NY BAR REVIEW MATRIMONIAL AND FAMILY LAW COURSE Flashcards
1
Q
marriage that is otherwise valid is_______
A
valid, regardless whether the parties to the marriage of same or different sex. DOMESTIC RELATIONS LAW.
2
Q
a void marriage is one that is ______
A
inces, bigamy, marriage that is prohibited by positive NY law
3
Q
the age of legal consent to marriage is?
A
18
4
Q
marriage entered into by person under 18 is?
A
VOIDABLE
5
Q
marriage where party lacks mental capacity/physical capacity / consent due to force/duress/fraud is?
A
VOIDABLE
6
Q
NY doesnt permit what type of marriage?
A
common law
7
Q
as a matter of comity, NY recognizes what type of marriages?
A
out of state - domestic/foreign and also common law marriage validly entered into under laws of the other state
8
Q
a valid marriage in NY is terminated by?
A
- annulment
- divorce
- death
9
Q
what is an agreement made before marriage?
A
prenuptial
10
Q
what is an agreement made during marriage?
A
- post nuptial
- separation
- stipulations of settlement
11
Q
prenuptials, post nuptials, and separation agreements are valid under what conditions?
A
- in writing
- subscribed by both parties
- acknowledged /proven in manner required to entitle recording of a deed.
those agreements complying with domestic relations law are valid and enforceable in same manner as an ordinary contract
12
Q
marital agreements may include these provisions:
A
- a testamentary gift or a waiver of right of election
- division of separate and marital property
- amount and duration of maintenance
- custody, care, education, support of child of parties
13
Q
the relationship bw spouses is what type?
A
fiduciary
14
Q
marital agreements undergo what type of scrutiny in the courts?
A
closer scrutiny than ordinary contracts
15
Q
court will set aside a marital agreement only if?
A
- showing of unconscionability
2. showing of unfairness due to one spouse’s overreaching
16
Q
divorce grounds are:
A
- no fault / irretrievable breakdown of the marriage
2.
17
Q
no fault / irretrievable breakdown of the marriage is for at least ____ months prior to commencement of a divorce action
A
6
18
Q
prior to issuing a divorce based on no fault / irretrievable breakdown of the marriage, which issues must be resolved or determined by the court?
A
- all economic issues of equitable distribution
- payment or waiver of spousal support
- payment of attys fees
- custody
- visitation
19
Q
exercise of personal jurisdiction over non resident defendant in matrimonial action involving demand for economic relief or special relief is permitted in NY due to what
A
long arm statute
20
Q
NY’s long arm statute can be exercised only if:
A
- plaintiff is resident or domiciliary of NY and of the below:
a. NY was matrimonial domicile prior to separation
b. defendant abandoned plaintiff in NY
c. claim for economic relief accrued under NY law
21
Q
matrimonial action jurisdiction over marriage or marital res is under conditions of residency duration
A
both were residents of NY when action commenced and cause of action occurred in NY
OR
one is NY resident for 1 continuous year prior to action and they were:
a. married in NY
OR
b. resided as spouses in NY
OR
c. cause of action occurred in NY
OR
d. one is a NY resident 2 continuous years prior to action
22
Q
all pleading in matrimonial action must be _____
A
verified
23
Q
service of process in matrimonial action must be by ___ delivery
A
personal; absent a court order authorizing substitute service
24
Q
defendant in matrimonial action must be served with an _______ order
A
automatic; and service of summons
25
automatic order + service of summons = prevention of what?
remain in effect during pendency of action and prevent the parties in matrimonial action from unilaterally changing economic status quo of relationship by:
1. disposing of property
2. incurring debts
3. removing other party or children from existing medical insurance / changing beneficiaries on existing insurance policies
26
compulsory disclosure required by parties to matrimonial action regarding?
finances; sworn statement of net worth
27
distribution of marital property
equitable distribution; NO presumption of equal division
28
the alternative to equitable distribution is?
distributive award + an order regarding exclusive use and occupancy of marital home and household effects
29
what is marital property
all property acquired by one or both spouses DURING marriage and BEFORE execution of separation agreement or commencement of matrimonial action, no matter the form in which title is held.
30
marital property includes:
1. inter spousal gifts
2. pension benefits
3. professional practices
31
what is NOT treated as a martial asset subject to equitable distribution
enhanced earning capacity arising from license, degree, celebrity, goodwill, career enhancement
32
court MUST consider what regarding earning capacity of the other spouse?
spouse's direct or indirect contributions
33
separate is or is NOT marital property?
is NOT
34
separate property is NOT subject to ?
equitable distribution
35
what does separate property include?
