NY BAR REVIEW matrimonial and family law 2019 Flashcards
1
Q
a marriage that is otherwise valid is valid regardless of what?
A
whether the parties to the marriage are of the same or diff sex.
DOMESTIC RELATIONS LAW
2
Q
incestuos marriage
A
VOID
3
Q
bigamous marriage
A
VOID
4
Q
marriage of a party under 17
A
prohibited
5
Q
marriage between 17 and 18
A
consent of parents and written approval of sup ct justice or family court judge, then obtain marriage license
6
Q
marriage where party lacks mental capacity, physical capacity, consented due to force/duress/fraud
A
VOIDABLE
7
Q
common law marriage
A
not permitted
8
Q
out of state marriage, common law marriage valid in which state entered
A
recognized, as matter of comity
9
Q
marriage in another state, but prohibited by positive law in ny
A
NOT recognized
10
Q
marriage involving incest / polygamy - marriage in another state, but prohibited by positive law in ny
A
NOT recognized
11
Q
a recognized valid marriage in ny is terminated how?
A
annulment / divorce / death
12
Q
agreement made before marriage
A
prenuptial
13
Q
agreement made during marriage
A
post nuptial / separation
14
Q
prenuptial, postnuptial, separation agreements are valid if what?
A
writing.
subscribed by both parties.
acknowledged or proven in manner required to entitle a deed to be recorded.
15
Q
separation agreement. prenuptial contract.
postnuptial contract. stipulations of settlement in an action - determine what?
A
rights and obligations of 1 party to the other.
DOMESTIC RELATIONS LAW
16
Q
separation agreement. prenuptial contract.
postnuptial contract. stipulations of settlement in an action may include what type of provisions?
A
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.
17
Q
separation agreement. prenuptial contract.
postnuptial contract. stipulations of settlement in an action - those agreements are scrutinized by the courts how?
A
more closely than ordinary contracts
18
Q
courts will exercise their review authority how?
A
sparingly
19
Q
courts will set aside an agreement only upon showing of what?
A
unconscionability.
unfairness to spouse bc of other’s overreaching.
20
Q
seeking divorce on what grounds?
A
no fault.
irretrievable breakdown of the marriage.
21
Q
irretrievable breakdown of the marriage
A
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.
22
Q
prior to divorce granted based on irretrievable breakdown, what needs to be resolved or determined by court?
A
all economic issues of equitable distribution. payment or waiver of spousal support. payment of attys fees. custody. visitation.
23
Q
long arm statute in matrimonial action
A
permits exercise of personal jurisdiction over non resident def where demand for economic relief,k equitable distribution of marital property is involved
24
Q
pl MUST be NY resident AND domiciliary AND one of the following:
A
- ny was matrimonial domicile of parties before separation.
- def abandoned pl in ny.
OR - claim for economic relief accrued under NY law.
25
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.
26
all pleadings in matrimonial action MUST be what?
verified
27
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.
28
equitable distribution
complustory financial disclosure required by both parties to matrimonial action through sworn sttmt of net worth.
29
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
30
in matrimonial action, is there presumption of equal division?
NO
31
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
32
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.
33
what is is NOT treated as marital asset subject to equitable distribution?
enhanced earning capacity from license/degree/celebrity goodwill/career enhancement
34
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.
35
separate is NOT what?
marital property. it is NOT subject to equitable distribution
36
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.
37
prop accquired during marriage is presumed to be what?
marital prop.
38
party seeking to overcome presumption has burden of proving what?
prop in dispute is sep prop.
39
separate prop may be what?
commingled with and transmutated into marital prop through deposit into joint acct or joint names
40
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
41
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
42
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
43
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.
44
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
45
when does post divorce maintenance terminate?
on death of either party or remarriage of payee spouse
46
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
47
child support law?
CHILD SUPPORT STANDARDS ACT
48
parents are liable for support of child until age ?
21 or earlier emancipation
49
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
50
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.
51
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.
52
child support standards act applies in ____ custody situations
shared
53
basic child support obligation may be supplemented by what?
add ons, such as, child care expenses.
health insurance premiums.
unreimbursed health expenses.
54
how are the expenses divided bw parties?
pro rata, based on income
55
may educational expenses be awarded?
at court's discretion
56
marital fault a factor in child support determination?
NO, expressly excluded from consideration
57
may parents release each other from statutorily imposed obligation to support children?
NO
58
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
59
court bound by agreement that fails to provide for adequate support for parties' children?
NO
60
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.
61
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.
