Family Law Flashcards
Ceremonial Marriage
- License
2. Solemnization (officiant + witness)
Marriage License Age Requirements
- 18+ years old
- 16-18 yrs - parental consent
- 14-16 yrs - parental and judicial consent
- Under 14 - no marriage
No marriage license if . . .
- One party is already married
- Too closely related (1st cousins can marry)
- Sham marriage
- Parties incapable of understanding act
Same-Sex Marriage
Legal in NY
Civil Union
- contracted relationship that gives same rights as marriage, but can’t get a divorce because its not a marriage
- not available in NY (but will recognize under FF&C)
Marriage License: Medical Testing
Sickle-cell anemia for african americans
Common Law Marriage
Agreement between two people to be married and hold each other out as spouse + cohabitation.
- Not available in NY
- Recognized under FF&C
Marvin Relationships
Consensual contract between two unmarried people. Contract intimate relations not allowed in NY (payment contingent on performing sexual acts)
Heart Balm Actions
- No recovery for harm to reputation for not going through with marriage.
- Can recovery anything given in contemplation of marriage when consideration was marriage itself (engagement ring)
Domestic Partnership
Available in NYC for NYC employees; no divorce necessary
Four ways to terminate marriage . . .
- Annulment
- Conversion Divorce
- No-Fault Divorce
- Fault Divorce
Annulment is available for . . .
Void or voidable marriages
What affect does annulment have on marriage?
It is as if the marriage never existed; valid as of date of decree.
Void Marriages
- Bigamy
- Incest
- Incarceration for life
- Enoch Arden (missing 5 years + good faith belief to be dead + publish for 3 weeks)
Voidable Marriages
- Infancy
- Mental Incapacity
- Physical Incapacity (impotence)
- Fraud, misrepresentation, duress, coercion, force of any kind
- Persistent Mental Illness for 5 years
Marriage Voidable for Infancy
- Party to marriage is less than 18 at time of marriage; available only to minor party (parents of minor).
- Not voidable once party turns 18
Marriage Voidable for Mental Incapacity
- Marriage can stand if party w/o incapacity recognized incapacity at the time of marriage
- If mental illness comes and goes, and marriage entered during lucid time, not voidable
- If entered into not during lucid moment, incapacitated party can seek annulment during lucid moment
- If annulment not sought during lucid moment, no later annulment allowed
- If incapacity obvious (mental retardation), party of normal capacity cannot seek annulment.
Marriage Voidable for Physical Incapacity
- Annulment available if one party is impotent if non-impotent party didn’t know of incapacity at time of marriage.
- 5 year SOL
Marriage Voidable for Fraud, Misrep, Duress, etc.
- 3 year SOL
- If you become aware of circumstances and continue marriage, no annulment later
Separation Agreement Requirements
- Writing
- Signed by parties
- Notarized
- Voluntarily entered into
- Immediate separation following agreement
- Can’t obligate parties to give up support otherwise eligible for
Grounds for Separation
Fault grounds for divorce + failure to support
Issues of child support and custody in separation agreement . . .
Always reviewable by court for best interests of child.
Conversion Divorce
Separation agreement + separation for at least one year = separation agreement can serve as grounds for conversion divorce.
Separation agreement can __________ or ________ with divorce decree.
Merge or incorporate
Separation agreement merges with divorce decree . . .
- only the divorce decree survives
- can be enforced by contempt proceedings
- Standard for modification: substantial change in circumstances
Separation agreement incorporated into divorce decree . . .
- separation agreement survives
- can be enforce like contract (no contempt)
- Standard for modification: extreme change in circumstances
No Fault Divorce
Available if one spouse shows marriage is irretrievably broken and has been for at least 6 months; all property and support matters must be dealt with before divorce granted.
Fault Divorce
- Adultery
- Abandonment
- Cruel and inhumane treatment
- Incarceration for 3+ years
Fault Divorce: Adultery
Adultery is engaging in sexual relations with someone other than your spouse.
- Usually no direct evidence
- Circumstantial evidence: opportunity + inclination to engage in adultery
Spousal testimony in adultery proceedings . . .
Not allowed to testify against spouse unless to (1) prove marriage took place; (2) disprove adultery; (3) disprove defense.
If adultery evidence is testimony of prostitute or private investigator . . .
Need corroborating evidence
Statute of limitations for adultery divorce
5 years from discovery
Defenses to Adultery
- Recrimination - he cheated, she cheated
2. Condonation - forgive and continue cohabitation + marital relations
Fault Divorce: Cruel and Inhumane Treatment
Must show pattern of conduct that is harmful to plaintiff’s physical or mental well-being and that continued cohabitation is unsafe.
