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NY Distinctions > NY Family Law > Flashcards

NY Family Law Flashcards

1
Q

New York only grants a ceremonial marriage (as opposed to a common law marriage). What are the two requirements for a ceremonial marriage?

A

A ceremonial marriage requires:

  • Parties obtain a license; and
  • Solemnization
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2
Q

What are the requirements to obtain a license in New York for a ceremonial marriage?

A
  • Age
    • Over 18 - no consent necessary
    • Below 14 - marriage is forbidden
    • 14 to 16 - parental consent **and **judicial consent required
    • 16 to 18 - only parental consent
  • Waiting period
    • Must wait at least 24 hours
    • Expires 60 days after it is issued
  • Medical Testing
    • African-Americans are required to take a sickle cell anemia test, unless prohibited by religion
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3
Q

What does Solemnization require?

A
  • One witness, and
  • Someone to perform the marriage (judge, political official, member of the clergy, or some other recognized religious organization).
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4
Q

The clerk will deny a marriage license when:

A
  • Either party is already married to someone else
  • Parties are too closely related (first cousins and adoptees can get married)
  • Marriage is suspected to be a sham
  • Parties are incapable of understanding the act
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5
Q

Is same-sex marriage allowed in New York? Must other states give full faith and credit to a same sex marriage from New York?

A

Yes, same-sex marriage is allowed in New York. Other states are not required to give full faith and credit to same sex marriage.

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6
Q

New York recognizes a civil union and will give full faith and credit to a civil union from another state. What is a civil union and what can you not get thru a civil union?

A

A civil union is a contracted relationship, you cannot obtain a divorce from a civil union because it is not a marriage.

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7
Q

New York does not allow common-law marriages to occur within the state, but if another state allows common-law marriage and the requirements for that state have been properly fulfilled, New York will provide ________ to the common-law marriage of another state.

A

Full faith and credit

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8
Q

How does NY treat Marvin Relationships?

A

A Marvin-type contract for sex in exchange for housing and being held out as one’s spouse is not recognized as an implied contract of marriage, because common-law marriage is not recognized in NY and New York does not allow contracts for intimate relationships.

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9
Q

Domestic partnerships are recognized in New York state and specifically in New York City for New York City employees. How can the a domestic partnership be ended?

A

It can be ended by mutual agreement of the parties, divorce is not necessary.

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10
Q

A heart balm action is no longer a basis for common-law action in New York State, when the marriage does not occur anymore. Is there any recourse for the plaintiff?

A

Anything given in contemplation of marriage, when the consideration was the marriage itself, is retrievable if the marriage does not occur (e.g., engagement ring).

And, if reliance on the marriage based on a false misrepresentation induced you to suffer some kinds of costs or harms, there may or may not be recoverable.

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11
Q

What are three ways to end a marriage?

A
  • Annulment
  • Divorce
  • Death
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12
Q

An annulment in New York is valid as of the date of the annulment __________.

A

Decree

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13
Q
  • What is a void marriage?
  • Do you need judicial consent to dissolve a void marriage?
  • When will a void marriage be recognized after annulment?
A
  • A marriage that never should have taken place in the first place
  • Does not need to **judicially **dissolved
  • It will only be recognized after annulment for child legitimacy
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14
Q

What are the bases for a void marriage?

A
  • Bigomy
  • Incest
  • One of the parties is incarcerated serving a life sentence
  • Enoch Arden - one of the parties has a good faith belief that the other party is dead based on an absence of 5 years. You must publish a petition once a week for three weeks in an effort to verify that the person cannot be found
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15
Q

If consent was not properly obtained (e.g., by lying about one’s age to get a marriage license), the marriage is voidable but not void.

  • When is the marriage no longer voidable?
  • When the marriage is voidable, who may seek annulment?
A
  • Once the party who was a minor reaches the age of majority, age is no longer a basis for annulment.
  • The party who is of proper age cannot use the minor age of the other spouse to seek an annulment. The parents of the minor spouse may seek the annulment.
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16
Q

If the party without the mental incapacity, recognized the mental incapacity of the other person at the time of the marriage, the marriage __________.