62
unless parties specifically opted out in validly executed agreement, ct may modify order of child support when?
3 years passed since order was entered/modified/adjusted.
OR
change in either party's gross income by 15% or more since order was entered, modified, adjusted.
reduction in income shallnt be considered as ground for modification unless was involuntary and party has made diligent attempts to secure employment commensurate w his education, ability, experience.
63
modification of child support and ct reduction or annulment of child support arrears, for any reason or period prior to initiation of application for modification?
NO
64
interference w visitation rights is a defense to application to enforce child support?
NOT
65
party seeking to modify prior order / judgment as to maintenance MUST establish what?
recipient's inability to be self supporting or substl change in circumstance, including financial hardship, or upon actuall full or partial retirement of payor if retirement results in substl change in financial circumstances, or termination of child support.
66
party seeking to modify maintenance award derived from an agreement MUST establish what?
extreme hardship on either party
67
court may NOT reduce or annul maintenance or arrears that accured prior to date of application to modify except if what?
the defaulting party shows good cause for failure to apply from relief from the order
68
interference w visitation rights can be the basis for what?
cancellation of arrears of maintenance and prospective suspension of maintenance
69
court may terminate maintenance in its discretion upon proof that what?
payee is habitually living w another person person and holding themselves out as spouse of such other person, although not married
70
child born of parents who enter civil or religious marriage at any time prior or subsequent to birth of child is deemed what?
legitimate child of both parents, regardless of validity of marriage
71
child born of married parents or child born to married woman by artificial insemination w consent of woman and husband is what?
legitimate child of both parents.
| MATRIMONIAL AND FAMILY LAW
72
legitimacy of child is NOT affected by what?
subsequent judgment of separation or divorce
73
court, on its own, or on motion of any party, may order the mother, the child, andalleged putative father to submit what?
genetic marker / dna test.
admissibe unless timely objection is made, andif show paternity to degree of certainty of 95% or more, create rebuttable presumption of paternity
74
genetic marker or dna test wont be ordered if court finds its not in best interests of child on basis of which doctrine?
equitable estoppel
75
paramount concern is what?
best interests of child
76
purpose of equitable estoppel is what?
preclude person from asserting a right after having led another to form reasonable belief that right would not be asserted, and loss or prejudice to other woujld result if right were asserted
77
case example re estoppel
one who represented himself as father of child born out of wedlock was equitably estopped from denying paternity eventhough genetic marker test confirmed he wasnt biological father, was required to pay child support, as child justifiably relied on his representation of paternity by forming a bond w him to child's detriment
78
child neglect and abuse proceedings - which law?
art 10 of FAMILY COURT ACT
79
art 10 of FAMILY COURT ACT applies to whom?
any parent or other person legally responsible - custodian, guardian, other responsible for child's care at relevant time, alleged to have abused or neglected child under 18.
80
FAMILY COURT ART 6
permanent termination of parental rights by reason of permanent neglect
81
what is a permanently neglected child?
is in the care of authorized agency and parent or custodian failed for an enumerated period of time substly and continuously to maintain contact w or plan for the future of child, although physically and financially able to do so, notwithstanding agency's deligent efforts to encourage and strengthen parental reltshp when such efforts wont be detrimental to best interests of child.
SOCIAL SERVICES LAW
82
once there's a finding of permanent neglect, all rights and obligations bw neglected child and his parent or custodian are what?
severed.
| child may be available for ADOPTION.
83
what are the acts which constitute a family offense?
```
disorderly conduct. harassment.
sexual abuse.
stalking.
criminal mischief.
menacing.
assault.
numerous other enumerated PENAL LAW crimes.
```
84
predicate act MUST occur bw which family members?
```
members of same family or household.
persons related by blood.
persons who are married.
persons who were formerly married.
persons who have a child together.
persons who are or have been in an intimate relationship regardless of whether such persons lived together at any time.
```
85
when family offense occurred, court may issue what?
order of protection directing respondent to stay away from home, school, business, place of employment, other location of any other party or child or directing the respondent to refrain from committing family or criminal offense ag any other party or child or from harassing, intimidating or threatening such persons.
86
duration of order of protection is?
may vary, up to 2 years and longer, under aggravating circumstances
87
sup ct may enter order of protection in what action or proceeding?
matrimonial action or custody / visitation proceeding
88
who has concurrent jurisdiction over acts which constitute family offenses?
family court.
| criminal court.
