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NYS Bar > Family Law > Flashcards

Family Law Flashcards

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1
Q

Modification of Child Support (court order or agreement)

A

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.

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2
Q

Key factor in child custody/visitation

A

Best interests of the child

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3
Q

Marriage requirements

A

(1) License

(2) Solemnization

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4
Q

What are the age requirements for capacity to marry?

A

Must be over 14yo.
Between 14–16 = both parental consent AND judicial consent
Between 16–18 = only parent consent
18+ = no consent necessary

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5
Q

Waiting period once license obatined

A

After license, must wait 24 hours.

License is good for 60 days after its issue

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6
Q

Medical testing in NY

A

No tests required except sickle cell anemia for African Americans

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7
Q

Reasons for denying marriage license

A

(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)

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8
Q

Solemnization requirements

A

(1) one witness AND

2) someone to officiate (judge, political official, clergy member, or other recognized religious organization

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9
Q

Common law marriage in NY

A

Not recognized. But will give full faith and credit to proper ones from other states.

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10
Q

Marvin relationships

A

Consensual contracts between unmarried people.

NY allows contracts for services, but not intimate relations. Marvin-type contracts for sex are void.

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11
Q

Domestic relationships

A

recognized in NY. Benefits attach. Can be ended by mutual agreement. No divorce necessary.

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12
Q

Heart Balm actions

A

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).

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13
Q

Three ways to end a marriage

A

(1) Annulment
(2) Divorce
(3) Death

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14
Q

Void Marriage grounds (annulment)

A

(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.)

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15
Q

Voidable Marriage grounds (annulment)

A

(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

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16
Q

Legal separation agreement requiremnets

A

(1) in writing
(2) signed by parties
(3) notarized

Can be basis for conversion divorce after one year.

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17
Q

Merger versus incorporation of separation agreement into divorce decree

A 
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."
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18
Q

No-fault divorce

A

(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.

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19
Q

Conversion divorce

A

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.

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20
Q

Bases for Fault Divorce

A

(1) Adultery (inclination and opportunity)
(2) Cruel and inhuman treatment
(3) Abandonment (one year or more)
(4) Imprisonment for three or more years

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21
Q

Adultery (grounds for divorce)

A

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

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22
Q

Cruel and Inhuman treatment (divorce)

A

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.

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23
Q

Abandonment and constructive abandonment

ground for divorce

A

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.

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24
Q

Imprisonment (divorce)

A

Imprisoned for 3 or more years.

Only non-prisoner can seek divorce.

5 year SoL beings once inmate is released.

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25
Q

What are the 7 defenses to divorce?

A

(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.

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26
Q

Equitable distribution

A

Upon dissolution of marriage, property is dealt with fairly. Happens in Supreme court.

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27
Q

Marital property

A

Everything acquired during a marriage, with some exceptions. (See non-marital property)

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28
Q

Non-marital property

A

(1) property acquired before marriage
(2) by agreement before or after marriage
(3) anything acquired by gift or inheritance during marriage
(4) property obtained in exchange for separate property, even if exchanged during the marriage
(5) Appreciation in value of separate property IF appreciation is simply due to the market. If appreciation results from spouses active participation, that is marital property.
(6) Personal injury compensation, even if acquired during marriage.
(7) Social security
(8) professional degree or license if earned outside the marriage.

29
Q

Spousal maintenance standard

A

The living standard the parties enjoyed during life of the marriage.

30
Q

Spousal maintenance pendente lite

A

immediate support only during the divorce action

31
Q

Modification of spousal maintenance

A

If no separation agreement = show significant change in circumstance
If in separation agreement = show extreme hardship

Arrears can be modified for good cause UNLESS they are reduced to judgment.

32
Q

End of spousal maintenance

A

Death, re-marriage, or co-habitation AND holding out as husband-and-wife (mere co-habitation not enough).

33
Q

Supreme Court jurisdiction

A

Exclusive jurisdiction over marriages, divorces, and property distribution.
Concurrent jurisdiction with the Family Court over child support, maintenance, and child custody matters.

