Family Law Flashcards
Creation of Marriage?
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.
Age Limitations
- 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
24 hour Rule
Except in cases of imminent death or possibility of irreparable harm, not solemnized w/in 24 hours of obtaining the license
Limitations and Impediments to Getting Married
- Age
- mental or physical incapacity
- consanguinity (cuzs okay)
- prior marriage still in force
Voided Marriages
- Incestuous or bigamous
- Siblings, uncle/niece or aunt/nephew
Voidable Marriages
Must petition (SOL 6 years) for annulment seeking a judicial determination that marriage is void:
- age
- mental incapacity or mental illness (incapable to consent/lack of understanding)
- physical incapacity (w/in 5 years)
- consent by force or duress (w/in 5 years)
- Fraud (SOL 3 yrs)
- addicition
- health, physical, mental condition
- concealed pregnancy
- prior marital status
- intent not to have children
K’s w/ Spouses
Business matters okay; Domestic services are not okay
Agency relationsip does not form w/marriage
Premarital Agreements
Must meet K requirements to be valid & enforceable
- Rights of estate in event of death
- rights of alimony in event of divorce
Creation of Marital Agreements
- Requirements
- Writing
- Subscribed by parties
- acknowledged
- May include
- testamentry provision, ownership, division or distribution of property, amount duration of maintenance
Domicile
- 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
Grounds for Seperation or Divorce
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
Creation of Seperation Agreements
Writing + Subscribed by parties + Acknowledged
- May include
- testimentary provision
- ownership, division of property
- amount duration of maintenance
- custody, care, education, and maintenance of children
Equitable Distribution in Maritable Dissolution
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_
Seperate Property in Marital Dissolution
- 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
Marital Property
All Property acquired by either or both spouses during the marriage.
Should be equitably distributed
Forms of Marital Property
- 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)
Factors Affecting Equitable Distribution
- 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
Maintenance
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
*
Grounds for Modification
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
Maintenance Termination
- 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
NY Long-Arm JX for Child
- Child conceived in NY
- Child or person, for JX sought, resides in NY
- Person acknowledged paternity in writing, or supported child
Paternity
DNA showing 95% or more
Calculation of Child Support
CPI= 141K (gross/investment income + other sources)
- 1C = 17%
- 2C = 25%
- 3C = 29%
- 4C = 31%
- 5C = 35%
Adoption
WHO?
- 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
