NY Domestic Relations Flashcards
UNMARRIED COUPLES
Enforceability of a Pre-Marital Agreement - the Court’s Considerations and Defenses
One Party wants to Challenge Validity of the Agrmt Ct. looks at whether:
- Agrmt must be freely made without duress
- In writing, signed by both parties (SOF)
- Cannot agree in advance to get divorced or engage in conduct that creates grounds for divorce
- Cannot be unconscionable – if contains waiver of post-divorce support not uncon. unless would likely leave party to become public charge —> Alimony Test: “fair and reasonable”
➩ Only enforceable if they get married b/c once married —> K becomes binding & subsequent divorce has NO EFFECT on the validity of the K.
Defenses to K Validty: Fraud, Duress, Unconscionability
UNMARRIED COUPLES
Enforceability of contracts between co-habitants.
- Contracts between co-habitants who have no intention of getting married are enforceable
- Ex - “should we split up, one promises to pay the other a stream of income”
- ** Exception: ** in absence of express contract, NO IMPLIED Ks between unmarried co-habitants
UNMARRIED COUPLES
Filiation Proceeding Requirements & Evidentiary Standards used.
Filitation Proceeding (only if no man acknow. paternity)
- Family Court has Exclusive Jurisdiction
- Claim brought in county where mom, alleged dad or child resides
- Claim brought by mother, child through guardian, or state (or father if mother denies paternity)
- Can be litigated @ any time prior to child’s 21st birthday
Evidentiary Points:
- C&C evidence needed
- Mother’s testimony that she had sex w/ D need not be corroborated BUT if D offers evidence of sexual access tra mother & other men, must be corroborated.
-
DNA shows greater than 95% of paternity → rebuttable presumption that D is dad, which shifts burden of proof to D (either side can offer)
- D can rebut by showing something like complete in-access (e.g. being out of the country for the entire time) but if not rebutted will give rise to liability for support of the child.
UNMARRIED COUPLES
Non-marital Children
Non-marital child – child conceived by and born to parents who never married
- If parents marry 2 years after child born, child is no longer non-marital.
- Child’s status as a marital child is unaffected by the fact that parent’s marriage is void, voidable, annulled or judicially declared void.
_Have I*dentical Rights* to marital children_ - can inherit from natural parents, can sue for wrongful death, entitled to (govt.) benefit programs, entitled to economic support from both parents
Ambiguity re Identity of Father - if married, strong presumption that mother’s husband is the father but can have filiation proceeding to determine
MARRIAGE
Duties of Marriage
1) Monogamy
2) Economic support - “fair & reasonable” standard
- Based on “Means Test” – amt based on means/resources of wealthier spouse – unless risk that spouse will become a public charge, then based on “Needs test” - based on needs of recipient spouse.
- Spouse not being supported - can seek family ct. order to enforce support reqs (no effect on validity marriage)
3) Spouses retain separate identities for civil & criminal law – liable for torts or crimes against each other, can K w/ other people w/o binding spouse, liable for own debts
Exceptions:
- Debt for necessaries – other S can be liable
- 1 Spouse Agent of other - liability for debts can attach
MARRIAGE
Requirements for valid marriage.
- Capacity – Single, opposite sex, 18 yrs. old (or 16-18 w/ parental consent)
-
Ceremonial Marriage
- License – (1) from city or town clerk, (2) wait 24 hrs., (3) license valid for 60 days, (4) pay fee, (5)
- Defects in license or failure to get a license - NO affect on validity of marriage
-
Ceremony – Solemn declaration that couple will take on status of husband & wife before an officiant & 1 witness
- Must be undertaken with general intent to undertake responsibility
- Officiant - any civil officer, physically present, authorized to administer an oath
- Contractual Marriage - cannot be in same place so get the license, & each party goes to a separate judge & signs the license, need one witness for each party.
➩ No common law marriage BUT if from another state where it’s acknowledged, **NY Will Recognize **
TERMINATION OF MARRIAGE
Void Marriage
Declaration of Nullity
-
1 person lacked severe capacity so marriage is void.
- Ex – Bigamy or Incest (1st cousins okay)
- Impediment causing marriage to be void is removed (e.g. other spouse dies) - subsequent marriage becomes voidable & thus subject to ratification.
- “Void” = no need for judicial decree b/c no marriage BUT should get a declaration of nullity anyway for clarity of record & collateral matters (distribute property, custody of kids).
TERMINATION OF MARRIAGE
Annulment - Non-Age, Mental Incapacity,
& Duress.
- Non-age – discretionary & waived if stay married & cohabitate after 18th b-day
-
Mental incapacity at time of marriage – inability to consent due to want of understanding b/c of diagnosable mental illness or developmental disability.
- Waived if continue to co-habitate after regaining capacity
- Suit may be brought by a family member or legal guardian.