89
INTEGRATED DOMESTIC VIOLENCE COURTS
established in sup ct to bring before a single judge criminal, family court, and matrimonial disputes
90
what is a juvenile delinquent?
child under 16 yrs of age who has committed acts constituting crime if committed by adult, who's not criminally responsible for such conduct by reason of infancy and for whom the ct determines that supervision, treatment, or confinement is required
91
what is a person in need of supervision
under 18 yrs of age, who's required by his age to attend school but is habitually truant or incorrigible, ungovernable, disobedient, and beyond the lawful control of a parent or commits certain enumerated PENAL LAW offenses
92
can you detain a person in need of supervision in a secure detention facility?
NO, prohibited
93
minors subject of family ct proceedings should be represented by whom?
counsel
94
law guardian, formerly is what?
atty for the child
95
any proceeding involving a juvenile delinquent or abuse and neglect, child MUST have what?
atty
96
in proceedings other than juvenile delinquent, abuse, neglect, child MAY have what?
atty - discretionary
97
what is the sole criterion for apptmt of atty?
whether legal rep is NOT available
98
what is the test for child or parents to have an appointed atty?
there is NO financial means test for child nor for parents, and reimbursement by parents to state is NOT required
99
atty for child is subject to what requirements?
ethical ones applicable to all lawyers in a case
100
in juvenile delinquency and person in need of supervision, where child is respondent, atty MUST what?
zealously defend the child
101
what are proceedings where child is subject of proceedings?
```
custody.
visitation.
family offense.
abuse.
neglect.
atty MUST zealously advocate child's position.
```
102
if child is capable of knowing, voluntary and considered judgment, atty for child should be directed to what?
wishes of child, even if atty believes what child wants is NOT in his best interests
103
if atty for child is convinced that child lacks capacity for knowing, voluntary, considered judgment, or following child's wishes is likely to result in substl risk of imminent serious harm to child, atty would be justified in what?
advocating a position contrary to child's wishes. atty MUST inform ct of child's articulated wishes if child wants atty to do so, notwithstanding atty's position.
104
who has original concurrent jurisdiction over adoption proceedings?
family court.
| surrogate's court.
105
adoption proceeding- ct MUST be satisfied that what is promoted?
best interests of child
106
adoption records are what? any may be obtained if what?
sealed.
| good cause shown.
107
what records are NOT sealed re adoption?
medical history.
| biological parents' heritage.
108
what effect does an order of adoption have?
DOMESTIC RELATIONS LAW.
| severs all legal ties previously existing bw adoptive child and birth parents
109
adoption - biological parents are relieved of what?
all rights and obligations vis a vis the child, including obligation of financial support and rt of contact
110
what is the legal effect of an adoption order?
make the adoptive child child of adoptive parents and divest biological parents of their relationship to child.
111
surrogate parenting contracts, where biological parent enters a written agreement to join in creation of child for purposes of adoption are what?
contrary to public policy, void and unenforceable whether payment of compensation is involved or not.
112
who may adopt?
single.
adult married couple together.
2 unmarried adult intimate partners (domestic partners).
113
adult or minor married couple together may adopt
child of either of them born in or out of wedlock
114
who may be adopted?
minor or adult
115
consent for adoption
child over 14 yrs of age.
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 has lawful custody of child.
DOMESTIC RELATIONS LAW
116
test to determine whether consent of unwed father is required where child is over 6 months old
diff test is applied where child born out of wedlock is less than 6 mths old
117
consent is NOT required of a parent who has what?
abandoned the child - intent to forego parental or custodial rights as manifested by failure for period of 6 mths to visit or communicate w child
118
ability to visit and communicate is presumed under which law
DOMESTIC RELATIONS LAW
119
sealing of adoption records to prevent what?
birth parents from locating child and interfering w relationship bw child and adoptive parents and protect privacy of birth parents
120
access to sealed records may be obtained only for what?
good cause on due notice to adoptive parents.
121
good cause necessary to obtain inspection of adoption records may be shown by what?
genuine medical necessity
122
adoptive parents are entitled to disclosure of what?
child's medical history and limited info pertaining to biological parents at time of birth, such as heritage, education, general physical appearance, occupation, health, medical history
123
adopted child may NOT seek access to adoption records for purpose of what?
identifying his birth parents.
124
adoption info registry is maintained by NYs DEPT OF HEALTH and non identifying info about biological parents may be available to adopted person when?
18 yrs of age.
| PUBLIC HEALTH LAW
125
agreements for post adoption contact w member of biological fam are what?
recognized.
may be judicially enforced if terms of agreement are incorporated into written order and ct determines contact is in child's best interests.
