Family Law

Question 1

Conflicts

Foreign divorces.

Answer 1

Foreign (out of country) Divorce

Bilateral – recognized under comity - here it is not based on domicile, but on personal appearance of the petitioning spouse & the defendant spouse’s voluntary appearance through an attorney, if the petitioning spouse has satisfied residency requirements of the foreign nation granting the divorce, this type of divorce will be recognized under comity.

Ex-parte foreign divorce is totally invalid

Question 2

Conflicts

Interstate custody disputes.

Answer 2

Typical pattern, one court enters a custody order in State A, one of the parents moves to State B & seeks re-adjudication of custody

Uniform Child Custody Jurisdiction & Enforcement Act - all states must defer to original custody order entered by home state of child

First state has continuing exclusive jurisdiction until court determines that neither the child or the child +1 parent have a significant connection to the state & substantial evidence relating to the matter is no longer available in the state or the child & the parent no longer reside in the state

Question 3

Conflicts

Marriage validity, bilateral & ex parte divorces.

Answer 3

Marriage valid where contracted will be valid in NY, except (maybe) gay marriage

Bilateral out-of-state divorce - valid in NY, & is res judicata as to all collateral issues (domicile over 1 party & PJ over other)

Unilateral/ex parte out-of-state divorce - prima facie valid in NY if D received service of process - if D shows void for lack of juris. NY will not give it FF&C & will even declare subsequent marriage by P to another as void (bigamy)

If valid - res judicata applies w/ respect to all issues Plaintiff could have raised.

Question 4

Conflicts

Non-payment of support obligations.

Answer 4

Uniform Interstate Family Support Act – every state must defer to the state that is the home state of the child that is receiving the support – only the court which issued the original support order will have original & continuing exclusive jurisdiction – this jurisdiction will continue until all parties leave the state

Full Faith & Credit for Support Orders Act (FEDERAL) – requires that all states give FF&C to the orders & decrees entered in the original court of sister jurisdiction (must have had proper juris. at time & opportunity for both parents to hear the case)

Child Support Recovery Act (FEDERAL) –parent falls behind 1 yr. or $5k in support obligation & child lives in another state, non-paying parent could be sent to jail.

Question 5

Children

Ways to have children?

Answer 5

Artificial insemination – child is marital child if woman is married & husband consent (sperm donor NOT a parent)

Surrogate parenting – Ks obligating surrogate mom to turn child over are void - against PP

Adoption - Anyone can adopt & anyone can be adopted (to est. genuine parent-child relationship)

Must have consent of all necessary parties, or demonstrate that consent is legally unnecessary.
Steps to Adoption – (1) State investigation of prospective adopting parents, (2) 3 mo. trial period, & (3) hearing to finalize adoption à order of adoption entered.

Question 6

Children

Child Support

Answer 6

Both biological parents must support their children through age 21 (or through college if special circum.)
Amount of Support - Mechanical calculation set as % of gross income based on numbers of kids & then prorates the result b/w the parents based on their respective incomes

Modification - permissible based on changed circumstances – child seeking = ANY change but parent seeking = must show severe & unforeseen change in circum.

Voluntarily give up custody to state for adoption – obligated to support it until adopted.

Estoppel – if P acts like father based on lie of mother, P is estopped from denying parenthood later on

Question 7

Children

Who must consent for an adoption to be valid?

Answer 7

Adoptee under 18 - consent of both biological parents & anyone else with legal custody
Adoptee over 14 - adoptee must consent

Parent’s right to consent can be dispensed with if:

(1) Surrender child to the state
(2) Parent mentally incapacitated precluding parent from taking care of child
(3) Parent abandoned child (6 mos. w/ no contact)
(4) Neglect of child (1 yr. w/ insubstantial contact – child support is substantial contact) - includes (a) parent’s conduct poses an imminent danger to child and (b) the behavior falls below minimum degree of care of a reasonable parent acting under similar circumstance.
(5) Has been superseded by guardian appointed under statute.
Unwed father’s consent - fathers have constitutionally protected parental rights if fathers “grasp the opportunity to form a relationship with their child”
Unwed father of a newborn can veto an adoption if he promptly manifests a willingness to establish a relationship with the child – promptness measured by baby’s life, not when father learns of baby.

