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State Subjects > Domestic Relations > Flashcards

Domestic Relations Flashcards

1
Q

Enforceability of contracts for unmarried cohabitants

A

Express contract entirely valid if consideration other than sex

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2
Q

Implied contract of unmarried couple

A

We will not imply the contract

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3
Q

Premarital agreement

A

Parties can generally put anything they want in the agreement and it will be enforceable

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4
Q

Questions to ask when analyzing validity of premarital agreements

A

1) In writing and signed?
2) Was it signed under duress?
3) Was it fair and reasonable when made (substance and was there hiding of assets)?
4) Must not be unconscionable at time of divorce

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5
Q

Child born to unmarried parents is called

A

A non-marital child

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6
Q

Methods of identifying biological father for non-marital child

A

1) Acknowledgment as father
2) Filiation proceeding
3) Paternity by estoppel

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7
Q

Who can bring a filiation proceeding?

A

Mother, child, or state

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8
Q

Until when can a filiation proceeding be brought?

A

Till the child turns 21

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9
Q

Evidentiary points about filiation proceeding (4)

A

1) Clear and convincing evidence required
2) Mother’s testimony that she had sex with D does not require corroboration
3) D’s claim that mom had sex with other men must be corroborated
4) If DNA evidence offered, it is conclusive if it excludes D. If it says he is 95%+ the father, it shifts the burden to the dad

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10
Q

Paternity by estoppel

A

A man who has presented himself as a child’s father can be precluded from denying paternity if the child has justifiably relied to his detriment

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11
Q

Requirements for marriage ceremony

A

1) Officiant
2) Witness (1 required, 2 customary)
3) Exchange of promises

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12
Q

New York recognition of marriages

A

Pretty much recognizes foreign marriages everywhere unless against public policy

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13
Q

Methods of terminating a marriage

A

1) Declaration in nullity
2) Annulment
3) Suit for legal separation
4) Divorce
5) Dissolution

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14
Q

When is a declaration in nullity used?

A

Where one party lacked legal capacity so as to render the marriage void

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15
Q

Do you need to go to court for a declaration in nullity?

A

No, but you might want to for clarity or if there are collateral issues to be resolved by judge

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16
Q

Grounds for declaration in nullity

A

Incest or bigamy

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17
Q

Annulment is used where`

A

There is a capacity issue that makes the marriage voidable

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18
Q

Does annulment require court action?

A

Yes

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19
Q

Can the grounds for annulment be waived?

A

Yes, if they cohabit with each other after issue is raised

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20
Q

Grounds for annulment

A

1) One of the parties was too young
2) Mental incapacity at time of marriage (waived if cohabitation after regained)
3) Duress
4) Fraud- misrepresentation or concealment of information prior to marriage that goes to a vital/essential aspect of the marriage
5) Physical incapacity that prevents safe/normal sexual intercourse
6) 5 years incurable insanity arising after the marriage

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21
Q

Specific cases of fraud that are grounds for annulment

A

1) Religion
2) Lying/concealment about ability to have kids or being pregnant
3) Lying about sexual history in a very big way (like a prostitute)
4) Lying about money/property/social status is not enough

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22
Q

SOL for fraud as a basis for annulment

A

3 years

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23
Q

Physical incapacity for sex requires (4)

A

1) Presupposes the couple hasn’t tried to have sex before
2) Must be incurable
3) Must be physical, not emotional
4) Must be brought within 5 years of marriage

24
Q

Requirement for 5 years of incurable insanity arising after the marriage

A

Must have testimony of 3 court-appointed physicians

25
Q

What is the unique feature of a suit for legal separation?

A

Leaves marriage intact and allows you to live away from spouse with legal permission

26
Q

Grounds for legal separation

A

1) Cruelty
2) Abandonment
3) Adultery
4) 3 years consecutive imprisonment
5) Failure to support

27
Q

Cruelty as a basis for legal separation

A

Physical cruelty- even a single episode

Mental cruelty- requires practice or pattern

28
Q

Requirements for abandonment as basis for legal separation

A

1) Defendant spouse voluntarily departs
2) Without consent
3) Unjustified
4) No intent to return

29
Q

Do you need actual abandonment for the abandonment ground?