1. prop acquired prior to marriage
2. prop acquired by bequest, devise, descent, gift
3. personal injury compensation
4. prop acquired in exchange for or increase in value of SEPARATE property, UNLESS appreciation due in part to contributions or efforts of other spouse.
5. prop described as separate by valid written agreement of parties
36
how can separate property be transmutated into marital property?
through deposit into a joint account.
| or into joint names- a presumption of gift arises.
37
appreciation of separate property becomes a marital asset if
during marriage - non-titled spouse directly or indirectly contributed as parent/homemaker
38
appreciation remains remains separate property if
it wasnt in any part due to the efforts of the titled spouse, but due to the effect of unrelated factors including inflation or other market forces
39
what types of spousal maintenance awards are there?
temporary.
| post divorce.
40
what is the formula for spousal maintenance?
based on parties' respective incomes, up to income cap adjusted periodically for inflation
41
when may the court adjust the maintenance?
if finds guideline amount unjust or inappropriate; may award additional maintenance where there is income over the cap based on statutory factors.
42
post divorce maintenance terminates when?
upon death of either party.
| upon remarriage of payee spouse.
43
how does court determine duration of post divorce maintenance?
by reference to schedule in DOMESTIC RELATIONS LAW 236,b,6,f
44
terminating post divorce maintenance is based on how long _________?
the marriage lasted
45
CHILD SUPPORT STANDARDS ACT
| FAMILY COURT ACT
parent is liable for support of child till age 21 or earlier emancipation
46
what is the formula for child support calculation?
apply designated statutory percentage based on number of children to be supported to combined parental income up to statutory cap adjusted periodically for inflation
47
what do we calculate first - maintenance or child support?
maintenance, as that will be included in the payee's income
48
what are "add-ons" to basic child support obligation?
1. child care expenses
2. health insurance premiums
3. unreimbursed health expenses
4. educational expeses
those are divided bw the parties pro rata based on each's income
49
what is the marital fault considered in the determination of child support?
it is expressly EXCLUDED!
50
May parents release each other form statutorily imposed obligation to support children?
NO
they may deviate from child support standards act knowingly and pursuant to domestic relations law, providing specific recitals in a written agreement, but
court is NOT bound by agreement that fails to provide for adequate support for parties' children.
51
if party seeks to modify child support obligation derived from agreement incorporated but not merged into a judgment of divorce prior to 10.30.10?
must establish it was unfair / inequitable when entered into OR an unanticipated and unreasonable change in circumstances has occurred, resulting in concomitant need of the child, or that the needs of the child are not being adequately met
52
if party seeks to modify child support obligation derived from agreement incorporated but not merged into a judgment of divorce AFTER 10.30.10?
court may modify order of child support, including order incorporating without merging an agreement or stipulation of the parties, upon showing of substantial change in circumstances.
53
unless parties have specifically opted out in validly executed agreement, court may modify order of child support where
3 years passed since order was entered, last modified, or adjusted
OR
change in either party's gross income by 15% or more since order was entered , last modified, or adjusted.
54
reduction in income is considered?
it is NOT considered as ground for modification unless was involuntary and party made diligent attempts to secure employment commensurate with their education, ability, experience
55
can child support be modified, or arrears be reduced or annulled?
NO, for no reason or period UNTIL the initiation of an APPLICATION for it
56
interference with visitation rights is a defense to application to enforce child support?
NO
57
how to modify a prior order or judgment as to maintenance?
1. establish recipient's inability to be self supporting,
OR
2. substantial change in circumstance - financial hardship,
OR
3. actual full or partial retirement of payor if retirement results in substantial change in financial circumstances
OR
4. termination of child support
58
party seeking to modify maintenance award derived from an agreement must establish what?
extreme hardship on either party
59
when may court reduce or annul maintenance arrears accrued prior to date of application to modify?
when defaulting party shows good cause for failure to apply from relief from the order
60
interference with visitation rights
can be basis for cancellation of arrears of maintenance and prospective suspension of maintenance
61
when may court terminate maintenance?
in its discretion upon proof that payee is habitually living with another person and holding himself or herself out as spouse of such other person, although not married
62
how to determine a legitimate child of 2 parents?
if was born to married parents or to a married woman by artificial insemination with consent of woman and husband . if was born to parents not married at time of birth, but later marry- creates a presumption of legitimacy of a child whose parents marry at a later date
63
subsequent judgment of separation of divorce affects legitimacy of a child?
NO
64
establishing paternity / filiation proceeding
court on its own motion or on motion of any party, may order the mother, the child, the alleged putative father to submit to genetic marker / DNA tests
65
filiation dna testing admissibilty
unless timely objection is made.
| if show paternity to degree of 95% certainty or more, create a REBUTTABLE presumption of paternity.