-
Duress - getting married under force of physical coercion (gun-point, knife).
- Waived if gun is removed & continue to co-habit.
TERMINATION OF MARRIAGE
Voidable Marriage. 6 grounds for annulment & procedural matters.
Capacity problem at marriage, which rendered marriage voidable so marriage is valid until declaration of annulment.
6 Grounds for Annulment:
- Non-age
- Mental incapacity at time of marriage
- Duress
- Fraud
- Incurable physical incapacity
- Incurable insanity that lasts for 5 yrs. during marriage
Procedural Matters:
- Testimony by either party re: grounds for annulment requires corroboration
- Jury trial (except physical incapacity)
- Default SOL = 6 yrs.
TERMINATION OF MARRIAGE
Annulment - Incurable physical incapacity & incurable insanity.
Incurable physical incapacity – prevents sex
Must not have attempted sex before marriage
Only biological inability to have sex – NOT inability to have kids & NOT related to refusal to be intimate
Must be incurable (including transmittable disease, like HIV)
SOL - must be brought w/in 5 years of marriage
No jury trial
Incurable insanity for 5 yrs. during marriage
Mental illness develops after the marriage.
5 consecutive years or more.
3 court appointed psychiatrists must corroborate
TERMINATION OF MARRIAGE
Annulment – Fraud.
Party misrepresents or conceals info that goes to an essential aspect of the marriage prior to the marriage & it would’ve been likely to deceive reasonably prudent person.
o Religion – what religion practices, level of devotion, intent to convert, raise kids
o Procreation or sex – failure to disclose/lie about paternity of baby expecting; cannot have kids; do not want kids; sexual history, agenda or orientation
Waiver – must bring action w/in 3 yrs. of learning of the fraud
➩ Lying about economic status is NOT grounds for annulment.
TERMINATION OF MARRIAGE
Separation – Cruel & Inhuman Treatment, Imprisonment, Failure to Provide Economic Support.
Cruel and inhuman treatment (physical or mental) – must be evidence that well-being of spouse endangered rendering it unsafe or improper for P to cohabitate with D
o Subjective test – determination only relates to particular P-spouse, not “reasonable spouse”
o If P continued to cohabitate after abuse, court will consider it as a factor but it is not dispositive.
Three Years Consecutive Imprisonment During Marriage
Failure to provide economic support – if neglect or actual refusal to provide support – the separation order will contain a support clause (fault may be considered to determine award)
TERMINATION OF MARRIAGE
What is the effect of a legal separation & why would someone get one?
Ct. granted permission to live apart (so no sex obligations) & liquidates any support obligation
o Judge can give permanent or temporary order of separation
Why get separation? (*note in essay)
Financial or legal reasons – parties may want to maintain technical status b/c of social security benefits, inheritance rts, continue being a beneficiary of certain insurance plan
Religious reasons – some people will never get divorces
➩ No jury trial for separation proceedings.
TERMINATION OF MARRIAGE
Separation - Abandonment
- Abandonment – a (1) willful & voluntary departure, (2) w/o consent of the other spouse, (3) w/o intent to return, (4) w/o justification
- Conduct plus Intent - intent inferred from duration/length of absence
- Without consent or justification - to escape violence always justified
- Constructive abandonment – D walked away from marriage in metaphorical sense – e.g. refusal to have sex (but NOT refusal to have oral sex) or locks spouse out of house
TERMINATION OF MARRIAGE
Separation - Adultery -
Defenses:
- Recrimination – (dirty hands) – P spouse has also committed adultery
- Condonation – knowledge + forgiveness + cohabitation
- Connivance – form of entrapment – P procured adultery
- SOL - 5 years from discovery
- Pleading of parties must be verified, except for D-Spouse’s answer.
- Spouses can only testify on 3 subjects: (1) to prove existence of marriage, (2) D-Spouse can testify to deny the adultery, (3) P-spouse can testify to deny a defense.
- P-Spouse cannot testify to prove the adultery - need to get third party testimony or circumstantial evidence (opportunity & disposition) to prove adultery.
- Testimony of private detectives & prostitutes must be corroborated.
TERMINATION OF MARRIAGE
What are grounds for a divorce?