Question 8

Children

Child Custody

Answer 8

Legal - decision-making authority
Physical – where will child live
Can be exclusive or shared
“Best interest of the child” standard used.
Court may take the unsworn testimony of a child in private but court must make a record of such testimony to provide the AD grounds for review.
Parent druggie & non-parent battle – NP must show best interests & extraordinary unfitness of real parent
Grandparent can ask for visitation, but must establish standing by showing (1) One of the parents is deceased & (2) circum. showing appropriate for equity to intervene.

Must overcome special weight given to parent’s preferences, b/c presumption that parent’s wishes are in best interest of child.

Modification - Reassessed under “best interest” standard w/ focus on stability
Relocation - custodial parent wants to move away, must go to Ct & show by POTE that relocation is in best interest of child.

Question 9

Property Distribution

What qualifies as separate property?

Answer 9

Separate Property

Anything owned prior to marriage
Bequests/gifts received by either spouse in their sole name
Inheritance
Property they agree will be treated as separate property (in written agmt)
Personal injury compensation
Passive appreciation on the above property (change in value due to time or market place fluctuation)

BUT appreciation due to active participation or mgmt by spouse in adding value is a marital asset (Ex – increase in value of a separate property during the marriage due to the contribution of the other spouse as homemaker & parent)

Question 10

Property Distribution

What can a court consider when dividing property?

Answer 10

Court may consider any relevant factor, EXCEPT marital fault, unless such fault is egregious

Courts divide marital property equitably & are guided by statutory factors (age, health, job skills, custodian of children, etc.) but there is no exact percentage & the court has discretion – the longer the marriage the closer it will be to a 50/50 split.

Abandonment alone is not sufficiently egregious to permit a court to deviate form an equal distribution of assets.

Mechanics - Can order in-kind transfer or lump sum payment to effectuate distribution.

Question 11

Property Distribution

Equitable distribution statute.

Answer 11

Equitable Distribution Statute

1st - Divide assets into:

H’s separate property
W’s separate property
Marital property subject to distribution

2nd - Give H and W their separate property & then exercise equitable discretion to divide up the marital property subject to distribution

Question 12

Property Distribution

What qualifies as marital property?

Answer 12

Marital Property

All property acquired during marriage regardless of how asset titled & who works

Includes professional licenses/degrees earned during marriage (but advanced earnings cannot be double counted for alimony purposes)

All businesses, salaries, stock options, lottery winnings, pension rights, professional licenses, gifts from spouse

Question 13

Economic Agreements

How is maintenance determined & what types of factors does the

court look at?

Answer 13

Temporary maintenance - ordered while case is pending to meet temporary needs of parties
Final Maintenance – no automatic entitlement—based on reasonable needs of recipient.

Court may consider ANY factor it deems relevant, including nature & degree of fault

Usually considers: (1) age and health of parties; (2) skills, earning capacity, time needed to gain job skills; (3) whether spouse cares for the children; (4) standard of living while married; (5) duration of the marriage

Conversion divorce based on separation agreement - maintenance can be addressed in separation agmt & court can it but close scrutiny of agmt if any evidence of overreaching

Question 14

Economic Agreements

Maintenance termination.

Answer 14

Duration can be set forth in decree – otherwise continues indefinitely – can also negotiate for early termination or survival past death.

Normally terminates on death of either party

Remarriage of recipient spouse is grounds for termination

Cohabitation w/o marriage not enough to terminate unless cohabatitor represents to the world that he’s married.

Question 15

Termination of Marriage

Professional responsibility of lawyers in divorce actions.

Answer 15

Attorney must provide client w/:

Statement of client rights/responsibilities
Written retainer agreement (at beginning of representation)
Closing statement itemizing written bill explaining how lawyer arrived at his fee

Cannot take as security for fee a mortgage on client’s house & cannot take non-refundable fee.

No sex during representation.

