Domestic Relations Flashcards by Katherine Calle

Prenup

freely made
writing
subscribed by parties
acknowledged/proven in a manner required to record a deed

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A prenup [survives/does not survive] subsequent annulment. [Survives/does not survive] subsequent divorce.

survives; Survives

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Statute of limitations for bringing an action/claiming a defense arising from a prenup

3 years

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Who may a spouse sue in tort?

Other spouse, third parties (for injury to persons or property)

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Orders for support can be enforced by…

issuing warrant for arrest, jailing respondent for up to 6 months, requiring participation in rehab, putting respondent on probation, requiring that respondent post bond, sequestering assets, suspending driving/professional license, entering money judgment, making income deduction order, denying recreational license

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automatic termination of parental rights

minor’s marriage
surrender of minor to authorized adoption agency
life imprisonment

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judicial termination of parental rights

abandonment
inability to care for child due to mental illness
permanent neglect
severe/repeated child abuse

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standard of review for termination of parental rights

clear and convincing evidence

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a parent is liable for a child’s torts if

child is 10-18 and child willfully, maliciously, or unlawfully damages or destroys another person’s real or personal property

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youthful offender age

16-19

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required age for school

6-16

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parental status must be proven by

clear and convincing evidence

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consent is not needed from a biological parent for adoption of a child under 18 if . . .

the parent abandoned the child, surrendered the child to authorized adoption agency, has been superseded by another guardian under the statute, by reason of mental illness is unable to provide proper care for child, has been found to have permanently neglected the child, executed an instrument denying paternity or consenting to adoption

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NY jurisdiction over divorce – durational residence requirements

None - if both are residents when action is commenced and cause of action arose in nY
1 year - if in addition, marriage was entered into in NY, parties have resided together in NY as husband and wife, cause of action rose in NY
2 years continuous residence by one party immediately preceding commencement of action

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once automatic orders have been issues, without written consent of the other or court order, neither party may . . .

(i) in any way dispose of or encumber any property
(ii) dispose of assets held in various accounts
(iii) incur unreasonable debts
(iv) remove other part or children from insurance coverage
(v) change beneficiaries on any policies

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permissibility of jury trial for factual issues in divorce, declaration of nullity, and annulment

permitted

void marriages

bigamy and incest

grounds for annulment

nonage (must be 18 )
mental defects
physical incapacity
wrongfully obtained consent (force, duress, fraud)
5 years incurable mental illness

statute of limitations for annulment based on force/duress

may be brought any time by party whose consent was wrongfully obtained

statute of limitations for annulment based on fraud

3 years from when plaintiff discovered relevant facts

grounds for separation

cruel and inhuman treatment
abandonment (actual or constructive)
3 years imprisonment
adultery
failure to support spouse

statute of limitations for separation

5 years from time grounds arose

unless for adultery = 5 years from discovery
abandonment = ongoing

grounds for divorce

cruel and inhuman treatment
abandonment (1 year +)
3 consecutive years imprisonment
adultery
conversion divorce 
irretrievable breakdown

dissolution of marriage

petitioner resides in NY and has resided in NY for 1 year immediately preceeding commencement
NY was matrimonial domicile when spouse disappeared
has been absent for 5 years
believed to be dead
diligent search has been made

separate property

(i) property acquired before marriage (ii) property acquired by inheritance/gift from nonspouse (iii) compensation for personal injuries (iv) property acquired in exchange for or by increase in value of separate property (v) property described as separate

arrears

money owed may be annulled or modified only on a showing of good cause for failure to request relief prior to accrual of arrears

relocation of child

must be determined by a preponderance of the evidence that relocation is in best interest of child

enforcement of child support

(i) direction requiring surety or reasonable security or cash deposit with the support collection unit, (ii) sequestration of property and possible sale of assets (iii) entry of judgment for arrears, followed by enforcement (iv) order of assignment or garnishment of wages (v) contempt proceedings (vi) interception of tax refunds

statute of limitation for enforcement of maintenance and child support arrears

20 years

requirements of a valid separation agreement

(i) freely made (ii) do not violate statutory public policy provisions (iii) parties are separated when they enter agreement or become separated immediately thereafter

ex parte divorce

state in which one spouse is domiciled may grant divorce even though the other spouse is not domiciled in that state and is not personally before the divorcing court

UIFSA

provides methods of enforcement and guidelines for modification of support orders issued in another state

under UIFSA, non-issuing state can modify order if . . .

parties no longer reside in issuing state or they consent in a record to non-issuing court's assertion of jurisdiction to modify order

Full Faith and Credit for Child Support Orders Act

requires each state to enforce child support orders of sister states and prohibits modification of such orders by a foreign court unless the state seeking to modify has jurisdiction and original state no longer has continuing, exclusive jurisdiction

Uniform Child Custody Jurisdiction and Enforcement Act

avoid jurisdictional disputes with courts of other states in matters of custody and visitation, promote interstate cooperation, facilitate interstate enforcement

primary test for jurisdiction to make initial custody determination

Home State Test: (i) child's home state (where child lived with a parent/guardian for at least 6 consecutive months immediately before commencement of proceeding), or (ii) was child's home state within past 6 months and child is absent from the state but a parent or guardian still lives in the state

when Home State rule does not apply

no other state has jurisdiction AND (i) child and at least one parent have significant connection with the state, (ii) substantial evidence concerning child is available in the state

temporary emergency jurisdiction

child has been abandoned or it is necessary in an emergency to protect the child because child or her sibling or parent is subjected to/threatened with abuse

Parental Kidnapping Prevention Act

full faith and credit must be given to custody determinations if jurisdictional requirements of PKPA are met = substantially the same for UCCJEA (emergency-based jurisdiction is not made temporary in PKPA)