NY BAR REVIEW MATRIMONIAL AND FAMILY LAW COURSE Flashcards
marriage that is otherwise valid is_______
valid, regardless whether the parties to the marriage of same or different sex. DOMESTIC RELATIONS LAW.
a void marriage is one that is ______
inces, bigamy, marriage that is prohibited by positive NY law
the age of legal consent to marriage is?
18
marriage entered into by person under 18 is?
VOIDABLE
marriage where party lacks mental capacity/physical capacity / consent due to force/duress/fraud is?
VOIDABLE
NY doesnt permit what type of marriage?
common law
as a matter of comity, NY recognizes what type of marriages?
out of state - domestic/foreign and also common law marriage validly entered into under laws of the other state
a valid marriage in NY is terminated by?
- annulment
- divorce
- death
what is an agreement made before marriage?
prenuptial
what is an agreement made during marriage?
- post nuptial
- separation
- stipulations of settlement
prenuptials, post nuptials, and separation agreements are valid under what conditions?
- 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
marital agreements may include these provisions:
- 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
the relationship bw spouses is what type?
fiduciary
marital agreements undergo what type of scrutiny in the courts?
closer scrutiny than ordinary contracts
court will set aside a marital agreement only if?
- showing of unconscionability
2. showing of unfairness due to one spouse’s overreaching
divorce grounds are:
- no fault / irretrievable breakdown of the marriage
2.
no fault / irretrievable breakdown of the marriage is for at least ____ months prior to commencement of a divorce action
6
prior to issuing a divorce based on no fault / irretrievable breakdown of the marriage, which issues must be resolved or determined by the court?
- all economic issues of equitable distribution
- payment or waiver of spousal support
- payment of attys fees
- custody
- visitation
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
long arm statute
NY’s long arm statute can be exercised only if:
- 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
matrimonial action jurisdiction over marriage or marital res is under conditions of residency duration
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
all pleading in matrimonial action must be _____
verified
service of process in matrimonial action must be by ___ delivery
personal; absent a court order authorizing substitute service
defendant in matrimonial action must be served with an _______ order
automatic; and service of summons
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:
- disposing of property
- incurring debts
- removing other party or children from existing medical insurance / changing beneficiaries on existing insurance policies
compulsory disclosure required by parties to matrimonial action regarding?
finances; sworn statement of net worth
distribution of marital property
equitable distribution; NO presumption of equal division
the alternative to equitable distribution is?
distributive award + an order regarding exclusive use and occupancy of marital home and household effects
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.
marital property includes:
- inter spousal gifts
- pension benefits
- professional practices
what is NOT treated as a martial asset subject to equitable distribution
enhanced earning capacity arising from license, degree, celebrity, goodwill, career enhancement
court MUST consider what regarding earning capacity of the other spouse?
spouse’s direct or indirect contributions
separate is or is NOT marital property?
is NOT
separate property is NOT subject to ?
equitable distribution
what does separate property include?
- prop acquired prior to marriage
- prop acquired by bequest, devise, descent, gift
- personal injury compensation
- prop acquired in exchange for or increase in value of SEPARATE property, UNLESS appreciation due in part to contributions or efforts of other spouse.
- prop described as separate by valid written agreement of parties
how can separate property be transmutated into marital property?
through deposit into a joint account.
or into joint names- a presumption of gift arises.
appreciation of separate property becomes a marital asset if
during marriage - non-titled spouse directly or indirectly contributed as parent/homemaker
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
what types of spousal maintenance awards are there?
temporary.
post divorce.
what is the formula for spousal maintenance?
based on parties’ respective incomes, up to income cap adjusted periodically for inflation
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.
post divorce maintenance terminates when?
upon death of either party.
upon remarriage of payee spouse.
how does court determine duration of post divorce maintenance?
by reference to schedule in DOMESTIC RELATIONS LAW 236,b,6,f
terminating post divorce maintenance is based on how long _________?
the marriage lasted
CHILD SUPPORT STANDARDS ACT
FAMILY COURT ACT
parent is liable for support of child till age 21 or earlier emancipation
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
what do we calculate first - maintenance or child support?
maintenance, as that will be included in the payee’s income
what are “add-ons” to basic child support obligation?
- child care expenses
- health insurance premiums
- unreimbursed health expenses
- educational expeses
those are divided bw the parties pro rata based on each’s income
what is the marital fault considered in the determination of child support?
it is expressly EXCLUDED!
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.