Termination of Marriage Flashcards
Where do you bring an action to terminate a marriage?
ALL TYPES ARE BROUGHT IN THE SUPREME COURT (exclusive jurisdiction)
What are the 5 types of actions that can be brought in NY to end a marriage?
1- Action for Declaration of Nullity 2- Annulment 3- Action for Legal Separation 4- Action for Divorce 5- Action for Dissolution
Action for Declaration of Nullity
- Def
- Grounds (2)
DEF: the couple lacked capacity to marry AND the incapacity rendered their marriage VOID; the marriage is actually not a marriage at all; technically they don’t need this declaration, because their marriage is completely void, but it is still advisable to get
GROUNDS: (not waivable)
1- Bigamy
2- Incest- in order to have capacity to marry you cannot be too closely related to the person you are marrying (this is also a crime punishable w/ up to 6 months in prison in NY)
* can’t marry ancestors
* can’t marry descendants
* can’t marry siblings of the whole or half blood
* uncle & niece or aunt & nephew can’t marry
* CAN marry first-cousin
Action for Annulment
- Def
- Grounds: MID Fuck 5FN [just list, def’s are different cards]
DEF- brought where there was a lack of capacity to marry that rendered the marriage VOIDABLE, NOT VOID. Here, you need judicial action.
GROUNDS: (waivable, normally by continuing to cohabitate (live with + have sex) w/ the spouse after the ground becomes known)
1- one party was too young @ time of marriage
2- mental incapacity @ time of marriage
3- Duress
4- Fraud **
5- Incurable physical ability to engage in sexual intercourse
6- 5 years of incurable mental illness
Ground for Annulment: One party too young @ time of marriage
- Def
- Tricks
- in NY you have to be 18 to marry; if you marry younger, you have grounds for an annulment but we will treat you as married until you get the annulment; if you cohabitate (live together and fuck) after 18 then ground is waived
TRICKS
- court, in its discretion, can choose not to annul on this ground
- 16 or 17 can get married w/ consent of both parents
- 14 or 15 can get married w/ consent of both parents + judge
- under 14 can never lawfully marry
Ground for Annulment: Mental Incapacity @ Time of Marriage
- two ways this arises
- standing
1- Mental Illness- disease of the mind that makes it impossible for you to understand that you are getting married–> waived if you cohabitate after you recover from mental illness
2- Developmental disability- mental retardation –> theoretically waivable, but practically not b/c you never recover from a developmental disability
Annulment proceeding brought by gov’t while mentally incapacitated b/c mentally incapacitated person doesn’t have the capacity to litigate.
Ground for Annulment: Duress
- threat of force
- waived by staying cohabitating after the threat of force is used
Ground for Annulment: FRAUD
- how to waive
- sol
- elements (4)
- waivable by cohabitation (living + sex)
- even w/o cohabitation, you MUST bring suit w/in 3 years of learning of the fraud in order to get an annulment
ELEMENTS 1- MATERIAL (goes to an essential aspect of the marriage) 2- MISREP or CONCEALMENT of information 3- by one party PRIOR to the marriage 4- as an INDUCEMENT to marry
What qualifies as an “essential aspect of the marriage” for the material element of Fraud
- trivial lies & small secrets are NOT grounds for annulling a marriage
- lies a/b money, property, and social states are NOT essential aspects
- court has DISCRETION to determine what is a big enough misrep/secret
EXAMPLES OF ESSENTIAL ASPECTS
1- RELIGION:
- lie a/b what religion you are;
- lie a/b the intensity of your religious beliefs
2- PROCREATION
- if you know you are unable to bear or father children, and you are of an age where it would be expected that you could bear/father children, you need to share that information w/ your fiancé
- if you know that you carry some genetic disorder that would/could pass to kids, you need to share
- if you are pregnant at marriage and you tell the fiance that it is his when it isn’t
3- SEX
- MAJOR misreps about your sexual history (not just the usual rounding down of your #)
- prior prostitution
- LIES about sexual agenda, proclivities (aka secretly freaky)
Ground for Annulment: Incurable physical inability to engage in sexual intercourse
- will only come up if the couple has chosen to wait to have sex w/ each other until marriage
- MUST BE INCURABLE –> if it is transitory or temporary (performance anxiety, fatigue, due to use of drugs) than it is not grounds; if it can be cured by Viagra then it is not grounds;
- MUST BE PHYSICAL INABILITY- if you can physically fuck, but have psychological problems and wont, then it is not ground
- has nothing to do w/ ability to procreate; just have to be able to have sexual intercourse
- WAIVER– CANNOT be waived by cohabiting, b/c cohabitation by def requires sex – 5 year SOL
- ONLY GROUND THAT WON’T HAVE JURY TRIAL
Grounds for Annulment: 5 years of incurable mental illness
- sane when married but then insane for 5 years
- 3 court-appointed doctors must agree
Statute of Limitations for Annulment of Voidable Marriages
If no other SOL is specified, the residual 6 year SoL applies
- physically incapable of sex- 5 years
- fraud- 3 years
- under age- must be brought before 18th birthday
Action for Legal Separation
- def
- why get?
- judge or jury
Def- does NOT terminate the marriage, just determines the property and support rights that will be implemented when the couple moves into separate homes; separation can be permanent or temporary
WHY?
- benefits come along w/ being legally married (health insurance, taxes, etc.)