If lawyer violated any of duties & services were rendered – if the fee has not been paid yet, lawyer cannot collect fee but if already paid then must return it except fee for reasonable services already rendered

Question 16

Economic Agreements

Maintenance enforcement & modification.

Answer 16

Enforcement

Property can be seized & sold
Wages can be attached
Seize drivers & professional licenses
Jail for judicial contempt

Modification

File a petition for modification
Permissible upon showing of change in circumstances (payer got laid off, injured, recently graduated school & can now get job)

Separation agmt - extreme hardship must be shown BUT if the separation agmt was merged into the divorce decree the agmt did not survive the divorce & the petitioner need only show substantial change
Prospective only – encourages people to get to ct. early upon a change in circumstances

Question 17

Termination of Marriage

Conversion Divorce – conversion of legal separation into divorce.

Answer 17

Separate pursuant to court ordered legal separation, OR mutual agreement embodied in a separation agreement & live apart for 1 year.

Separation Agmt Reqs – (1) freely made, (2) in writing & acknowledged, (3) filed w/ court clerk as a prereq. for divorce decree (no need to be filed 1 year before)

Rescission of separation agreement - cohabitation during 1 year w/ intent to reconcile resets clock & requires reexecution of agmt. BUT not casual, isolated cohab w/ no intent to reconcile

Rescission does NOT apply to court decree - if reconciliation under a separation decree, there is no harm to decree or 1 yr running period

Material breach of separation agmt - rescinds agmt & it can’t be used for conversion divorce

Question 18

Termination of Marriage

Civil Procedure for Divorces

Answer 18

Supreme Court has exclusive jurisdiction but may refer incidental matters (support, custody, or visitation) to Family Ct.
SMJ - 1 spouse domiciled in NY, and 1 of the Durational Residency Reqs
PJ required over D to get collateral orders (e.g. support, alimony, custody)
Pleadings must be verified (i.e. sworn to) - except Answer in adultery case
D must be personally served - can ask court for alternative method
Summary judgment - may NOT be granted in favor of the non-moving party
Jury Trial – permitted in divorce, declaration of nullity & annulment action (except one on the grounds of physical incapacity) but NOT permitted in separation actions
Disclosure of financial assets – so court has rational basis to enter financial orders
Confidentiality - Matrimonial records kept sealed for 100 years

Question 19

Termination of Marriage

What are grounds for a divorce?

Answer 19

Grounds for Divorce

Cruel & inhuman treatment
Abandonment for 1 year or more (no set period for legal separation)
Adultery
3 years consecutive imprisonment

é Failure to support is NOT a ground for divorce

é JURY TRIAL to determine grounds for divorce.

Question 20

Termination of Marriage

Dissolution of Marriage

Answer 20

Only available when spouse has been missing for 5 years w/o any tidings.

Petitioner-Spouse must be NY resident for 1 year, or NY must have been the matrimonial domicile at time of disappearance.

Publication - Publish request that spouse return in English language newspaper, regardless of language spouse speaks, for 3 consecutive weeks.

Proceedings only consider if absent spouse is dead – no collateral issue decided (property, child custody, alimony) b/c operation of law takes over & will or intestacy is followed (it is as if the missing spouse is dead).

Question 21

Termination of Marriage

Separation – Cruel & Inhuman Treatment, Imprisonment, Failure to Provide Economic Support.

Answer 21

Cruel and inhuman treatment (physical or mental) – must be evidence that well-being of spouse endangered rendering it unsafe or improper for P to cohabitate with D

Subjective test – determination only relates to particular P-spouse, not “reasonable spouse”
If P continued to cohabitate after abuse, court will consider it as a factor but it is not dispositive.

Three Years Consecutive Imprisonment During Marriage

Failure to provide economic support – if neglect or actual refusal to provide support – the separation order will contain a support clause (fault may be considered to determine award)

Question 22

Termination of Marriage

Separation - Abandonment

Answer 22

Abandonment – a (1) willful & voluntary departure, (2) w/o consent of the other spouse, (3) w/o intent to return, (4) w/o justification

Conduct plus intent - intent inferred from duration/length of absence
Without consent or justification - to escape violence always justified
Constructive abandonment – D walked away from marriage in metaphorical sense – e.g. refusal to have sex (but NOT refusal to have oral sex) or locks spouse out of house

Question 23

Termination of Marriage

What is the effect of a legal separation & why would someone get one?

