Family Law Flashcards

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1
Q

Creation of Marriage?

A

Marriage = Relationship created by the legal union of 2 persons as a married couple.

Marriage license must be obtained (and delivered to officiant w/in 60 days).

Failure does not invalidate the marriage bu marrying without a license may make a person subject to criminal penalites.

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2
Q

Age Limitations

A
  • Under 18: proof of age
  • 16-18: written consent of the parent or guardian
  • under 16: Court approval
  • Under 14: prohibited so no license may be issued
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3
Q

24 hour Rule

A

Except in cases of imminent death or possibility of irreparable harm, not solemnized w/in 24 hours of obtaining the license

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4
Q

Limitations and Impediments to Getting Married

A
  • Age
  • mental or physical incapacity
  • consanguinity (cuzs okay)
  • prior marriage still in force
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5
Q

Voided Marriages

A
  • Incestuous or bigamous
  • Siblings, uncle/niece or aunt/nephew
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6
Q

Voidable Marriages

A

Must petition (SOL 6 years) for annulment seeking a judicial determination that marriage is void:

  1. age
  2. mental incapacity or mental illness (incapable to consent/lack of understanding)
  3. physical incapacity (w/in 5 years)
  4. consent by force or duress (w/in 5 years)
  5. Fraud (SOL 3 yrs)
    • addicition
    • health, physical, mental condition
    • concealed pregnancy
    • prior marital status
    • intent not to have children
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7
Q

K’s w/ Spouses

A

Business matters okay; Domestic services are not okay

Agency relationsip does not form w/marriage

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8
Q

Premarital Agreements

A

Must meet K requirements to be valid & enforceable

  • Rights of estate in event of death
  • rights of alimony in event of divorce
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9
Q

Creation of Marital Agreements

A
  • Requirements
    • Writing
    • Subscribed by parties
    • acknowledged
  • May include
    • testamentry provision, ownership, division or distribution of property, amount duration of maintenance
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10
Q

Domicile

A
  • the domicile of one spouse is sufficient basis
    • state court to exercise in rem divorce jx
    • state to render a divorce even if no PJx of other spouse
  • Need proper service
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11
Q

Grounds for Seperation or Divorce

A

Seperation: may be permanent or for a limited time. No min. time req’t unlike divorce

Divorce (ANNASIC)

  • Abandonment
    • voluntary seperation + w/o jusitificaiton + intent to not return
    • Must last for one or more years
  • Nonsupport
    • neglect/refusal to provide for spouse
    • seperation only
  • No-Fault
    • irretrievably broken down 6+months
  • Adultery
    • voluntary performed
    • Defenses: rape, insanity, or mistake of fact
  • Seperation Pursuant to Decree or Agreement
    • entitled after legally seperated for 1+yrs
  • Imprisonment
    • 3+ yrs
    • Not mental hospital
  • Cruel and Inhuman Treatment/Cruelty
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12
Q

Creation of Seperation Agreements

A

Writing + Subscribed by parties + Acknowledged

  • May include
    • testimentary provision
    • ownership, division of property
    • amount duration of maintenance
    • custody, care, education, and maintenance of children
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13
Q

Equitable Distribution in Maritable Dissolution

A

Not 50/50, Property distributed on what’s fair, reasoanble and just

Seperate property is not subject to equal distribution

Marital Property v. Seperate Property (Property acquired prior to marriage_

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14
Q

Seperate Property in Marital Dissolution

A
  • Acquired before marriage by bequest, devise, or descent, or a gift
  • Compensation for personal injuiries
  • Property acquired in exchange for, or increase in value of seperate property
    • unless appreciation is due to efforts of other spouse
  • Seperate by written agreements
  • Property given as gift to one spouse
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15
Q

Marital Property

A

All Property acquired by either or both spouses during the marriage.

Should be equitably distributed

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16
Q

Forms of Marital Property

A
  • Pension benefits
  • Professional Degrees and Licenses
  • Professional Practice
  • Artistic or Athlectic Skills
  • Inherited (became marital if commingled)
  • Increase in value due to spoual contributions (direct or indirect)
17
Q

Factors Affecting Equitable Distribution

A
  • Income and Property of each party
    • earning capacity
    • if a party has extensive sepearte property
  • Duration of marriage and age/health of each
  • Custodial parent’s need to occupy marital residence
  • Loss of inheritance and pension rights upon divorce
  • Loss of health insurance
  • Children
  • Contributions of each
18
Q

Maintenance

A

a/k/a Alimony

  • Capacity of each spouse to be self-supporting is only one of number of factors
    • income and property
    • duration of marriage/health/age
    • Present/Future earning potential
      *
19
Q

Grounds for Modification

A

Court may annul or Modify any alimony, maintenance, child support if there is a Substantial Change in Circumstances

  • Remarriage and step-children does not constitute changed circumstances
    • But! Changed custody does
    • Reduction in income
    • loss of employment
20
Q

Maintenance Termination

A
  • Remarriage is termination of maintenance but not child support
  • Death of Payor/Payee
  • One spouse habitually living with another person as purported spouse
  • Arrears (money owned) is not terminated unless showing of good cause
21
Q

NY Long-Arm JX for Child

A
  1. Child conceived in NY
  2. Child or person, for JX sought, resides in NY
  3. Person acknowledged paternity in writing, or supported child
22
Q

Paternity

A

DNA showing 95% or more

23
Q

Calculation of Child Support

A

CPI= 141K (gross/investment income + other sources)

  • 1C = 17%
  • 2C = 25%
  • 3C = 29%
  • 4C = 31%
  • 5C = 35%
24
Q

Adoption

WHO?

A
  • Any single or married adult (+18) can adopt
  • Adopted Child -> W/ consent of both parents; mother of non-marital child; agency/foster; court discretion if child consents over 14yo