Family Law [NY] Flashcards
Limitations on who can marry
1) bigamy
2) same-sex marriage (previously)
3) incest: treated as void (cousins is up in the air)
4) minors
-generally 18–but can marry in some places earlier with parental approval
5) physical incapacity
4) fraudulent marriage
-voidable for fraud if a party makes a material representation that affects essentials of marriage
Common Law Marriage
Most states have abolished
If legal–must prove the parties:
1) cohabitated for the statutory period
2) held themselves out as married AND
3) intended to be married
most states will recognize CL marriage if valid in state obtained
Premarital Contracts
Will enforce as valid if:
1) in writing + signed by both parties
2) executed post-full disclosure of finances of both parties AND
3) voluntary
What makes entering a pre-nup VOLUNTARY
1) independent legal counsel
2) length of time between the agreement and marriage
3) sophistication of the parties AND
4) presence of other pressing reasons to proceed with marriage
UPAA + enforcement of pre-nup
Party against whom enforcement is sought must show that:
1) NOT VOLUNTARY OR
2)
a. unconscionable when executed AND
b. party did not receive fair and reasonable disclosure
c. did not have, or could not have had adequate knowledge of other parties financial situation
Child Custody
Most courts decide based on the best interests of the child at the time of the hearing
Child Support
Parents have absolute obligation to support their kids
-prenup CANNOT contract out of child support
Divorce
Traditionally: only allowed if one party was determined to be at fault
TODAY: some states have completely abolished at fault divorce
-every state has created a form of no-fault divorce
No fault divorce common grounds:
1) min time of separation (6-1 years usually) AND/OR
2) irreconcilable differences
some both or some one or the other
Divorce + Jurisdiction
Jurisdiction over marital stuff is state courts role
Full Faith + Credit Clause: a divorce validly granted in one state is entitled to FF + C in other states
Generally must be recognized by other states when petitioner:
1) domiciled in state that granted the divorce AND
2) provided adequate notice of the proceeding to the other spouse
NOTE: FF + C does NOT apply to the division of property
-cannot do without personal jurisdiction over both parties
Division of Property [GENERALLY}
Community property v. equitable distribution (mostly ED)
Analysis:
1) property is separate or marital
2) determine equitable distribution between the two
Separate v. Marital Property
Separate includes:
-acquired before marriage
-inherited during marriage
-property acquired with proceeds of separate property
-passive appreciation of separate property
Martial includes:
-generally all property acquired during marriage that is NOT separate
Active appreciation: appreciation in value due to efforts of either spouse
Degrees/licenses
basically every state considered separate property
BUT–reimbursement may be available for support that the other spouse provided that contributed to the gaining of that degree etc
Distribution of martial property
Once categorized–court equally distributes the martial property
-courts are allowed discretion in deciding equal distribution
FACTORS INCLUDE:
1) income, property, liabilities of each party
2) duration of marriage
3) support obligations from prior marriages
4) lifestyle used to
5) contribution of each spouse via accumulation of marital property
Spousal support
lots of discretion here
under UDMA: spouse is eligible for spousal support if
1) lacks property enough for their reasonable needs and unable to support themselves properly through gainful employment OR
2) is custodian of kid and would be inappropriate to work
Once decide YES to support–
Factors include:
-financial resources of party seeking
-time needed for spouse to find appropriate job
-duration of marriage
-standard of living
-age/physical/emotional
Modification of spousal support
Generally can be modified when there is a substantial change in circumstances making prior order unreasonable
Under UDMA:
-only allowed upon a showing of changed circumstances so substantial–makes prior terms unconscionable
Child Support
ABSOLUTE OBLIGATION to support your kids
Every state must have guidelines re support:
1) consider the income of the non-custodial parent
2) provide for the child’s healthcare needs AND
3) be based on a specific formula/criteria
Modification of Child Support
Generally only when there is a substantial change in circumstances making prior order unreasonable
UDMA: only permitted under showing of changed circumstances so substantial and continuing to make terms unconscionable
Court that originally made the order has continuing jurisdiction to modify so long as the state remains the residence of either parent or the child
Child Custody [determining]
Best Interests Standard: courts generally determine based on the best interests of the child
Courts consider multiple factors
When determining custody between parent and 3rd party–it is presumed that custody with parent is in best interest
Modification of Child Custody
Parent must show that:
1) circumstances have substantially changed
2) modification would be in the child’s best interests
State that ordered has continuing jurisdiction
Un-Married Cohabitant Rights
Economic Sharing:
-most states an express contract (written or oral) is enforceable as long as the economic sharing is not in payment for sexual services
Right to Control Child’s Upbringing
Parents have a fundamental right to direct their child’s upbringing
-generally courts will not interfere unless well being is endangered
Adoption
Statutory procedure that terminates the rights of the biological parents + establishes rights of the adoptive parents
