Term
| What is the Marvin v. Marvin rule? |
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Definition
| Implied and explicit contract rights are found. Equitable distribution of property may be upheld based upon explicit contract, implied contract, and quantum meruit IF the agreement to provide support was not made solely in consideration for providing meretricious sexual services. |
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Term
| What is the rule in Hewitt v. Hewitt? |
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Definition
| Most conservative "meretricious relationship" rule: unmarried co-habitants do not have mutual property rights between them. |
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Term
| What is the rule in Morone v. Morone? |
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Definition
| Express, yes, implied, no. Cohabitation without marriage is not a bar to carrying out an express agreement (but not an implied contract) within the normal rules of contract law based on consideration other than sex. |
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Term
| What is the rule in Artiss v. Artiss? |
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Definition
| Everything goes. The court finds express, implied, and equitable contracts between unmarried co-habitants sufficient to warrant marriage remedies between the co-habitants. What is needed? Evidence of actual family-type relationship and ostensible family-type relationship. |
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Term
| What is the rule in Watts v. Watts? |
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Definition
| More liberal than Morone, less liberal than Marvin. Like Marvin v. Marvin, except that wife raised two kids and helped husband at work. If duties other than sex are provided by the woman, then implied or express contracts may be enforceable between them. |
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Term
| Elements for common law marriage? |
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Definition
1. CAPACITY (must be of age, must be single)
2. present mutual ASSENT to get married and stay married
3. COHABITATION
4. PUBLIC RECOGNITION of couple as husband and wife and public assumption of marital duties. |
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Term
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Definition
| Someone who believes himself or herself to be married in good faith and is given legal rights as a result of the reliance upon this good-faith belief. |
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Term
| sponsalia per verba de praesenti |
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Definition
| non-ceremonial marriage where the parties exchange promises that they will be man and wife from that moment on. |
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Term
| What happened to fathers' rights in Stanley v. Illinois? |
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Definition
| SCOTUS held that an Illinois statute violated Due Process and Equal Protection because it conclusively presumed every father of a child born out of wedlock to be a person unfit to have custody of his children. This presumption was held invalid because it automatically eliminated any custodial relationship without giving the father an opportunity to present evidence regarding his fitness as a parent. |
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Term
| What did fathers gain from Caban v. Mohammed? |
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Definition
| unwed mothers and unwed fathers must be treated the same (regarding adoption vetoes) where the father has a substantial relationship with the child. |
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Term
| What makes a good claim for "cruel and inhuman treatment" for a divorce grounds? |
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Definition
| Behavior that “endangers the physical or mental well being of the plaintiff as renders it unsafe or improper for the plaintiff to cohabit with the defendant." Brady v. Brady. |
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Term
| Connivance defense to adultery: |
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Definition
| Where the complaining spouse consented to and participated in the infidelity (participated in group sex, prostituted his wife, etc.) |
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Term
| Recrimination defense to divorce? |
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Definition
| Where the complaining spouse is also guilty of conduct that would provide grounds for divorce. |
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Term
| Condonation defense in divorce action? |
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Definition
| Complaining spouse knew about the wrongful behavior and forgave it, either explicitly or implicitly by behavior. |
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Term
| Provocation defense to divorce? |
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Definition
| Complaining spouse caused or encouraged the defendant to act in a certain way (e.g. battered wife leaves home - no action for abandonment.) |
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Term
| Collusion defense for divorce? |
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Definition
| Where the parties work together to fabricate the grounds for divorce. |
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Term
| What's the common law duty of spousal support? |
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Definition
| You have to cover the "necessaries" of life for the other person. If you don't, you can be guilty of a misdemeanor (VA) or just civilly liable for payment (CA). |
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Term
| What are the two considerations for equitable distribution? |
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Definition
| (1) What is the marital property, and (2) how should it be divided up? |
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Term
| Hardy v. Hardy illustrates what truth about equitable distribution? |
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Definition
| It often involves dividing debt, not assets. And it must be divided equitably, just like marital property. |
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Term
| What's the NY Equitable Distribution Law? |
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Definition
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Term
| Where does NY describe the differences between "marital property" and "separate property"? |
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Definition
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Term
| What does Dom Rel Law 240 deal with? |
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Definition
| Child support! It's the Child Support Standards Act (CSSA). |
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Term
| Where can you find the Child Support Standards Act? |
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Definition
| In Dom Rel Law Section § 240. |
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Term
| What part of the Domestic Relations Law controls distributive awards? |
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Definition
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Term
| What's the "3-step process" for determining child support pursuant to CSSA (Dom Rel Law 240)? |
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Definition
Step #1: compute "combined parental income" ("statutory income") and subtract any permissible deductions
Step #2: Multiply the combined parental income by the % listed on the chart (based on how many kids there are) and divide the amount among the parents, and
Step #3: If CPI is over $80k, the court will make any determination that seems fair per DRL 240 [1-b] |
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Term
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Definition
| to maintain the children's marital standard of living after their parents separate. |
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Term
| What are some of the income deductions allowable under the CSSA? |
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Definition
| 8! Unreimbursed biz expenses, alimony/maintenance paid to non-party spouse, alimony or maint. paid to party spouse, child support to 3d party child, public assistance, SSI, NYC tax, FICA taxes. |
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Term
| Main holding of Grunfeld v. Grunfeld? |
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Definition
| "A court may not award maintenance and the distribution of enhanced earnings attributable to a professional license from the same income stream." |
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Term
| Which NY statute controls equitable distribution? |
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Definition
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Term
| Which NY statute talks about determining maintenance? |
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Definition
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Term
| What is considered separate property? |
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Definition
| Assets owned before marriage, or gifts made during marriage which are not shared with the other spouse. |
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Term
| What is "active" v. "passive" property in marital property? |
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Definition
Active: the asset that spouse is devoting time to.
