Domestic Relations (j) Flashcards
Pre-Marital Agreement
In order to be valid and enforceable, must be freely made, in a writing signed by both parties. It must be fair and reasonable at the time it was made and cannot be unconscionable at the time of the divorce.
Paternity Suit
Filiation Proceeding.
- filiation must be established by clear and convincing evidence
- burden shifts to D is DNA evidence shows a greater than 95% probability
- DNA evidence conclusive if it shows D is not the father
Paternity by Estoppel
A man who has erroneously represented himself as a child’s father can be estopped from denying paternity if the child has justifiably relied on that party’s representation of paternity to the child’s detriment.
- a mother can also be precluded if she listed someone else on the birth certificate
Declaration of Nullity
Where one party lacked capacity and that incapacity is so severe that it rendered the marriage void.
- incest and bigamy render a marriage void
Annulment
One party lacked capacity and incapacity renders the marriage voidable.
- married until you get an annulment
- parties can waive by continuing to co-habit after discovery
- testimony alone is insufficient- need corroboration
- 6 year SOL
- all cases tried by jury (except physical incapacity)
Grounds for Annulment
Non-Age, Mental Incapacity At Time of Marriage, Duress, Fraud, Incurable Physical Capacity, Five Years Incurable Insanity After the Marriage
Mental Incapacity at the time of the marriage
Diagnosable Mental Illness OR Developmental Disability.
- waivable only if continure to remain in the marriage after regaining faculties
Non-Age
16-17 need parental consent
14-15 need parental consent and consent of judge
under 14- cannot get married
Fraud
One misrepresents or conceals information that goes to a vital or essential aspect of the marriage.
- prior to the date of the marriage and would have been likely to deceive a reasonably prudent person
- religion, procreation, sex
- n/a to economics
- 3 year SOL, accrual = gaining knowledge
Incurable Physical Incapacity
Incurable physical condition which prevents safe sexual intercourse.
- no sex before marriage
- sol= within 5 years of marriage
- no jury trial
Five Years Incurable Insanity After the Marriage
- must demonstrate it is incurable
- testimony required from 3 court-appointed physicians unanimously agreeing to diagnosis
- non-waivable, no SOL
Legal Separation
Court grants permission to cease co-habitation
- also likely to adjudicate economic and child custody issues
Five grounds: cruel and inhuman, abandonment, adultery, 3 yrs consecutive imprisonment, failure to provide economic support
Grounds for Legal Separation
(1) Cruel and Inhuman Treatment
(2) Abandonment
(3) Adultery
(4) Three Years Consecutive Imprisonment
(5) Failure to Provide Economic Support
Cruel and Inhuman Treatment
- Physical and/or mental abuse
- Proof that it renders it unsafe or improper for P to continue to co-habit with D
Abandonment
- Actual departure from the marriage with no intent to return (inferred from duration)
- not consented to and without justification
(escape from violence is justified) - no sol
Constructive Abandonment
ex. Refusal to engage in sexual intercourse and changing a lock to exclude other spouse from the dwelling
Adultery
Sex or deviant sex voluntarily performed with another person who is not your spouse during the marriage
- 5yr sol from discovery
Defenses to Adultery
(1) Recrimination (P also committed adultery)
(2) Condonation (continue to co-habit after learning of adultery)
(3) Connivance (form of entrapment or trickery)
Grounds for Divorce
(1) Cruel and Inhuman Treatment
(2) Abandonment for at least 1 year
(3) Adultery
(4) Three Years Imprisonment
(5) Conversion Divorce
(6) No-Fault
Conversion Divorce
Three Steps:
(1) Separation decree or agreement
(2) Live separate and apart for one year
(3) Convert the separation into a divorce
Separation Agreement
Mutual agreement embodied in a document.
- must be freely made, in writing, notarized and filed with court
No-Fault Divorce
The irretrievable breakdown of the marriage lasting for a period of at least six months.
- in order to prove, one party must testify under oath
- divorce will not be entered until all collateral issues are resolved by agreement or adjudicated
Dissolution
Used only when one spouse disappears
- required to prove that the spouse has been missing without any tidings for a period of five years
- provide evidence of diligent search, publish request for return in english newspaper for 3 weeks, must live in ny for at least one year OR ny was matrimonial domicile at time of disappearance
In order for Supreme Court to have SMJ over a Matrimonial Action:
- one spouse must be domiciled in NY AND EITHER:
i. both parties reside and grounds occurred in
ii. if only one party lives in NY, either they lived there for 2 years OR 1 year plus (marriage took place in ny, couple lived there as spouses or grounds occurred in ny)