Answer 23

Ct. granted permission to live apart (so no sex obligations) & liquidates any support obligation

Judge can give permanent or temporary order of separation

Why get separation? (*note in essay)

Financial or legal reasons – parties may want to maintain technical status b/c of social security benefits, inheritance rts, continue being a beneficiary of certain insurance plan
Religious reasons – some people will never get divorces

é No jury trial for separation proceedings.

Question 24

Termination of Marriage

Separation - Adultery

Answer 24

Defenses:

Recrimination – (dirty hands) – P spouse has also committed adultery
Condonation – knowledge + forgiveness + cohabitation
Connivance – form of entrapment – P procured adultery

SOL - 5 years from discovery
Pleading of parties must be verified, except for D-Spouse’s answer.
Spouses can only testify on 3 subjects: (1) to prove existence of marriage, (2) D-Spouse can testify to deny the adultery, (3) P-spouse can testify to deny a defense.
P-Spouse cannot testify to prove the adultery - need to get third party testimony or circumstantial evidence (opportunity & disposition) to prove adultery.
Testimony of private detectives & prostitutes must be corroborated.

Question 25

Termination of Marriage

Annulment - Non-Age, Mental Incapacity,

& Duress.

Answer 25

Non-age – discretionary & waived if stay married & cohabitate after 18th b-day
Mental incapacity at time of marriage – inability to consent due to want of understanding b/c of diagnosable mental illness or developmental disability.

Waived if continue to co-habitate after regaining capacity
Suit may be brought by a family member or legal guardian.

Duress - getting married under force of physical coercion (gun-point, knife).

Waived if gun is removed & continue to co-habit.

Question 26

Termination of Marriage

Annulment - Incurable physical incapacity & incurable insanity.

Answer 26

Incurable physical incapacity – prevents sex

Must not have attempted sex before marriage
Only biological inability to have sex – NOT inability to have kids & NOT related to refusal to be intimate
Must be incurable (including transmittable disease, like HIV)
SOL - must be brought w/in 5 years of marriage
No jury trial

Incurable insanity for 5 yrs. during marriage

Mental illness develops after the marriage.
5 consecutive years or more.
3 court appointed psychiatrists must corroborate

Question 27

Termination of Marriage

Voidable Marriage. 6 grounds for annulment & procedural matters.

Answer 27

Capacity problem at marriage, which rendered marriage voidable so marriage is valid until declaration of annulment.

6 Grounds for Annulment:

Non-age
Mental incapacity at time of marriage
Duress
Fraud
Incurable physical incapacity
Incurable insanity that lasts for 5 yrs. during marriage

Procedural Matters:

Testimony by either party re: grounds for annulment requires corroboration
Jury trial (except physical incapacity)
Default SOL = 6 yrs.

Question 28

Termination of Marriage

Annulment – Fraud.

Answer 28

Party misrepresents or conceals info that goes to an essential aspect of the marriage prior to the marriage & it would’ve been likely to deceive reasonably prudent person.

Religion – what religion practices, level of devotion, intent to convert, raise kids
Procreation or sex – failure to disclose/lie about paternity of baby expecting; cannot have kids; do not want kids; sexual history, agenda or orientation

Waiver – must bring action w/in 3 yrs. of learning of the fraud

é Lying about economic status is NOT grounds for annulment.

Question 29

Marriage

Duties of Marriage.

Answer 29

Monogamy
Economic support - “fair & reasonable” standard

Based on “Means test” – amt based on means/resources of wealthier spouse – unless risk that spouse will become a public charge, then based on “Needs test” - based on needs of recipient spouse.
Spouse not being supported - can seek family ct. order to enforce support reqs (no effect on validity marriage)

Spouses retain separate identities for civil & criminal law – liable for torts or crimes against each other, can K w/ other people w/o binding spouse, liable for own debts
Exceptions

Debt for necessaries – other S can be liable
1 spouse agent of other - liability for debts can attach

Question 30

Marriage

What are the 5 “Heart Balm” actions?