126
in FAMILY COURT proceedings, ct does NOT have discretionary authority to provide for contact bw who?
child and biological parent once parental rights are terminated
127
indian tribe law
INDIAN CHILD WELFARE ACT
128
neither parent has a prima facie right to what?
custody
129
Indian tribe has what type of jurisdiction over child custody proceeding involving Indian child who resides or is domiciled within reservation of tribe?
exclusive
130
in state ct proceeding for foster care placement of or termination of parental rights to Indian child NOT domiciled or residing within reservation of his tribe, court, in absence of good cause to contrary, MUST what?
transfer proeecding to jurisdiction of tribe, absent objection by either parent, upon petition of either parent or Indian custodian or his tribe. FULL FAITH AND CREDIT are given to judicial proceedings of Indian tribe applicable to Indian child custody proceedings.
131
when custody bw 2 parents is contested, ct in its discretion may determine custody how?
as justice requires, having regard to circumstances of case and respective parties and to best interests of child
132
what are the circumstances to be considered in determining best interests of child?
quality of home environment.
parental guidance provided.
ability of parent to provide for child's emotional and intellectual development.
financial status.
ability of parent to provide for child.
relative fitness of respective parents.
length of time present custody has continued.
133
how best interests of child determined?
by a review of totality of circumstances, including existence of prior award.
134
child preference in custody is what?
NOT binding. only 1 factor to be considered by court.
135
trial ct in custody proceeding has discretion to interview child in absence of whom?
parents.
| counsel.
136
party to action concerning custody or right to visitation alleges in sworn pleading that other party committed act of domestic violence ag family member, and such allegation is proven by preponderance of evidence, ct MUST what?
consider effect of such dom viol upon best interests of child
137
biological parent has right to care and custody of child superior to whom?
all others
138
state may NOT deprive parent of custody of child absent what?
```
surrender.
abandonment.
persisting neglect.
unfitness.
other like extraordinary circumstances.
```
139
if extraordinary circumstances are present, only ct may proceed to inquire into what?
best interests of child
140
cts recognize the importance of what bw child and noncustodial parent?
regular and frequent visitation
141
absent exceptional circumstances, such as those in which it would be inimical to welfare of child or where parent in some manner has forfeited hsi right to such access, appropriate provision for what follows almost as matter of course?
visitation or other access by noncustodial parent
142
legislature has allowed certain non parents the right to seek custody and visitation, such as whom?
siblings.
| grandparents.
143
grandparents have standing to seek what, where either or both of grandchild's parents are dead or where equitable intervention of court is warranted?
visitation
144
once standing exists, visitation for grandparent is what?
appropriate, if in best interest of child
145
aside from permission granted to certain non parents by DOMESTIC RELATIONS LAW, only a parent is expressly permitted to petition for what?
custody or visitation
146
persons lacking biological or adoptive connection to child have been granted or denied standing to seek visitation and custody?
DENIED
147
non biological, non adoptive parent DOES have standing to petition for custody and visitation if he can prove by clear and convincing evidence that he agreed with whom what?
biological parent of child to conceive and raise child as co-parents.
148
what do custodial arrangements include?
sole custody.
joint legal custody.
joint physical custody.
149
joint custody standard reserved ?
for relatively stable, amicable parents behaving in mature civilized fashion.
150
UNIFORM CHILD CUSTODY JURISDICTION AND ENFORCEMENT ACT
child custody proceeding pertaining to Indian child is NOT subject to that to the extent it is governed by INDIAN CHILD WELFARE ACT.
151
modification of existing custody or visitation order is permitted upon showing that what?
there has been a change in circumstances such that modification is necessary to ensure continued best interests of child
152
how to determine whether relocation is appropriate?
request MUST be considered on its own merits w due consideration of all relevant facts and circumstances and with predominant emphasis placed on what outcome is most likely to serve best interests of child
153
relevant factors in relocation
impact of move on relationship bw child and noncustodial parent.
economic necessity.
health related concern justifying move.
demands of 2nd marriage and custodial parent's opportunity to improve their economic situation.
good faith of parents in requesting or opposing move.
child's respective attachments to custodial and noncustodial parent.
possibility of devising visitation schedule that will enable noncustodial parent to maintain meaningful parent child relationship.
quality of lifestyle that child would have if proposed move were permitted or denied.
negative impact from continued or exacerbated hostility bw custodial and noncustodial parents.
effect move may have on extended family relationships.