66
DOCTRINE OF EQUITABLE ESTOPPEL in paternity
dna tests wont be ordered if court finds are not in best interests of child.
preclude person from asserting a right after having led another to form reasonable belief that right would not be asserted and loss / prejudice to other would result if rights were asserted.
doctrine is imposed as a matter of fairness.
detrimental to child's interests to disrupt father child relationship.
67
article 10 of FAMILY COURT ACT
abuse or neglect of a child under 18 yo, by their parent, custodian, guardian, other person responsible for their care at the relevant time
68
article 6 of FAMILY COURT ACT
permanent termination of parental rights by reason of permanent neglect
69
a PERMANENTLY NEGLECTED CHILD
SOCIAL SERVICES LAW
once such a finding, all rights and obligations bw neglected child and their parent / custodian are severed. child may be available for adoption.
a child who is in care of an authorized agency and whose parent or custodian failed for an enumerated period of time substantially and continuously to maintain contact with or plan for future of child, although physically and financially able to do so, notwithstanding agency's diligent efforts to encourage and strengthen parental relationship when such efforts wont be detrimental to best interests of child
70
which acts constitute a family offense?
```
disorderly conduct
harrassment
sexual abuse
stalking
criminal mischief
menacing
assault
and other enumerated penal law crimes.
```
71
family offense must occur between ______?
members of same family or household, related by blood, or persons who are married, or persons formerly married, persons who have a child together, persons who have been in an intimate relationship regardless of whether such persons lived together at any time
72
order of protection in a family offense
court issues ORDER OF PROTECTION directing respondent to stay away from home, school, business, employment or other location any other party or child. refrain from committing family or criminal offense against any other party or child or from harassing or intimidating or threatening such persons
73
how long is an order of protection for a family offense?>
up to 2 years or more under aggravating circumstances
74
may court enter order of protection in matrimonial action or custody or visitation proceeding?
YES
75
what is the jurisdiction of family court v. criminal court in regards to family offenses?
concurrent
76
what is the functionality of the INTEGRATED DOMESTIC VIOLENCE COURT?
bring before a single judge a dispute that is criminal, family and matrimonial in nature
77
define juvenile delinquent
a child less than 16 yo who committed acts constituting a crime if committed by an adult and is NOT criminally responsible for such conduct by reason of infancy and for whom court determines that supervision, treatment or confinement is required
78
define person in need of supervision
a person less than 18 yo who is required by their age to attend school but is habitually truant or is incorrigible, ungovernable, or habitually disobedient and beyond lawful control of parent or who commits certain enumerated PENAL LAW offenses
79
can a person in need of supervision be detained in a secure detention facility?
NO. prohibited.
80
attorney for a child
minors who are subject of family court proceedings should be represented by counsel, discretionary - whether independent legal representation is not available.
mandatory in juvenile delinquency, person in need of supervision, and abuse and neglect.
81
financial means test for child or for parents - re atty for child
NONE
82
reimbursement by parents to state - re atty for child
NOT REQUIRED
83
when should the atty be directed by the wishes of the child even if atty believes what child wants is NOT in their best interests?
when child is capable of knowing, voluntary and considered judgment
84
when will an atty be justified in advocating a position that is contrary to child's wishes?
when atty is convinced that child lacks capacity for knowing, voluntary, and considered judgement OR following their wishes is likely to result in SUBSTANTIAL risk of IMMINENT, SERIOUS harm to child
85
when an atty is justified in advocating a position that is contrary to child's wishes, the atty must what?
inform court of their articulated wishes IF they want the atty to do so, notwithstanding the atty's position
86
which courts have concurrent jurisdiction over adoption proceedings?
family and surrogate
87
adoption records are______?
sealed
88
adoption records may be obtained only for ?
good cause shown, except for child's medical history and info as to heritage of biological parents
89
what does an order of adoption do?
DOMESTIC RELATIONS LAW
severs all legal ties previously existing bw adoptive child and birth parents. biological parents are relieved of all rights and obligations vis a vis the child, including obligation of financial support and right of contact. it makes the adoptive child the child of the adoptive parents and divests biological parents of their relationship to the child
90
is a SURROGATE PARENTING CONTRACT valid?
those are VOID and unenforceable , whether or not payment of compensation is involved.
91
what is a surrogate parenting contract?
a biological parent enters into a written agreement to join in creation of a child for purposes of adoption
92
who can adopt a child?
single adult.
married adult couple together.
two unmarried adult intimate partners.
