrant for arrest; jail up to six mnths; rehabilitation program; probation; post bond; sequestering assets; suspending driving privileges; entering money judgment; etc.
7
Q
Terminating Marriage - Jur over Defendant and Durational Residence Requirements
A
- As long as NY is domicile of one party to the marriage, it may award judgment affecting status.
- Ancillary Qs such as support, alimony may be addressed only if NY has personal jur over adversey-affected party.
- Can exercise if party to be affected had, at some time in the recent past, cnx with state of NY AND party seeking support is resident of or domiciled in the state when claim made.
- Durational Residency Requirements:
- None if both parties are NY residents;
- 1 year if the marriage was entered into in NY; was marital domicile at one point; or cause of action arose in NY;
- 2 years for any other reason.
8
Q
Marriage – Termination
(5 Causes of Action)
A
- Declaration of Nullity
- Annulment
- Action for Legal Separation
- Divorce
- Dissolution
- Confidential for 100 years
- Compulsory financial disclosure
- No foreclosure on primary residence for payment of attorney’s fees (But lien ok).
- Fees must be waived for indigents.
9
Q
Declaration of Nullity
A
- Used when couple lacked capacity to marry and incapacity rendered marriage void; never really married but want the order for clarity.
- Grounds:
- Bigamy (not waivable)
- but marriage becomes voidable and subject to ratification if spouse from previous valid marriage dies b4 action.
- Incest (criminal penalty of up to six months in prison)
- Ancestors (mother, grandmother, great-grandmother; father, grandfather, great-grandfather);
- Descendants (son, daughter, grandchildren, great-grandchildren)
- Siblings (whole or half; not step-siblings)
- Lineal Relatives (aunt, uncle, niece, nephew, up or down one generation).
- legal to marry first cousins in NY
- Bigamy (not waivable)
10
Q
Annulment
A
- 6 Year SOL unless otherwise specified
- Lack of capacity makes marriage voidable, not void.
- Five grounds:
-
Underage (must be at least 18, unless 16+ and consent of both parents; or 14+ with consent of both parents and a judge; but can never lawfully marry under 14.
- Waiver – cohabitation continued after 18th birthday forfeits this ground for annulment.
- Deniable by court
- Jury trial
-
Mental Incapacity or Illness
- At time of marriage – didn’t understand what’s going on
- Mental illness (5 years incurable insanity arrinsg after date of mariage; 3 court-appointed physcians agree on diagnosis; can recover from illness)
- Development disability (child, etc.)
- Forfeited by cohabitation and continued seual relationship
- Right to jury trial
-
_Duress _
- Threat of physical violence to obtain marriage
- Waiver if cohabitation, sexual relationship after threat removed;
- Jury trial
-
Fraud **
- Misrepresentation or concealment of essential aspect of marriage by one party. Materiality requirement. Includes ––
- Fraud as to religion (type; sincerity; intesntiy)
- Procreation (unable to have kids and agre where typically can; serious genetic conditions; pregnant with baby that’s not husband’s at time of marriage);
- Sexual history (must be major, i.e., prostitute, lying about sexual proclivities or intentions).
- does not include money/property/social status on grounds that people don’t get married to improve economic condition.
- Waiver if cohabitation and sexual relationship continue
- 3 Years SOL from learning of fraud
- Jury trial
- Misrepresentation or concealment of essential aspect of marriage by one party. Materiality requirement. Includes ––
-
Physical Incapacity (incurable physical inability to engage in safe, normal sexual intercourse; discovered upon trying to consummate marriage)
- Exception – if can be cured by medication; not applicable to fertility issues; psychological inability to have sex doesn’t count.
- Not waived by cohabitation.
- SOL = 5 years from date of marriage.
- NO JURY TRIAL –– Only one without jury right.
-
Underage (must be at least 18, unless 16+ and consent of both parents; or 14+ with consent of both parents and a judge; but can never lawfully marry under 14.
11
Q
Action for Legal Separation
A
5 year SOL from date of grounds arising unless otherwise stated
- General rule: this does not terminate the marriage. Court (a judge, not a jury) grants permission to live separately, and will adjudicate collateral matters such as money and child custody. Can be permanent or temporary.
- Grounds
- Cruel and inhuman treatment
- Physical and/or mental abuse
- Continuing course of conduct
- Abandonment
- Voluntary departure (convicted of crime doesn’t count);
- Not consented to by spouse
- With no intent to return (no bright line time)
- **OR –> **Constructive Abandonment
- Refusal to have sex, carry on marital relationship.
- NO SOL (continuing offense)
- Adultery
- Defenses = condonation (waiver, freely resume cohabitation after learning); connivance (procuring the adultery of spouse); recrimination (also adultering).
- 5 years SOL from discovery of offense
- Proof must be through 3rd party testimony or circumstantial evidence; testimony of spouse alone not sufficient.
- Three years’ consecutive imprisonment
- Failure to support (economically)
- NOT a ground for divorce
- Cruel and inhuman treatment
12
Q
Divorce
A
- Fault Divorces
- Cruel, inhuman treatment
- Abandonment (1 full year)
- Adultery
- Three years’ imprisonment
- Conversion Divorce
- Couple separates (agreement or order)
- If agreement, must be in writing, acknowledged, freely made, and filed with court before divorce.
- Physically separate and apart for 1 year then can convert into divorce
- Rescinded, starts again if you co-habitate with intent to reconcile.
- Waiver – material breach of separation agreement. Sex with intent to reconcile affects separation agreement but not separation order.
- Couple separates (agreement or order)
- True No-Fault Divorce
- Irretrievable breakdown of marriage for period of at least 6 months.
- Usually one spouse’s testimony OK
- Divorce will not actually enter until collateral issues resolved (e.g., money, children)
13
Q
Dissolution
A
- Spouse missing without tidings for period of 5 years
- Must make diligent search
- Must publish request that spouse return for 3 consecutive weeks in an English-language newspaper
- Plaintiff must have lived in NY for at least 1 year or NY must have been matrimonial domicile at place of disappearance.
- No collateral remedies available
14
Q
Full Faith and Credit:
Marriage and Divorce
A
- Out Of State And Non US Marriage: Valid where contracted then valid here unless it violates a strong public policy of the state of NY
- Out Of State Divorce
- Participation by Both Spouses: If both spouses participate give FULL FAITH AND CREDIT; no collateral attack allowed.
- That case is res judicata on all issues that were litigated or could have been litigated
- Participation by One Spouse (Ex Parte):
Ex parte divorce in another US state is PF valid if P received notice but it can be collaterally attacked.- Collateral attack would be evidence that the party who obtained the divorce was not truly domiciled in the forum state
- Participation by Both Spouses: If both spouses participate give FULL FAITH AND CREDIT; no collateral attack allowed.
- Out of Country Divorces
- Participation by Both Spouses:
NY usually recognize if both parties participate (liberal); Comity. - Participation by One Spouse (Ex Parte) à Ex parte out of country divorce is totally invalid
- Participation by Both Spouses:
15
Q
Automatic Orders Upon Filing of Case Affecting Marital Status
A
- No sale of assets
- No concealment of assets
- No incurring of unusual debts
- No change in insurance covrage
- Parties obligated to make full financial disclosures