- moral & religious problems w/ getting a divorce
NO JURY
5 Grounds for Legal Separation
1- cruel & inhuman treatment
2- abandonment
3- adultery
4- three years of consecutive imprisonment
5- failure to support (the neglect or refusal to provide support if chargeable w/ such support; married person is chargeable w/ support of his spouse)
Cruel & Inhuman Treatment
- ground for legal separation AND ground for divorce
- physical and mental
- SERIOUS MISCONDUCT that endangers the well-being of the innocent spouse AND makes it unsafe or improper for the parties to continue to cohabit
- COHABITATION after treatment DOES NOT WAIVE in and of itself and is NOT AN AFFIRMATIVE DEFENSE; will be weighed by the court in determining whether cruel and inhuman treatment actually occurred
Abandonment as a Ground for Legal Separation (4 elements)
1- VOLUNTARY DEPARTURE from one spouse by the other
2- departure must be UNCONSENTED TO by the allegedly abandoned spouse
3- departure must be W/O JUSTIFICATION
4- departure must be w/ NO INTENT TO RETURN
NO STATUTE OF LIMITATIONS
Abandonment as a Ground for Divorce (5 elements)
1- VOLUNTARY DEPARTURE from one spouse by the other
2- for AT LEAST ONE FULL YEAR
3- departure must be UNCONSENTED TO by the allegedly abandoned spouse
4- departure must be W/O JUSTIFICATION
5- departure must be w/ NO INTENT TO RETURN
NO STATUTE OF LIMITATIONS
Constructive Abandonment
Elements of abandonment w/o actually departing
examples- permanent refusal to have sex; long silent treatment
Adultery
- grounds for what?
- def?
- affirmative defenses (4)
- ground for legal separation AND ground for divorce
- any act of sex or deviant sex VOLUNTARILY performed with another PERSON, not your spouse, during the marriage
- To state a claim on grounds of adultery, it is necessary to allege opportunity, inclination, and intent to commit adultery
AFFIRMATIVE DEFENSES
1- Condonation- equivalent of waiver; freely resume cohabitation after learning of adultery
2- Connivance- analogous to entrapment
3- Recrimination- analogous to having “unclean hands”; P also committed adultery [many states have abolished this defense, but it is still the law in NY]
4- statute of limitations- 5 years after discovery of the adultery
Three Years of Consecutive Imprisonment
- grounds for legal separation AND ground for divorce
6 Grounds for Action for Divorce in NY
1- cruel and inhuman treatment 2- abandonment for at least 1 full year 3- adultery 4- three consecutive years in prison 5- conversion divorce 6- Irretrievable Breakdown of Marriage/no-fault divorce
Elements for Conversion Divorce
1- couple must VALIDLY separate (either as a result of a court-ordered legal separation decree OR a valid separate agreement)
2- live separate and apart for 1 full year
3- after the year they can convert the separation into a divorce
How do you “validly” separate in order to get a conversion divorce?
1-Court-Ordered Legal Separation
- per se valid
2- Valid Separation agreement
- Requirements: (i) writing; (ii) acknowledged by notary public; (iii) freely made w/o duress or undue influence; (iv) filed w/ ct at some point before getting conversion divorce
- If you have sex w/ INTENT TO RECONCILE during the one year following a separation agreement, the sex is said to repeal the agreement & you have to start all over again
- If you violate a term of the agreement during the one year the other spouse can treat the breach as a repudiation, which terminates the agreement
The Irretrievable Breakdown of the Marriage for a Period of At Least Six Months
- ground for divorce; aka no-fault divorce
- relationship has broken down for at least 6 months AND one party has so stated under oath
ISSUE
we don’t know whether the testimony of one party under oath that there has been an irretrievable breakdown is enough, on its own, to satisfy this ground for divorce. Some trial judges proceed to trial and want more proof that the marriage is broken and has been broken for 6 months, OTHER trial judges grant the divorce based on one spouses testimony
ENTRY of Divorce
divorce will not be entered until there is an agreement for division of money, custody, providing for children
Action for Dissolution
- way to terminate a marriage in NY
- spouse has been missing, “WITHOUT ANY TIDINGS,” for the last 6 years.
- effectively a determination that the spouse has died
REQUIREMENTS
1- demonstrate that you made a diligent search for spouse
2- publish in an english-language newspaper, for 3 consecutive weeks, a request that your spouse return
3- party seeking dissolution must have lived in NY for at least 1 year ORRRR NY must have been the matrimonial domicile @ time of disappearance
NOTE: no collateral remedies (like division of property or alimony) in a dissolution proceeding b/c it is a declaration that the other spouse is dead
Automatic Orders
- the minute one of the 5 types of actions to end a marriage is filed, certain AUTOMATIC orders kick in, included: no sale of assets, no concealment of assets, no incurring unusual debts, no changing any insurance coverage
ALSO, NOTE: o In all matrimonial cases (except dissolution), the parties are obligated to make full financial disclosures a/b their net worth & file their tax returns w/ the court
What happens to separation agreements after a divorce decree is entered?
A separation agreement is presumed to be incorporated and survives a divorce decree unless the agreement specifically directs a merging of the decree. Under DRL, if a separation agreement is incorporated and survives the divorce decree, the court may modify the provision relating to maintenance only if the petitioning party makes a showing of extreme hardship.
NOTE: if it was a separation decree, the modification standard would be changed circumstances.
Ps Proof Requirements for ANNULMENT
P MUST PROVE-
- there has been no cohabitation btw the parties that would bar a judgment of annulment
- in actions based on retardation or incompetence, prove that the condition persists
- a declaration or confession by merely one party is insufficient; other satisfactory evidence is required
Ps Proof Requirements to get a SEPARATION OR DIVORCE based on ADULTERY
- proof may be circumstantial evidence; it must show opportunity, inclination, and intent.
- Admission w/o corroboration will not support the decree
- BoP is a “fair preponderance of the credible evidence”
- corroboration is required for testimony by detectives and prostitutes; and unpaid friend is not a detective
- husband and wife cannot testify against one another in an action based on adultery except to: (i) prove the marriage; (ii) disprove the adultery; and (iii) disprove a defense after the intro of evidence tending to prove it