-
Fault Ground - First 4 (identical to first 4 for separation)
- Cruel and Inhuman Treatment
- Abandonment - Full 1 year continuous period before you have a basis for divorce
- Adultery
- 3 Years of Imprisonment
-
Conversion Divorce: )
- Couple must st separate as a result of either earlier (1) separation lawsuit or (2) separation by agreement
- Decree and 1 year separation
- After1 full year has elapsed → Decree can be converted into a final divorce
- Writing + knowledge among both parties
- Freely made
- No duress
- Filed w/ court before conversion divorce
- Sex w/ Intent to Reconcile: Invalidate separation (unless made by decree)
- Note: failure to your support is not ground for divorce
- Writing + knowledge among both parties
-
No Fault Ground
-
Irretrievable breakdown of the marriage for a period of at least 6 months
- At least 6 month break down
- Provided that one spouse/party testifies under oath that this is the actual case
-
Irretrievable breakdown of the marriage for a period of at least 6 months
TERMINATION OF MARRIAGE
Dissolution of Marriage
Only available when spouse has been missing for 5 years w/o any Tidings.
o Petitioner-Spouse must be NY resident for 1 year, or NY must have been the matrimonial domicile at time of disappearance.
Publication - Publish request that spouse return in English language newspaper, regardless of language spouse speaks, for 3 consecutive weeks.
Proceedings only consider if absent spouse is dead – no collateral issue decided (property, child custody, alimony) b/c operation of law takes over & will or intestacy is followed (it is as if the missing spouse is dead).
TERMINATION OF MARRIAGE
Civil Procedure for Divorces
Supreme Court has exclusive jurisdiction but may refer incidental matters (support, custody, or visitation) to Family Ct.
SMJ - 1 spouse domiciled in NY, and 1 of the Durational Residency Reqs
PJ required over D to get collateral orders (e.g. support, alimony, custody)
Pleadings must be verified (i.e. sworn to) - except Answer in adultery case
D must be personally served - can ask court for alternative method
Summary judgment - may NOT be granted in favor of the non-moving party
Jury Trial – permitted in divorce, declaration of nullity & annulment action (except one on the grounds of physical incapacity) but NOT permitted in separation actions
Disclosure of financial assets – so court has rational basis to enter financial orders
Confidentiality - Matrimonial records kept sealed for 100 years
ECONOMIC AGREEMENTS
How is maintenance determined & what types of factors does the
court look at?
TIMING
- *Temporary maintenance** - ordered while case is pending to meet temporary needs of parties
- *Final Maintenance** – no automatic entitlement—based on reasonable needs of recipient.
FACTORS
Court may consider ANY factor it deems relevant, including nature & degree of fault
- Usually considers: (1) age and health of parties; (2) skills, earning capacity, time needed to gain job skills; (3) whether spouse cares for the children; (4) standard of living while married; (5) duration of the marriage
Conversion divorce based on separation agreement - maintenance can be addressed in separation agmt & court can it but close scrutiny of agmt if any evidence of overreaching
TERMINATION OF MARRIAGE
Professional responsibility of lawyers in divorce actions.
Attorney must provide client w/:
- Statement of client rights/responsibilities
- Written retainer agreement (at beginning of representation)
- Closing statement itemizing written bill explaining how lawyer arrived at his fee
- Cannot take as security for fee a mortgage on client’s house & cannot take non-refundable fee.
- No sex during representation.
If lawyer violated any of duties & services were rendered – if the fee has not been paid yet, lawyer cannot collect fee but if already paid then must return it except fee for reasonable services already rendered
ECONOMIC AGREEMENTS
Maintenance termination.
- Duration can be set forth in decree – otherwise continues indefinitely – can also negotiate for early termination or survival past death.
-
Normally terminates on death of either party
- Remarriage of recipient spouse is Gounds for Termination
- Cohabitation w/o marriage not enough to terminate unless cohabatitor represents to the world that he’s married.
ECONOMIC AGREEMENTS
Maintenance Enforcement & Modification.
Enforcement
- Property can be seized & sold
- Wages can be attached
- Seize drivers & professional licenses
- Jail for judicial contempt
Modification
- File a petition for modification
- Permissible upon showing of change in circumstances (payer got laid off, injured, recently graduated school & can now get job)
- *Separation Argmt** - extreme hardship must be shown BUT if the separation agmt was merged into the divorce decree the agmt did not survive the divorce & the petitioner need only show substantial change
- *Prospective only** – encourages people to get to ct. early upon a change in circumstances
PROPERTY DISTRIBUTION
What Qualifies as Separate Property?
Separate Property
- Anything owned prior to marriage
- Bequests/gifts received by either spouse in their sole name
- Inheritance
- Property they agree will be treated as separate property (in written agmt)
- Personal injury compensation
- Passive appreciation on the above property (change in value due to time or market place fluctuation)
- BUT appreciation due to active participation or mgmt by spouse in adding value is a marital asset (Ex – increase in value of a separate property during the marriage due to the contribution of the other spouse as homemaker & parent)
PROPERTY DISTRIBUTION
Equitable Distribution Statute.
Equitable Distribution Statute
1st - Divide assets into:
- H’s separate property
- W’s separate property
- Marital property subject to distribution
2nd - Give H and W their separate property &
- Then exercise equitable discretion to divide up the marital property subject to distribution