A

Can stand

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17
Q

If the person with the mental incapcity suffers from a mental illness that comes and goes, and if there were not lucid at the time of the marriage, that person may ____________.

A

Seek an annulment during a lucid moment.

If the person continues with the marriage in a lucid moment, then they may not seek an annulment.

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18
Q

If the mental incapacity is one of mental retardation, the law considers the disability to be obvious, and the spouse of normal intelligence ________ use that as the basis for an annulment; but someone on behalf of the mentally retarded spouse ________ use it as a basis for annulment.

A
  • May not
  • May
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19
Q

If, at the time of the marriage, one party was unable to have children or is impotent, that can be a ground for an annulment. The party who is not impotent cannot have known about the problem at the time **_____________. What is the statute of limitations? Is there a right to a jury trial? **

A
  • Of the marriage
  • 5 years
  • No right to a jury trial
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20
Q

What is the statute of limitations for seeking an annulment when the marriage is due to fraud, misrepresentation, duress, coercion, or force of any kind?

A
  • 3 years, but lose bases upon discovery and continuance of marriage.
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21
Q

A party may seek annulment when there is a *persistent *mental illness lthat last for ____________.

A

5 years

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22
Q

To be valid, a separation agreement must:

A
  • be in writing
  • signed by the parties
  • notarized
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23
Q

What are the grounds for legal seperation?

A
  • Adultery
  • Cruel and Inhuman treatment
  • Abandonment
  • Imprisonment for 3+ years of one of the spouses
  • Failure to provide support
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24
Q

What is the statute of limitations for Legal Separation?

A

5 years

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25
Q

The contract cannot obligate the parties to give up __________ that they would otherwise be eligible for.

A

Support

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26
Q

In a separation agreement, issues regarding __________ and __________ are always subject to the court’s review on _________________ (what factor?).

A
  • Child Support
  • Child Custody
  • Best Interests of the Child
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27
Q

When can the parties use the separation agreement as a basis for a divorce?

A

If the parties remain separated for a full year. This is called a conversion divorce.

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28
Q

What happens when the separation agreement merges with the divorce judgment?

A

Only the court jugdment perists and a party seeking modification must show a substantial change in circumstances.

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29
Q

What does it mean when the separation agreement is incorporated into the divorce decree?

A

The separation agreement is enforced like a contract. Child Support and Child Custody cannot be enforced through contempt proceedings. The standard for modification is extreme circumstances.

30
Q
  • The parties allege the marriage is ______________.
  • All the issues attendant to divorce _________, ________, _________, and ___________ must be resolved ______ a no-fault divorce can be granted.
  • At least ______ spouse must affirm under oath that the marriage is ___________ and has been for at least ____ months.
A
  • irretrievably broken
  • equitable distribution, spousal maintenance, child support, child custody. Before.
  • one, irretrievably broken, 6 months.
31
Q

What are the two requirements for a conversion divorce?

A
  • Existence of a valid seperation agreement
  • Parties actually live seperately to the terms of the agreement for 1 year.
32
Q

Recrimination is a defense to a divorce action based on adultery, which alleges that the spouse seeking the divorce has also engaged in adultery.

  • What restriction exists for spouse serving as a witness?
  • What does circumstantial evidence have to show?
  • What must you use if you are using the testimony of a private investigator or prostitute?
A
  • One spouse **cannot testify **against other spouse, except to prove marriage took place, to disprove adultery, or disprove a defense
  • Circumstantial evidence must show **inclination and opportunity **to commit adultery
  • If using testimony of a private investigator or prostitute, **corroboration of testimony **is necessary.
33
Q

What is the statute of limitations for bringing a fault-based divorce on grounds of adultery?

A

5 years from date of discovery

34
Q

What must the plaintiff prove in order to make a succesful claim for divorce based on cruel and inhuman treatment?

A
  • Requires a course of conduct, usually a single act is not sufficient
  • Conduct has to be harmful to physical or mental health and it needs to be a course of conduct that makes continued habitation unsafe for the plaintiff.
35
Q

What factors will the court consider when a claim for fault divorce based on cruel and inhuman treatment is brought, besides conduct and living conditions?

