DR Flashcards
What are the two formalities for a pre-marital agreement?
1) Signed by both parties (S/F)
2) Parties were actually married.
Pre-marital agreement can be about anything.
What are defenses to a pre-marital agreement?
Fraud : look to see if (1) both had independent counsel. (2) look and see what their relative business experience was [knowledge of finance]. (3) whether party now challenging agreement knew that the agreement waived judicial determination of the economic issues. (4) just look at the facts.
duress
Unconscionability : Special Rule: Regarding divorce, an alimony provision must both have been fair and reasonable at the time the K was made and also fair and reasonable at the time of the divorce.
What is equitable estoppel is relation to a filiation proceeding?
o NY also has a doctrine called equitable estoppel
First, a man who has acted as a father, and established a paternal relationship with father, may be estopped from denying if the child has justifiably and detrimentally relied on those representations. Court will choose not to rely on DNA.
Other side of coin. The mother can be estopped if she has acquiesced in the development of a close relationship between the father and another man. [she can’t later open a filiation proceeding against another man].
What 2 things do you need to get married?
1) License [need to be sane and of suitable age]
2) Ceremony
Defining Ceremony:
1) Officiant: Anyone who looks important! [member of clergy, civil officer empowered to administer an oath, even a clerk].
2) Witness: Officiant cannot count as witness.
3) Solemn Declaration: The wedding vows. You need to undertake, seriously, to enter into this new status as spouses. Note: There is no prescribed form of ceremony. [testable]. [even if stupid, it counts].
Is there common law marriage in NY?
No common law marriage in NY
What are the 5 ways to terminate a marriage in NY?
- Declaration of Nullity
- Annulment
- Action for Legal Separation
- Divorce
- Dissolution
Declaration of Nullity
Used when the couple lacked capacity to marry, AND that incapacity renders their marriage totally void. This is a judicial confirmation of something that was actually already true.
1) Bigamy [more than one marriage]. Not waivable.
2) Incest [forbidden from marrying ancestors, descendants, siblings [even with only 1 parent in common], lineal relatives up or down one generation [cannot marry nieces, nephews, aunt uncle one generation away]. First cousin is legal!
Annulment?
Types of Annulment?
Annulment: Brought when there is a lack of capacity. It only makes the marriage voidable, not totally void. In this case you are married until you seek the annulment. Six grounds, and they can be waived. They are normally waived by continuing to cohabit after the problem is eliminated.
- One party was underage [18 to marry, or 16 or 17 with consent of both parents, 14 or 15 with consentof both parents and Judge, and never under 14].
- Mental Incapacity at the time of the Marriage
- Duress [shotgun wedding]
- Fruad* [can ONLY be as to an essential aspect of the marriage [write that. not about money, property, or social status].
- Physical Incapacity to have Sex [not about being able to bear children, but about ability to have sex. only counts if didn’t know before marriage].
- 5 years of incurable insanity arising after the date of the marriage [3 ct. appted phys. must agree]
Action for Legal Separation?
Grounds?
Action for Legal Separation: This does not terminate the marriage. It is court permission to live separate and apart, and adjudicates matters of money, child custody. But it does not terminate the marriage. [maybe for tax reasons, etc].
- Cruel and Inhuman Treatment. [physical or mental]
- Abandonment [Need (1) voluntary departure, (2) without consent of other spouse, (3) Without Justification, and (4) No intent to return. Constructive abandonment is refusal to have sex, or speak]
- Adultery [s/l is 5 years after discovery. can’t be asserted if P is cheater too].
- Three-Years consecutive imprisonment
- Failure to Support
What are the 6 grounds of divorce?
Fault ones?
No-Fault ones?
Fault Grounds are IDENTICAL to the first 4 for action for legal separation:
- Cruel and Inhuman Treatment
- Abandonment
- Adultery
- Three Years Imprisonment
No-Fault Grounds
- Conversion: The couple must first separate. Need (1) separation agreement or decree, and (2) they must live apart for one year (no sex with intent to reconcile)
- Irretrivable Breakdown of the Marriage for a Period of at least 6 months*: Uncertain whether testimony as to this alone is enough or full trial is required. Divorce only enters after all custody and money issues are settled.
