Terminating the Marriage

Question 1

What are the five causes of action that can be brought to terminate a marriage in NY?

Answer 1

1. Declaration of nullity
2. Annulment
3. Separation
4. Divorce
5. Dissolution

Question 2

When is a declaration of nullity appropriate?

Answer 2

When there was a lack of capacity prior to the marriage SO SEVERE that it makes the marriage void

(Bigamy and incest)

Question 3

What are the two grounds for a declaration of nullity?

Answer 3

1. Bigamy
2. Incest

Question 4

What are the incestuous relationships that would nullify a marriage in NY?

Answer 4

Marrying any of the following is forbidden in NY:

1. Ancestors
2. Descendants
3. Siblings of whole OR half blood
4. Lineal relatives up or down one generation (e.g., aunt or neice)

[NOTE: This means you CAN marry your FIRST COUSIN!!! Yeesh.]

[You can also marry a step-sibling or an adopted sibling!]

Question 5

What are the three familial relationships that would not constitute incest?

Answer 5

In NY, you MAY marry:

1. An extended family member removed by more than one generation (e.g., Great-aunt or Grand-neice);
2. Extended family members of your generation (i.e., your cousins); AND
3. Step-siblings or adopted siblings.

Question 6

If incest or bigamy comes up on the bar exam, what should you also write about?

Answer 6

Criminal law. Incest/bigamy is a crime.

Question 7

When are annulments proper?

Answer 7

When there was a capacity problem prior to marriage, but it was less serious than required for nullity;

i.e., the marriage is not per se void, but it is VOIDABLE upon order of the court.

Question 8

What are the six grounds for annulment in NY?

Answer 8

Annulment may be granted if, at the time of marriage, one party had:

1. Non-age (one party is under 18, lacking capacity, BUT SEE EXCEPTIONS);
2. Mental incapacity
3. Physical incapacity (incurable condition making sex impossible)
4. Duress (i.e., a marriage not freely entered into, e.g., Jethro and the literal shotgun wedding)
5. Fraud (misrepresentation or concealment of information prior to the marriage that GOES TO AN ESSENTIAL ASPECT OF THE MARRIAGE and is intended to deceive the other party)
6. Five years of incurable mental illness arising after the marraige

Question 9

What are the rules on being underage w/r/t marriage?

Answer 9

1. IF U18, you have grounds to annul the marriage (BUT annulment at Ct’s discretion!);
2. IF 16-18, you may get married WITH parental consent;
3. IF 14-16, you may get married WITH parental consent AND Judge consent; AND
4. IF U14, NO marriage

Question 10

What is required for fraud for the grounds for annulment?

Answer 10

A misrepresentation or concealment of information prior to the marriage that:

1. GOES TO AN ESSENTIAL ASPECT OF THE MARRIAGE, and
2. is intended to deceive the other party.

Question 11

What are common subjects of fact patterns speaking to the “essential aspects” w/r/t grounds for fraud?

Answer 11

1. Lying about religion IS grounds for fraud/annulment. (e.g., Saying you’re an Catholic but are really a Baptist; saying you’re not Orthodox Jewish but really are)
2. Lying about procreation or sex IS grounds for fraud/annulment. (e.g., High risk of carrying a birth defect; Lying about paternity of non-marital child to induce marriage; BIG lie about sexual history, e.g., HIV, being a prostitute, being super freaking kinky, etc.)
3. Lying about money, property, or social status IS NOT grounds for fraud/annulment.

Question 12

What are the three elements of physical incapacity for the purpose of annulment?

Answer 12

1. One party is physically incapable of having sex;
2. The incapacity is incurable (i.e., not temporary); AND
3. The incapacity is discovered for the first time after marriage (common sense, i.e., otherwise you would have discovered the problem earlier).

Question 13

When must a claim for annulment by reason of physical incapacity be brought?

Answer 13

Within five years of the marriage date.

Question 14

What is required to show five years of incurable mental illness arising after the marriage?

Answer 14

1. One party develops insanity after the marriage;
2. The insanity persists for at least five years;
3. The insanity in incurable; AND
4. The party’s mental condition is confirmed by THREE court-appointed experts.

[N.B. No time limit for bringing the claim}

Question 15

What are the five grounds for separation?

Answer 15

1. Cruel and inhuman treatment (D’s conduct is so extreme it renders it unsafe or improper for P to cohabitate with D);
2. Abandonment;
3. Three consecutive years of imprisonment during marriage;
4. Adultery;

(1-4 are the same as Divorce) PLUS:

5. Failure to support spouse (spouses owe each other reciprocal duties of support)

Question 16

What is abandonment?

What are the four elements?

Answer 16

The voluntary departure of one spouse from the marriage. Elements:

1. Voluntary departure
2. Without consent from the other partner
3. Without justification, AND
4. With no plans to return

[ANY PERIOD OF ABANDONMENT IS SUFFICIENT, provided the four elements are met!]

Question 17

When is adultery NOT grounds for separation? (4 times)

Answer 17

Adultery not grounds IF:

1. The P also committed adultery;
2. The aggrieved party forgives cheating party (“condonation”);
3. The D can show that the P deceived him into committing adultery (“connivance”); OR
4. P fails to commence action within five years of DISCOVERY of the adultery.

Question 18

What are the six grounds for divorce in NY?

Answer 18

1. Cruel and inhuman treatment;
2. Abandonment (for AT LEAST 1yr - distinguish from separation);
3. Three consecutive years of imprisonment during marriage;
4. Adultery;

(1-4 are the same as Separation) PLUS:

5. Conversion divorce (parties may convert a separation into divorce AFTER at least one year living separately); AND
6. Irretrievable breakdown of the marriage for at least six months (NY’s no-fault ground for divorce).

Question 19

What is required to show irretrievable breakdown of a marriage?

Answer 19

Mere testimony of one party that the marriage is irretrivably broken AND has been for AT LEAST 6 MONTHS.

Question 20

When is a dissolution action appropriate?

Answer 20

When a party has not heard anything from his spouse for at least five years

(Essentially a judicial declaration of missing spouse’s death)

Question 21

What is required by a party prior to bringing an action for dissolution of the marriage?

Answer 21

1. P must conduct a diligent search for missing spouse;
2. P must publish a request in an English-language newspaper that the missing spouse come home (!); AND
3. P must be a NY resident for at least 1yr prior to bringing the action OR NY was the place of marriage