Domestic Relations Flashcards
Matters that Precede Marriage
i.- Agreements Between Unmarried Couples
a.- Antenuptial and Postnuptial Agreements,
Under DRL (NY Domestic Relations Law), an antenuptial agreement is an express contract between prospective spouses in contemplation of marriage, typically addressing economic matters in the event of divorce after marriage, provisions for testamentary dispositions, and any other topics related to the marriage.
- Enforing ante nuptial agreements: a valid ante nuptial agreement must be free from duress and entered into freely by both parties. The Statute of Fraud requirements must also be satisfied. Divorce, annulment or declaration of nullity do not rescind an antenuptial agreement because the purpose of such an agreement is to govern a divorce. The upcoming marriage is the consideration for the ante nuptial agreement. If the marriage does not occur, the parties are discharged from any obligations under the agreement. Once the marriage occurs the agreement becomes enforceable. There is a three-year statute of limitations for bringing an action or claiming a defense stemming from an ante nuptial agreement.
- Postnuptial agreements: agreements entered into after marriage are valid in NY as long as they satisfy the Statute of Frauds.
b.- Agreements to Divorce,
Parties may not agree to a divorce before they are married. Nor can parties contract to engage in conduct that would be grounds for divorce.
Matters that Precede Marriage
ii.- Children Born to Unmarried Mother
a. - Rights of Non-Marital Children
- has the same rights as a marital child.
- inherits from both biological parents.
- has standing to sue for wrongful death.
- has an entitlement to governmental benefits.
- is entitled to economic support from both parents through age 21.
b. - Identity of the Parents: The mother’s identity is rarely an issue. Identifying the father may present the following issues:
- Filiation Proceeding: Under the Family Court Act § 542, if the father is unknown or decides not to acknowledge paternity, a filiation proceeding can be commenced. A filiation proceeding may be started by the mother, the father, by an authorized representative, or whomever stands in the shoes of the child’s parents. A filiation proceeding must be initiated in family court since it has exclusive jurisdiction over filiation proceedings. The plaintiff in a filiation proceeding must establish that the person is the father by clear and convincing evidence.
* DNA Evidence: If a DNA test shows that the defendant is the father by grated than 90% certainty, there is a presumption that the defendant is the father. If the alleged father would like to contradict this evidence, he must rebut by showing there was no sexual access to the mother at conception. If a DNA test shows that the defendant is not the father, the case is dismissed.
* Statute of Limitations: A filiation proceeding may be brought at any time before the child has reached the age of 21. It can be brought as soon as the pregnancy is discovered.
- Doctrine of Equitable Estoppel: the Doctrine of Equitable Estoppel prevents a biological father from claiming paternity, or it prevents a non-biological father from denying paternity after he previously claimed to be the father or acquiesced to being the father for a prolonged period.
* Invoking equitable estoppel: this doctrine is invoked when failure to promptly assert a right makes it inequitable to permit the exercise of the right after a lapse of time.
* Best interest of the child: NY courts will look to what is the best interest of the child in making this determination.
- Triggering Support: A finding that the parties in question are the parents triggers the obligations for support.
Claims and Actions Arising Before Marriage
NY has abolished actions for breach of contract to marry and other heart balm actions.
i.- Obsolete Rules
Heart Balm Claims (abolished). The following five tort claims have been abolished in NY.
- Breach of promise to marry: breaking the engagement.
- Seduction of an Unmarried female: this tort was actionable by the unmarried woman’s father.
- Alienaton of affection: this tort was brought against a third party who turned the potential spouse hostile.
- Criminal conversarion: this tort was a civil claim against an adulterer.
- Jactitation of Marriage: this tort was brought against a party who had widely and wrongfully represented that he or she was married.
ii. - Actions Unaffected by Heart Balm Prohibition
- Gifts given in contemplation of marriage: they may be recovered only if the couple does not get married.
- Enforcement of sister state or foreign judgments: sister state judgements based on heart balm claims are subject to full faith and credit. Foreign judgments based on heart balm claims are subject to comity.
- Deceit: lawsuits for deceit may arise from actual misrepresentations concerning capacity to marry and legitimacy of ceremony.
Application of Heart Balm Claims on the Bar Examination: today, it is a felony to file an action for these heart balm claims in NY. If these torts appear in a NY bar multiple choice, they are incorrect answer choices.
Marriage
There are three parties to a NY marriage: husband/wife, wife/husband, and the State of NY.
