Termination of Marriage Flashcards
5 ways to terminate a marraige
- Declaration of nullity (void for lack of capacity)
2. Annulment (voidable for capacity issue)
- Declaration of nullity def? 2. 2 reasons for lack of capacity?
1.One party lacked capacity at time of marriage, rendering marriage void.
2. (A) Bigamy = void b/c no capacity
(B) Incest = void (can marry 1st cousins)
Annulment: def? Reqs?
- Marriage VOIDABLE FOR CAPACITY ISSUE –> reqs judge granting annulment before you leave marriage
Grounds for anullment: 1. Mandatory or waivable? 2. What are the grounds (6)?
- Grounds for annulment are WAIVABLE if other spouse co-habits after discovery
- (A) Non-Age (party annulment in discretion of court, and you waive if you cohabit past age 18
(B) Mental incapacity at time of marriage (mental illness or developmental disability) -> waived if cohabit after regaining mental capacity
(C) Duress -> waived if you cohabit post-duress
(D) Fraud -> misrep or concealment that GOES TO VITAL OR ESSENTIAL ASPECT OF THE MARRIAGE (intentional lies about religion or ability to conceive or being whore)
(E) Incurable physical incapacity to have safe, normal sex (not about procreation) (bring this one within 5 years of marriage)
(F) Five years of insanity (3 ct appointed Drs agree) - Can’t waive this one
- Stat of lim to bring annulment action?
2. Jury trial for annulment?
- 3 years from date you find out.
2. No jury trial.
GROUND FOR ANNULMENT for misrepresentation or concealment about money, property, or social status?
No
Legal separation is a procedure that allows:
Live separate from spouse & adjudicates legal & child custody issues BUT LEAVES THE MARRIAGE INTACT.
Separation maintains healthcare rights through spouse’s employer, tax benefits, and ___________ upon ____________
Separation preserves pension rights of widow upon other spouse’s death.
- Separation cases done before jury?
2. Duiration of separation order?
- No jury for separation cases
2. Can be temporary or permanent
5 grounds for separation
- Cruelty (physical & mental abuse) endangering well-being of spouse rendering cohabitation unsafe or improper
- Abandonment (reqs D spouse UNJUSTIFIEDLY, VOLUNTARILY departs marriage w/o P spouse’s consent with no intent to return - abandoned needn’t require leaving home, can include not boning)
- Adultery (defenses: A. you cheated too; B. condoned/waived by spouse via cohabitation; C. connivance = spouse entrapped me; D. 5 year stat. lim) reqs 3rd party proof, not just cheated-on spouse
- 3 years of consecutive imprisonment
- failure to support
3 things you can do in response to physical abuse in marriage.
- separation
- divorce
- Protective order from family court on domestic violence grounds
Divorce: 6 grounds (1st four same as legal separation grounds)
- cruelty
- abandonment (of a full year)
- adultery
- 3 years of consecutive imprisonment
- CONVERSION divorce: 2 steps -> A. separation for a full year (litigated or by notarized K), B. convert it to divorce. During K separation, a reconciliation w/ intent to stay married = rescinded K separation.
- NO FAULT: marriage IRRETRIEVABLY BROKEN DOWN FOR > 6 MONTHS. Proven by one party so testifying under oath. Divorce not final until all collateral issues are decided (kids, property, alimony).
Dissolution of marriage used when? Reqs?
When spouse has DISAPPEARED without any tidings for a PERIOD OF FIVE YEARS
Reqs: 1. diligent search; 2. post request in english newspaper that spouse return for 3 weeks; 4. P lives in NY for year or NY is matrimonial domicile.
- Automatic orders as of filing of complaint for termination of marriage proceedings do what?
- Persons seeking divorce each must disclose?
- Orders automatically freeze financial status quo (can’t move or transfer assets)
- Current financial state/assets etc.
Alimony in NY called?
Alimony called “MAINTENANCE”?