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BAR STUDY > Family Law > Flashcards

Family Law Flashcards

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1
Q

Marriage - NY Formal Reqs

A

1) license: age rules (14/15: parental consent & ct approval, 16/17: parental consent) + waiting period (1-60 days) + testing (sickle cell)
2) solemnization: 1+ witness and judge/politician/clergy must officiate

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2
Q

No marriage license

A

1) preexisting marriage
2) co-sanguinity (1st cousins and adopted siblings OK)
3) sham marriage
4) incompetence/inebriation

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3
Q

Annulment - void marriages

A

Void marriage - Not legally recognized except afterward for purposes of legitimacy

1) Bigamy
2) Incest
3) Married while serving life sentence
4) “Enoch Arden” statute = spouse believed dead b/c of absence for 5 years + newspaper publication for 3 weeks. Ct then annuls.

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4
Q

Annulment - voidable marriages

A

Voidable marraige - valid until one spouse seeks to void it by ct decree. *6 yr SoL.

1) Age: only minor spouse or her parents can use this, and only before reaching 18 if still together
2) Mental incapacity: by mentally ill spouse or their relatives, or by normal spouse iff incapacity wasn’t obvious at marriage time
3) Physical incapacity: one party unable to procreate at time of marriage, and moving party didn’t know (5 yr SoL + no jury)
4) Fraud/coercion/misrepresentation: must go to essence of marriage (3 yr SoL)

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5
Q

Legal separation - formalities

A

1) in writing, 2) signed, 3) notarized

  • Cannot expressly req parties to divorce.
  • Parties must actually separate to get conversion divorce.
  • Grounds = same as divorce + “failure to support” if spouse possess means to do so and supported spouse needs it.
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6
Q

Effect of separation agreement on divorce

A

Merger = agreement merged into divorce decree, which then governs.

  • Incorporation = sep. agreement continues as independent K and can be sued on. NY presumes this one if parties silent.
  • NB: Ct can only modify sep. agree. w/ consent of parties UNLESS supported spouse is receiving so little she’s in danger of becoming a public charge.
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7
Q

Divorce - grounds

A

1) No-fault
2) Conversion
3) Fault:
a. Adultery
b. Cruel/inhumane treatment
c. Abandonment
d. Imprisonment

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8
Q

No-fault divorce

A

One spouses testifies under oath that marriage is “IRRETRIEVABLY BROKEN” and has been for at least SIX MONTHS.

  • NB: All economic & child-related issues must be resolved before ct will grant divorce.
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9
Q

Conversion divorce

A

On request to ct, after parties have lived apart for ONE YEAR w/out material breach.

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10
Q

Adultery - basics

A

Def: voluntary sexual intercourse w/out someone besides spouse.

  • Circ evidence OK iff party had opportunity and inclination. PI or prostitue’s testimony must be corroborated.
  • SoL = 5 yrs
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11
Q

Fault-based divorce - defenses

A
  • Recrimination: π was also engaged in adultery
  • Connivance: π knew of and benefited from adultery
  • Condonation: π forgave misconduct & resumed marriage
  • Provocation: misconduct provoked by π
  • Collusion: parties colluding to get divorce
  • Consent: defense to abandonment or adultery
  • Justification: defense to abandonment.
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12
Q

Cruel & inhumane treatment

A

Def: π shows course of conduct by ∆ that is harmful to π’s health and makes continued cohabitation unsafe.

  • 5 yr SoL
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13
Q

Abandonment

A

1) ∆ voluntarily leaves marital home,
2) w/out cause or consent,
3) w/ intent to remain apart permanently,
4) and does so for 1 yr.

“Constructive abandonment” = spouse unjustifiably forces other to leave the house.

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14
Q

Imprisonment

A

For 3+ consecutive years after marriage. Only spouse of prisoner has grounds for divorce.

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15
Q

Equitable distribution

A

Def: NY divides MARITAL PROPERTY on basis of fair distribution, considering totality of circs.

  • NB: Marital fault not considered in distrib. unless it is EGREGIOUS.
  • Party may ask ct for equit. distr. as part of divorce proceedings.
  • Cf: community property = equal division of assets.
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16
Q

Marital property - exceptions

A

1) Property acquired before marriage
2) Excluded by pre-nup
3) Acquired by gift or inheritance
4) Personal injury compensation
5) Property acquired in exchange for sep prop
6) Passive appreciation on sep prop

17
Q

Marital property - misc.

A
  • Professional degrees = marital property in NY & ct values in terms of future earnings
  • Retirement/pension benefits = MP
  • SS Benefits = NOT MP
  • Stock plans = MAYBE MP if for past work; if future incentive, then no. Ct will examine and divide accordingly.
  • Possible future interest in property = NOT MP
  • Active appreciation of sep prop = MP
18
Q

Spousal maintenance

A
  • Awarded by ct when spouse can’t support herself; based on couple’s living standard but includes totality of circumstances.
  • Marital fault considered iff EGREGIOUS.
  • Preference for short-term maintenance
19
Q

Maintenance modification

A
  • Reqs: “significant change in circs” to modify.