Under NY law, a marriage is valid regardless of whether the parties to the marriage are of the same or different sex. No government treatment or legal status, effect, right, benefit, privilege, protection or responsibility relating to marriage, whether deriving from statute, administrative or court rule, public policy, common law or any other source of law, can differ based on the parties to the marriage being the same sex.
i. - Capacity to Enter into a Valid Marriage.
ii. - Mechanics of getting married
Marriage
i.- Capacity to enter into a Valid Marriage
Not everyone is able to enter into a valid marriage. There are restrictions and situations that can prevent a person form entering into a valid marriage and/or will make the marriage void or voidable. Elements for a valid marriage:
a. - Age requirements:
- 18 years or older: a person that is at least 18 years old can validly enter into a marriage.
- Older than 16 years, less than 18 years: can only enter into a valid marriage with the consent of his or her parents or guardian.
- Olden than 14 years, less than 16 years: can only enter into a valid marriage with the consent of his or her parents or guardian and with the written consent and authorization of a Supreme Court Justice or Family Court judge.
b. - Not “too closely related by blood”: only those who are not too closely related by blood can marry. In NY, marriage among the following persons is considered incestuous and therefore void:
- Ancestor and descendent
- Brothers and sisters of whole- or half-blood
- Aunt and nephew; uncle and niece.
c.- Capacity requirement:
Under NY law, marriage is a civil contract as fas as its validity under the law is concerned; therefore, the consent of parties capable of making a contract is essential. Only those with the requisite mental capacity can marry. A person must have the ability to give full legal consent to marry. A typical example of lack of consent is entering into a marriage under duress or fraud.
d.- No other living spouse: A person who is married to another living spouse cannot marry another person. The new marriage is bigamous and void under NY law.
Marriage
ii.- Mechanics of Getting Married
a.- Marriage Ceremony
A marriage ceremony includes both obtaining a marriage license and conducting a ceremony.
- Process to obtain a marriage license: Marriage licenses are issued by the city clerk. The clerk will immediately issue the license when the couple requests it. After the couple reveices the marriage license, they may marry after a 24-hour waiting period. Once the license is issued, the ceremony must take place within 60 days. The city clerk mud issue a marriage license absent a clear and obvious incapacity to marry. An application for a marriage license cannot be denied on the ground that the parties are of the same sex.
- Ceremony: there must be a
* Solemn declaration of marriage: between husband and wife. There is no particular form or ceremony that is required when a marriage is solemnized.
* Officiant: to solemnize a marriage in NY, the husband and wife must solemnly declare that they take each other as husband and wife in the presence of an officiant. An officiant can be a member of the clergy, a judge, an executive officer of government, a judicial clerk, a ship captain, or anyone else that can legally administer a binding oath.
*At least one witness (other than the officiant)
b.- Marriage by Contract
A marriage can also be solemnized by contract. In order to validly solemnize a marriage by contract, all of the following elements must be present:
- The parties must obtain a valid marriage license.
- the contract must be subscribed in NY by the parties and at least two witnesses.
- The contract must be written and signed by both parties.
- The contract must state the residence of the parties and witnesses.
- The contract must state the date and place of marriage
- The contract must be acknowledged by the parties and the witnesses before a judge of the court of record of NY in the manner required for acknowledgement of a conveyance of real estate in order to record the marriage.
c.- Common Law Marriage (generally not recognized in NY): is an informal form of marriage, recognized in some some states by statute, in which a couple is recognized as being married despite not being married in the traditional sense. Common law marriage is not recognized in NY. However, if a couple enter into a common law marriage outside of NY, and that marriage was valid in that state, it will be recognized in NY.
Consequences of Marriage
There are two main consequences of marriage:
i. - Obligation of sexual exclusivity: the parties to a marriage must remain sexually committed and faithful to one another.
ii. - Obligation of economy: The obligation to economically support one another is a reciprocal obligation. NY law states that the amount of the economic obligation must be fair and reasonable as determined by the resources of each party. Support obligations can be enforced by NY court order in family court.
iii. - No spousal immunity: there is no spousal immunity in NY. Spouses can use each other for torts and spouses are liable for crimes against each other.
Termination of Marriage
A termination of marriage is brought in the Supreme Court, rather than a family court. There are five ways to terminate marriage:
- Declaration of Nullity
- Annulment- voidable marriage
- Legal Separation
- Divorce
- Dissolution of Marriage
Termination of Marriage
i.- Declaration of Nullity
A declaration of nullity is a cause of action that a party may bring when a marriage is absolutely void.
a. - Grounds for declaration of Nullity- void marriages: there are two grounds for a declaration of nullity:
- Bigamy: Under DRL, a marriage is void if entered into by a person whose husband or wife by a former marriage is living, unless the former marriage has been annulled or dissolved. Bigamy is a Class E felony (NYPL).
