NY BAR REVIEW MATRIMONIAL AND FAMILY LAW 1 Flashcards
marriage recognition?
recognized if took place in other state or country , common law marriage in a jurisdiction that allows it., same sex civil union - before same sex marriage made national by sup court - some states adopted civil union - rights and obligations within the state was celebrated - NY recognized those,
out of state marriage - domestic or foreign - recognition in NY?
celebrated, common law, or same sex civil union.
IF was validly entered under law of other state or country, UNLESS BARRED by positive law - statute re citizen of that state went there to evade marriage restriction - such as minimum age - NY WILL NOT honor the marriage
marriage violates natural law such as?
incest.
polygamy.
NY will NOT honor.
offensive to public policy
what is a common law marriage ?
2 parties begin residing together and holding themselves out as spouses .
10 states which still allow that type of marriage to be entered into.
common law marriage created in NY?
NY does NOT allow
valid common law marriage is what?
valid in state where contracted.
parties must have capacity to contract.
if 1 is still married to someone else - NOT a common law marriage. divorcing first spouse doesn’t automatically create a common law marriage - parties would have to start all over with their INTENT to be married. - NOT just cohabitants.
hold themselves out to the world as SPOUSES.
if keep secret and dont broadcast publicly, NOT a common law marriage.
only then will it be considered as celebrated by a clergyman or public official.
common law marriage termination process?
like any other valid marriage.
by death, divorce, annulment.
family law contract examples
prenuptial.
post nuptial.
what is a prenuptial?
parties enter into an agreement before they get married. define property rights upon dissolution of the marriage. they came into the marriage with some kind of property. dispose of it themselves, rather than it automatically going to the spouse.
what is a postnuptial?
agreement written anytime during the marriage.
one party comes in to property during the marriage, and want to make same provisions.
separation agreement
executed at time parties agree that no longer wish to reside together and settles rights and obligations to each other under domestic relations law re property, support, maintenance, custody, stipulations of settlement
stipulation of settlement v. separation - what is the difference?
settlement - settle an existing action - divorce action has to already be commenced.
separation agreement does NOT need pending divorce action to be commenced.
except some recital paragraphs,they are same docs.
validity of prenuptial and post-nuptial contracts?
domestic relations law - if statutory requirements are NOT met, the agreement will NOT be enforced in a divorced proceeding.
validity of prenuptial and post-nuptial contracts- requirements?
in WRITING, in court on record - bc transcript of agreement becomes the writing.
subsribed by BOTH parties.
acknowledged /proved in matter required of a deed to be recorded- NOT valid marital contract if only notarized!!
deed
person witnessing the signature has to actually know the person whos signing it and person who swore or affirm that they are the ones signing or acknowledging it
separation agreements - court?
court promotes parties agreeing to their marital difficulties. not easy to overturn stipulation of settlement or separation agreement. agreements made years and decades before are usually upheld.
unconscionability - if agreement is properly written and executed - upheld or NOT?
UPHELD and will settle the marital issue, even if not completely fair - parties knew what they were doing when they signed
divorce grounds
6 fault
1 no fault
DOMESTIC RELATIONS LAW
6 fault grounds for divorce
- cruel and inhuman treatment by def of the plaintiff- renders it unsafe or inappropriate for parties to cohabit. longer the marriage, the higher the level of proof
- abandonment - desertion - 1 party picks up and leaves. lock out - someone comes home 1 day and finds all doors and windows locked and cant get in - they are abandoned by person who remained in the house.
constructive abandonment - def , although physically able to do so, refused sexual relations, despite repeated requests. - imprisonment - at least 3 years
- adultery - misdemeanor - def cannot consent to divorce on grounds of adultery. co respondent CAN be named. direct evidence or circumstantial evidence.
- living separate and apart pursuant to judgment of separation. - if for 1 year, then either party can convert it to a divorce, plaintiff - gets the divorce - follow that. agreement filed w county clerk and party seeking divorce substantially complied w agreement. can object on lack of substl compliance if owes arrears in child support!! party who hasn’t received the child support can still get the divorce under conversion grounds bc they’ve complied.
- irretrievable breakdown- NO FAULT
NO FAULT DIVORCE GROUND
marriage irretrievably broken for 6 months at least.
1 party must state under oath that such.
all economic , support, custody issues MUST be resolved by the courts or parties before divorce can be granted. court cannot bifurcate the divorce - grant the divorce on one portion then subsequently on the other. resolve by agreement, or court has to hold the trial and render a decision on all other issues before no fault divorce can be granted.
defenses to divorce grounds
5 year statute of limitations for cruel and inhuman treatment, incarceration, adultery, irretrievable breakdown.
within 5 years of last event occurring which would trigger the ground
defenses - procurement
plaintiff helped adultery take place
defenses -connivance
both parties scheme that 1 party will be found in an adulterous situation so that they can get a divorce
defenses -forgiveness
parties reconcile and innocent party resumes sexual relations after adultery took place, acknowledge the adultery and forgive, lose that ground for divorce
