Domestic Relations Law

Question 1

Requirements for a Divorce

Answer 1

Under the DRL, one must have a grounds for divorce and meet the residency requirement. If the court does not have a personal jurisdiction, it can dissolve the marriage, but cannot touch finances or property.

Question 2

Residency Requirements

Answer 2

Under NY law, a party filing for divorce must meet residency requirements. The requirements are that:

1. Either party is a New York resident for two years, OR
2. One party is a NY resident for at least one year, AND the couple was either married in NY, the cause of action arose in NY, or the couple resided as husband and wife in NY immediately before filing the claim.
3. Cause of action arose NY AND both husband and wife were NY domiciliaries for one year or less.

Question 3

Grounds for Divorce

Answer 3

Under the DRL, the grounds for divorce are:

1. Adultery,
2. Treatment that is cruel or inhumane,
3. Abandonment for more than one year,
4. Imprisonment for three years or more,
5. No fault conversion divorce (Separation for more than one year), OR
6. The irretrievable breakdown of a marriage for a period of six months.

Question 4

Grounds for Annulment

Answer 4

Under the DRL, the grounds for annulment are:

1. Physical or mental incapacity on marriage date,
2. Infancy,
3. Fraud,
4. Duress

Annulment is where a marriage was entered into, but found later to be valid ab initio because one of the above defects was present when the marriage was entered into.

Question 5

Defenses to Adultery

Answer 5

Under the DRL, the defenses to adultery are CRAP:

1. Condonation (victim’s forgiveness) by co-habiting and resuming marital relationship,
2. Recrimination,
3. Adultery discovered by the plaintiff more than five years before bringing the claim, OR
4. Plaintiff’s procurement (persuading) or connivance (induce to commit) of an adulterous act.

Question 6

Defense to Conversion Divorce (Sex)

Answer 6

Under the DRL, the defenses to a conversion divorce is if the couple has co-habited with the intent to resume marital relations.

To procure a conversion divorce, a party must show that:

(1) the spouses are separated under either a decree of legal separation or under a validly executed separation agreement filed with the court, AND
(2) the spouses have lived separate and apart for 1 year.

Question 7

Separate Property (PIP)

Answer 7

Under the DRL, property that the parties enter the marriage is separate property. This includes any:

1. Personal injury recovery,
2. Inheritance, AND
3. Personal gifts.

Question 8

Marital Property

Answer 8

Under the DRL, the property obtained during the marriage is normally marital property, without regard to title, to be divided equitably upon divorce.

Question 9

Increase In Value of Separate Property

Answer 9

Under the DRL, where one spouse contributes to the increase in value of separate property with which the other spouse entered the marriage, that increase in value is subject to equitable distribution.

Question 10

Value of Professional Practice in Equitable Distribution

Answer 10

Under the DRL, the value of a professional degree or license is separate from the value of the practice, but the other spouse can be awarded part of the increase value of the practice, if he or she contributed to the increase in value.

Question 11

Maintenance

Answer 11

Under the DRL, to determine the amount and duration of maintenance, the court will consider some of the following factors:

1. Contribution to spouse’s career,
2. Health,
3. Earning capacity,
4. Age and number of children,
5. Property,
6. Wasteful dissipation,
7. Income,
8. Reduced earning capacity, AND
9. Duration

Question 12

Modification of Maintenance

Answer 12

Under the DRL, where maintenance has been incorporated into the divorce decree, the court will modify maintenance using the standard of “Substantial Change” of circumstances.

Question 13

Modification of Maintenance in a Separation Agreement

Answer 13

Under the DRL, where an agreement has not been incorporated into the divorce decree, the court will modify maintenance only in case of EXTREME HARDSHIP.

Question 14

Standards for Equitable Distribution

Answer 14

Under the DRL, the equitable distribution award must make specific findings on the elements, stating which ones are relevant. This requirement is mandatory and cannot be waived by the parties or the court.

Question 15

Standards for Modification of Child Support (“Substantial change in circumstances”)

Answer 15

Under the DRL, to modify child support, the courts look at whether there is substantial change in the financial needs of the child or the parent. The court will consider the following factors:

1. The increased needs of the child,
2. Cost of living increases,
3. Loss of income by one parent or substantial improvement of the financial condition of the other, and
4. The current and prior lifestyle of the child.