- can be relevant to child custody proceedings
Factors for Cruel and Inhumane Treatment
- Length of marriage
- Age of parties
- Objective evidence of harm
- Impact on spousal maintenance award
Cruel and Inhumane Treatment SOL
5 years
Fault Divorce: Imprisonment for 3+ years
- Available only to non-imprisoned spouse
- Available beginning 3 years after incarceration to 5 years after release
Defenses to Fault Divorce
- Recrimination
- Condonation
- Connivance
- Collusion
- Provocation
- Consent
- Justification
Fault Divorce: Abandonment
Abandonment for 1 year without justification or consent and without intent to resume cohabitation.
Constructive Abandonment
Forcing spouse out of home and refusal to engage in marital relations for at least 1 year. Must be willful, continuous, and unjustified.
Equitable Distribution
Marital property is distributed fairly, not equally. Separate property remains property of each spouse.
What is NOT marital property?
- Separate Property (obtained before marriage)
- Property obtained in exchange for separate property
- Proceeds from sale of separate property
- Gifts and inheritance received during marriage
- Property excluded by valid agreement
- Passive appreciation in value of separate property
- Personal injury compensation
- Future inheritance and future life insurance payments
- Retirement and pension benefits that have NOT vested
- Social security
- Stock plans if for future incentive
Factors to consider in equitable distribution . . .
- Age of parties
- Length of marriage
- Loss of inheritance
- Income of each party
- Need for custodial parent to remain in home
- Spousal support
- Tax consequences
- Loss of health insurance benefits b/c divorce
- Any other relevant factor
Equitable Distribution: Professional License
Court will look at present value AND career potential enhancement of license.
Tax consequences of equitable distribution
Not taxed at distribution; taxed when sold
Test for Spousal Support
Actual standard of living during marriage
Factors for Spousal Support
- Income of each spouse
- Earning capacity of each spouse
- Age and health of spouses
- Length of marriage
- Who has custody
- Tax consequences
- Any other relevant factor
- Marital fault not considered unless egregious
Modification of spousal support . . .
If separation agreement merged - substantial change in circumstances. If separation agreement incorporated, extreme change in circumstances.
Spousal maintenance ends with . . .
Death or remarriage of receiving spouse. Cohabitation does NOT end support.
Arrears for Spousal Support
Arrears not discharged by death, remarriage, or cohabitation. If reduced to judgment, cannot be modified.
Witholding spousal support . . .
Can withhold spousal support if receiving spouse is interfering with child visitation rights.
Jurisdiction of Supreme Court and Family Court
Supreme court has exclusive jurisdiction over divorce and property distribution.
Family and Supreme have concurrent jurisdiction over child support, maintenance, and child custody.
Family court has exclusive jurisdiction over PINS, adoption, juvenile delinquency, and child protection cases.
Subject Matter Jurisdiction
- Both parties live in NY
- One party has lived in NY for 2 years OR
- Once party has lived in NY AND (1) NY is matrimonial domicile; (2) spouses lived together in NY; or (3) cause of action arose in NY.
Personal Jurisdiction
- Ex Parte divorces allowed
- No Ex Parte proceedings for related matters
- Long Arm Statute:
- NY was matrimonial domicile
- One spouse abandoned other in NY
- Claim for relief accrued under NY law
- Claim for relief pursuant to agreement entered into in NY
Foreign Divorces
NY will recognize foreign divorces if parties properly appeared and petitioning spouse was resident of country.
Indigent Persons
Must waive fees; no right to counsel in divorce proceedings
Child support extends to . . .
Age 21 or beyond if child is incapable of support due to mental/physical inabilities.
Paternity must be proven by . . .
CCE. Court can order DNA test - positive match is evidence but not conclusive.
If woman is married, presumption that . . .
Husband is father of child.
Paternity by Estoppel
When man holds himself out to be father of child and child grows up understanding man to be the father, man may be liable for continued support even if evidence that he is not the father. Focus on best interests of child.
Post-secondary obligation to pay child support
Look at . . .
- Education level of parents
- Academic ability of child
- Financial means of parents
- Environment child grew up in
Calculating Child Support
- Aggregate of income of both parents
- Multiplied by percentage based on # of kids
- Apportioned by percentage to each parent
Can deviate from percentages if income exceeds $136,000 or another specific finding that explains deviation.
Child Support Percentages
1 child - 17% 2 children - 25% 3 children - 29% 4 children - 31% 5+ children - 35%
Child Support Deviation Factors
- Age, health, and needs of child
- Standard of living enjoyed during marriage
- Financial resources of all parties
- Tax consequences
- Visitation expenses
- Great disparity between spouses’ income
- Educational needs of parent
- Non-monetary contributions of parent
- Any relevant factor
Upward Modification of Child Support
Requires substantial change in circumstances and that increase is necessary and in best interests of child.
Can also modify up after 3 years or after increase in income of 15% or more.
Child support arrears
Cannot be modified or forgiven
Downward Modification of Child Support
Must show unforeseen and involuntary change of financial circumstances.
If child support agreed to in separation agreement, amount is fully enforceable by court.
Termination of Child Support
- Child turns 21
- Child becomes emancipated from parents
- Obligated parent’s rights terminated
- Parent of child dies
Jurisdiction for Child Support and Modification
Home state has continuing and exclusive jurisdiction until parents and child no longer reside.