A
  • Age of the parties
  • Duration of the marriage
  • objective evidence of harm
  • impact on spousal maintenance award
36
Q

What is the statute of limitations for a fault based divorce claim based on cruel and inhuman treatment?

A

5 years

37
Q
  • Abandonment is without _____________ or ____________;
  • Must be a minimum of ____ year(s), with the intent _____________; and
  • Only arises if the party that allegedly left the marriage did so without _____________.
A
  • Consent or Justification
  • 1 year, not to resume cohabitation
  • Justification
38
Q

Constructive abandonment is when one spouse forces the other spouse out of the house. The act:

  • Must be ________, ________, and _________;
  • Must include refusal to engage in _____________; and
  • Must last at least ____ year(s).
A
  • Willful, unjustified, and continued
  • Sexual relations
  • 1 year
39
Q

A fault divorce based on imprisonment is available when the imprisonment is for ___________ year(s), and only ___________ may use this ground as a basis for divorce.

A
  • 3 or more years
  • non-imprisoned party
40
Q

How long is the statute of limiations for a fault based divorce based on imprisonment and when does it begin to run?

A
  • 5 years, once the inmate is released.
41
Q

What are possible defenses to a claim of fault based divorce?

A
  • Recrimination (adultery)
  • Connivance (adultery)
  • Condonation (all)
  • Collusion (all)
  • Provocation (all)
  • Consent (abandonment/adultery)
  • Justification (abandonment)

Relgion is not a defense.

42
Q

New York is an equitable distribution state. Upon the dissolution of the marriage, the ____________ is dealt with ___________.

A
  • marital property
  • fairly
43
Q

What is not included in marital property for the purposes of equitable distribution?

A
  • Property acquired before the marriage
  • Property excluded by an agreement before the marriage
  • Property acquired by gift or inheritance
  • Property acquired by exchange of properties
  • Personal Injury compensation
  • Passive appreciation of property
  • Future inheritance and future life insurance payments
  • Unvested retirement or pension benefits
  • Social Security
  • Stock plans as future incentive
44
Q

What are some factors considered in distributing marital property? (remember the catch-all!)

A
  • Duration of marriage
  • Tax consequences
  • Any facts that touch on the value of the property
  • Catch-All - any other factor that the court deems just and proper
45
Q

How does NY treat professional licenses for purposes of dealing with it fairly in a case for equitable distribution?

A

In New York, the court not only looks at the present value of the professional license, but also the **career potential enhancement **of that professional license in valuing the license.

46
Q

The equitable distribution of property is not a taxable event. The property is taxable when _______.

A

Sold

47
Q

What are the 3 types of Spousal Maintenance?

A
  • Pendente Lite - immediate support granted only during the divorce action
  • Short Term - preferred in new york
  • Long Term - as long as indefinitely
48
Q

What is the test for determining the amount of spousal support? (don’t forget the catch-all factor).

A

The actual living standard the parties enjoyed during the life of the marriage. (Catch-All factor: anything the court finds just and proper).

49
Q

What happens if the marital fault is egregious?

A

If you have a ground based on fault (e.g., cruel and inhuman treatment), and it is egregious enough, then it could impact the maintenence award and child custody.

50
Q

What is the burden of proof to modify a spousal maintenance award if there was a separation agreement?

A
  • Merger - significant change in circumstance
  • Incorporation - extreme hardship
51
Q
  • Spousal Maintenance ends with: ___________ or __________, but does not end with __________.
A
  • Death of the receiving spouse
  • Remarriage of the receiving spouse

Does not end with: cohabitation

52
Q
  • Can spousal maintenance arrears be modified?
  • Can arrears be discharged by death, remarriage, or cohabitation?
  • Can they be modified if they’ve been reduced to a judgment?
A

Yes, for a showing of good cause. They cannot be discharged by death, remarriage, or cohabitation. They cannot be modified if they’ve been reduced to a judgment.