UNLESS it came from sep agreement, in which case recipient spouse must be in danger of becoming public charge.

20
Q

End of maintenance

A

1) death (NB: ct may req supportor to maintain sufficient life insurance for suportee’s benefit)
2) remarriage of receiving spouse
3) willful interference w/ visitation (suspension only)

  • NB: Arrears can be modified for good cause until they have been reduced to a judgment.
21
Q

JX: Supreme Court v. Family Ct

A

S.Ct. = exclusive jx over divorces and property distribution

Family ct. = shares jx w/ S.ct. on child-care issues; only venue for non-married parties; exclusive jx over paternity actions

22
Q

Residency Reqs

A

For matrimonial action to be filed in NY:

I. Parties are both residents of NY & CoA arose there

II. One party has 1 yr NY residency AND the couple a) married in NY, b) lived in NY as spouses, OR c) CoA arose in NY.

III. If none of above, 1 party has resided in NY for 2 yrs before filing complaint.

23
Q

Ex parte divorce

A

NY allows divorce proceedings even where no pjx over 1 spouse. DOES NOT include child support or maintenance actions.

Reqs ONE of these:

  1. NY was matrimonial domicile before separation;
  2. ∆ abandoned π in NY;
  3. claim is pursuant to separation agreement signed in NY.
24
Q

Paternity

A

Paternity action can be brought in family ct before child turns 21. Ct may order blood tests, but that alone is insufficient.

Rule: must be proved by C&CE.

Presumption: child of marriage is child of father, unless he wasn’t living w/ her at time.

25
Q

Paternity by estoppel

A

Ct may declare father regardless of biological relationship if: 1) it’s in best interest of child, and 2) man has taken on role of father and established bond w/ child.

26
Q

Calculating child support

A

In NY, awarded by formula based on parents’ combined income (X+Y * .17, divided proportionally), plus modification based on totality of the circs.

27
Q

Modification of child support

A

Rule: modification allowed BY CT ONLY where there is “substantial change in circs” re child’s needs or parents’ income.

“Clean hands” = change in income can count if unforeseeable, but can’t be parent’s fault.

Arrears - cannot be modified even if not reduced to judgment.

28
Q

Child support - termination

A
  1. Child reaches 21 (unless special needs)
  2. Death of parent or child
  3. Emancipation through marriage, active duty military, becomes self-supporting through employment, or other totality of circs situations.
29
Q

Child custody

A

-Legal (jt legal custody is default) vs physical (needn’t be 50/50).

RULE: Custody determined by best interests of the child.
>Except: must consider sworn statement of abuse and can’t give custody to murderer of child’s sibling or parent.
>Can’t consider race/religion, or sexual behavior of parents.

30
Q

Child custody - termination

A
  1. Child’s death
  2. Parent’s death
  3. Child reaches 18
31
Q

Child custody - modification & relocation

A
  • Modification allowed based on “significant change in circs”
  • Relocation: ct must grant permission based on best interests of child (NB: mention constitutional right of travel as well)
32
Q

Non-marital children

A
  1. CAN recover in wrongful death actions, and parents have reciprocal right.
  2. CAN share in workers’ comp awards.
  3. CANNOT inherit from estate of father unless paternity already established.
33
Q

UCCJEA

A

Statute determining which ct has jx over custody dispute. Ct has jx if:

  1. state is child’s home for 6 mos. or since birth, OR
  2. was child’s home state in past 6 mos. & child is absent, but 1 parent still lives there.

RULE: ct can enter/modify order if no other state has jx and child + 1-2 parents have “significant connection” w/ state, AND there is “substantial evidence” in the state concerning child’s life.

NB: “Sig connex” undefined

34
Q

Marital agreements

A
  • Subject to same attack as other Ks
  • Premarital agreements are valid iff 1) full disclosure, 2) agreement is fair & reasonable, and 3) it is voluntary (look for indie counsel here).
    >Must be proved invalid by C&CE.
35
Q

Adoption

A

Legal action in NY, brought in family or surrogates ct but NOT S.Ct.

  • Private placement: if surrender of child is before judge, it’s irrevocable. If not, 45 days to revoke consent.
  • Agency adoptions: Dept of Social Services acts as intermediary. 30 days to revoke after child is placed.
36
Q

Adoption - consent

A

I. If child 15+, he must consent to adoption.

II. Father’s consent and notice req waived if he doesn’t register. Also waived if child is over 6 mos & father hasn’t maintained contact/support, OR if child under 6 mos and father hasn’t lived w/ mother and held himself out as father.

37
Q

Involuntary removal

A

Ct can terminate parental rights in case of extreme bad conduct, iff C&CE:

  1. Abandonment for 6 mos
  2. Permanent neglect of child in foster care for 1 yr
  3. Inability to provide care for retarded child
  4. Severe and repeated child abuse
38
Q

Abortion in NY

A

Up to 24 weeks: can be performed by doc or woman.

After 24 weeks: only if doc has reasonable belief it’s nec’y to preserve life of woman.

After 12 weeks: only in hospital on in-patient basis.

After 20 weeks: 2d doc must be present to care for child in event of life birth.

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