NY BAR REVIEW matrimonial and family law 2019 Flashcards
a marriage that is otherwise valid is valid regardless of what?
whether the parties to the marriage are of the same or diff sex.
DOMESTIC RELATIONS LAW
incestuos marriage
VOID
bigamous marriage
VOID
marriage of a party under 17
prohibited
marriage between 17 and 18
consent of parents and written approval of sup ct justice or family court judge, then obtain marriage license
marriage where party lacks mental capacity, physical capacity, consented due to force/duress/fraud
VOIDABLE
common law marriage
not permitted
out of state marriage, common law marriage valid in which state entered
recognized, as matter of comity
marriage in another state, but prohibited by positive law in ny
NOT recognized
marriage involving incest / polygamy - marriage in another state, but prohibited by positive law in ny
NOT recognized
a recognized valid marriage in ny is terminated how?
annulment / divorce / death
agreement made before marriage
prenuptial
agreement made during marriage
post nuptial / separation
prenuptial, postnuptial, separation agreements are valid if what?
writing.
subscribed by both parties.
acknowledged or proven in manner required to entitle a deed to be recorded.
separation agreement. prenuptial contract.
postnuptial contract. stipulations of settlement in an action - determine what?
rights and obligations of 1 party to the other.
DOMESTIC RELATIONS LAW
separation agreement. prenuptial contract.
postnuptial contract. stipulations of settlement in an action may include what type of provisions?
make testamentary gift. waiver of right of election. divide separate property. divide marital property. set amount of maintenance. set duration of maintenance. custody, care, education, support of child of parties.
separation agreement. prenuptial contract.
postnuptial contract. stipulations of settlement in an action - those agreements are scrutinized by the courts how?
more closely than ordinary contracts
courts will exercise their review authority how?
sparingly
courts will set aside an agreement only upon showing of what?
unconscionability.
unfairness to spouse bc of other’s overreaching.
seeking divorce on what grounds?
no fault.
irretrievable breakdown of the marriage.
irretrievable breakdown of the marriage
one spouse need only state under oath that relationship broke down irretrievably for a period of at least 6 mths prior to commencement of action.
prior to divorce granted based on irretrievable breakdown, what needs to be resolved or determined by court?
all economic issues of equitable distribution. payment or waiver of spousal support. payment of attys fees. custody. visitation.
long arm statute in matrimonial action
permits exercise of personal jurisdiction over non resident def where demand for economic relief,k equitable distribution of marital property is involved
pl MUST be NY resident AND domiciliary AND one of the following:
- ny was matrimonial domicile of parties before separation.
- def abandoned pl in ny.
OR - claim for economic relief accrued under NY law.
prerequisite for ny to have jurisdiction over marriage or marital res?
both parties domiciled/residents of ny at time of action commencement and cause of action accrued in ny.
OR
one party is ny resident for 1 continuous year immediately preceding action if they were married in ny OR they resided as spouses in ny OR cause of action occurred in ny OR
one party is a resident of ny for 2 continuous years immediately preceding action.
all pleadings in matrimonial action MUST be what?
verified
service of process in matrimonial, how?
personal delivery absent court order authorizing substitute service.
defs MUST be served w copy of automatic orders simultaneously w service of summons, which remain in effect during pendency of action, prevent parties from unilaterally changing economic status quo of relationship by disposing of prop/incurring debts / removing other party or children from medical insurance, changing beneficiaries on existing insurance policies.
equitable distribution
complustory financial disclosure required by both parties to matrimonial action through sworn sttmt of net worth.
court determining equitable distribution of marital prop MUST consider how many factors and set forth in decision which factors they relied upon in distributing marital prop?
14
in matrimonial action, is there presumption of equal division?