- Incest: Under DRL, a marriage is incestuous and void if close blood relatives are married. Specially, marriage between the following persons is incestuous and void in NY: an ancestor and descendant; brother and sister of either whole- or half-blood; and, an uncle and niece or an aunt and nephew. Class E felony.
b.- Defining a Void Marriage: if a couple is in a bigamous or incestuous relationship, there is no marriage; a court does not have to issue an order to nullify a marriage based on either bigamy or incest. Parties to a bigamous or incestuous marriage can engage in “self-help”, meaning that they can simply walk away from the void marriage. Parties to a void marriage may bring an action for declaration of nullity to have a court determine matters such as maintenance or custody.
Termination of Marriage
ii.- Annulment- voidable marriages
Annulment is the proper claim if there was a problem with the marriage that made the marriage voidable (as opposed to automatically void). A couple is legally married until the marriage has been annulled.
a.- Waiving grounds for annulment: grounds for annulment can be waived. Waiver is often found by the court when the court when the non-offending spouse continues to cohabit with the other spouse after learning of the problem.
b.- Grounds fro Annulment:
- Age: one must be 18 to get married. However, annulment is not automatic in cases where one or both of the marrying parties are under 18.
If a person is 16-17, he or she can only marry with consent of both parents.
If a person is 14-15, he or she can get married with the consent of the minor’s parents and a judge.
Persons under 14 can never marry.
An action for annulment on the ground of age may be maintained by: the infant; either of his parents; or his guardian.
A marriage will not be annulled on the grounds of nonage when the suit is initiated by a party who had attained the age of legal consent when the marriage was contracted, or by a party who freely cohabited with the other spouse for any time after attaining that age.
- Mental incapacity: a marriage may be voidable if one of the parties lacked the mental capacity and understanding to enter into marriage. A waiver of rights to annul is only presumed if the incompetent party centimes lucid and remains in the relationship.
- Duress/ force: a marriage will be annulled if the marriage occurred under force of physical coercion. The right to annul is deemed to be waived if the threatening force is removed and the threatened spouse continues to live with the other spouse.
- Fraud: a marriage will be annulled for any misrepresentation or concealment going to a vital or essential aspect of the marriage, in the period prior to the wedding, if such an act actually induced the other party into marriage. The following severe circumstances illustrate clear and settled court precedent for annulment: misrepresentation about religions and misrepresentation about procreation or sex.
Misrepresentation about monetary issues is not actionable. A party must bring a cause of action within 3 years of learning of the fraud or the issue is deemed to be waived.
- Physical incapacity: if a person suffers from an incurable physical condition that prevents engagement in sexual intercourse, the marriage may be annulled. The focus is exclusively on the ability to have intercourse, not to have children.
This claim must be brought within 5 years of marriage.
- Five ears of incurable insanity: an annulment will be granted if a spouse has been insane for 5 consecutive years or more. NY requires three court-appointed psychiatrists to corroborate the incurable nature of the insanity.
c.- Litigation and Statute of Limitations for annulment proceedings: the testimony of the parties mud be corroborated. A jury trial will be available, except if the grounds for annulment are related to a physical incapacity. Unless otherwise stated, there is a 6-year statute of limitations for the initiation of annulment proceedings.
Termination of Marriage
i. - Declaration of Nullity
ii. - Annulment- voidable marriages
- Effects of Annulment and Declaration of Nullity
a.- Childre: children of the marriage are still considered marital children even after the annulment or nullity of the marriage.
b. - Property
- Tenancy by the Entirety: a tenancy by the entirety ends upon annulment or declaration of nullity. Refer to the real property outline for more info.
- Spousal Elective share: is a terminated upon annulment or declaration of nullity.
- Prior Will: prior wills are revoked, unless a will specifically states that the will survives an annulment or declaration of nullity. Refer to the wills outline.
Termination of Marriage
iii.- Legal Separation
A legal separation can be limited in time or permanent. A legal separation does not sever the marriage.
a. - Rights under legal separation: while legally separated, spouses cannot have intercourse with others. The marriage is still in effect; therefore, intercourse with another is considered adultery.
b. - Procedure for legal separation: there is a court proceeding for a legal separation, but there is no jury.
c.- Grounds for legal separation.
- Cruel and Inhuman treatment: A defendant’s conduct that so endangers the plaintiff’s physical or mental well-being as to render it unsafe or improper for the plaintiff to cohabit with the defendant is grounds for separation.
The test fro cruel and inhuman treatment is subjective and includes both physical and mental mistreatment. Physical mistreatment is manifested as battery.