A

No, constructive abandonment is good enough (i.e. I’m moving to the guest room)

30
Q

Adultery requirements

A

1) Doesn’t have to be actual sex

2) Must be voluntary

31
Q

Defenses to adultery

A

1) Recrimination- other spouse is doing it too
2) Condonation (Waiver)
3) Connivance- luring the other spouse into adultery

32
Q

Divorce grounds

A

1) Cruelty
2) Abandonment- must have lasted at least a full year
3) 3 years imprisonment
4) NOT failure to support
5) Breakdown of marriage for at least 6 months

33
Q

Conversion divorce

A

Couple first separates and then converts it into a divorce

34
Q

Separation agreement (2 kinds)

A

Court-ordered- cohabitation will not affect it, but breaching material terms will invalidate it

Voluntary separation agreement- cohabitation will rescind even if if brief (i.e. attempt at reconciliation)

35
Q

Dissolution

A

Used where spouse has disappeared

36
Q

Requirements for dissolution

A

1) Proof that spouse has been missing
2) Diligent search
3) Publish a request that your spouse return in an English newspaper
4) Plaintiff lived in NY for a year or NY was the matrimonial domicile

37
Q

Some big factors used in determining need

A

1) Marital fault
2) Age and health
3) Earning capacity, including job skills
4) Type of property to be owned by both spouses

38
Q

Who gets attorney fees in the maintenance determination?

A

Rebuttable presumption that the less-money spouse gets attorney fees

39
Q

What can you not modify in a maintenance agreement?

A

Past-due changes

40
Q

When does a maintenance agreement terminate?

A

1) Death of a party

2) Remarriage or cohabitation with another person

41
Q

How can the court enforce a maintenance obligation?

A

Can use bank account to pay proceeds, get a wage reduction order, taking away licenses, and sending to jail for contempt

42
Q

Property division after marriage ends (2 steps)

A

1) Classify the assets

2) Distribute the assets

43
Q

Separate property includes (5)

A

1) Property earned prior to marriage
2) Bequests or gifts in sole name
3) Anything that spouses treat as separate property
4) Personal injury compensation
5) Appreciation of value for first 4 items unless due to the other spouse’s active effort-staying at home and managing a house counts as active participation in business

44
Q

How is a professional degree treated?

A

If earned while married is treated as a marital asset. Calculate what the person would have earned with and without the degree and discount that for present value and divide it

45
Q

Do courts consider marital fault in distribution of assets?

A

Not supposed to unless it’s egregious, shocks the conscience, and is exceptional

46
Q

Some factors relevant to distributing assets

A

1) Loss of health insurance on dissolution
2) Loss of inheritance rights
3) Need of custodian for a child to occupy the marital home

47
Q

Procedure for terminating parental rights

A

Adjudicated in family court; entitled to court-appointed counsel. Must be clear and convincing evidence

48
Q

Grounds for termination of parental rights (5)

A

1) Abandonment- failure to communicate with child for at least 6 months
2) Permanent neglect- child already in state care and parent has failed to make substantial contact for a year
3) Abuse (physical or sexual)
4) Mental illness or developmental disability that makes parenting impossible
5) Murder a sibling of the child

49
Q

To adopt, must obtain consent from

A

1) Biological parent if adoptee is a minor
2) If >14, consent of adoptee
3) If someone else has legal custody, you need permission of the custodian
4) If child in state custody, you need consent of the state

50
Q

When will court get involved with support of children issues?

A

After a divorce or a non-marital child after a filiation proceeding

51
Q

When are you entitled to ask for modification of child support?

A

If it’s been 3 years since last judicial review

52
Q

Custody disputes between parent and non-parent

A

Presumption that best interests is being with the biological parent

53
Q

When does a non-parent prevail over a parent in a custody dispute?

A

Showing unfitness of the parent or extraordinary circumstances

54
Q

Visitation rights for parents

A

Almost never denied

55
Q

Visitation rights for gradparents

A

They have standing to seek visitation rights but must make a showing of special circumstances before they will be granted visitation rights

State Subjects (9 decks)

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