NO
courts may, in place of equitable distribution, make a _________to achieve equity bw parties.
distributive award and make an order regarding exclusive use and occupancy of marital home and household effects
what is marital prop?
acquired by either or both spouses during marriage and before execution of separation agreement or commencement of matrimonial action, regardless of form in which title is held.
inter spousal gifts.
pension benefits.
professional practices.
what is is NOT treated as marital asset subject to equitable distribution?
enhanced earning capacity from license/degree/celebrity goodwill/career enhancement
in arriving at equitable distribution of marital prop, ct MUST consider what?
spouse’s direct or indirect contributions to enhanced earning capacity of other spouse.
separate is NOT what?
marital property. it is NOT subject to equitable distribution
what is separate prop?
acquired before marriage or by bequest, devise, descent, gift from party other than spouse.
compensation for personal injuries.
property acquired in exchange for or increase in value of sep prop, except to extent that such appreciation is due in part to contributions or efforts of other spouse.
prop described as sep prop by valid written agreement of parties.
prop accquired during marriage is presumed to be what?
marital prop.
party seeking to overcome presumption has burden of proving what?
prop in dispute is sep prop.
separate prop may be what?
commingled with and transmutated into marital prop through deposit into joint acct or joint names
if spouse places sep prop into joint names, what presumption arises?
gift.
unless rebutted, results in conclusion that the prop is to be treated as marital prop
appreciation in value of sep prop during marriage due to non titled spouse’s direct or indirect contributions, as parent and homemaker is also considered what?
marital asset
in appreciation is NOT due in any part to efforts of titled spouse, but to effect of unrelated factors including inflation or other market forces, appreciation is what?
sep prop
courts award what by employing a mathematical formula based upon parties’ respective incomes, up to income cap adjusted periodically for inflation?
temporary maintenance.
post divorce maintenance.
court may adjust guideline amount of temporary or permanent maintenance when?
it finds guideline amt unjust or inappropriate.
award additional maintenance where there is income over the cap, based on statutory factors.
DOMESTIC RELATIONS LAW
when does post divorce maintenance terminate?
on death of either party or remarriage of payee spouse
court has discretion to determine duration of post divorce maintenance by reference to schedule based on what?
length of marriage. schedule is advisory and not exact.
court MUST consider statutory factors unrelated to length of marriage
child support law?
CHILD SUPPORT STANDARDS ACT
parents are liable for support of child until age ?
21 or earlier emancipation
what does the child support standards act provide for?
uniform guidelines in determination of child support awards.
rigid formula for calculating child support by applying designated statutory percentage, based upon # of children to be supported, combined w parental income up to statutory cap adjusted periodically for inflation
what is to be calculated first? maintenance or child support?
maintenance.
as this amount is to be subtracted from payor’s income and added to payee’s income for child support purposes.
if parental income exceeds the cap, court has discretion to apply what?
statutory child support percentage or apply factors in domestic relations law, but must set forth in a decision reasons for its determination.
child support standards act applies in ____ custody situations
shared
basic child support obligation may be supplemented by what?
add ons, such as, child care expenses.
health insurance premiums.
unreimbursed health expenses.
how are the expenses divided bw parties?
pro rata, based on income
may educational expenses be awarded?
at court’s discretion
marital fault a factor in child support determination?
NO, expressly excluded from consideration
may parents release each other from statutorily imposed obligation to support children?
NO
parties may opt out or deviate from child support standards act provisions so long as what?
decision made knowingly and pursuant to domestic relations law, specific recitals in written agreement
court bound by agreement that fails to provide for adequate support for parties’ children?
NO
party seeking modification of child support obligation deriving from agreement incorporated but NOT merged into judgment of divorce prior to 10.30.2010, MUST what?
establish that the agreement was unfair or inequitable when entered into OR an unanticipated and unreasonable change in circumstances has occurred resulting in concomitant need of child OR needs of child aren’t being adequately met.
applications made after 10.30.2010, child support agreements made after that date, court may what?
modify an order of child support, including order incorporating without merging agreement or stipulation of parties, upon showing of substl change in circumstances.