Dissolution?
How is property distributed?
Dissolution: If spouse has been missing, without any tidings, for at least 5 years.
Basically a presumption of death.
Requirements:
- Must make a dilligent search
- Must publish a request that your spouse return, and must do that for 3 consecutive weeks in English speaking newspaper.
- Plaintiff must have lived in NY for one year, or NY had to be the matrimonial domicile at the time of the disappearance.
No collateral proceedings, plaintiff gets it all
What happens the minute a case for termination of marriage is filed?
Can’t sell, conceal assets.
Can’t incur unusual debts.
How do we analyze the amount of maintenance a party should get?
19 factors, don’t memorize. Talk about what is in the problem. Look for:
o Health and the age of the spouses.
o Earning capacity, education, and any time needed to develop new skills.
Stay at home mom may be suitable for maintenance.
o If one spouse is going to be the custodian of minor children.
Limits ability to work and costs more.
o If someone will be a caretaker to another family member.
o How much property each party has.
If they leave with a lot, might not need maintenance.
o Look at fault.
This is a legitimate factor.
When can you modify maintenance amount?
Court ordered maintenance - come to court and show change in circumstances.
Maintenance from Separation Agreement: Much harder, must show extreme hardship [it is a contract after all].
When does maintenance automatically end?
Automatic termination events are the death of either party. The remarriage of the recipient, or the cohabits with another recipient as if remarried.
What are the remedies if a party stops paying maintenance?
- 1) Can take property/seize assets
- 2) Attach wages [common]
- 3) Take away driver’s license/license to practice
- 4) Take away recreational licenses [hunting, fishing]
- 5) Hold in contempt of court
How is marital property divided?
categorized?
NY is an equitable division state.
1) Catgorize all asset [H, W, or Marital]. 2) Distribute Assets
1) Separate Property: (1) Anything owned by a spouse prior to the marriage. (2) Any gift to spouse in their sole name after the marriage. (3) Property agreed to be separate. (4) Pain and suffering compensation. (5) Any appreciation in the value of items 1-4 unless due to other spouse’s participation and effort [or homemaker]
2) Marital Assets: Everything else acquired during the marriage is a marital asset. Doesn’t matter whose name on title, whose salary used, etc. And a spouse’s Professional Degree is marital property!
How is marital property divided?
1) Separate property goes to the individual spouse
2) Marital Property: Court exercises judgment and discretion. Court can consider ANY factor EXCEPT marital fault [unless egregious or shocks the conscience - adultery not enough, violence is]
Factors to look at:
- health, age, earning capacity
- children
- everything mentioned for maintenance analysis
- specific loss of health insurance* mentioned in statute
- Inheritance Rights : If she was expecting to inherit from Harry, and now isn’t, talk about that
- Need of custodial parent to live in home and take care of the kids
Court caneither distribute assets in kind [one by one] or give a marital award [where one spouse keeps stuff but writes another a check]
When are parental rights terminated?
What happens once they are?
By a showing of clear and convincing evidence of one of 5 grounds:
- Abandonment: If (1) you fail to visit or communicate with the child for at least 6 months, and (2) the court finds this evidences an intent to give up your parental rights.
- Permanent Neglect: Normally when child has already been removed from the home and in agency care, and a parent has failed to plan for the future of the child and maintain any contact even though physically and financially capable of doing so. [extended imprisonment can be evidence of neglect]
- Abuse of Child
- Mental Illness or Developmental Disability
- If parent murdered a sibling of the child
Once they are terminated, a parent can have NO rights with respect to the child.
Who in NY can adopt?
o In NY a married couple can adopt, and a single adult can also adopt.
Two unmarried parties who are in an intimate relationship can act together and adopt.
In addition, if you are married, you can adopt your stepkids [spouse’s kids]
If you are married but separated, you can adopt by yourself.
Do you need consent of person to adopt them?
If they are over 14!
Trial period for adoption?
If adoptee is a minor, there is a three month trial period.
How long must parents support child?
Through age 21, or through college if they can afford it
When will court approve of a child support agreement between parents?
Generally when it is more generous than the child support guidelines
