Domestic Relations (j)

Question 1

Pre-Marital Agreement

Answer 1

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.

Question 2

Paternity Suit

Answer 2

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

Question 3

Paternity by Estoppel

Answer 3

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

Question 4

Declaration of Nullity

Answer 4

Where one party lacked capacity and that incapacity is so severe that it rendered the marriage void.
- incest and bigamy render a marriage void

Question 5

Annulment

Answer 5

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)

Question 6

Grounds for Annulment

Answer 6

Non-Age, Mental Incapacity At Time of Marriage, Duress, Fraud, Incurable Physical Capacity, Five Years Incurable Insanity After the Marriage

Question 7

Mental Incapacity at the time of the marriage

Answer 7

Diagnosable Mental Illness OR Developmental Disability.

- waivable only if continure to remain in the marriage after regaining faculties

Question 8

Non-Age

Answer 8

16-17 need parental consent
14-15 need parental consent and consent of judge
under 14- cannot get married

Question 9

Fraud

Answer 9

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

Question 10

Incurable Physical Incapacity

Answer 10

Incurable physical condition which prevents safe sexual intercourse.

• no sex before marriage
• sol= within 5 years of marriage
• no jury trial

Question 11

Five Years Incurable Insanity After the Marriage

Answer 11

• must demonstrate it is incurable
• testimony required from 3 court-appointed physicians unanimously agreeing to diagnosis
• non-waivable, no SOL

Question 12

Legal Separation

Answer 12

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

Question 13

Grounds for Legal Separation

Answer 13

(1) Cruel and Inhuman Treatment
(2) Abandonment
(3) Adultery
(4) Three Years Consecutive Imprisonment
(5) Failure to Provide Economic Support

Question 14

Cruel and Inhuman Treatment

Answer 14

• Physical and/or mental abuse

- Proof that it renders it unsafe or improper for P to continue to co-habit with D

Question 15

Abandonment

Answer 15

• 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

Question 16

Constructive Abandonment

Answer 16

ex. Refusal to engage in sexual intercourse and changing a lock to exclude other spouse from the dwelling

Question 17

Adultery

Answer 17

Sex or deviant sex voluntarily performed with another person who is not your spouse during the marriage
- 5yr sol from discovery

Question 18

Defenses to Adultery

Answer 18

(1) Recrimination (P also committed adultery)
(2) Condonation (continue to co-habit after learning of adultery)
(3) Connivance (form of entrapment or trickery)

Question 19

Grounds for Divorce

Answer 19

(1) Cruel and Inhuman Treatment
(2) Abandonment for at least 1 year
(3) Adultery
(4) Three Years Imprisonment
(5) Conversion Divorce
(6) No-Fault

Question 20

Conversion Divorce

Answer 20

Three Steps:

(1) Separation decree or agreement
(2) Live separate and apart for one year
(3) Convert the separation into a divorce

Question 21

Separation Agreement

Answer 21

Mutual agreement embodied in a document.

- must be freely made, in writing, notarized and filed with court

Question 22

No-Fault Divorce

Answer 22

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

Question 23

Dissolution

Answer 23

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

Question 24

In order for Supreme Court to have SMJ over a Matrimonial Action:

Answer 24

• 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)

Question 25

Personal Jurisdiction Over D in Matrimonial Action

Answer 25

Only required if the petitioner wants collateral remedies

- no PJ needed for status

Question 26

Temporary Maintenance

Answer 26

Generally awarded to provide for a spouse during the pendency of an action. The amount is determined by statutory guidelines. Temporary maintenance terminates upon issuance of the final maintenance award or death of either party.

Question 27

Marital Property

Answer 27

Marital property is all property acquired by either spouse during the marriage (unless contrary to any agreement of the parties)
- all property, unless clearly separate, is presumed to be marital property.

Question 28

Process of Equitable Distribution

Answer 28

(1) Classify the assets (each spouses separate property and marital property)
(2) Exercise equitable discretion to divide the marital property subject to distribution
- distributive awards may be made to supplement equitable distribution
- marital fault is not part of property division, unless egregious and shocks the conscience
- not modifiable

Question 29

Separate Property

Answer 29

(1) Anything owned prior to the marriage
(2) Bequests received in sole name
(3) Property they agree will be treated as separate
(4) Personal Injury Compensation
(5) Passive Appreciation of Separate Property

Question 30

Professional License as Marital Property

Answer 30

Court treats it as an asset by degree to which it has enhanced that spouse’s earning capacity, then reduces that augmentation down to a present-value sum

Question 31

Terminating Parental Rights

Answer 31

• if a biological parent is unfit, there is a judicial mechanism by which the court severs the bond between that parent and their child
• the goal is to make the child available for adoption
• adjudicated in family court
• clear and convincing evidence

Question 32

Five Grounds for Terminating a Parental Right

Answer 32

(1) Abandonment
(2) Permanent Neglect
(3) Abuse
(4) Mental illness that makes it impossible to parent
(5) murder of a sibling of the child in question

Question 33

Child Support

Answer 33

Either or both parents may be ordered to pay an amount for the care, maintenance, and education of minor children.

• absent an agreement, NY courts apply a mechanical formula to determine the amount of the obligation.
• custody and support provisions can be annulled, modified or amended on notice motion

Question 34

Mechanical Child Support Award

Answer 34

The forumla applies a fixed percentage based on the number of children to the combined gross incomes (taxable and nontaxable) of the parents, then prorates the result between the parents based on their respective incomes

Question 35

Child Custody

Answer 35

Court determines through the “Best Interests of the Child Standard”
- physical & mental health, education, finances, history of dv, criminal activity, new partners, desires of the parties and children over 12

Question 36

Uniform Interstate Family Support Act

Answer 36

• once an initial support order has been entered, all other states must defer to that order
• original state has continuing and exclusive jurisdiction
• provides for out-of-state enforceability

Question 37

Uniform Child Custody Jurisdiction and Enforcement Act

Answer 37

• all states are to defer to the original custody order entered in the home state of the child
• home state = where the child lived with parent for at least 6 months before custody litigation began
• continuing and exclusive jurisdiction