34
Q

Family Court jurisdiction

A

Concurrent jurisdiction with the Supreme Court over child support, maintenance, and child custody matters.
Exclusively in family court: Child protection cases, juvenile delinquency, adoptions, and PINS cases.

35
Q

Does the NY court need subject matter jurisdiction and personal jurisidction over a divorce?

A

Need subject matter jurisdiction. But no need for personal jurisdiction if ex parte divorce.
Three ways to have subject matter jurisdiction:
(1) Both parties are NY residents
(2) If only one party currently lives in NY, then that party must have (1) lived in NY for at least one year AND (2) the couple either were married in NY; resided in NY as spouses OR the cause of action arose in NY.
(3) If cannot meet any of the above, one party must have resided in NY for 2 years.

36
Q

When does a NY court need personal jurisdiction over a marriage?

A

NOT needed for divorce, as long as NY has subject matter jurisdiction.

Needed for related matters of property distribution, child and spousal support, and child custody.
NY has long-arm personal jurisdiction over a nonresident party if (1) NY was the matrimonial domicile of the parties before separation OR (2) claim for relief accrued under NY law.

37
Q

Child support age

A

Extends until child reaches 21yo.

38
Q

Bargaining away child support

A

Invalid. Support is the child’s right.

39
Q

What is the standard of proof for establishing paternity? And effect of blood test?

A

Must be proven by clear and convincing evidence. If blood test comes back negative = dismiss. If blood test is positive = not conclusive.

Must be brought before child reaches 21yo.

40
Q

How do you calculate child support?

A

(1) Combine income, from all sources, for both spouses.
(2) Apply statutory percentage. That is the total amount needed to support the child/children.
one = 17%
two = 25%
three = 29%
four = 31%
five+ = 35% or more
(3) Determine which percentage of the total income each spouse contributed. That is the percentage of the child support requirement each spouse must contribute.

41
Q

What state has jurisdiction over a child support order?

A

Home state will have continuing and exclusive jurisdiction.

Only changes when neither parties or children reside in the home state. Emergency jurisdiction is available in case of domestic violence.

42
Q

Uniform Interstate Family Support Act (UIFSA)

A

Extends long-arm statute to reach the limits of DPC for enforcing child support.

43
Q

What are the two kinds of child custody?

A

Physical custody and legal custody

44
Q

Can grandparents seek visitation?

A

Yes. Standing is automatic when a parent has died. Otherwise must show (1) sufficient existing relationship with child OR (2) have made a sufficient effort to establish a relationship despite being blocked by child’s parents.

Animosity between grandparents and parents is NOT enough. And the court will defer to wishes of biological parents before granting grandparent visitation.

45
Q

What counts as a child’s “home state” for child support/custody jurisdiction?

A

(1) where child has lived for 6 months prior to the court proceeding, or since birth, OR
(2) where child resided in the last six months and one parent continues to reside

46
Q

What is required for a valid property settlement agreement?

A

Valid as long as the agreement is:

(1) fair, reasonable, and voluntary AND
(2) made with full disclosure

47
Q

What NY courts have jurisdiction over adoption cases?

A

Depends on type of adoption:
Private placements = family court or surrogate’s court
Agency adoption = only family court

48
Q

What time period does a natural parent have to revoke consent to an adoption?

A

If consent given before judge = irrevocable
Private placement: If consent given outside court = 45 days
Agency adoption = 30 days after placement

49
Q

Child consent to adoption

A

If above 14yo, child’s consent required

50
Q

Involuntary termination of parent-child relationship grounds

A

(1) Abandonment for 6 months
(2) Permanent negliect for one year
(3) Abuse of child or sibling.

Must show by clear and convincing evidence.

51
Q

Grounds for a family offense

A

Includes stocking, harassment, menacing, endangerment, assault.

