Domestic Relations Flashcards
Enforceability of contracts for unmarried cohabitants
Express contract entirely valid if consideration other than sex
Implied contract of unmarried couple
We will not imply the contract
Premarital agreement
Parties can generally put anything they want in the agreement and it will be enforceable
Questions to ask when analyzing validity of premarital agreements
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
Child born to unmarried parents is called
A non-marital child
Methods of identifying biological father for non-marital child
1) Acknowledgment as father
2) Filiation proceeding
3) Paternity by estoppel
Who can bring a filiation proceeding?
Mother, child, or state
Until when can a filiation proceeding be brought?
Till the child turns 21
Evidentiary points about filiation proceeding (4)
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
Paternity by estoppel
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
Requirements for marriage ceremony
1) Officiant
2) Witness (1 required, 2 customary)
3) Exchange of promises
New York recognition of marriages
Pretty much recognizes foreign marriages everywhere unless against public policy
Methods of terminating a marriage
1) Declaration in nullity
2) Annulment
3) Suit for legal separation
4) Divorce
5) Dissolution
When is a declaration in nullity used?
Where one party lacked legal capacity so as to render the marriage void
Do you need to go to court for a declaration in nullity?
No, but you might want to for clarity or if there are collateral issues to be resolved by judge
Grounds for declaration in nullity
Incest or bigamy
Annulment is used where`
There is a capacity issue that makes the marriage voidable
Does annulment require court action?
Yes
Can the grounds for annulment be waived?
Yes, if they cohabit with each other after issue is raised
Grounds for annulment
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
Specific cases of fraud that are grounds for annulment
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
SOL for fraud as a basis for annulment
3 years
Physical incapacity for sex requires (4)
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
Requirement for 5 years of incurable insanity arising after the marriage
Must have testimony of 3 court-appointed physicians
What is the unique feature of a suit for legal separation?
Leaves marriage intact and allows you to live away from spouse with legal permission
Grounds for legal separation
1) Cruelty
2) Abandonment
3) Adultery
4) 3 years consecutive imprisonment
5) Failure to support
Cruelty as a basis for legal separation
Physical cruelty- even a single episode
Mental cruelty- requires practice or pattern
Requirements for abandonment as basis for legal separation
1) Defendant spouse voluntarily departs
2) Without consent
3) Unjustified
4) No intent to return
Do you need actual abandonment for the abandonment ground?
No, constructive abandonment is good enough (i.e. I’m moving to the guest room)
Adultery requirements
1) Doesn’t have to be actual sex
2) Must be voluntary
Defenses to adultery
1) Recrimination- other spouse is doing it too
2) Condonation (Waiver)
3) Connivance- luring the other spouse into adultery
Divorce grounds
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
Conversion divorce
Couple first separates and then converts it into a divorce
Separation agreement (2 kinds)
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)
Dissolution
Used where spouse has disappeared
Requirements for dissolution
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
Some big factors used in determining need
1) Marital fault
2) Age and health
3) Earning capacity, including job skills
4) Type of property to be owned by both spouses
Who gets attorney fees in the maintenance determination?
Rebuttable presumption that the less-money spouse gets attorney fees
What can you not modify in a maintenance agreement?
Past-due changes
When does a maintenance agreement terminate?
1) Death of a party
2) Remarriage or cohabitation with another person
How can the court enforce a maintenance obligation?
Can use bank account to pay proceeds, get a wage reduction order, taking away licenses, and sending to jail for contempt
Property division after marriage ends (2 steps)
1) Classify the assets
2) Distribute the assets
Separate property includes (5)
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
How is a professional degree treated?
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
Do courts consider marital fault in distribution of assets?
Not supposed to unless it’s egregious, shocks the conscience, and is exceptional
Some factors relevant to distributing assets
1) Loss of health insurance on dissolution
2) Loss of inheritance rights
3) Need of custodian for a child to occupy the marital home
Procedure for terminating parental rights
Adjudicated in family court; entitled to court-appointed counsel. Must be clear and convincing evidence
Grounds for termination of parental rights (5)
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
To adopt, must obtain consent from
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
When will court get involved with support of children issues?
After a divorce or a non-marital child after a filiation proceeding
When are you entitled to ask for modification of child support?
If it’s been 3 years since last judicial review
Custody disputes between parent and non-parent
Presumption that best interests is being with the biological parent
When does a non-parent prevail over a parent in a custody dispute?
Showing unfitness of the parent or extraordinary circumstances
Visitation rights for parents
Almost never denied
Visitation rights for gradparents
They have standing to seek visitation rights but must make a showing of special circumstances before they will be granted visitation rights
