Marriage Flashcards
What are the reqs of a valid marriage?
A “ceremonial marriage” is req’d in NY, which consists of… 1) A License – necessary to determine capacity to marry (~capacity to K) Capacity = Single, 18 yrs; OR 16-18 yrs w/ parental consent OR 14-15 yrs w/ ct approval; NOT < 14 yrs No bigamyOR incest (BUT 1st cousins okay) Not insane Process = must get license… from city or town clerk; + wait 24 hrs.; + license valid for 60 days; + pay fee; BUT defects in license or failure to get a licensehas NO affect on validity of marriage 2) Ceremony – “solemn declaration before an officiant and a separate witness” Officiant = any civil officer, clergy, physically present, authorized to administer an oath Solemn declaration: must be undertaken with general intent to undertake responsibility (but no magic words) NOTE: NO common law marriagein NY, BUT if from another state where it’s acknowledged, NY will recognize
What are key duties and privileges of marriage?
1) Monogamy 2) Economic support 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) 3) Spouses retain separate identities for civil & criminal law issues – liable for torts or crimes against each other, can K w/ other people w/o binding spouse, liable for own debts EXCEPTION:Debt for necessaries – other S can be liable
What are 4 marriage c/as?
MARRIAGE = VOID (marriage is AUTOMATICLY invalid even w/o ct intervention) 1) Declaration of Nullity ———— MARRIAGE = VOIDABLE (capacity problem at marriage, which rendered marriage voidable so marriage is valid until declaration) 2) Annulment 3) Separation 4) Divorce 5) Dissolution
What is a declaration of nullity?
Declaration of nullity → ct determination that a marriage is VOID, not just voidable NOTE: 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) Grounds Bigamy; OR Incest (1st cousins okay) Defenses IF impediment causing marriage to be void is removed (e.g. other spouse dies, so no longer bigamy) →subsequent marriage becomes VOIDABLE & thus subject to ratification.
What are the 6 grounds for an annulment?
1) “Non-age”- discretionary & waived if stay married & cohabitate after 18th b-day 16-17 yrs, can get married w/ consent of both parents 14-15 yrs, you need judicial approval can’t marry 2) 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 of incapacitated person 3) Duress - getting married under force of physical coercion (gun-point, knife) Waived if threat is removed & continue to co-habit **4) Fraud - spouse 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 Common examples of fraud: Religion – what religion practices, level of devotion, intent to convert, raise kids Procreation & sex – failure to disclose/lie about paternity of baby expecting; cannot have kids; do not want kids; major lie abt sexual history (e.g. was a prostitute); agenda or orientation Waiver – must bring action w/in 3 YRS of learning of the fraud NOTE: lying about economic status is NOT grounds for annulment 5) 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 YRS of marriage No jury trialallowed (the only ground) 6) Incurable insanity that lasts for 5+ yrs. DURING marriage- Mental illness develops after the marriage 5 consecutive years or more
What are the procedural reqs for an annulment?
1) Testimony by either party re: grounds for annulment requires corroboration Includes that there has been no-cohabitation b/t the parties 2) Jury trial allowed (except physical incapacity) 3) Default SOL = 6 YRS
What are the 5 grounds for separation?
GROUNDS FOR SEPARATION 1) Cruel & inhuman treatment - ∆’s conduct endangers the π’s physical or mental well-being, rendering co-habitation improper 2) Abandonment - Reqs a willful & voluntary departure of one spouse (NOT military or jail); w/o consent of the other spouse; w/o intent to return (intent inferred from duration/length of absence); AND w/o justification (abused can’t be accused of abandonment) Constructive abandonment – ∆ walked away from marriage in metaphorical sense – e.g. refusal to have sexor locks spouse out of house There is NO SOL (BUT, person must still be abandoned when claim filed) 3) 3 consecutive yrs of imprisonment during marriage 4) Adultery BUT w/ 4 affirmative defenses Recrimination – ~dirty hands; π spouse has also committed adultery Condonation – basically waiver; knowledge + forgiveness + cohabitation Connivance – form of entrapment; π induced adultery (basically set up the ∆ to be seduced) SOL - 5 YRS from discovery (can’t hold over head of other spouse) 5) Failure to Support Spouse -if neglect or actual refusal to provide support
What is a separation?