53
Q

Can a party suspend spousal maintenance because of interference with visitation rights?

A

Yes, but may not suspend child support because of interference with visitation rights.

54
Q

Which two courts have jurisdiction over family law related matters and what do they have jurisdiction over?

A
  • Supreme Court
    • Exclusive jurisdiction over divorces and property distribution
  • Family Court
    • Concurrent jurisdiction: child support, maintenance, and child custody
    • Exclusive jurisdiction: child protection, juvenile delinquency, adoption, and PINs
    • None married parties must go to family court
55
Q

If both parties are New York residents, then it doesn’t matter how long the parties have lived in New York. If only one party lives in New York, then that party must have lived in New York for _______ year(s) and one of the following conditions must apply.

If none of the conditions are met, then one party must have continuously resided in New York for _______ year(s).

A
  • 1 year
  • Conditions:
    • Married in NY
    • Resided in NY as spouses; or
    • Cause of Action arose in NY
  • 2 years
56
Q

The court does not need to have ______________ over both parties, as long as court has _____________.

A
  • Personal jurisdiction
  • Subject matter jurisdiction
57
Q

The court must get Personal Jurisdiction over a non-resident defendant to deal with _________. (i.e., “related matters”).

What is another option to obtaining personal jurisdiction over the defendant?

A
  • Property distribution
  • Child support
  • Spousal maintenance
  • Child custody

Alternative to personal jurisdiction is doing a divisible divorce.

58
Q

New York long-arm statute provides for extension of jurisdiction when matrimonial and child support issues are combined. What needs to be proven?

A
  • New York was the matrimonial domicile before separation;
  • Defendant abandoned the plaintiff in NY;
  • Claim for relief accrued under NY law; or
  • Claim for relief is pursuant to an agreement that was agreed to in NY
59
Q

How can the non-appearing party attack a judgment in an ex parte divorce?

A

They cannot, unless they show the resident plaintiff was not actually in New York.

60
Q

If either party __________ on the divorce, it cannot be __________________.

A
  • Relies
  • Collaterally attacked
61
Q

When does New York recognize a foreign divorce? Ex parte foreign divorces or mail order foreign divorces are not recognized in New York.

A

When the foreign divorce is:

  • Finalized
  • Parties properly appeared
  • Petitioning spouse was a resident of that country
62
Q

It is unconstitutional to require fees that would preclude an indigent person from being able to divorce. There must be mechanism for ________________. But what is not required?

A
  • Fee waiver
  • No legal right to counsel
63
Q

How long does the obligation last for?

A
  • Age 21, or the rest of the child’s life if the child is incapable of support because of mental or physical challenges.
64
Q

New York allows that the court order a blood test. Parternity has to be proven by clearn and convincing evidence. What are the implications of the blood test results?

A
  • Negative - dismissal
  • Positive - need further evidence
65
Q

How soon and until when can a paternity proceeding be brought?

A
  • As early as during pregnancy
  • until the child reaches the age of 21.
66
Q

What are the two presumptions when a man will be considered the father of the child?

A
  1. If a woman is married, her husband at the time of the child’s birth is the child’s father.
  2. If a man holds himself out at the father and the child grew up understanding that he was the father.
67
Q

When the male does not appear the court may award ____________.

A

Temporary support

68
Q

What are the factors the court considers for an award of post-secondary obligations?

A
  • Financial means of both parties
  • Educational level of the parents
  • Environment the child grew up in
  • Academic ability of the child
69
Q

How is child support calculated?

A
  1. What is the combined income, from all sources, of the mother and father?
  2. Apply statutory percentage:
    • 1 - 17%
    • 2 - 25%
    • 3 - 29%
    • 4 - 31%
    • 5+ - 35%
  3. What percentage originally came from the father and mother, then apply those to the result from step 2.
70
Q

When may the court deviate from the child support guidelines? When it does deviate, what does the court consider?

A
  • When income exceeds $136,000; or
  • Specific finding warrrants deviation

What does the court consider - any relevant factor (Catch-all).

71
Q
A

NY Distinctions (3 decks)

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