Question 16

Parental Support

Answer 16

Under NY law, parents have a duty to support their children to age 21.

A court may require a parent to pay educational expenses (ex: college, secondary school, parochial school) for their children until they reach the age of 21, even in the absence of special circumstances or a voluntary agreement of the parties. In determining whether to award educational expenses, the court must consider the circumstances of the case, the circumstances of the respective parties, the best interests of the child(ren), and the requirements of justice. However, a parent’s duty to support their children may be terminated or suspended if the child becomes emancipated by becoming economically independent of his or her parents through employment, marriage, or entry into military service.

Question 17

Modification of Child Support in Separation Agreement

Answer 17

Under the DRL, the court may modify provisions in a separation agreement for child support upon consideration of:

1. A change in circumstances, OR
2. A specific increase in the costs related to the child’s basic necessities. For example, the child attends Harvard Medical School.

Question 18

Granting or Changing Custody

Answer 18

Under NY law, the court will evaluate the following factors when granting or changing custody:

1. Financial capability,
2. Ability and availability of the parents,
3. Initial custody decision,
4. Lifestyles of the parents,
5. Desires of the child.

Question 19

Rescission of the Separation Agreement

Answer 19

A court will deem a separation agreement rescinded and will not grant a divorce based on that separation agreement if

(1) the parties cohabitate with the intent to reconcile after execution of the agreement OR
(2) where one party has materially breached the terms of the agreement.

The courts have held, however, where separated spouses engage in sexual relations without intent to reconcile, the separation agreement will not be rescinded and a conversion divorce may still be maintained if they meet the durational requirement of time living apart. The above restrictions do not apply where the spouses are separated based on a decree of legal separation.

Question 20

Abandonment

Answer 20

In New York, there are six grounds for divorce:

(1) cruel and inhuman treatment; (2) adultery; (3) abandonment; (4) three years of consecutive imprisonment; (5) a conversion divorce; and (6) irretrievable breakdown.

To constitute a valid claim for divorce based on abandonment, the spouse must have left voluntarily, without justification, with no intent to return, and the abandonment must have occurred for at least one year. Adultery of the other spouse is NOT considered a valid defense to a divorce premised on abandonment, but it may be relevant to determine whether the abandonment was justified.

Question 21

Divorce Action Residency Requirements

Answer 21

Under the New York Domestic Relations Law, in order for a plaintiff-spouse to commence an action for divorce in New York one of three durational residency requirements must be satisfied. The plaintiff-spouse must establish that either:

(1) both spouses are New York residents at the time the action is commenced and the grounds for divorce arose in New York;
(2) one spouse has been a New York resident for two years immediately preceding the action; OR
(3) one spouse has been a New York resident for one year immediately preceding the action and either
(a) the marriage was entered into in New York,
(b) New York was the matrimonial domicile at some point, or
(c) the grounds for divorce arose in New York. Failure to establish one of the three durational residency requirements constitutes failure to state a cause of action.

Question 22

Service of Process Required in Matrimonial Action

Answer 22

In marital actions, service MUST be made by personal delivery, unless a court authorizes a substituted method of service.

Question 23

Equitable Distribution of a Professional License or Degree

Answer 23

The New York Court of Appeals has held that a professional license or degree obtained during marriage is marital property and subject to equitable distribution. In addition, the Court of Appeals has held that a professional license or degree does not merge with the career or ever lose its character as marital property, even if the professional degree or license has been used by the spouse to establish and maintain a career.

However, there has been a recent trend to try to avoid the double counting of assets. A court must not award full distribution of the value of a professional degree or license, without a corresponding adjustment in the spousal maintenance award. The value of the professional degree or license is calculated by an analysis of how the professional degree contributed to the person’s earnings versus the person’s potential earnings without the degree.

Question 24

Recognition and Enforcement of an Ex Parte Divorce

Answer 24

An ex parte divorce validly granted in another state is prima facie valid and entitled to full faith and credit in New York. However, the divorce can be collaterally attacked. In a matrimonial action involving economic issues, the court must have had personal jurisdiction over the defendant spouse for the court order to be entitled to enforcement in New York.