52
Q

Protective order scope

A

Lasts up to two years. If Aggravating Factors, can be up to five years.
Aggravating factors:
(1) serious physical injury
(2) use of dangerous instrument or weapon
(3) history of repeated violations of order of protection
(4) prior conviction of crimes committed by perpetrator against victim.
(5) perpetrator presents an immediate and ongoing danger

53
Q

What ages qualify for juvenile delinquency?

A

Minor under 16yo.
If 17 or 18, can qualify for youth offender status.
Handed in family court.

54
Q

Persons in Need of Supervision (PINS)

A

Minor that is 18yo or under that is

(1) not going to school,
(2) incorrigible, OR
(3) ungovernable.

Handled in family court. Child can be placed for up to 18 months in foster home or group facility.

55
Q

What are the time limits on abortion?

A

Abortion allowed up to 24 weeks. After 24 weeks, abortion only available if physician reasonably believes it is necessary to preserve the life of mother.
After 12 weeks, abortion only performed in hospital on in-patient basis.
After 20 weeks, must have second licensed physician present to care for child if born alive.

56
Q

What does the court consider when judging relocation of child (custody issue)?

A

Standard = best interest of the child. Weigh the reasons for relocating.
Proof by preponderance of the evidence.

57
Q

Does unwed father need to consent to adoption of non-marital child?

A

No. An unwed father’s consent for adoption of a non-marital child less than six months old is not required UNLESS:

(1) the father continuously lived with the mother for six months preceding the adoption,
(2) held himself out as the father, AND
(3) paid a fair and reasonable amount in support of pregnancy and birth related expenses.

58
Q

What is a “divisible divorce”?

A

NY courts can deal with divorce itself in New York if they have subject matter but lack personal jurisdiction over one of the parties. The related matters can be dealt with separately somewhere where personal jurisdiction over defendant can be obtained.

59
Q

Can a party who failed to show up to an ex parte divorce collaterally attack the divorce later?

A

No. UNLESS the party can show that the party that obtained the ex parte divorce was not a resident (and thus did not establish subject matter jurisdiction).

60
Q

What is paternity by estoppel?

A

Man is estopped from denying paternity of a child if:

(1) man held himself out as the father of the child AND
(2) the child grew up understanding he was the father of the child

61
Q

What are the percentages for child support calculation based on number of children?

A 
one = 17%
two = 25%
three = 29%
four = 31%
five+ = 35% or more
62
Q

What can a court NOT consider when determining child custody?

A

Race or religion.

63
Q

Are natural parents entitled to special treatment in a child custody dispute against a third party?

A

Yes. Natural parents are presumed entitled to custody as against third parties.

64
Q

Can a court grant custody of a child to a person who has murdered a parent, guardian, custodian, sibling, half-sibling, or step-sibling?

A

No. Law expressly prohibits awarding when person committed first- or second-degree murder of one those individuals.

65
Q

When can a court deny a parent visitation rights to their child?

A

Only in extreme situations because visitation is a constitutional right. Must show that visitation would seriously endanger child’s physical, mental, or emotional health.

66
Q

Who has a statutory right to visitation of a child under NY law?

A

(1) biological parents
(2) grandparents
(3) siblings
Others are not guaranteed visitation. Natural parent has final and absolute right to prohibit others from visiting.

67
Q

Do parents get deference from the court in a decision to exclude a non-parent from visitation of a child?

A

Yes. Troxel case = parents get “special weight” / very significant deference.

68
Q

Can siblings seek visitation of a child?

A

Yes. Same test as for grandparents. Must show (1) sufficient existing relationship with child OR (2) have made a sufficient effort to establish a relationship despite being blocked by child’s parents.

Includes adopted siblings, but otherwise limited to siblings of whole or half blood.

69
Q

Can a parent of a child (adoptive or biological) refuse to allow a “second-parent” adoption, custody, or visitation of a same-sex purported parent?

A

Yes. Can refuse even if the parent encouraged the parent-child relationship.

NYS Bar (24 decks)

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