Enforcement of Child Support Judgment
- Court must have jurisdiction over non-paying parent
- Civil Contempt (obligation to pay spousal support suspended, but not child support)
- Criminal Contempt: imposed if parent willingly does not pay (must serve even after payment made)
Uniform Interstate Family Support Act: Bases to Enforce Support Orders
- Respondent has lived in state with child
- Child lives in state because of some act of respondent
- Respondent lived in state and provided for child in state
- Respondent had sex in state that resulted in conception of child
- Respondent asserted rights by registering with Putative Fathers Registry in NY
- Any other constitutional basis
To enforce award in state other than original state . . .
- Seek direct enforcement OR
2. Register award in initiating state and send to responding state where defendant can be found.
Full Faith and Credit for Child Support Orders Act
Must give FF&C to child support orders but cannot modify UNLESS original state no longer has jurisdiction.
Child Custody based on . . .
Best interests of child
Factors for Child Custody
- Whether both parents have parenting skills
- Health of each parent
- Willingness of custodial parent to foster relationship with non-custodial parent
- Child’s preference (if mature enough; no age requirement; not dispositive)
- Lifestyle of child before separation
- Domestic violence (must consider if there is sworn statement)
- Preference for keeping blood siblings together
Factors NOT considered to determine child custody . . .
- sexual conduct of parent
- race or religion
No custody if parent convicted of . . .
murder of other parent, or guardian or custodian of sibling, half-sibling, or step-sibiling of child.
Grandparent Visitation
Grandparents may seek visitation, but court will defer to wishes of bio parents.
Modification of Child Custody: Relocation
- Best interests of child
- Nature, quality, and involvement of child w/ parent not seeking relocation
- Age and needs of child
- Impact on child’s relationship with extended family
- Reasons for relocation
- Ability to preserve relationship with other parent
- Whether relocation will enhance child’s life
- Any previous interference with parenting time
- Any other factor relevant to best interests of child
Non-Marital Children
- Right to share in wrongful death damages
- No right to inheritance unless paternity established
- Right to share in workers’ comp and public assistance
What is the “home state”?
- Where child has resided for 6 months
- Where child has resided since birth if not yet 6 months
- Where child resided in last six months and where parent still resides
Marital Agreements formed if . . .
- Consideration
- Consent
- Lack of duress (“I won’t marry you unless you sign” is NOT duress)
Property Settlement Agreements must be . . .
- Voluntarily entered
- After full disclosure
- Fair and reasonable
Two types of adoption . . .
- Agency
2. Private Placement
Revocation of Consent for Adoption
- Private placement, consent given in court: no revocation
- Private placement, consent in private: 45 days to revoke
- Agency adoption: 30 days to revoke
Surrogacy Contracts
Not enforceable in NY; no exchange of money for adoption allowed except for medical expenses of mother during pregnancy/birth.
Consent issues . . .
- If putative father fails to register, adoption can proceed with only mother’s consent.
- If child 14+ yrs., child must consent.
Whether father is entitled to notice and must give consent . . .
- Whether father has done what he can to support mother and hold himself out as father.
- Showing up to object not sufficient
- Must be substantial and continuous or repeated contact with child for consent to be required.
Involuntary Termination
CCE of . . .
- Abandonment
- Abuse
- Neglect for 1 year or more
Family Offenses: Grounds
Harassment, menacing, assault, stalking, endangerment, attempted assault.
Family Offenses: Criminal v. Civil
Criminal: DA handles case
Civil: Victim has remedies of support, but no arrest or jail time for perp
Protective Orders
- Preliminary order can be issued ex part
- Permanent order lasts 2 years; can extend to 5 years with aggravating circumstances:
- Serious physical injury
- Use of dangerous weapon
- History of repeated violations of order
- Prior conviction against victim
- Immediate and ongoing danger
Child Protection Investigation: Child remains in home
Agency obligated to provide diligent and reasonable efforts to keep child safe at home.
Child Protection Investigation: Child removed from home
Agency must show reasonable efforts made to prevent removal OR unreasonable to keep child in home under circumstances.
Child in placement for 15 of 22 months. . .
Agency obligated to file petition to terminate parental rights; must show CCE that parent has abused or neglected child in a way that child cannot remain safely in home and proper amount of time has passed.
Juvenile Delinquency Proceedings: Age
- between 7 and 16
- 17 and 18 may be tried as adult
- 16 to 18 and first offense: youthful offender status
- Fact finding hearing
- No jury, no bail
PINS - Persons in need of supervision
Used for youth who commit status offenses - skipping school, being incorrigible, being ungovernable.
- Can be placed in group home or foster home
- CanNOT go to juvey or jail
- Only good to age 18
Abortion
- Allowed up to 24 weeks
- Mother or physician can perform
- After 12 weeks, must be performed on inpatient basis in hospital
- After 20 weeks, second physician must be present
