Family Law Flashcards
Modification of Child Support (court order or agreement)
Standard: Need (1) a substantial change in circumstances, (2) three years have passed since the order was entered, last modified, or adjusted; OR (3) party’s gross income has changed by 15% since last modified or adjusted.
Upward modification: allowed if (1) substantial change in circumstances warrants increase AND (2) modification is in best interests of the child.
Downward Modification: Change in finances must be both unforeseen and unreasonable. Loss of employment must be involuntary and party must diligently attempt to secure other commensurate employment.
Only events that occurred subsequent to the initial award are relevant, and any fault or noncompliance with visitation is not considered.
Arrears cannot be modified.
Key factor in child custody/visitation
Best interests of the child
Marriage requirements
(1) License
(2) Solemnization
What are the age requirements for capacity to marry?
Must be over 14yo.
Between 14–16 = both parental consent AND judicial consent
Between 16–18 = only parent consent
18+ = no consent necessary
Waiting period once license obatined
After license, must wait 24 hours.
License is good for 60 days after its issue
Medical testing in NY
No tests required except sickle cell anemia for African Americans
Reasons for denying marriage license
(1) too closely related (first cousins and adopted relatives allowed to marry)
(2) marriage is a sham
(3) parties incapable of understanding act (e.g., disability or inebriated)
Solemnization requirements
(1) one witness AND
2) someone to officiate (judge, political official, clergy member, or other recognized religious organization
Common law marriage in NY
Not recognized. But will give full faith and credit to proper ones from other states.
Marvin relationships
Consensual contracts between unmarried people.
NY allows contracts for services, but not intimate relations. Marvin-type contracts for sex are void.
Domestic relationships
recognized in NY. Benefits attach. Can be ended by mutual agreement. No divorce necessary.
Heart Balm actions
No longer available in NY. Cannot sue to recover damages from a breach of promise to marry.
But anything given in contemplation of marriage, when the consideration was the marriage itself, is retrievable if the marriage does not occur (e.g. engagement ring).
Three ways to end a marriage
(1) Annulment
(2) Divorce
(3) Death
Void Marriage grounds (annulment)
(1) Bigamy (prior existing marriage)
(2) Incest
(3) One party serving a life sentence
(4) Enoch Arden (spouse has a good faith believe the other spouse is dead based on absence of 5 years. Must publish a petition once a week for three weeks.)
Voidable Marriage grounds (annulment)
(1) Age (once party reaches 18, no longer a basis for voiding)
(2) Mental capacity (if in lucid moment, marriage continues, no longer voidable)
(3) Physical incapacity (party that was not impotent cannot have known of the problem at the time of marriage.)
(4) Fraud, misrepresentation, duress, coercion, or force
Legal separation agreement requiremnets
(1) in writing
(2) signed by parties
(3) notarized
Can be basis for conversion divorce after one year.
Merger versus incorporation of separation agreement into divorce decree
Merger = separation agreement void. Can only modify if "substantial change in circumstances." Incorporation = separation agreement remains independent and separate agreement. Enforced like contract. Can only modify if "extreme circumstances."
No-fault divorce
(1) Marriage must be “irretrievably broken down.”
(2) All issues (maintenance, equitable distribution, child support and custody) resolved before divorce obtained.
(3) One spouse must affirm under oath that marriage is “irretrievably broken” and has been for 6 months.
Conversion divorce
Requires (1) a valid separation agreement and (2) parties actually living separately according to terms of the agreement for one year.
If parties (1) violate agreement OR (2) resume co-habitation with intent to reconcile, they may not be able to get conversion divorce.
Bases for Fault Divorce
(1) Adultery (inclination and opportunity)
(2) Cruel and inhuman treatment
(3) Abandonment (one year or more)
(4) Imprisonment for three or more years
Adultery (grounds for divorce)
One of the parties has engaged in a relationship with a third party.
Recrimination available if other party also engaged in adultery.
Must show inclination + opportunity.
5 year SoL
Cruel and Inhuman treatment (divorce)
Requires:
(1) course of conduct (more than one act)
(2) that is harmful to π’s mental or physical health AND
(3) makes continued co-habitation unsafe.
5 year SoL from last incident.
Abandonment and constructive abandonment
ground for divorce
Abandonment =
(1) Abandonment of one year;
(2) without justification or consent; and
(3) no intent to resume cohabitation
Constructive abandonment =
(1) one spouse refuses to let the other in the house;
(2) for a year;
(3) must be willful, continued, and unjustified; and
(4) must include refusal of sexual relations for one year.
Imprisonment (divorce)
Imprisoned for 3 or more years.
Only non-prisoner can seek divorce.
5 year SoL beings once inmate is released.
What are the 7 defenses to divorce?
(1) Recrimination (only for adultery)
(2) connivance = party alleging adultery set up the adultery to benefit from it.
(3) condonation = forgiveness and resumption of relations
(4) collusion = parties conspire to create ground for divorce
(5) provocation
(6) consent
(7) justification (only for abandonment)
Religion is not a defense to fault-based divorce.
Equitable distribution
Upon dissolution of marriage, property is dealt with fairly. Happens in Supreme court.
Marital property
Everything acquired during a marriage, with some exceptions. (See non-marital property)