Marriage Flashcards
What are the requirements of a valid marriage?
A ceremonial marriage is required in NY, which consists of…
1) A License – necessary to determine capacity to marry
Capacity =
- Single,
- 18 yrs; OR 16-18 years with parental consent OR 14-15 yrs with parental consent and court approval; NOT
- 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 effect 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” – amount 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 court order to enforce support requirements (no effect on validity marriage)
3) Spouses retain separate identities for civil & criminal law issues – liable for torts or crimes against each other, can contract with other people without binding spouse, liable for own debts
EXCEPTION:Other spouse can be liable for necessities
What are the marriage causes of action?
MARRIAGE = VOID (marriage is AUTOMATICLY invalid even without court 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 → court determination that a marriage is VOID, not just voidable
NOTE: no need for judicial decree because no marriage BUT should get a declaration of nullity anyway for clarity of record & collateral matters (distribute property, custody of kids)
Grounds: Bigamy; ORIncest (1st cousins okay)
Defenses: IF impediment causing marriage to be void is removed (other spouse dies, so no longer bigamy) →subsequent marriage becomes VOIDABLE & thus subject to ratification.
What are the grounds for an annulment?
1) Non-age
- Under 14 can’t marry
- 14-15 need judicial approval and parental consent
- 16-17 need parental consent
- Discretionary and waivable if stay married and cohabitated after 18th birthday
2) Mental incapacity at time of marriage-inability to consent due to want of understanding because 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:
A. Religion – what religion practices, level of devotion, intent to convert, raise kids
B. Procreation & sex – failure to disclose/lie about paternity of baby expecting; cannot have kids; do not want kids; major lie about sexual history (was a prostitute); agenda or orientation
C. 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 within 5 YEARS of marriage
No jury trialallowed (the only ground)
6) Incurable insanity that lasts for 5+ years. DURING marriageOR mental illness develops after the marriage 5 consecutive years or more
What are the procedural requirements for an annulment?
1) Testimony by either party re: grounds for annulment requires corroboration. Includes that there has been no-cohabitation between the parties
2) Jury trial allowed (except physical incapacity)
3) Default SOL = 6 YEARS
What are the 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 - Requires a willful & voluntary departure of one spouse (NOT military or jail);
- without consent of the other spouse;
- without intent to return (inferred from duration/length of absence); AND
- without justification (abused did not abandon)
- Constructive abandonment – ∆ walked away from marriage in metaphorical sense
There is NO SOL (BUT, person must still be abandoned when claim filed)
3) 3 consecutive years of imprisonment during marriage
4) Adultery BUT with 4 affirmative defenses
- Recrimination – π spouse also committed adultery
- Condonation – waiver; knowledge + forgiveness + cohabitation
- Connivance – form of entrapment; π induced adultery
SOL - 5 YEARS 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?
Court 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 YEARS (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 because of social security benefits, inheritance rights, continue being a beneficiary of certain insurance plan
Religious reasons – some people will never get divorces
What are the grounds for divorce?
1) No-fault divorce:
Must prove…
- irretrievable breakdown of the marriage; - for a period 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 – π spouse also committed adultery
- Condonation – knowledge + forgiveness + cohabitation
- Connivance – form of entrapment; π induced adultery
* * SOL - 5 YEARS 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 YEAR following the granting of a separation decree; OR
(ii) pursuant to a written, filed, and properly executed separation agreement
Separation Agreement requires –
(1) freely made,
(2) in writing & acknowledged,
(3) filed with court clerk as a prerequisite for divorce decree (no need to be filed 1 year before)
Rescission of separation agreement – cohabitation (sex) during 1 year with INTENT to reconcile resets clock & requires reexecution of agreement (BUT not casual, isolated cohabitation with no intent to reconcile)
Material breach of separation agreement - rescinds agreement & 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 year 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 jurisdiction but may refer incidental matters (support, custody, or visitation) to Family Court.
Subject matter jurisdiction - 1 spouse domiciled in NY + 1 of the Durational Residency Requirements
Personal jurisdiction - required over D to get collateral orders (e.g. support, alimony, custody)
2) Once divorce is filed, certain AUTOMATIC court 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) Court requires FULL disclosure of financial assets– so court 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 YEARS without any tidings (presumed dead)
Requirements:
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) because 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 and 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