Passive: the asset that grows without spouse's effort. |
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Term
| Are royalties marital property? |
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Definition
| Yes! Royalties (residuals) due to author, who wrote the book during marriage, may be shared by spouse. Court may fashion a "sliding scale" percentage of spouse's royalties in the case of multiple editions of a textbook. |
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Term
| Holding of Blickstein v. Blickstein? |
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Definition
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Term
| Wasteful dissipation of marital assets: what if you misuse marital assets prior to the divorce? (Husband spends $$$ on his girlfriend prior to divorce.) |
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Definition
| Court, in its discretion, may increase distributive award to compensate for assets wasted by one of the spouses, esp. if it was spent as "sour grapes" prior to divorce proceeding. |
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Term
| Nigerian tribal chief with 20+ wives may have to pay $15k/month for his three children. |
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Definition
| Equitable distribution is available for people whose marriages are void! |
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Term
| Pre-nuptial agreements used to be called...? |
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Definition
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Term
| Three different kinds of ante-nuptial agreements? |
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Definition
(1) "Historic, traditional" agreement concerning property. Husband acquired much $$$ over his lifetime, which he wants his children to have.
(2) Modern pre-nup: made, not in contemplation of death, but in contemplation of divorce.
(3) Agreements not limited to finances, but include daily payment arrangements for dinner, housing, cars, education, etc. |
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Term
| "Reasonable disclosure" of assets under prenuptial agreements? |
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Definition
| Hard to define - has to be more than nothing, less than full. Estate of Benker. |
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Term
| Elective share - what is it? |
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Definition
| Wife's bedrock right to a portion of husband's assets, even if she has been cut out of the will. Does NOT overcome a valid antenuptial agreement. |
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Term
| What's the "reasonable" standard for pre/post-nuptial agreements in New York? |
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Definition
| DRL 236B(3): (1) Fair and reasonable at time of execution, and (2) not unconscionable at the time of judgment. |
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Term
| What's a conversion divorce? |
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Definition
| A year after a couple has filed a separation agreement, either party may go to court and request a divorce based upon the year-long separation agreement. |
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Term
| To what extent do courts listen to the preferences of the child in deciding custody cases? |
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Definition
| They pay more and more attention as the child grows up. |
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Term
| When is joint custody appropriate? |
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Definition
| It works best when the parents demonstrate that they can communicate and reach shared decisions that are in the best interests of the children. NOTE: in NY, court cannot order joint custody, although it can approve a petition for this by the parents. |
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Term
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Definition
| Parents share decision-making power, but not physical custody. |
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Term
| What is physical custody? |
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Definition
| A parent has the right to have a child live with him or her. |
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Term
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Definition
| Having the right and the obligation to make decisions about a child's upbringing. A parent with legal custody can make decisions about schooling, religion, and medical care |
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Term
| What's the default test in custody between parent and non-parent? |
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Definition
| In keeping a kid away from the natural parent, a two prong test: (1) extraordinary circumstances and (2) best interests of the child |
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Term
| Standard for modification of agreement or stipulation for custody? |
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Definition
| (1) substantial change of circumstances and (2) best interests of the child. |
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Term
| What's constitutes "substantial change of circumstances" for purposes of changing custody? |
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Definition
| One parent becomes an alcoholic, or a drug addict. Custodial parent moving really far away. Remarriage is NOT. Cohabitation is NOT. Child's wishes, YES, especially at an older age. Loss of job and money, NOT. Joining a cult, YES. |
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Term
| Friederwitzer v. Friederwitzer was an abberation - why? |
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Definition
| Because it depended on a straight "BIOTC" standard in changing custody rights, instead of the more accepted "substantial change of circumstances" PLUS BIOTC. |
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