Answer 30

5 “Heart Balm” Actions (civil) – ABOLISHED in NY

Breach of promise to marry
Seduction of unmarried female (father of woman holds COA)
Alienation of affections (spouse can sue 3rd person – lover, mother-in-law)
Criminal conversation – civil action for emotional distress caused by adultery
Jactitition of marriage – claiming you are married to someone you are not

é It’s a FELONY to file one of these cause of actions.

Question 31

Marriage

Requirements for valid marriage.

Answer 31

Capacity – Single, opposite sex, 18 yrs. old (or 16-18 w/ parental consent)

Ceremonial Marriage

License – (1) from city or town clerk, (2) wait 24 hrs., (3) license valid for 60 days, (4) pay fee, (5)

Defects in license or failure to get a license - NO affect on validity of marriage

Ceremony – Solemn declaration that couple will take on status of husband & wife before an officiant & 1 witness

Must be undertaken with general intent to undertake responsibility
Officiant - any civil officer, physically present, authorized to administer an oath

Contractual Marriage - cannot be in same place so get the license, & each party goes to a separate judge & signs the license, need one witness for each party.

é No common law marriage BUT if from another state where it’s acknowledged, NY will recognize

Question 32

Termination of Marriage

Void Marriage

Declaration of Nullity

Answer 32

1 person lacked severe capacity so marriage is void.

Ex – Bigamy or Incest (1st cousins okay)

Impediment causing marriage to be void is removed (e.g. other spouse dies) - subsequent marriage becomes voidable & thus subject to ratification.

“Void” = no need for judicial decree b/c no marriage BUT should get a declaration of nullity anyway for clarity of record & collateral matters (distribute property, custody of kids).

Question 33

Unmarried Couples

Enforceability of a Pre-nuptial agreement.

Answer 33

1 Party wants to set aside agreement ct. looks at:

Agreement must be freely made without duress
In writing, signed by both parties (SOF)
Cannot agree in advance to get divorced or engage in conduct that creates grounds for divorce
Cannot be unconscionable – if contains waiver of post-divorce support not uncon. unless would likely leave party to become public charge

é Only enforceable if they get married so if they don’t K goes away & once married, K becomes binding & subsequent divorce has no effect on the validity of the K.

Question 34

Unmarried Couples

Filiation Proceeding requirements & evidentiary standards used.

Answer 34

Filitation Proceeding (only if no man acknow. paternity)

Family Court has exclusive jurisdiction
Brought in county where mom, alleged dad or child resides
Claim brought by mother, child through guardian, or state (or father if mother denies paternity)
Can be litigated at any time prior to child’s 21st birthday

Evidentiary points

C&C evidence needed
Mother’s testimony that she had sex w/ D need not be corroborated BUT if D offers evidence of sexual access tra mother & other men, must be corroborated.
DNA shows greater than 95% of paternity à rebuttable presumption that D is dad, which shifts burden of proof to D (either side can offer)
D can rebut by showing something like complete in-access (e.g. being out of the country for the entire time) but if not rebutted will give rise to liability for support of the child.

Question 35

Unmarried Couples

Enforceability of contracts between co-habitants.

Answer 35

Contracts between co-habitants who have no intention of getting married are enforceable

Ex - “should we split up, one promises to pay the other a stream of income”

Exception – in absence of express contract, no implied contracts between unmarried co-habitants

Question 36

Unmarried Couples

Non-marital Children

Answer 36

Non-marital child – child conceived by and born to parents who never married

If parents marry 2 years after child born, child is no longer non-marital.
Child’s status as a marital child is unaffected by the fact that parent’s marriage is void, voidable, annulled or judicially declared void.

Have identical rights to marital children - can inherit from natural parents, can sue for wrongful death, entitled to (govt.) benefit programs, entitled to economic support from both parents

Ambiguity re Identity of Father - if married, strong presumption that mother’s husband is the father but can have filiation proceeding to determine