Ct. granted permission to live apart that DOES NOT TERMINATE THE MARRIAGE Judge can give permanent or temporary order of separation 5 grounds, BUT a π’s misconduct, if established is a COMPLETE defense SOL = 5 YRS (except adultery and abandonment) NOTE: No jury trial for separation proceedings 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
What are the 6 grounds for divorce?
1) No-fault divorce: Must prove… the “irretrievable breakdown of the marriage”; for a pd of at least 6 mos; with one spouse testimony NOTE: Before divorce is granted, collateral issues re: money or children MUST be resolved ———- FAULT-BASED GROUNDS 2) Adultry, BUT divorce will be DENIED, IF… Recrimination – ~dirty hands; π spouse has also committed adultery Condonation – basically waiver; knowledge + forgiveness + cohabitation Connivance – form of entrapment; π induced adultery (basically set up the ∆ to be seduced) SOL - 5 YRS from discovery (can’t hold over head of other spouse) 3) Cruel and inhuman treatment 4) Abandonment for 1 yr or more 5) 3 consecutive years’ imprisonment ———- 6) Conversion divorce: spouses have LIVED APART (i) for at least 1 YR following the granting of a separation decree; OR (ii) p/t a written, filed, and properly executed separation agmt 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 agmt – cohabitation (sex) during 1 year w/ INTENT to reconcile resets clock & requires reexecution of agmt (BUT not casual, isolated cohab w/ no intent to reconcile) Material breach of separation agmt - rescinds agmt & it can’t be used for conversion divorce Rescission does NOT apply to court decree - if reconciliation under a separation decree, there is no harm to decree or 1 yr running period NOTE: failure to support is NOT a ground for divorce
What is the procedure for granting a divorce?
1) NY Supreme Court has EXCLUSIVE jx but may refer incidental matters (support, custody, or visitation) to Family Ct. Smjx - 1 spouse domiciled in NY + 1 of the Durational Residency Reqs Pjx - required over D to get collateral orders (e.g. support, alimony, custody) 2) Once divorce is filed, certain AUTOMATIC ct orders kick in that “freeze” activity like: Sale of assets; Concealment of assets; Incurring of unusual debts; OR Change in insurance coverage 3) Jury Trial – permitted in divorce (but NOT permitted in separation actions) 4) Ct reqs FULL disclosure of financial assets– so ct has rational basis to enter financial orders (except a dissolution case, where party is presumed dead)
What is a dissolution (Enoch Arden) action?
Action only available when spouse has been missing for 5 YRS w/o any tidings (i.e. presumed dead) Reqs 1) Diligent search for spouse 2) Publication - publish request that spouse return in English language newspaper, regardless of language spouse speaks, for 3 consecutive weeks 3) Petitioner-Spouse must be NY resident for 1 year, OR NY must have been the matrimonial domicile at time of disappearance Proceedings ONLY consider if absent spouse can be presumed 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)
When will NY recognize an out-of-state marriage?
IF marriage valid where contracted→will be valid in NY, UNLESS it violates a strong public policy of the state of NY
When will NY recognize an out-of-state divorce?
Depends… Bilateral out-of-state divorce→ valid in NY Is res judicata as to all collateral issues Unilateral/ex parte out-of-state divorce→ prima facie valid in NY if ∆ received service of process Can be collaterally attacked in NY IF evidence that the party that obtained the divorce was not truly domiciled in the forum state
When will NY recognize a foreign divorce?
Depends… 1) Bilateral divorce→recognized under “comity” 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 2)Ex-parte foreign divorce is TOTALLY invalid