Mental mistreatment consists of constant belittling, spitefully paying romantic attention to others, or refusing to be sexually intimate.
Cohabitation after the cruel treatment is a factor against granting a legal separation, but it is not an absolute defense.
- Abandonment: is a voluntary departure by one spouse that is: without consent, without justification, and with no intent to return. There is no statutorily set time period to satisfy the abandonment requirement.
- Constructive abandonment: NY courts have rules that abandonment can be found by locking the other spouse out of the house. The person who locked the door is deemed the abandoner. Courts have rules that refusal to have sex and interact with the spouse can be abandonment. There is no statute of limitation for this action.
- Three years of consecutive imprisonment: that is grounds for legal separation. There is a 5-year statute of limitation that runs upon release from prison.
- Failure to support: neglect or refusal to support the plaintiff is grounds for a separation, but not divorce. The injured spouse can receive economic support as part of the relief.
- Adultery.
Termination of Marriage
iii. - Legal Separation
- Adultery
Under DRL, adultery is an act of sea voluntarily performed with another person who is not one’s spouse during a marriage.
There merely has to be a sex act to qualify as adultery.
a.- Special defenses to adultery:
A defendant can prevent separation by asserting the following:
- Recrimination: the defendant asserts that the plaintiff id guilty of misconduct
- Condonation: if after learning of the adultery, the plaintiff freely lived with the spouse, the plaintiff has effectively waived the right to a legal separation.
- Connivance: if the plaintiff lured the defendant into adultery, the defendant has a valid defense.
- The statute of limitation: the plaintiff must commence an action within 5 years of discovery of the event.
* Testimony regarding the adulterous act: the spouses can only testy to the fact that they are married and/or deny the adultery. So, the plaintiff may not testify to prove the adultery. The plaintiff may provide third party testimony or circumstantial evidence to prove that adultery occurred.
Termination of Marriage
iv.- Divorce
Until October, 2010, NY did not have a true no-fault divorce mechanism. The law has changed so that no-fault divorce is now a recognized ground for divorce in NY.
a.- Grounds for Divorce:
- Cruel and Inhuman treatment: same as legal separat.
- Abandonment: same as legal separate. However, the abandonment must have lasted for at least 1 full year (no any period of time like in legal separation).
- Adultery: same as legal separation.
- Three years of consecutive imprisonment: same as legal separation.
- Live apart for one year or more pursuant to a separation decree: known as “conversion divorce”. If, after a judgement of separation has been granted, the parties live separate and apart for one or more years, either party may commence a divorce action based on the decree of separation.
- Live apart for one year or more pursuant to a written separation agreement. (another slide)
- No-fault divorce: in October 2010, NY amended the DRL to permit no-fault divorce. A party can request a divorce, provided that he or she states under oath that the relationship between husband and wife has broken down irretrievably for a period of at least six months.
No judgement of divorce shall be granted under this subdivision unless, and until, the economic issues of equitable distribution of marital property, the payment of counsel and experts’ fees and expenses as well as the custody and visitation with the infant children of the marriage have been resolved by the parties, or determined by the court and incorporated into the judgement of divorce.
Termination of Marriage
iv. - Divorce
- Live apart for one year or more pursuant to a written separation agreement.
Under DRL, a separation agreement is a legally enforceable document in which husband and wife decide to live apart from each other. The separation agreement must be freely made, in writing, signed by both parties, acknowledged, and filed in the office of the county clerk where either party resides prior to the divorce.
The parties must prepare and subscribe a written separation agreement. The have to live apart for a period of one or more years after the execution of such agreement. The plaintiff must submit proof that he or she has substantially performed all of the terms and conditions of the agreement.
“Living Apart” requirement: in order for the parties to obtain a divorce based on a separation decree or a written separation agreement, the parties must live apart from each other according to the terms of the agreement or the terms of the separation agreement or the separation decree is ineffective and the parties must restart the procedure.
On the Bar examination: always look for the intent of the parties, rather than the final result. If the parties have an intent to reconcile, it is enough to infer noncompliance with the separation agreement.
Ex: Gina and John were married in 2006. After 3 years of marriage, they decided to enter into a written separation agreement. They start living apart from each other and do not talk for months. They back together one night and split again in the same night. According to the terms of the separation agreement and after having complied with one-year period, Gina moves for a divorce. John contests it based on the fact that they have co-habited after the separation. John wins, and the divorce will not be granted.
Ex: Same facts but after they met at NY Library decide only to have sex without any intention to co-habit or reconcile again. According to the terms of the separation agreement and after having complied with the one-year period, Gina moves for a divorce. John contests it bases on the fact that they had sex during the separation period. The divorce will be granted.