93
an adult or minor married couple together may adopt whom, as well?
a child of either of them born in or out of wedlock
94
who may be adopted?
any person - adult or minor
95
consent for adoption is required from whom?
child is over 14 yo.
parents of child conceived/born in wedlock.
mother of child born out of wedlock.
father of child born out of wedlock.
any person or authorized agency that has lawful custody of child.
96
when are the tests different re adoption consent needed from an unwed father?
child is over 6 mths .
| child is under 6 mths.
97
when is consent NOT required re adoption?
parent abandoned child
98
what is abandonment of a child?
intent to forego parental or custodial rights as manifested by failure for a period of 6 mths to visit or communicate with the child.
99
ability to visit and communicate a child is presumed under which law?
DOMESTIC RELATIONS LAW
100
are agreements for post-adoption contact with members of biological family recognized?
YES and may be judicially enforced only if terms of agreement are incorporated into written order and court determines that contact is in child's BEST INTERESTS
101
does family court have inherent discretionary authority to provide for contacts with child by biological parent whose parental rights were terminated in a contested proceeding?
NO
102
who has prima facie right to custody over a child?
NEITHER parent does
103
child custody laws
DOMESTIC RELATIONS LAW.
| INDIAN CHILD WELFARE ACT.
104
indian tribe has exclusive jurisdiction over child custody proceeding when that child _________?
resides/is domiciled within the reservation of that tribe
105
judicial proceedings of indian tribe applicable to indian child custody proceedings are given what?
full faith and credit
106
re indian child not domiciled or residing within reservation of his tribe - proceedings for :
foster care placement, termination of parental rights - COURT MUST what?
(in absence of good cause to contrary)
transfer the proceeding to jurisdiction of the tribe
(absent objection by either parent, upon petition of either parent/indian custodian/indian child's tribe.
107
what is the standard for which parent for child custody determination?
as justice requires.
regarding circumstances of case and respective parties.
to the best interests of the child.
108
best interests of the child is determined based on?
home environment.
parental guidance.
ability to provide for emotional and intellectual development.
financial status.
ability to provide.
relative fitness of respective parents.
length of time present custody has continued.
109
is a child's preference binding for custody purposes?
NO, it is just one factor to be considered by the court.
110
can a child be interviewed by trial court in custody proceeding, absent their parents or counsel?
YES, at the court's discretion
111
court MUST consider the effect of domestic violence upon best interests of child when?
party to action re custody or visitation alleges in sworn proceeding that other party committed act of domestic violence against a family member, and the allegation is proven beyond a preponderance of the evidence
112
when can one modify custody / visitation order?
upon showing a change in circumstances such that modification is necessary to ensure continued best interests of child.
113
best interests of a child re modification of custody / visitation order is?
review of totality of circumstances, including existence of prior award.
114
biological parent's right to care and custody of child is ______ to that of all others
SUPERIOR
115
deprivation of parent's custody of child may take place when?
```
surrender.
abandonment.
persisting neglect.
unfitness.
other like extraordinary circumstances.
```
116
appropriate provision for visitation / other access by noncustodial parent follows as _____
a matter of course
117
siblings and grandparents re custody / visitation
legislature has allowed certain ones.
118
visitation for grandparents where parent/parents of child are dead?
if in best interest of child.
119
persons lacking a biological / adoptive connection to child have been historically __________ standing to seek visitation / custody
DENIED
120
in 2016, non biological, non adoptive parent HAD standing to petition for custody / visitation if was able to prove by _______________ that ____________
clear and convincing evidence .
| agreed with biological parent of child to conceive and raise chidl as co parents.
121
what are the custodial arrangement types?
sole custody.
joint legal custody.
joint physical custody.
122
joint custody is awarded primarily on a showing of what?
that parents are able to cooperate in decision making process
123
UNIFORM CHILD CUSTODY JURISDICTION AND ENFORCEMENT ACT
child custody enforcement
124
child custody and visitation orders may be modified when?
upon showing there's been a subsequent change of circumstances affecting child and modification is required in child's best interest.
125
how to determine if relocation is appropriate?
each request is considered on its merits w due consideration of all relevant facts and circumstances and w predominant emphasis on what outcome will most likely serve the best interests of the child:
1. impact of move on child's relationship w noncustodia parent.
2. economic necessity
3. health related concern
4. demands of a second marriage
5. custodial parent's opportunity to improve economic situation
6. good faith of parents in requesting or opposing move
7. child' respective attachments to custodial / noncustodial parent
8. possibility of devising a visitation schedule to maintain a meaningful parent child relationship
9. quality of lifestyle child will have
10. negative impact from continued / exacerbated hostility bw custodial and noncustodial parents
11. effect of move on extended family relationships
